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3/28/95
The Committee that acted for the National Conference of Commissioners on Uniform State Laws in preparing the Uniform Adoption Act (1994) was as follows:
ORLAN L. PRESTEGARD, 430 Orchard Drive, Oregon, WI 53575, Co-Chair
ROBERT C. ROBINSON, P.O. Box 568, 12 Portland Pier, Portland, ME 04112,
Co-Chair
RHODA B. BILLINGS, Wake Forest University, School of Law, P.O. Box 7206,
Winston-Salem, NC 27109
JOHN L. McCLAUGHERTY, P.O. Box 553, Charleston, WV 25322
MERRILL MOORES, 244 North College Avenue, Indianapolis, IN 46202
RICHARD L. MORNINGSTAR, Room 11132, 1100 New York Avenue, Washington,
DC 20527
ROSSELLE PEKELIS, Court of Appeals, One Union Square, 600 University Street,
Seattle, WA 98101
ARTHUR H. PETERSON, 350 North Franklin Street, Juneau, AK 99801
ELWAINE F. POMEROY, 1415 S.W. Topeka Boulevard, Topeka, KS 66612
BATTLE R. ROBINSON, Family Court Building, 22 The Circle, Georgetown,
DE 19947
MICHAEL B. UNHJEM, 4510 13th Avenue, S.W., Fargo, ND 58121
JAMES E. VIDAL, P.O. Box 728, 22 Second Avenue, West, Kalispell, MT 59901
JOAN H. HOLLINGER, University of California, School of Law, Boalt Hall, Berkeley,
CA 94720, Reporter
RICHARD C. HITE, 200 West Douglas Avenue, Suite 630, Wichita, KS 67202,
President
DAVID PEEPLES, Court of Appeals, Bexar County Justice Center, Suite 3200,
300 Dolorosa, San Antonio, TX 78205, Chair, Division F
FRED H. MILLER, University of Oklahoma, College of Law, 300 Timberdell Road,
Norman, OK 73019, Executive Director
WILLIAM J. PIERCE, 1505 Roxbury Road, Ann Arbor, MI 48104,
Executive Director Emeritus
MARY ELLEN SEAWORTH, P.O. Box 34, 421 Demers Avenue, Grand Forks,
ND 58206, Chair
FRED C. CORNISH, Suite 917, 321 South Boston Avenue, Tulsa, OK 74103
BRUCE MUNSON, Revisor of Statutes Bureau, Suite 800, 131 West Wilson Street,
Madison, WI 53703
JOEL D. TENENBAUM, American Bar Association
M. DEE SAMUELS, American Bar Association
JUDITH SPERLING NEWTON, American Bar Association, Section of Family Law
JOAN ZELDON McAVOY, National Council for Adoption
KAREN R. LANE, American Academy of Adoption Attorneys
KATE BURKE, American Adoption Congress
CAROLE J. ANDERSON, Concerned United Birthparents, Inc.
BRICE M. CLAGETT, New England Historic Genealogical Society
L. JEAN EMERY, Child Welfare League of America, Inc.
JANET FENTON, Concerned United Birthparents, Inc.
JEFFREY A. KRAUSMAN, Pro-Adoption Coalition of Iowa
SUSAN K. KRAUSMAN, Pro-Adoption Coalition of Iowa
MONICA FARRIS LINKNER, Parents for Private Adoption and The Family Tree
STANTON E. PHILLIPS, American Academy of Adoption Attorneys
WILLIAM L. PIERCE, National Council for Adoption
SAMUEL C. TOTARO, JR., National Council for Adoption
§ 1-101 Definitions
§ 1-102 Who may adopt or be adopted
§ 1-103 Name of adoptee after adoption
§ 1-104 Legal relationship between adoptee and adoptive parent after adoption
§ 1-105 Legal relationship between adoptee and former parent after adoption
§ 1-106 Other rights of adoptee
§ 1-107 Proceedings subject to the Indian Child Welfare Act
§ 1-108 Recognition of adoption decree in another jurisdiction
§ 2-101 Who may place minor for adoption
§ 2-102 Direct placement for adoption by parent or guardian
§ 2-103 Placement for adoption by agency
§ 2-104 Preferences for placement when agency places a minor
§ 2-105 Recruitment of adoptive parents by agency
§ 2-106 Disclosure of information on background
§ 2-107 Interstate placement
§ 2-108 Intercountry placement
§ 2-201 Preplacement evaluation required
§ 2-202 Preplacement evaluator
§ 2-203 Timing and content of preplacement evaluation
§ 2-204 Determining suitability to be adoptive parent
§ 2-205 Filing and copies of preplacement evaluation
§ 2-206 Review of evaluation
§ 2-207 Action by department
§ 2-301 "Health-care facility" defined
§ 2-302 Authorization to transfer physical custody
§ 2-303 Reports to department
§ 2-304 Action by department
§ 2-401 Persons whose consent required
§ 2-402 Persons whose consent not required
§ 2-403 Individuals who may relinquish minor
§ 2-404 Time and prerequisites for execution of consent or relinquishment
§ 2-405 Procedure for execution of consent or relinquishment
§ 2-406 Content of consent or relinquishment
§ 2-407 Consequences of consent or relinquishment
§ 2-408 Revocation of consent
§ 2-409 Revocation of relinquishment
§ 3-101 Jurisdiction
§ 3-102 Venue
§ 3-201 Appointment of lawyer or guardian ad litem
§ 3-202 No right to jury
§ 3-203 Confidentiality of proceedings
§ 3-204 Custody during pendency of proceeding
§ 3-205 Removal of adoptee from State
§ 3-301 Standing to petition to adopt
§ 3-302 Time for filing petition
§ 3-303 Caption of petition
§ 3-304 Content of petition
§ 3-305 Required documents
§ 3-401 Service of notice
§ 3-402 Content of notice
§ 3-403 Manner and effect of service
§ 3-404 Investigation and notice to unknown father
§ 3-405 Waiver of notice
§ 3-501 Authorization
§ 3-502 Timing and content of petition
§ 3-503 Service of petition and notice
§ 3-504 Grounds for terminating relationship
§ 3-505 Effect of order granting petition
§ 3-506 Effect of order denying petition
§ 3-601 Evaluation during proceeding for adoption
§ 3-602 Content of evaluation
§ 3-603 Time and filing of evaluation
§ 3-701 Time for hearing on petition
§ 3-702 Disclosure of fees and charges
§ 3-703 Granting petition for adoption
§ 3-704 Denial of petition for adoption
§ 3-705 Decree of adoption
§ 3-706 Finality of decree
§ 3-707 Challenges to decree
§ 3-801 Report of adoption
§ 3-802 Issuance of new birth certificate
§ 4-101 Other provisions applicable to adoption of stepchild
§ 4-102 Standing to adopt minor stepchild
§ 4-103 Legal consequences of adoption of stepchild
§ 4-104 Consent to adoption
§ 4-105 Content of consent by stepparent's spouse
§ 4-106 Content of consent by minor's other parent
§ 4-107 Content of consent by other persons
§ 4-108 Petition to adopt
§ 4-109 Required documents
§ 4-110 Notice of pendency of proceeding
§ 4-111 Evaluation of stepparent
§ 4-112 Dispositional hearing; decree of adoption
§ 4-113 Visitation agreement and order
§ 5-101 Who may adopt adult or emancipated minor
§ 5-102 Legal consequences of adoption
§ 5-103 Consent to adoption
§ 5-104 Jurisdiction and venue
§ 5-105 Petition for adoption
§ 5-106 Notice and time of hearing
§ 5-107 Dispositional hearing
§ 5-108 Decree of adoption
§ 6-101 Records defined
§ 6-102 Records confidential, court records sealed
§ 6-103 Release of nonidentifying information
§ 6-104 Disclosure of identifying information
§ 6-105 Action for disclosure of information
§ 6-106 Statewide registry
§ 6-107 Release of original birth certificate
§ 6-108 Certificate of adoption
§ 6-109 Disclosure authorized in course of employment
§ 6-110 Fee for services
§ 7-101 Prohibited activities in placement
§ 7-102 Unlawful payments related to adoption
§ 7-103 Lawful payments related to adoption
§ 7-104 Charges by agency
§ 7-105 Failure to disclose information
§ 7-106 Unauthorized disclosure of information
§ 7-107 Action by department
§ 8-101 Uniformity of application and construction
§ 8-102 Short title
§ 8-103 Severability clause
§ 8-104 Effective date
§ 8-105 Repeals
§ 8-106 Transitional provisions
The guiding principle of the Uniform Adoption Act is a desire to promote the welfare of children and, particularly, to facilitate the placement of minor children who cannot be raised by their original parents with adoptive parents who can offer them stable and loving homes. The Act is premised on a belief that adoption offers significant legal, economic, social and psychological benefits not only for children who might otherwise be homeless, but also for parents who are unable to care for their children, for adults who want to nurture and support children, and for state governments ultimately responsible for the well-being of children.
The Act aims to be a comprehensive and uniform state adoption code that: (1) is consistent with relevant federal constitutional and statutory law; (2) delineates the legal requirements and consequences of different kinds of adoption; (3) promotes the integrity and finality of adoptions while discouraging "trafficking" in minors; (4) respects the choices made by the parties to an adoption about how much confidentiality or openness they prefer in their relations with each other, subject, however, to judicial protection of the adoptee's welfare; and (5) promotes the interest of minor children in being raised by individuals who are committed to, and capable of, caring for them.
