CHAPTER 171

FORMERLY

HOUSE BILL NO. 154

AS AMENDED BY HOUSE AMENDMENT NO. 2 AND

SENATE AMENDMENT NO. 1

AN ACT TO AMEND CHAPTERS 9 AND 11 OF TITLE 13 OF THE DELAWARE CODE RELATING TO TERMINATION OF PARENTAL RIGHTS AND ADOPTION.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF DELAWARE :

Section 1. Amend Section 904, Chapter 9, Title 13 of the Delaware Code by adding a subsection (e) to read as follows:

“(e) An adoptive placement shall not be made until a pre-placement evaluation that complies with the Delaware Requirements for Child Placing Agencies has been completed by the Department or licensed agency."

Section 2. Amend Section 913, Chapter 9, Title 13 of the Delaware Code by deleting the portion of subsection (a) from the number “1” to the word “supervision” and inserting in lieu thereof the following:

“6 months by the Department or licensed agency.”

Section 3. Amend Section 918, Chapter 9, Title 13 of the Delaware Code by deleting the phrase “2 years” and inserting in lieu thereof the phrase “6 months”.

Section 4. Amend Section 1103(b), Chapter 11, Title 13 of the Delaware Code by deleting the phrase “by the other parent”.

Section 5. Amend Section 1105, Chapter 11, Title 13 of the Delaware Code by deleting the phrase “to enable the Court to determine what further steps, if any, should be taken” in subsection (a)(9) and inserting in lieu thereof the following:

“. This information shall include a statement that the petitioner has inquired to determine whether the woman who gave birth to the child was married at the probable time of conception of the child, or at a later time, and whether the woman has named any individual as the father on the birth certificate of the child.”

Section 6. Further amend Section 1105, Chapter 11, Title 13 of the Delaware Code by deleting the current subsection (b) and inserting in lieu thereof the following:

“(b) Executed consents and written certifications required by Section 1106 and waivers of notice as permitted by Section 1106A of this title shall accompany the petition as exhibits.”

Section 7. Further amend Section 1105, Chapter 11, Title 13 of the Delaware Code by inserting “one week prior to” in between the phrases “no later than” and “the date of” in subsection (c).

Section 8. Amend Section 1106, Chapter 11, Title 13 of the Delaware Code by inserting the phrase “provided the requirements of subsections (c) and (d) are met” after the phrase “when given” in subsection (b).

Section 9. Further amend Section 1106, Chapter 11, Title 13 of the Delaware Code by deleting subsections (c) through (e) in their entirety and inserting in lieu thereof the following:

“(c) A mother whose consent to the termination of parental rights is required may execute a consent only after the child is born. Consent by the father or presumed father may be executed either before or after the child is born. A consent executed by a parent or guardian must be signed or confirmed in the presence of:

(1) a judge of a court of record;

(2) an individual designated by a judge to take consents;

(3) an employee designated by an agency to take consents;

(4) a lawyer other than a lawyer who is representing an adoptive parent or the agency to which parental rights will be transferred;

(5) a commissioned officer on active duty in the military service of the United States, if the individual executing the consent is in military service; or

(6) an officer of the foreign service or a consular officer of the United States in another country, if the individual executing the consent is in that country.

The Court may accept a parent or guardian’s verbal consent after a verbal review on the record of the information required pursuant to Section 1106A of this chapter.

(d) An individual before whom a consent is signed or confirmed under subsection (c) shall certify in writing or orally before the Court that he or she explained the contents and consequences of the consent, and to the best of his or her knowledge or belief, the individual executing the consent:

(1) read or was read the consent and understood it;

(2) entered into the consent voluntarily; and

(3) if the individual executing the consent is a parent who is a minor, was advised by a lawyer who is not representing an adoptive parent or the agency to which parental rights are being transferred.

(e) Every petition shall be accompanied by a formal written consent executed by the person or persons for whom or the organization to which parental rights are requested to be transferred indicating that the person or persons or organization agrees to accept parental rights over the child .