The most striking characteristic of contemporary adoptions is the variety of contexts in which they occur. Of the 130,000 or more adoptions that are granted each year, over half are adoptions of minor children by stepparents or relatives. Perhaps another 15-20% or more are of older children, many of whom have previously been shunted back and forth between their birth families and foster care. Many of these children come to their adoptive parents with serious psychological or physical problems that will require years of treatment and loving parental attention. Approximately 7,000-10,000 adoptions of foreign born children occur annually despite the intricate web of domestic and foreign regulations that adoptive parents have to contend with in order to complete their families. In recent years, no more than 25-30% of all adoptions involve infants adopted by unrelated adults. For an analysis of the limited data available on different kinds of adoptions and an overview of contemporary adoption practice, see Adoption vol. 3 Future of Children (Packard Fdtn, 1993).
At present, the legal process of adoption is complicated not only by the different kinds of children who are adopted and the different kinds of people who seek to adopt, but also by an extraordinarily confusing system of state, federal, and international laws and regulations. Despite allegedly common goals, state adoption laws are not and never have been uniform, and there now appear to be more inconsistencies than ever from one state to another. There are no clear answers to such basic questions as who may place a child for adoption, whose consent is required and when is consent final, how much money can be paid to whom and for what, how much information can or should be shared between birth and adoptive families, what makes an individual suitable as an adoptive parent, and what efforts are needed to encourage the permanent placement of minority children and other children with special needs who languish in foster care. Hundreds of thousands of children in this country need permanent homes, and hundreds of thousands of adults have at least some interest in adoption but are often discouraged by the confusing laws and procedures as well as by high financial and emotional costs.
To reduce this confusion - which confounds consensual adoptions and not only the relatively small number that are contested - the National Conference of Commissioners on Uniform State Laws has approved a Uniform Adoption Act to enable the States to respond more flexibly and reasonably to the changing social, economic and constitutional character of contemporary adoption practice.
In examining virtually every aspect of adoption practice, the Drafting Committee was assisted by its Reporter, Law Professor Joan Heifetz Hollinger, the principal author and editor of Adoption Law and Practice 2 vol.(Matthew Bender Co., 1988, Supp. 1989-94), representatives from the Family Law Section of the American Bar Association, and dozens of advisers representing a wide array of professional and citizens organizations. After extensive discussion of the Act at five successive Annual Meetings, the Conference overwhelmingly approved it as a Uniform Act in August 1994.
The Act meets the changing psychosocial and economic aspects of contemporary adoptions by addressing the many different kinds of adoption that now occur and the different functions they serve. Adoptions may be characterized according to the kind of individuals being adopted - minors or adults, born in this country or foreign born, with or without special needs, with or without siblings. They may also be characterized according to the kind of individuals who are adopting - married couples, single individuals, stepparents, individuals previously related or unrelated to an adoptee. Another way to characterize adoptions is according to the type of placement - direct placement by a birth parent with an adoptive parent selected by the birth parent with or without the assistance of a lawyer or an agency, or placement by a public or private agency that has acquired custody of a minor from a birth parent through a voluntary relinquishment or an involuntary termination of parental rights. A fourth way to characterize adoptions is by the nature of the proceeding - contested or uncontested.
The Act goes beyond existing statutory laws to create a coherent framework for legitimizing and regulating both direct-placement and agency-supervised adoptions. The Act will facilitate the completion of consensual adoptions and expedite the resolution of contested adoptions. By promoting the integrity and finality of adoptions, the Act will serve the interests of children in establishing and maintaining legal ties to the individuals who are committed to, and capable of, parenting them. More specifically:
(1) The Act protects minor children against unnecessary separation from their birth parents, against placement with unsuitable adoptive parents, and against harmful delays in determination of their legal status.
(2) The Act protects birth parents from unwarranted termination of their parental rights. Minor children may not be adopted without parental consent or appropriate grounds for dispensing with parental consent. The Act attempts to ensure that a decision by a birth parent to relinquish a minor child and consent to the child's adoption is informed and voluntary. Once that decision is made, however, and expressed before a judge or another individual who is not implicated in any actual or potential conflict of interest with the birth parent, the decision is final and, with very few exceptions, irrevocable.
Involuntary as well as voluntary termination proceedings conform to constitutional standards of due process, but an individual's biological ties to a child are not alone sufficient to bestow full parental rights on that individual. The Act protects the parental status of biological parents who have actually functioned as a child's parents.
(3) The Act protects adoptive parents and adopted children by providing them with whatever information is reasonably available at the time of placement about the child's background, including health, genetic, and social history, and by providing access in later years to updated medical information.
(4) The Act discourages unlawful placement activities within and across state and national boundaries by keeping track of minor children once they have been placed for adoption, distinguishing between lawful and unlawful adoption-related expenses and activities, insisting that agencies, lawyers, and other providers of professional services explain their adoption-related services and fees to people considering adoption, requiring judicial approval of adoption-related expenses, and imposing sanctions against unlawful activities.
(5) The Act encourages different kinds of people to adopt. No one may be categorically excluded from being considered as an adoptive parent. Nonetheless, preplacement (except in stepparent adoptions and when waived by a court for good cause) as well as post-placement evaluations of prospective adoptive parents are required, whether initiated by an agency or directly by a birth parent, in order to determine the suitability of particular individuals to be adoptive parents.
(6) Individuals who have served as a minor child's foster or de facto parents are given standing to seek to adopt the child, subject to the particular child's needs. Agencies receiving public funds are required actively to recruit prospective adoptive parents for children who are considered difficult to place because of their age, health, race, ethnicity, or other special needs. The Act prohibits the delay or denial of a child's adoptive placement solely on the basis of racial or ethnic factors. A child's guardian ad litem as well as other interested persons may seek equitable and other appropriate relief against discriminatory placement activities.
(7) The Act requires expedited hearings for contested adoptions and the appointment of a guardian ad litem for minor children whose well-being is threatened by protracted or contested proceedings. During a proceeding, courts are authorized and encouraged to make interim custody arrangements to protect minors against detrimental disruptions of stable custodial environments. Good faith efforts must be made to notify any parent or alleged parent whose rights have not previously been relinquished or terminated of the pendency of an adoption of the parent's child.
(8) The Act clarifies the relationship to adoption proceedings of the Uniform Child Custody Jurisdiction Act, the federal Parental Kidnapping Prevention Act, and the Interstate Compact on the Placement of Children. The Act supports the finality of adoption decrees by strictly limiting the time for appeals or other challenges and by presuming that a final order terminating parental rights or granting an adoption is valid. A final adoption may not be challenged by anyone for any reason more than six months after the order is entered. Even if a challenge is begun within that time, the adoption may not be set aside unless the challenger proves with clear and convincing evidence that the adoption is contrary to the child's best interests.
(9) The Act permits mutually agreed-upon communication between birth and adoptive families before and after an adoption is final. It also ensures that, except for consensual contacts, the privacy and autonomy of adoptive and birth families will be fully protected. The Act's mutual consent registry is a "user friendly" approach to the issue of whether and when to release identifying information among birth parents, adoptees, and other members of an adoptee's birth and adoptive families. This balanced and uniform procedure can be the basis of a national interstate network for the consensual disclosure of identifying information.
(10) The Act clarifies the legal and economic consequences of different types of adoption so that, within these formal structures, the emotional and psychological aspects of adoptive parent and child relationships can flourish.
SECTION 1-101. DEFINITIONS. In this [Act]:
(1) "Adoptee" means an individual who is adopted or is to be adopted.
(2) "Adult" means an individual who has attained 18 years of age.
(3) "Agency" means a public or private entity, including the department, that is authorized by the law of this State to place individuals for adoption.
(4) "Child" means a minor or adult son or daughter, by birth or adoption.
(5) "Court," with reference to a court of this State, means the [appropriate court].
(6) "Department" means the [department of social services, or health services, or children's services].
(7) "Guardian" means an individual, other than a parent, appointed by an appropriate court as general guardian or guardian of the person of a minor.
(8) "Legal custody" means the right and duty to exercise continuing general supervision of a minor as authorized by law. The term includes the right and duty to protect, educate, nurture, and discipline the minor and to provide the minor with food, clothing, shelter, medical care, and a supportive environment.
(9) "Minor" means an individual who has not attained 18 years of age.
(10) "Parent" means an individual who is legally recognized as a mother or father or whose consent to the adoption of a minor is required under Section 2-401(a)(1). The term does not include an individual whose parental relationship to a child has been terminated judicially or by operation of law.
(11) "Person" means an individual, corporation, limited liability company, business trust, estate, trust, partnership, association, agency, joint venture, government, governmental subdivision or instrumentality, public corporation, or any other legal or commercial entity.
(12) "Physical custody" means the physical care and supervision of a minor.
(13) "Place for adoption" means to select a prospective adoptive parent for a minor and transfer physical custody of the minor to the prospective adoptive parent.
(14) "Relative" means a grandparent, great grandparent, sibling, first cousin, aunt, uncle, great-aunt, great-uncle, niece, or nephew of an individual, whether related to the individual by the whole or the half blood, affinity, or adoption. The term does not include an individual's stepparent.
(15) "Relinquishment" means the voluntary surrender to an agency by a minor's parent or guardian, for purposes of the minor's adoption, of the rights of the parent or guardian with respect to the minor, including legal and physical custody of the minor.
(16) "State" means a State of the United States, the District of Columbia, the Commonwealth of Puerto Rico, or any territory or insular possession subject to the jurisdiction of the United States.
(17) "Stepparent" means an individual who is the spouse or surviving spouse of a parent of a child but who is not a parent of the child.
"Child" is defined as a son or daughter by birth or adoption because biological and adopted children may be adults as well as minors and because the legal consequences of adoption are not limited to adoptees who are minors. The relationship of "parent and child" referred to in the Act is not limited to the rights and duties that exist between a parent and a child under the age of 18. This relationship includes the legal rights and duties that exist between a parent and a child of any age.