(f) Once the requirements of subsections (c) and (d) have been met, the consent to termination and transfer of parental rights is irrevocable unless the requirements of Section 1106B(a) have been met.”

Section 10. Amend Chapter 11 of Title 13 of the Delaware Code by adding a new section 1106A to read as follows:

“1106A – Contents of Consent to Terminate and Transfer Parental Rights

(a) A consent required from a parent or guardian must contain:

(1) the date, place and time of the execution of the consent;

(2) the name, date of birth, and current mailing address of the individual executing the consent;

(3) the date of birth and the name or pseudonym of the child;

(4) the name, address and telephone number of the agency to which parental rights are being transferred;

(5) information regarding the birth parent’s right to file a notarized statement pursuant to Section 923(b) of this Title regarding access by the child to identifying information regarding the birth parent, if the child is adopted;

(6) a statement that the individual executing the consent understands that after the consent is signed and confirmed pursuant to Sections 1106(c) and (d), it is final and may not be revoked or set aside for any reason unless the requirements of 1106B(a) have been met;

(7) a statement that the individual executing the consent understands that the termination will extinguish all parental rights and obligations of the individual executing the consent has with respect to the child, except for arrearages of child support;

(8) a statement that the individual executing the consent has received a copy of the consent; and

(9) a statement that the individual executing the consent has not received or been promised any money or anything of value for the consent.

(b) A consent may contain a statement that:

(1) the individual who is consenting waives notice of any proceeding for termination of parental rights under Section 1107A; and/or

(2) the consent may be revoked if:

a. another consent is not executed within a specified period; or

b. a court decides not to terminate another individual’s parental rights in the child.”

Section 11. Amend Chapter 11 of Title 13 of the Delaware Code by adding a new section 1106B to read as follows:

" § 1106B – Revocation of Consent to Termination and Transfer of Parental Rights

(a) A consent may be revoked if:

(1) within 14 days of executing the consent, the parent who executed the consent notifies in writing the agency or individual to which the parental rights had been transferred, that the parent revokes the consent; or

(2) the parent complies with any other instructions for revocation which were specifically set forth in the consent; or

(3) the individual who executed the consent and the agency or individual that accepted the consent agrees to its revocation.

(b) The Court shall set aside a consent if the individual who executed the consent establishes:

b (1) by clear and convincing evidence, before a decree of adoption is issued, that the consent was obtained by fraud or duress; or

(2) by a preponderance of the evidence that a condition permitting revocation, as expressly provided for in the consent, has occurred.

(c) If consent is revoked pursuant to this section, custody of the child shall be determined as follows:

(1) If the individual who executed the consent had legal and physical custody of the child when the consent was executed, legal and physical custody of the child shall be immediately returned to the individual, unless the child is dependent or neglected;

(2) If the individual who executed the consent did not have legal and/or physical custody of the child when the consent was executed, custody of the child shall revert to the individual or organization that held custody at the time the consent was executed. If alternative grounds under Section 1103 for termination of parental rights exist, the petitioner may proceed on those grounds.”

Section 12. Amend Section 1107, Chapter 11, Title 13 of the Delaware Code by striking the section in its entirety and inserting in lieu thereof the following:

"§ 1107. Hearing procedure.

(a) When a petition for the termination of parental rights is filed in which the Department or licensed agency is a party to the proceedings, the Court shall set a date for hearing thereon, and shall cause notice of the time, place and purpose of the hearing to be served as required in Section 1107A.

(b) When a petition for termination of parental rights is filed and the Department or licensed agency is not a party to the proceeding, the Court shall, before any hearing, order a social study and report on the petition, by the Department or a licensed agency, to be filed within 4 months, subjected to such additional time as the Court shall determine is reasonably required. The Court shall set a date for a hearing to take place after the report is to be filed and notice shall be accomplished as provided in Section 1107A.

(c) All hearings shall be held before the Court privately, but for reasons appearing sufficient to the Court the hearing in any particular case may be public.”