"Legal custody" is distinguished from "physical custody" because a person with whom a minor is actually living may not be the same or the only person who has the legal right to make decisions about the minor's care or the legal responsibility to provide that care. This distinction is important, for example, in determining who has the legal authority to place a minor for adoption. See Section 2-101.
"Parent" is defined to include any legally recognized mother or father - anyone recognized in this State or elsewhere as having the legal status of mother or father. Also included in the term are the women and men, other than a minor's guardian, whose consent to the adoption of a minor is required by the Act - these are the women and men who are probably recognized by most States as legal mothers or fathers. Excluded from the term "parent" are women and men whose status as legal mothers or fathers has been terminated in a judicial proceeding or "by operation of law," as, for example, is the fate in most States of egg or sperm donors who are not intended social parents. Also excluded are women or men who may be candidates for the legal designation of mother or father but who have not yet been recognized as such - for example, an alleged father who is not married to a birth mother, or a prospective adoptive parent who hopes to become a legally recognized parent but must await judicial approval of the proposed adoption. The Act does not refer to a child's parents at birth as the "natural" parents because to do so might imply that it is "unnatural" to be an adoptive parent. Moreover, the increasing use of artificial insemination, in vitro fertilization, embryo transfers, and other forms of "assisted conception" to create children makes it all the more difficult to know who is the most likely candidate for the designation of "natural" parent.
"Place for adoption" is defined as encompassing both the selection of a prospective adoptive parent and the transfer of a minor's physical custody to this individual. Article 2, Part 1, recognizes two kinds of adoptive placements: (1) direct placement, and (2) placement by an agency.
SECTION 1-102. WHO MAY ADOPT OR BE ADOPTED. Subject to this [Act], any individual may adopt or be adopted by another individual for the purpose of creating the relationship of parent and child between them.
No one is categorically excluded by the Act from being considered as a prospective adoptee or as a prospective adoptive parent. Determinations concerning the availability and suitability of individuals to become each other's adoptive parent or child are to be made on the basis of the particular needs and characteristics of each individual. A specific minor will not become available for adoption, for example, unless the parents of the minor consent to a direct adoptive placement, relinquish their parental rights to an agency, or have their parental rights terminated by a court. A specific individual will not be entitled to adopt a minor unless the individual is favorably evaluated as suitable to adopt, obtains custody of a minor from a person authorized to place the minor for adoption, and is permitted to adopt by a court upon a finding that the adoption is in the minor's best interests. Marital status, like other general characteristics such as race, ethnicity, religion, or age, does not preclude an individual from adopting, but, if a prospective adoptive parent is married, his or her spouse has to join in the petition. See Section 3-301.
SECTION 1-103. NAME OF ADOPTEE AFTER ADOPTION. The name of an adoptee designated in a decree of adoption takes effect as specified in the decree.
For the contents of the decree of adoption, see Section 3-705.
SECTION 1-104. LEGAL RELATIONSHIP BETWEEN ADOPTEE AND ADOPTIVE PARENT AFTER ADOPTION. After a decree of adoption becomes final, each adoptive parent and the adoptee have the legal relationship of parent and child and have all the rights and duties of that relationship.
Sections 1-104 through 1-106 state the most generally accepted legal consequences of adoption: (1) the adoptee becomes in all respects the child of the new adoptive parents; (2) except for the circumstances referred to in Section 1-105, any rights and duties of the adoptee's former parents (i.e., former adoptive or presumed parents as well as birth parents) which have not previously been terminated - are terminated; and (3) the adoptee retains any right or benefit acquired before the decree of adoption becomes final. See Section 3-706 to determine when the decree becomes final.
The Act defers to the State's probate and other laws for determining how an adoptee's status as the child of the adoptive parents affects their rights to intestate succession and inheritance by, from, and through each other, as well as the adoptee's rights to support, to be a beneficiary of any donative disposition, including class gifts, and to receive wrongful death proceeds, survivor's benefits, educational, insurance, medical, and other third party or public benefits.
SECTION 1-105. LEGAL RELATIONSHIP BETWEEN ADOPTEE AND FORMER PARENT AFTER ADOPTION. Except as otherwise provided in Section 4-103, when a decree of adoption becomes final:
(1) the legal relationship of parent and child between each of the adoptee's former parents and the adoptee terminates, except for a former parent's duty to pay arrearages for child support; and
(2) any previous court order for visitation or communication with an adoptee terminates.
Except in an adoption by a stepparent, the consequences of an adoption are generally to terminate all aspects of the relationship of parent and child between the adoptee and the adoptee's former legal parents, including the rights of the adoptee and the adoptee's former parents to inheritance or intestate succession by, from, and through each other. Because the adoptee is no longer the legal "child" of a birth parent, the adoptee is similarly no longer the grandchild of a former grandparent, the sibling of a former sibling, and so on. The Act defers to the State's probate laws for the consequences of an adoption for class gifts and other donative dispositions in an instrument executed before or after the adoption becomes final by an adoptee or an adoptee's former parent or relative. See Section 4-103 for the consequences of an adoption by a stepparent.
Except in an adoption by a stepparent, the Act terminates any previous order for visitation or communication with an adoptee but leaves to other law of the State whether agreements for post-adoption visitation or communication are enforceable in a separate civil action. Nonetheless, Section 3-707(c) provides that the validity of an adoption cannot be challenged for failure to comply with such an agreement. Therefore, an agreement for post-adoption visitation or communication, while not prohibited by the Act, has no effect on the fundamental consequence of an adoption, which is to terminate the parental relationship between the child and the former parents and to create the relationship of parent and child in all respects between the adoptive parents and the adopted child.
SECTION 1-106. OTHER RIGHTS OF ADOPTEE. A decree of adoption does not affect any right or benefit vested in the adoptee before the decree becomes final.
The Act protects an adoptee's interest in any right or benefit acquired - vested - before the adoption is final. Section 3-706 indicates when and for what purposes a decree of adoption is "final." For example, an adoptee may become entitled to insurance proceeds or Social Security benefits or to a share of the estate of a birth parent or relative before the decree of adoption or a court order terminating the relationship between the adoptee and the birth parent is issued - in other words, before the adoptee is the legal child of the adoptive parents. Another possibility is that in the interim between being placed for adoption and the entry of the adoption decree, the adoptee may acquire a vested right to take from some donative instrument or from a publicly funded program, such as a federal or state subsidy for children with special needs.
SECTION 1-107. PROCEEDINGS SUBJECT TO INDIAN CHILD WELFARE ACT. A proceeding under this [Act] which pertains to an Indian child, as defined in the Indian Child Welfare Act, 25 U.S.C. Sections 1901 et seq., is subject to that Act.
The provisions of the Indian Child Welfare Act (ICWA), including the provisions that determine whether a tribal or a state court has exclusive or concurrent jurisdiction, preempt this Act whenever an adoptive placement, a consent or relinquishment, a proceeding to terminate parental rights, or an adoption proceeding pertains to an "Indian child." The ICWA defines "Indian child" as an unmarried individual under 18 who is either a member of an Indian tribe or eligible for membership by virtue of being the biological child of a tribal member; 25 U.S.C. § 1903(3). A parent or guardian executing a consent or relinquishment under this Act must state that the minor adoptee is not within ICWA's definition of Indian child, Section 2-406(d)(5), and the court, when granting an adoption, has to indicate if ICWA is applicable to the proceeding, and if so, that its requirements were met. See Section 3-703(a)(8).
SECTION 1-108. RECOGNITION OF ADOPTION IN ANOTHER
JURISDICTION. A decree or order of adoption issued by a court of any other State which is entitled to full faith and credit in this State, or a decree or order of adoption entered by a court or administrative entity in another country acting pursuant to that country's law or to any convention or treaty on intercountry adoption which the United States has ratified, has the same effect as a decree or order of adoption issued by a court of this State. The rights and obligations of the parties as to matters within the jurisdiction of this State must be determined as though the decree or order were issued by a court of this State.
This section provides that an adoption has the same effect in this State as it has in the State that approved the adoption if it is entitled to full faith and credit. A final decree or order of adoption is entitled to full faith and credit either under Article 4, Section 1 of the U.S. Constitution or under the Parental Kidnapping Prevention Act (PKPA), 28 U.S.C.A. 1738A.
Under the principle of comity for final judgments from other countries, an adoption granted by a court or administrative entity in another country is entitled to recognition in this State as if it were an adoption granted by a court of this State if it is issued pursuant to that country's law or to any convention or treaty ratified by the United States. This section should enable residents of this State who have adopted a child in another country, and who are permitted to bring their adopted child to this country by the Immigration and Naturalization Services, to ensure recognition of the foreign adoption decree simply by registering it with a state court or the Registrar of Vital Statistics. Although a "second" adoption in this State should not be necessary, the status of foreign adoptions will be clarified if and when the United States ratifies and implements the Hague Convention on Intercountry Adoption approved by fifty-five countries in May 1993.
By its own terms and in accordance with Section 5-101, this article applies to the adoption of unemancipated minors and in accordance with Section 5-101 to incompetent adults by unrelated individuals and by relatives. Article 5 applies to the adoption of adults and emancipated minors and Article 4 applies to the adoption of minors by their stepparents or other individuals who, with the consent of the custodial parent and the court, are permitted to adopt under Article 4.
Unlike many current adoption statutes, the Act defines "place for adoption," Section 1-101(13); specifies the individuals or entities who may place a minor and states the other prerequisites for a valid placement, Part 1 of this article; and provides sanctions for unlawful placement activities, Article 7. The Act recognizes a legitimate role for various providers of professional services in connection with an adoption and requires that they disclose the nature of their services and their fee schedules to birth parents and prospective adopters. See Section 2-102(e) for direct placements and Section 2-103(a) for placements by agencies. The Act provides, however, that the only persons who may actually select an adoptive parent and authorize a transfer of the minor's physical custody are a parent with legal and physical custody of a minor, a guardian with specific judicial authorization to place a minor, or an agency with legal custody of a minor and authorization from a parent, a guardian, or a court to place the minor for adoption.
SECTION 2-101. WHO MAY PLACE MINOR FOR ADOPTION.
(a) The only persons who may place a minor for adoption are:
(1) a parent having legal and physical custody of the minor, as provided in subsections (b) and (c);
(2) a guardian expressly authorized by the court to place the minor for adoption;
(3) an agency to which the minor has been relinquished for purposes of adoption; or
(4) an agency expressly authorized to place the minor for adoption by a court order terminating the relationship between the minor and the minor's parent or guardian.
(b) Except as otherwise provided in subsection (c), a parent having legal and physical custody of a minor may place the minor for adoption, even if the other parent has not executed a consent or a relinquishment or the other parent's relationship to the minor has not been terminated.
(c) A parent having legal and physical custody of a minor may not place the minor for adoption if the other parent has legal custody or a right of visitation with the minor and that parent's whereabouts are known, unless that parent agrees in writing to the placement or, before the placement, the parent who intends to place the minor sends notice of the intended placement by certified mail to the other parent's last known address.
(d) An agency authorized under this [Act] to place a minor for adoption may place the minor for adoption, even if only one parent has executed a relinquishment or has had his or her parental relationship to the minor terminated.
Subsection (a) specifies the persons who may "select a prospective adoptive parent for a minor and transfer physical custody of the minor to the prospective adoptive parent," as provided in the definition of "place for adoption" in Section 1-101(13). To protect minors against careless or unsupervised adoptive placements, a guardian, defined in the Act as a "general guardian or guardian of the person of a minor," Section 1-101(7), is not authorized to place the minor for adoption unless expressly authorized to do so by a court pursuant to the State's guardianship laws. Such authority is not likely to be granted unless the child's parents are deceased or otherwise incapacitated or have had their parental rights terminated.
Subsection (b) allows an "at risk" placement by one parent if that parent has both legal and physical custody of the child, and subsection (d) allows an "at risk" placement by an agency. The risk, which is generally thought to be low, is that the consent, relinquishment, or termination of the rights of the other parent will not occur and, as a result, the adoption will not be completed. The advantage of this kind of placement is that the child will be transferred to the home that is most likely to become the permanent adoptive home and will be spared an interlude in one or more foster homes. Before accepting custody of the child, the prospective adoptive parents must have a favorable preplacement evaluation, Part 2 of this article (unless waived by a court for good cause), will be informed of the risks of the placement, and must have agreed in writing to provide medical and other care and support for the child pending execution of the requisite consents or relinquishments. See Section 2-102(d).
Subsection (c) provides that when both parents share legal custody, or one parent has legal custody and the other has a right of visitation, the parent having legal and physical custody cannot place a child without the other parent's written permission or without notifying the other parent of the intended placement. This provision is much less likely to affect the parents of an infant than of an older child when the parents - whether divorced or never married to each other - are subject to a court order for custody and visitation. One parent will be discouraged from attempting to place the child for adoption when the other parent maintains an actual and not simply de jure relationship to the child. If that parent can object to the placement while it is being contemplated, instead of after it has been made, the child can be spared the disruption of being shifted from one custodial environment to another. Nonetheless, if that parent does object or does not reply to the notice, and the parent who intends to place the child believes there are sufficient grounds to terminate the rights of the other parent - for example, a consistent failure to support and communicate with the child - the prospective adoptive parents can go ahead and file a petition for adoption. See Section 3-301. In conjunction with that petition, the parent who has selected the prospective adopters can file a petition to terminate the other parent's relationship to the child. See Section 3-501(1). If a custodial parent wants his or her spouse to adopt the child, a "placement" as contemplated by this part is not required and the parent and stepparent may commence an adoption proceeding under Article 4, in which case the status of the other parent will be determined during the pendency of that proceeding.
SECTION 2-102. DIRECT PLACEMENT FOR ADOPTION BY PARENT OR GUARDIAN.
(a) A parent or guardian authorized to place a minor directly for adoption may place the minor only with a prospective adoptive parent for whom a favorable preplacement evaluation has been prepared pursuant to Sections 2-201 through 2-206 or for whom a preplacement evaluation is not required under Section 2-201(b) or (c).
(b) A parent or guardian shall personally select a prospective adoptive parent for the direct placement of a minor. Subject to [Article] 7, the parent or guardian may be assisted by another person, including a lawyer, health-care provider, or agency, in locating or transferring legal and physical custody of the minor to a prospective adoptive parent.
(c) A prospective adoptive parent shall furnish a copy of the preplacement evaluation to the parent or guardian and may provide additional information requested by the parent or guardian. The evaluation and any additional information must be edited to exclude identifying information, but information identifying a prospective adoptive parent need not be edited if the individual agrees to its disclosure. Subject to [Article] 7, a prospective adoptive parent may be assisted by another person in locating a minor who is available for adoption.
(d) If a consent to a minor's adoption is not executed at the time the minor is placed for adoption, the parent or guardian who places the minor shall furnish to the prospective adoptive parent a signed writing stating that the transfer of physical custody is for purposes of adoption and that the parent or guardian has been informed of the provisions of this [Act] relevant to placement for adoption, consent, relinquishment, and termination of parental rights. The writing must authorize the prospective adoptive parent to provide support and medical and other care for the minor pending execution of the consent within a time specified in the writing. The prospective adoptive parent shall acknowledge in a signed writing responsibility for the minor's support and medical and other care and for returning the minor to the custody of the parent or guardian if the consent is not executed within the time specified.
(e) A person who provides services with respect to direct placements for adoption shall furnish to an individual who inquires about the person's services a written statement of the person's services and a schedule of fees.
Consistent with the prevailing law in all but a few States, the Act recognizes and protects the right of a child's parent to select adoptive parents for the child and to transfer physical custody of the child directly to the prospective parents. As of 1994, only Connecticut, Delaware, and Massachusetts continued to bar direct placement as defined in this Act. Even these States, however, allow agencies to make "identified" placements in which a birth parent participates in the selection of an adoptive parent.
In contrast to prevailing practice in most States, the Act requires a preplacement evaluation for direct parental placements (unless waived by a court for good cause) - often referred to as "private" or "independent" placements - as well as for placements made by agencies. In order to reduce the risks to children of being "distributed" to "strangers" whose parental capacities are unknown, birth parents or guardians of a minor who make a direct placement must limit their choice of adoptive parents to individuals who have had a favorable preplacement evaluation. An individual who places a minor with someone who has not had a favorable evaluation is subject to a civil penalty. See Section 7-101.
Although a birth parent or guardian may be "assisted" by others when making a direct placement, the parent or guardian must personally select a prospective adoptive parent on the basis of the information contained in the preplacement evaluation and any additional information provided at the parent's or guardian's request. Moreover, a person who assists in a direct placement may not charge a "finder's" fee or any similar fee for securing a placement, a consent, or a relinquishment. See Sections 7-101 and 7-102. Fees may be charged for lawful professional services rendered during an adoption. All service-providers must disclose in advance the nature of their services and their fees, subsection (e). See, also, Comment to Section 2-103.
The parent or guardian and the prospective adoptive parents may determine for themselves whether to share identifying information and whether to meet each other at the time of placement or at some later time.
Subsection (d) is consistent with the Act's requirement that an adoption based on a direct placement cannot be completed until at least three events occur: a parent or guardian has to place a minor with prospective adopters, the parent or guardian has to execute a consent to the proposed adoption, and the other parent's rights, if not previously terminated, have to be voluntarily or involuntarily terminated. Although they are not the only prerequisites for a valid adoption, these events are essential for an adoption begun through a direct placement.
It is not always possible for a consent to be executed before a child's physical custody is transferred to a prospective adoptive parent. In a direct placement of an infant, for example, the birth mother may release the infant to the prospective adopters from the hospital at least several days before she executes her consent. See Part 3 of this article.
To provide for a minor's care in the interlude between the transfer of physical custody and the execution of a consent, the individual who places the minor has to authorize the prospective adoptive parent to care for the minor pending the execution of the consent. The written authorization should specifically mention medical care so that, pursuant to many States' laws and the Employee Retirement Income Security Act (ERISA), 29 U.S.C.A. § 1169, upon completion of the adoption, the adoptee can be deemed a covered dependent under the adoptive parent's group health insurance plan from the date of placement and not simply from the date the decree becomes final. The authorization may also enable an adoptee with special needs to qualify for federal or state medical assistance programs.
A placement authorization should also indicate when the consent is likely to be executed, and include an acknowledgment by the prospective adoptive parents that, if the parent or guardian who placed the minor decides not to execute the consent at the specified time, the parent or guardian may immediately reclaim physical custody of the child. If the individual who placed the child neither consents nor refuses to consent at the specified time, but simply disappears, the prospective adoptive parents have the option of (1) reporting the disappearance to the department for possible action under the State's child protection laws or (2) filing a petition to adopt under Article 3, Part 3 along with a petition to terminate the parent's rights under Article 3, Part 5 or the guardian's right to withhold consent. See Section 2-402(b).
SECTION 2-103. PLACEMENT FOR ADOPTION BY AGENCY.
(a) An agency authorized to place a minor for adoption shall furnish to an individual who inquires about its services a written statement of its services, including the agency's procedure for selecting a prospective adoptive parent for a minor and a schedule of its fees.
(b) An agency that places a minor for adoption shall authorize in writing the prospective adoptive parent to provide support and medical and other care for the minor pending entry of a decree of adoption. The prospective adoptive parent shall acknowledge in writing responsibility for the minor's support and medical and other care.