Section 13. Amend Chapter 11, Title 13 of the Delaware Code by adding a new Section 1107A to read as follows:

Ҥ 1107A РNotice of Hearing to Terminate and Transfer Parental Rights

(a) Notice of the time, place and purpose of the hearing shall be served upon the parent or parents, person or persons or organization holding parental rights at the respondent’s last known address or to the address recited in the petition.

(b) No such notice of hearing shall be necessary if a waiver executed by the parent or parents, person or persons or organization holding parental rights has been filed with the petition, in accordance with Section 1106A(b) of this title. The court may require notice to be served upon any other person or organization.

(c) If, at any time in a proceeding for termination of parental rights, the Court finds that an unknown father of the child may not have received notice, the Court shall determine whether he can be identified. The determination must be based on evidence that includes a review of:

(1) the information required by Section 1105(a)(9) of this title;

(2) whether the woman has filed for or received payments or promises of support, other than from a governmental agency, with respect to the child or because of her pregnancy; and

(3) whether any individual has formally acknowledged or claimed paternity of the child.

(d) If inquiry pursuant to subsection (c) identifies as the father of the child an individual who has not received notice of the proceeding, the Court shall require notice to be served upon him pursuant to this Section.

(e) If, in an inquiry pursuant to this Section, the woman who gave birth to the child and who is consenting to the termination of her parental rights fails to disclose the identity of a possible father or reveal his whereabouts, she must be advised by the petitioner that the proceeding for adoption may be delayed or subject to challenge if a possible father is not given notice of the proceeding and that the lack of information about the father’s medical and genetic history may be detrimental to the child.

(f) If the Court shall find that personal service within the State cannot be accomplished upon the parent or parents, person or persons or organization holding parental rights, the Court shall then cause notice of the time, place and purpose of the hearing to be published once a week, for 3 successive weeks, in such newspaper of the county, 1 or more, as the Court may judge best for giving the parent or parents, or person or persons or organization holding parental rights notice, the formal wording of said notice to be approved by the Court. Publication shall also be made in the locality in which the parent or parents, person or persons or organization holding parental rights is believed to be located if different from the county where the publication just described has been caused. The Court may, upon request by the petitioner, order that personal service and publication occur simultaneously.

(g) If any publication is ordered pursuant to subsection (f) of this section, the court shall also order that the Clerk of the court, at least 3 weeks prior to the hearing, send by regular and registered or certified mail to the parent or parents or person or persons or organization holding parental rights, at the address or addresses given in the petition, a copy of the same notice, or a similar notice of the time, place and purpose of the hearing.

(h) Personal service at any time prior to the hearing shall be sufficient to give jurisdiction.

(i) Notice provided pursuant to this Section shall constitute conclusive evidence of service and a hearing will then proceed at the time and date set, with or without the appearance of the parent or parents, person or persons or organization so notified.”

Section 14. Amend Section 1109, Chapter 11, Title 13 of the Delaware Code by inserting “/or” between the phrases “mother and” and “the father”.

Section 15. Further amend Section 1109, Chapter 11, Title 13 of the Delaware Code by inserting the phrase “parent or” between the phrases “the deceased” and “parents to the Department”.

Section 16. Further amend Section 1109, Chapter 11, Title 13 of the Delaware Code by removing the period “.” at the end of subsection (4) and inserting the following in lieu thereof:

“; and

(5) A statement that petitioner has explored the possibility of placement of the child with blood relatives and the results of such efforts.”

Section 17. Amend Section 1107, Chapter 11, Title 13 of the Delaware Code by deleting its current title in its entirety and inserting the following in lieu thereof:

"Time for Hearing and Preparation of Social Report."

Section 18. If any provision of this Act or the application thereof to any person or circumstances is held invalid, the invalidity shall not affect other provisions or applications of the Act which can be given effect without the invalid provision or application, and to this end the provisions of this Act are severable.

Section 19. The provisions of this Act shall apply to any cases in which the termination of parental rights petition is filed on or after the date this Act is enacted into law.

Approved July 12, 2001