(c) Upon request by a parent who has relinquished a minor child pursuant to [Part] 4, the agency shall promptly inform the parent as to whether the minor has been placed for adoption, whether a petition for adoption has been granted, denied, or withdrawn, and, if the petition was not granted, whether another placement has been made.
Agencies are required to disclose to birth parents, guardians, and prospective adoptive parents the agencies' fee schedules and their policies concerning "closed" or "open" adoptions, the role of birth parents in selecting adoptive parents, and the extent to which the agencies feel bound to honor a birth parent's request for adoptive parents with particular characteristics. It is anticipated that in formulating regulations to implement the Act, the States will draft sample forms for agencies, lawyers, social workers, and other adoption-service providers to report, advertise, and account for their services and fees. See, e.g., Michigan's required "public information forms" for adoption service providers, Mich. P.A. 209 of 1994, Sec. 14.
The Comment to Section 2-102 on the importance of a written authorization to prospective adoptive parents to provide medical care for an adoptee is also relevant to subsection (b) of this section.
Subsection (c) responds to the desire of many birth parents who voluntarily relinquish a child to be informed whether and when the child is adopted.
SECTION 2-104. PREFERENCES FOR PLACEMENT WHEN AGENCY PLACES MINOR.
(a) An agency may place a minor for adoption only with an individual for whom a favorable preplacement evaluation has been prepared pursuant to Sections 2-201 through 2-206. Placement must be made:
(1) if the agency has agreed to place the minor with a prospective adoptive parent selected by the parent or guardian, with the individual selected by the parent or guardian;
(2) if the agency has not so agreed, with an individual selected by the agency in accordance with the best interest of the minor.
(b) In determining the best interest of the minor under subsection (a)(2), the agency shall consider the following individuals in order of preference:
(1) an individual who has previously adopted a sibling of the minor and who makes a written request to adopt the minor;
(2) an individual with characteristics requested by a parent or guardian, if the agency agrees to comply with the request and locates the individual within a time agreed to by the parent or guardian and the agency;
(3) an individual who has had physical custody of the minor for six months or more within the preceding 24 months or for half of the minor's life, whichever is less, and makes a written request to adopt the minor;
(4) a relative with whom the minor has established a positive emotional relationship and who makes a written request to adopt the minor; and
(5) any other individual selected by the agency.
(c) Unless necessary to comply with a request under subsection (b)(2), an agency may not delay or deny a minor's placement for adoption solely on the basis of the minor's race, national origin, or ethnic background. A guardian ad litem of a minor or an individual with a favorable preplacement evaluation who makes a written request to an agency to adopt the minor may maintain an action or proceeding for equitable relief against an agency that violates this subsection.
(d) If practicable and in the best interest of minors who are siblings, an agency shall place siblings with the same prospective adoptive parent selected in accordance with subsections (a) through (c).
(e) If an agency places a minor pursuant to subsection (a)(2), an individual described in subsection (b)(3) may commence an action or proceeding within 30 days after the placement to challenge the agency's placement. If the individual proves by a preponderance of the evidence that the minor has substantial emotional ties to the individual and that an adoptive placement of the minor with the individual would be in the best interest of the minor, the court shall place the minor with the individual.
This section establishes a general order of preference for the adoptive placement of minors who are in the legal custody of an agency. When the State's responsibility for a minor's well-being is delegated to a public or private agency, the agency should make a placement that is responsive to public policies about the kind of placement that is most likely to be in a minor's best interest. Because the Act generally defers to an agency's exercise of its professional judgment, an agency may determine the extent to which birth parents can have a role in the agency's selection of adoptive parents. Once an agency has made this determination, however, it must abide by any assurances it gives to birth parents concerning their requests for certain kinds of adoptive parents from among the pool of applicants with favorable preplacement evaluations.
An agency may decide not to allow birth parents to participate in the selection of adoptive parents. This is likely to happen, for example, when the birth parents' rights are terminated involuntarily. If the agency does not agree to be bound by the parent's choice, the agency will have the discretion to select an adoptive parent from among the pool of applicants with favorable evaluations. In making its selection, the agency must consider the order of preference set forth in subsection (b) but is not bound by it if the agency believes that following it would not be in the best interests of a specific child. Included in this list, and particularly in subsection (b)(3), are individuals who have cared for the minor for a substantial period of time - for example, foster parents, relatives, stepparents, or other "de facto parents" who have had physical custody of the minor. What is most important about individuals in this category is that they must have an actual and beneficial, and not simply a formal relationship by consanguinity or affinity with the minor. If no one from this category seeks to adopt, or the agency determines that placement of the minor with someone in this category would not be appropriate, the agency may select an adoptive parent from among relatives who have a positive emotional relationship with the minor or from among the agency's general pool of applicants.
An agency may not delay or deny placement, however, solely on the basis of the minor's race, national origin, or ethnic identity, subsection (c). In this respect, the Act is responsive to constitutional principles, federal policy as expressed in the Multiethnic Placement Act of 1994, H.R.6-539, Sec. 551 et seq., data on the disproportionate number of minority children in agency custody who are adoptable, and the persuasive social science research on the harm to children who are denied stable placements. This section extends to agencies that are not recipients of federal funds the basic policies of the Multiethnic Placement Act of 1994 barring discriminatory placement activities in foster care or adoptive placements based solely on the "race, color, or national origin of the adoptive or foster parent, or the child, involved," H.R.6-539, Sec. 553. Moreover, this section allows a minor's guardian ad litem and certain prospective adoptive parents to seek equitable relief against an agency that unlawfully delays or denies a placement. Agencies are not precluded from considering the sensitivity of prospective adoptive parents to a minor's racial or ethnic background. Similarly, agencies may take into account a prospective parent's capacity to deal with any particular needs of a child and should recruit adoptive parents from diverse backgrounds for children who are awaiting placement. Nonetheless, race, national origin, or ethnicity, should not, by themselves, be the basis of a placement decision. See, Elizabeth Bartholet, Where Do Black Children Belong? 139 Univ. Pa. L. Rev. 1163 (1991); Comments on Bartholet's article by five adoption experts in 1 Reconstruction 22-54 (1992); Hearings on Multiethnic Placement Act of 1994; cf. position of National Association of Black Social Workers, Twila Perry, The transracial Adoption Controversy, 21 N.Y.U. Rev. Law & Soc. Change 33 (1994).
Subsection (e) permits an individual who previously had physical custody of a minor to seek judicial review of an agency's decision to reject that individual's request to adopt the minor. While not preventing an agency's exercise of discretion, this subsection, like the actions permitted by subsection (c) or, during a proceeding for adoption, by Section 2-402(b), may protect minors and prospective adoptive parents against the occasional unreasonable exercise of discretion by an agency. See, e.g., In re Petition to Adopt S.T. & N.T., 512 N.W.2d 894 (1994).
SECTION 2-105. RECRUITMENT OF ADOPTIVE PARENTS BY AGENCY. An agency receiving public funds pursuant to Title IV-E of the federal Adoption Assistance and Child Welfare Act, 42 U.S.C. Sections 670 et seq., or pursuant to [the State's adoption subsidy program], shall make a diligent search for and actively recruit prospective adoptive parents for minors in the agency's custody who are entitled to funding from those sources and who are difficult to place for adoption because of a special need as described in [the applicable law on minors with special needs]. The department shall prescribe the procedure for recruiting prospective adoptive parents pursuant to this section.
Consistent with federal and many state laws applicable to publicly-funded agencies, this section calls for diligent efforts to recruit adoptive parents who are capable of caring for minors with "special needs," especially those who, absent such efforts, are not likely to be adopted. The department may suggest the use of photo-listing services, interstate adoption exchanges, pamphlets describing the financial, medical, and other subsidies available to certain adoptees, educational programs about the challenges and benefits of raising children with special needs, and other means likely to diversify the pool of prospective adoptive parents. In cooperation with the federal Department of Health and Human Services, which administers Title IV-E and the Multiethnic Placement Act, the department can develop standards for compliance and sanctions for noncompliance with the requirements of this section. In addition, the department can use its general authority under Section 7-107 to review and investigate compliance with this Act to help ensure compliance with this section.
SECTION 2-106. DISCLOSURE OF INFORMATION ON BACKGROUND.
(a) As early as practicable before a prospective adoptive parent accepts physical custody of a minor, a person placing the minor for adoption shall furnish to the prospective adoptive parent a written report containing all of the following information reasonably available from any person who has had legal or physical custody of the minor or who has provided medical, psychological, educational, or similar services to the minor:
(1) a current medical and psychological history of the minor, including an account of the minor's prenatal care, medical condition at birth, any drug or medication taken by the minor's mother during pregnancy, any subsequent medical, psychological, or psychiatric examination and diagnosis, any physical, sexual, or emotional abuse suffered by the minor, and a record of any immunizations and health care received while in foster or other care;
(2) relevant information concerning the medical and psychological history of the minor's genetic parents and relatives, including any known disease or hereditary predisposition to disease, any addiction to drugs or alcohol, the health of the minor's mother during her pregnancy, and the health of each parent at the minor's birth; and
(3) relevant information concerning the social history of the minor and the minor's parents and relatives, including:
(i) the minor's enrollment and performance in school, results of educational testing, and any special educational needs;
(ii) the minor's racial, ethnic, and religious background, tribal affiliation, and a general description of the minor's parents;
(iii) an account of the minor's past and existing relationship with any individual with whom the minor has regularly lived or visited; and
(iv) the level of educational and vocational achievement of the minor's parents and relatives and any noteworthy accomplishments;
(4) information concerning a criminal conviction of a parent for a felony, a judicial order terminating the parental rights of a parent, and a proceeding in which the parent was alleged to have abused, neglected, abandoned, or otherwise mistreated the minor, a sibling of the minor, or the other parent;
(5) information concerning a criminal conviction or delinquency adjudication of the minor; and
(6) information necessary to determine the minor's eligibility for state or federal benefits, including subsidies for adoption and other financial, medical, or similar assistance.
(b) Before a hearing on a petition for adoption, the person who placed a minor for adoption shall furnish to the prospective adoptive parent a supplemental written report containing information required by subsection (a) which was unavailable before the minor was placed for adoption but becomes reasonably available to the person after the placement.
(c) The court may request that a respondent in a proceeding under [Article] 3, [Part] 5, supply the information required by this section.
(d) A report furnished under this section must indicate who prepared the report and, unless confidentiality has been waived, be edited to exclude the identity of any individual who furnished information or about whom information is reported.
(e) Information furnished under this section may not be used as evidence in any civil or criminal proceeding against an individual who is the subject of the information.
(f) The department shall prescribe forms designed to obtain the specific information sought under this section and shall furnish the forms to a person who is authorized to place a minor for adoption or who provides services with respect to placements for adoption.
The provisions requiring any person who places a minor for adoption to provide prospective adoptive parents, preferably before placement, with whatever information is "reasonably available" about a minor's medical, psychological, and social history, are among the Act's most significant contributions to the improvement of contemporary adoption practice. These provisions will encourage the development of protocols - like those being drafted by the American Academy of Pediatrics in cooperation with child welfare agencies and attorneys - for collecting information in a non-intrusive manner that respects individual privacy. These provisions will also encourage better training of medical personnel, social workers, and genetic counselors who are called upon to assist prospective adoptive parents in evaluating the needs of minor adoptees. See, Marianne Blair, Lifting the Genealogical Veil: A Blueprint for Legislative Reform, 70 N.C. L. Rev 681 (1992). In addition, the provisions in Article 6 for maintaining, updating, and disclosing nonidentifying information respond to the growing awareness that many birth parents are too young to have much medical history to report at the time of placement, but may develop conditions later on which adoptive families may want disclosed to them.
Although most States now require that some nonidentifying background information be furnished to adoptive parents, the statutes are not uniform. They vary greatly with respect to the type of information sought, procedures, timing, administrative oversight, duties of care, and rules on confidentiality. Very few statutes require that the information be furnished before placement, when it can have the most beneficial effect on the ability of prospective adoptive parents to make informed decisions about whether to adopt a particular child. Hardly any statutes refer to genetic history and, until quite recently, most adoption service providers had no training at all in how to collect or evaluate genetic information or health histories so that the information is not unduly alarming to the prospective parents.
This section also protects against the random disclosure of confidential information and the use in civil or criminal proceedings of any information compiled pursuant to this section against an individual who is the subject of the information. For example, a parent's disclosure of drug addiction will not be admissible evidence in any proceeding involving the parent's alleged violation of other laws.
The reports required by this section must be included and retained in the permanent court records of the adoption proceeding. See Section 3-305(a)(7) and Article 6.
Article 7 provides sanctions and permits individual causes of action for unauthorized disclosures of information and for breaches of the statutory duty to provide information that is "reasonably available." See, e.g., Burr v. Bd. of Co. Comm., 491 N.E.2d 1101 (Ohio 1986) (public agency intentionally misrepresented biological family history, leaving adoptive parents unprepared for the child's later development of multiple neurological disorders); Gibbs v. Ernst, 615 A.2d 851 (Pa. App. 1993) (agency liable for failures to disclose child's history of physical and sexual abuse, leaving adoptive parents unprepared to deal with child's uncontrollably violent behavior); Blair, Liability for Misconduct in Disclosure of Health-Related Information, ch. 16, Adoption Law and Practice (J.H. Hollinger, ed. 1988-94).
SECTION 2-107. INTERSTATE PLACEMENT. An adoption in this State of a minor brought into this State from another State by a prospective adoptive parent, or by a person who places the minor for adoption in this State, is governed by the laws of this State, including this [Act] and the Interstate Compact on the Placement of Children.
Interstate placements are subject to the provisions of the Interstate Compact on the Placement of Children (ICPC) which has been enacted in all States and the District of Columbia. Like the ICPC, this Act is committed to serving the best interests of minor adoptees. This Act's most important provisions are fully compatible with ICPC policies and, indeed, are more comprehensive because they apply not only to interstate adoptive placements, but to all adoptive placements: intrastate as well as interstate, direct as well as agency placements, adoptions of older children and children with special needs as well as of infants. Among the provisions of this Act that are compatible with the ICPC are: (1) the precise delineation of lawful and unlawful placement activities, (2) the specific penalties for unlawful activities, (3) the requirements for preplacement and post-placement evaluations, (4) "tracking" the whereabouts of infants released from hospitals or birthing centers for purposes of adoption, (5) informing birth parents of the consequences of adoption and protecting them against the unwarranted termination of their parental rights, and (6) ensuring that some person is responsible for the care and financial support of a minor during the pendency of an adoption proceeding.
The jurisdictional and choice of law provisions of the Act are intended to reduce the uncertainty that too often surrounds interstate placements. These provisions are consistent with appellate court decisions and scholarly opinions that the Uniform Child Custody Jurisdiction Act (UCCJA) and the federal Parental Kidnapping Prevention Act (PKPA), 28 U.S.C.A. 1738A, determine which courts may appropriately exercise jurisdiction over all or some aspects of an adoption proceeding. Once a court exercises jurisdiction, the ICPC helps determine the legality of an interstate placement. See, e.g., In re Zachariah Nathaniel K., 6 Cal. App. 4th 1025, 8 Cal. Rptr.2d 423 (1992) (the UCCJA and federal PKPA determine which State's courts have subject matter jurisdiction over birth mother's execution of, or withdrawal, of consent); H.H.Clark, Jr., The Law of Domestic Relations vol. 2 596-599 (2nd ed. 1987).
When a parental consent or relinquishment is executed or parental rights are terminated in State A - in ICPC terminology, a "sending State" - and a minor is then transferred to State B - an ICPC "receiving State" - where the adoptive parents reside, and a proceeding for adoption is commenced in State B, this Act provides that the laws of State B, which include the ICPC, govern the proceeding. This is perfectly consistent with the ICPC requirement that the laws of the receiving State, State B, apply to an interstate placement. Under this Act, a consent, relinquishment, or termination will be valid if in accord with the laws of either State A or State B, Section 2-405(i), and State B's court will determine their validity during the adoption proceeding.
SECTION 2-108. INTERCOUNTRY PLACEMENT. An adoption in this State of a minor brought into this State from another country by a prospective adoptive parent, or by a person who places the minor for adoption in this State, is governed by this [Act], subject to any convention or treaty on intercountry adoption which the United States has ratified and any relevant federal law.
SECTION 2-201. PREPLACEMENT EVALUATION REQUIRED.
(a) Except as otherwise provided in subsections (b) and (c), only an individual for whom a current, favorable written preplacement evaluation has been prepared may accept custody of a minor for purposes of adoption. An evaluation is current if it is prepared or updated within the 18 months next preceding the placement of the minor with the individual for adoption. An evaluation is favorable if it contains a finding that the individual is suited to be an adoptive parent, either in general or for a particular minor.
(b) A court may excuse the absence of a preplacement evaluation for good cause shown, but the prospective adoptive parent so excused must be evaluated during the pendency of the proceeding for adoption.
(c) A preplacement evaluation is not required if a parent or guardian places a minor directly with a relative of the minor for purposes of adoption, but an evaluation of the relative is required during the pendency of a proceeding for adoption.
The Act requires that individuals who want to adopt be evaluated so that: (1) questions about their suitability to be adoptive parents can be addressed and (2) persons authorized to place minors for adoption can determine who is suitable as a prospective parent for a specific minor. The provisions governing preplacement evaluations in this part are compatible with ICPC requirements for interstate placements and are based to a large extent on analogous provisions in the Arizona, Florida, Michigan, New York, and Washington statutes.
Although an increasing number of States require preplacement evaluations for direct as well as for agency placements, most States require only post-placement evaluations - typically called "home studies" - for direct placement adoptions. By requiring a preplacement evaluation for direct as well as agency adoptions, the Act will have a substantial and beneficial effect on direct placements. There is no credible evidence that adoptive parents with whom a child has been placed directly by a birth parent are any less capable as parents than adoptive parents selected by public or private agencies. Nonetheless, more widespread use of preplacement evaluations will alleviate concerns about whether direct placements pose any risks to children.
Under some circumstances, a waiver of the preplacement evaluation may be warranted, especially if a refusal to grant a waiver is more harmful than beneficial to a minor. For example, if an agency has placed a minor with a foster parent during the pendency of a child protection proceeding and, after the minor's parents' rights are terminated, the agency wants the foster parent to adopt the minor, this agency "placement" should not be invalid simply because the transfer of physical custody to the foster parent occurs before a pre-adoptive evaluation. This situation would constitute "good cause" for a waiver under subsection (b). Another "good cause" situation might arise if a woman who intends to place her newborn for adoption gives birth prematurely, and the prospective adopter selected by the birth mother has not had a chance to complete an evaluation. This may justify a waiver combined with a court order for a prompt post-placement evaluation. By contrast, if circumstances indicate that an individual has ample opportunity to obtain a preplacement evaluation, but intentionally waits until the last minute and then seeks a waiver, the request for a waiver should be denied. See, e.g., In re Adoption of Male Infant A., 150 Misc.2d 893, 578 N.Y.S.2d 988 (1991).
Subsection (c) dispenses with the requirement of a preplacement evaluation when a minor is placed directly with a relative. When a parent leaves a child with a relative, without any formal transfer of custody or clear understanding of what the "leaving" means, and the relative is later permitted to petition to adopt the child, it is certainly appropriate to assess the relative's suitability as an adoptive parent during the adoption proceeding. It is not feasible, however, to require that the evaluation be completed before the parent leaves the child with the relative.
SECTION 2-202. PREPLACEMENT EVALUATOR.
(a) Only an individual qualified by [a state-approved licensing, certifying, or other procedure] to make a preplacement evaluation may do so.
(b) An agency from which an individual is seeking to adopt a minor may require the individual to be evaluated by its own qualified employee or independent contractor, even if the individual has received a favorable preplacement evaluation from another qualified evaluator.
The Act requires that evaluators be "qualified" but does not assume that the only qualified individuals are employees of child-placing agencies. Although it is unusual for States to certify social workers, family counselors, or psychologists according to specific sub-specialties, it is expected that state Departments of Social Services will develop criteria for certifying individuals as qualified evaluators. Some States have standards for "adoption service providers" or "adoption specialists" - for example, California, Michigan. In some States, the local courts maintain lists of qualified and experienced evaluators - for example, New York lists "disinterested persons" who can perform evaluations.
SECTION 2-203. TIMING AND CONTENT OF PREPLACEMENT EVALUATION.
(a) An individual requesting a preplacement evaluation need not have located a prospective minor adoptee when the request is made, and the individual may request more than one evaluation.
(b) A preplacement evaluation must be completed within 45 days after it is requested. An evaluator shall expedite an evaluation for an individual who has located a prospective adoptee.
(c) A preplacement evaluation must be based upon a personal interview and visit at the residence of the individual being evaluated, personal interviews with others who know the individual and may have information relevant to the evaluation, and the information required by subsection (d).
(d) A preplacement evaluation must contain the following information about the individual being evaluated:
(1) age and date of birth, nationality, racial or ethnic background, and any religious affiliation;
(2) marital status and family history, including the age and location of any child of the individual and the identity of and relationship to anyone else living in the individual's household;
(3) physical and mental health, and any history of abuse of alcohol or drugs;
(4) educational and employment history and any special skills;
(5) property and income, including outstanding financial obligations as indicated in a current credit report or financial statement furnished by the individual;
(6) any previous request for an evaluation or involvement in an adoptive placement and the outcome of the evaluation or placement;
(7) whether the individual has been charged with having committed domestic violence or a violation of [the State's child protection statute], and the disposition of the charges, or whether the individual is subject to a court order restricting the individual's right to custody or visitation with a child;
(8) whether the individual has been convicted of a crime other than a minor traffic violation;
(9) whether the individual has located a parent interested in placing a minor with the individual for adoption and, if so, a brief description of the parent and the minor; and
(10) any other fact or circumstance that may be relevant in determining whether the individual is suited to be an adoptive parent, including the quality of the environment in the individual's home and the functioning of other children in the individual's household.
(e) An individual being evaluated must submit to fingerprinting and sign a release permitting the evaluator to obtain from an appropriate law enforcement agency any record indicating that the individual has been convicted of a crime other than a minor traffic violation.
(f) An individual being evaluated shall, at the request of the evaluator, sign any release necessary for the evaluator to obtain information required by subsection (d).
An evaluator must establish a working relationship with the individual being evaluated in order to be able to evaluate the individual fairly. Subsection (b) requires a visit to the individual's residence and a personal interview in which the evaluator should explain how the information will be used and the consequences of a finding of suitability or unsuitability.
Subsection (c) lists the information that must be obtained. In addition to basic biographical data, the information sought focuses on items that may raise specific concerns about the individual's suitability to be an adoptive parent, especially items pertaining to drug or alcohol abuse, involvement in incidents of domestic violence or child abuse or neglect, or failure to support other children. Subsection (d) requires the individual to be fingerprinted in order to facilitate a criminal records check and subsection (e) requires the individual to furnish signed releases to enable the evaluator to obtain other information.
SECTION 2-204. DETERMINING SUITABILITY TO BE ADOPTIVE PARENT.
(a) An evaluator shall assess the information required by Section 2-203 to determine whether it raises a specific concern that placement of any minor, or a particular minor, in the home of the individual would pose a significant risk of harm to the physical or psychological well-being of the minor.
(b) If an evaluator determines that the information assessed does not raise a specific concern, the evaluator shall find that the individual is suited to be an adoptive parent. The evaluator may comment about any factor that in the evaluator's opinion makes the individual suited in general or for a particular minor.
(c) If an evaluator determines that the information assessed raises a specific concern, the evaluator, on the basis of the original or any further investigation, shall find that the individual is or is not suited to be an adoptive parent. The evaluator shall support the finding with a written explanation.
This section establishes the minimum requirements for a favorable evaluation. It focuses on factors that may warrant a determination that an individual is not suitable to become an adoptive parent - specific concerns that pose significant risks of harm to the physical or psychological well-being of a minor. A finding of unsuitability has to be supported by a written explanation of precisely how each specific concern poses a risk of harm to the minor. For example, an individual should not be disqualified solely because of low income, or because he or she lives in a small house or apartment, unless the individual's financial status or residence is so inadequate for the needs of a child that it poses a threat to the child's well-being.
These provisions are not intended to preclude an agency or an independent evaluator from asking additional questions intended to gauge an individual's capacity to adopt different kinds of children. Nor are evaluators or agencies precluded from offering pre-adoption counseling to prospective adoptive parents. This section should be read in conjunction with other provisions of the Act - e.g., Sections 1-102, 2-104, 2-206 - that are intended to protect individuals who seek to adopt from being unreasonably or categorically excluded from consideration.
SECTION 2-205. FILING AND COPIES OF PREPLACEMENT EVALUATION.
(a) If a preplacement evaluation contains a finding that an individual is suited to be an adoptive parent, the evaluator shall give the individual a signed copy of the evaluation. At the individual's request, the evaluator shall furnish a copy of the evaluation to a person authorized under this [Act] to place a minor for adoption and, unless the individual requests otherwise, edit the copy to exclude identifying information.
(b) If a preplacement evaluation contains a finding that an individual is not suited to be an adoptive parent of any minor, or a particular minor, the evaluator shall immediately give a signed copy of the evaluation to the individual and to the department. The department shall retain for 10 years the copy and a copy of any court order concerning the evaluation issued pursuant to Section 2-206 or 2-207.
(c) An evaluator shall retain for two years the original of a completed or incomplete preplacement evaluation and a list of every source for each item of information in the evaluation.
(d) An evaluator who conducted an evaluation in good faith is not subject to civil liability for anything contained in the evaluation.
To avoid imposing massive filing requirements, the Act does not provide for a central registry of favorable preplacement evaluations. If the evaluation is favorable, the individual evaluated receives a signed copy and copies are made available at the individual's request to persons who are authorized to place a minor for adoption. These latter copies may be edited to preserve the anonymity of the individual.
Copies of unfavorable evaluations are to be retained by the department for ten years to enable other evaluators, the department, the courts, and adoption-service providers to verify an individual's statements about the outcome of previous evaluations.
Subsection (d) provides immunity from civil liability for an evaluator who conducts an evaluation in good faith.
SECTION 2-206. REVIEW OF EVALUATION.
(a) Within 90 days after an individual receives a preplacement evaluation with a finding that he or she is not suited to be an adoptive parent, the individual may petition a court for review of the evaluation.
(b) If the court determines that the petitioner has failed to prove suitability by a preponderance of the evidence, it shall order that the petitioner not be permitted to adopt a minor and shall send a copy of the order to the department to be retained with the copy of the original evaluation. If, at the time of the court's determination, the petitioner has custody of a minor for purposes of adoption, the court shall make an appropriate order for the care and custody of the minor.
(c) If the court determines that the petitioner has proved suitability, the court shall find the petitioner suitable to be an adoptive parent and the petitioner may commence or continue a proceeding for adoption of a minor. The court shall send a copy of its order to the department to be retained with the copy of the original evaluation.
This section provides that an individual may seek judicial review of a finding that he or she is not suited to be an adoptive parent. The individual has the burden of proving suitability by a preponderance of the evidence. If found suitable, the individual may commence or continue an adoption proceeding.
SECTION 2-207. ACTION BY DEPARTMENT. If, before a decree of adoption is issued, the department learns from an evaluator or another person that a minor has been placed for adoption with an individual who is the subject of a preplacement evaluation on file with the department containing a finding of unsuitability, the department shall immediately review the evaluation and investigate the circumstances of the placement and may request that the individual return the minor to the custody of the person who placed the minor or to the department. If the individual refuses to return the minor, the department shall immediately commence an action or proceeding to remove the minor from the home of the individual pursuant to [the State's child protection statute] and, pending a hearing, the court shall make an appropriate order for the care and custody of the minor.
This section requires the department to take immediate action to protect a minor upon learning that the minor has been placed in a home with an individual who has received an evaluation with a finding of unsuitability that has not been reversed.
This part provides a procedure for the consensual release of infants directly from hospitals or birthing centers to prospective adoptive parents who have previously been selected by the birth parent or another person authorized to place the infant for adoption. It also provides a procedure to enable the department to follow up on situations in which a child is released to someone other than a birth parent, but an adoption, foster placement, or guardianship proceeding is not commenced within a reasonable time after the release. These procedures are intended to keep track of adoptive placements and are not intended to prevent a birth mother from releasing a child to a relative or friend for a few days while she recovers in the hospital.
This part addresses only the requirements for releasing an infant from a health care facility for purposes of adoption. In order for a lawful adoptive placement to occur, the birth mother must also follow the procedures in Section 2-102, including the birth mother's acknowledgment that she has been informed of the meaning and consequences of an adoptive placement and understands the differences between a consent or a relinquishment and an involuntary termination of parental rights.
SECTION 2-301. "HEALTH-CARE FACILITY" DEFINED. In this [part], "health-care facility" means a hospital, clinic, or other facility authorized by this State to provide services related to birth and neonatal care.
SECTION 2-302. AUTHORIZATION TO TRANSFER PHYSICAL CUSTODY.
(a) A health-care facility shall release a minor for the purpose of adoption to an individual or agency not otherwise legally entitled to the physical custody of the minor if, in the presence of an employee authorized by the health-care facility, the woman who gave birth to the minor signs an authorization of the transfer of physical custody.
(b) An authorized employee in whose presence the authorization required under subsection (a) is signed shall attest the signing in writing.
The "authorization" for release of an infant from a health-care facility required by this section is not, by itself, an authorization for placement as required by Section 2-102(d). Instead, it supplements the other placement procedures by providing a record of the infant's whereabouts until a petition for adoption is filed or some other decision is made about the infant's care and custody.
SECTION 2-303. REPORTS TO DEPARTMENT.
(a) No later than 72 hours after a release pursuant to Section 2-302, a health-care facility that releases a minor for purposes of adoption shall transmit to the department a copy of the authorization required by Section 2-302 and shall report:
(1) the name, address, and telephone number of the person who authorized the release;
(2) the name, address, and telephone number of the person to whom physical custody was transferred; and
(3) the date of the transfer.
(b) No later than 30 days after a release pursuant to Section 2-302, the person to whom physical custody of a minor was transferred shall report to the department which, if any, of the following has occurred:
(1) the filing of a petition for adoption with the name and address of the petitioner;
(2) the acquisition of custody of the minor by an agency and the name and address of the agency;
(3) the return of the minor to a parent or other person having legal custody and the name and address of the parent or other person; or
(4) the transfer of physical custody of the minor to another individual and the name and address of the individual.
This section details procedures to be followed for the purpose of keeping a public eye on an infant released from a health-care facility for purposes of adoption. The individual who takes the infant from the facility must report to the department within 30 days after the release whether an adoption petition has been filed, and if not, where and with whom the infant is living.
SECTION 2-304. ACTION BY DEPARTMENT.
(a) If the department receives a report required under Section 2-303(a) from a health-care facility, but does not receive the report required under Section 2-303(b) within 45 days after the transfer of a minor, the department shall immediately investigate to determine the whereabouts of the minor.
(b) If none of the dispositions listed in Section 2-303(b)(1) through (3) has occurred, or the minor has been transferred to an individual described in Section 2-303(b)(4) who has not filed a petition to adopt, the department shall immediately take appropriate action to remove the minor from the individual to whom the minor has been transferred.
(c) The department may also review and investigate compliance with Sections 2-101 through 2-106 and may maintain an action in the [appropriate] court to compel compliance.
This section requires the department to investigate possible violations of this part and to take appropriate action to remove an infant from the custody of an individual who, for example, has not filed an adoption petition within the requisite time and may no longer be entitled to retain custody.
SECTION 2-401. PERSONS WHOSE CONSENT REQUIRED.
(a) Unless consent is not required or is dispensed with by Section 2-402, in a direct placement of a minor for adoption by a parent or guardian authorized under this [Act] to place the minor, a petition to adopt the minor may be granted only if consent to the adoption has been executed by:
(1) the woman who gave birth to the minor and the man, if any, who:
(i) is or has been married to the woman if the minor was born during the marriage or within 300 days after the marriage was terminated or a court issued a decree of separation;
(ii) attempted to marry the woman before the minor's birth by a marriage solemnized in apparent compliance with law, although the attempted marriage is or could be declared invalid, if the minor was born during the attempted marriage or within 300 days after the attempted marriage was terminated;
(iii) has been judicially determined to be the father of the minor, or has signed a document that has the effect of establishing his parentage of the minor, and:
(A) has provided, in accordance with his financial means, reasonable and consistent payments for the support of the minor and has visited or communicated with the minor; or
(B) after the minor's birth, but before the minor's placement for adoption, has married the woman who gave birth to the minor or attempted to marry her by a marriage solemnized in apparent compliance with law, although the attempted marriage is or could be declared invalid; or
(iv) has received the minor into his home and openly held out the minor as his child;
(2) the minor's guardian if expressly authorized by a court to consent to the minor's adoption; or
(3) the current adoptive or other legally recognized mother and father of the minor.
(b) Unless consent is not required under Section 2-402, in a placement of a minor for adoption by an agency authorized under this [Act] to place the minor, a petition to adopt the minor may be granted only if consent to the adoption has been executed by:
(1) the agency that placed the minor for adoption; and
(2) any individuals described in subsection (a) who have not relinquished the minor.
(c) Unless the court dispenses with the minor's consent, a petition to adopt a minor who has attained 12 years of age may be granted only if, in addition to any consent required by subsections (a) and (b), the minor has executed an informed consent to the adoption.
As a general rule, both parents of a minor child must consent to their child's adoption. Nonetheless, although a birth mother's consent is nearly always required - except as stated in Section 2-402 - consent is not required from some of the men who may be the child's father. In accord with federal and state constitutional decisions since the early 1970s on the status of unwed fathers in adoption proceedings, the Act distinguishes the men who manifest "parenting behavior," and have therefore earned the right to withhold consent from a proposed adoption of their children, from the men who fail to perform parental duties and may therefore be denied the right to veto a proposed adoption. In specifying precisely which men are entitled to consent and which men are merely entitled to notice of a proposed adoption, this section is influenced by, but departs from, the definition of "presumed father" in the Uniform Parentage Act, 9B ULA 298.
Special attention has been given to the thwarted father and the balance between his rights and the interests of the child. A thwarted father is a man who has been prevented from meeting his parenting responsibilities (a)(1)(iii) or (iv), because the mother did not tell him of the pregnancy or birth, lied about her plans for the child, disappeared after the child's birth, named another man as the father, or was married to another man in a State that maintains a version of the conclusive presumption of paternity upheld by a plurality of the U.S. Supreme Court in Michael H. v. Gerald D., 491 U.S. 110 (1989), or because the State, acting through its licensed agency, placed the child with prospective adoptive parents before he was aware of his child's existence or could assume parenting responsibilities; Lehr v. Robertson, 463 U.S. 248 (1983).
A thwarted father may be able to assert parental rights during the pendency of the adoption proceeding or in response to a petition to terminate his parental relationship to a minor. See Article 3, Part 5. A thwarted father may succeed in blocking an adoption if he not only can prove a "compelling reason" for not having performed parental duties but successfully defends against an effort by the prospective adoptive parents, the birth mother, or an agency to prove that termination of a thwarted father's rights is necessary to avoid detriment or a risk of substantial harm to the child. See Section 3-504(d) and (e). A person may not challenge an adoption decree more than six months after it is issued, even if the person was thwarted in his ability to assume parenting responsibilities.
The Act is consistent with U.S. Supreme Court decisions on the status of fathers in custody and stepparent adoption proceedings. The Court has not ruled that all biological fathers have a constitutionally protected right to withhold consent to a proposed adoption of their child; Quilloin v. Walcott, 434 U.S. 246 (1978) (equal protection clause not violated by State's rule that unwed father who has "never shouldered any significant responsibility" for the care of his child, despite opportunities to do so, cannot veto the child's adoption by the mother's husband). Only those unwed biological fathers who perform parental duties and actively participate in childrearing are entitled to the same rights as is the birth mother to consent to, or to veto, an adoption; Caban v. Mohammed, 441 U.S. 380 (1979) (equal protection clause violated by state law that gives unwed mothers but not unwed fathers who support and care for their child a right to block an adoption). See, also, Stanley v. Illinois, 405 U.S. 645 (1972) (due process clause offended by denial of parental fitness hearing to unwed father who wanted custody of the three children he had both "sired and raised"). Although this Act is generally protective of the interests of unwed fathers in receiving notice of a proposed adoption, it is not unconstitutional to deny notice to unwed fathers who do not perform parental duties and who have not taken certain formal steps to acknowledge their paternity; Lehr v. Robertson, 463 U.S. 248 (1983). Moreover, the Court has ruled that not all biological fathers have a protected "liberty interest" in their biological offspring; Michael H. v. Gerald D., 491 U.S. 110 (1989) (upholding the legitimacy of a child's "unitary family" of birth mother and her husband against the desire of a biological father, not married to the mother, to establish his paternity and claim visitation rights).
With respect to consent from an adoptee, the Act follows the prevailing practice in most States. Consent is required from adoptees who have attained a certain age - subsection (c) says 12 or older - subject to the court's discretion to waive the consent of an adoptee. See Section 2-402(b). When a minor adoptee's consent is required, it is in addition to the consent of the parents or guardian or agency, and without the minor's consent or sufficient justification for waiving it, the adoption cannot be granted.
When an agency is authorized by the Act to place a minor for adoption, the agency's consent is required in lieu of the consent of a parent or guardian who has relinquished the minor to the agency for adoption, and in lieu of the consent of any parent whose status has been legally terminated.
The consent of a minor's guardian is not required unless the court that appointed the guardian expressly authorizes the guardian to consent to the minor's adoption.
SECTION 2-402. PERSONS WHOSE CONSENT NOT REQUIRED.
(a) Consent to an adoption of a minor is not required of:
(1) an individual who has relinquished the minor to an agency for purposes of adoption;
(2) an individual whose parental relationship to the minor has been judicially terminated or determined not to exist;
(3) a parent who has been judicially declared incompetent;
(4) a man who has not been married to the woman who gave birth to the minor and who, after the conception of the minor, executes a verified statement denying paternity or disclaiming any interest in the minor and acknowledging that his statement is irrevocable when executed;
(5) the personal representative of a deceased parent's estate; or
(6) a parent or other person who has not executed a consent or a relinquishment and who fails to file an answer or make an appearance in a proceeding for adoption or for termination of a parental relationship within the requisite time after service of notice of the proceeding.