HOUSE OF REPRESENTATIVES

140th GENERAL ASSEMBLY

HOUSE BILL NO. 654

AN ACT TO AMEND TITLE 13 OF THE DELAWARE CODE RELATING TO ADOPTIONS AND TERMINATION OF PARENTAL RIGHTS.

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

Section 1. Amend Section 1105, Chapter 11, Title 13 of the Delaware Code by deleting the phrase "to enable the Court to determine what further steps, if any, should be taken" in subsection (a)(9) and inserting in lieu thereof the following: ". This information shall include a statement that the petitioner has inquired to determine whether the woman who gave birth to the child was married at the probable time of conception of the child, or at a later time, and whether the woman has named any individual as the father on the birth certificate of the child".

Section 2. Amend Chapter 11 of Title 13 of the Delaware Code by adding a new Section 1107A to read as follows:

"§1107A. Hearing Notice: Notice to Unknown Fathers.

1. Notice of the time, place and purpose of the hearing shall be served upon the parent or parents, person or persons or organization holding parental rights at the respondent’s last known address or to the address recited in the petition.
2. No such notice of hearing shall be necessary if a waiver executed by the parent or parents, person or persons or organization holding parental rights has been filed with the petition, in accordance with Section 1106A(e) of this title. The Court may require notice to be served upon any other person or organization.
3. If, at any time in a proceeding for termination of parental rights, the Court finds that an unknown father of the child may not have received notice, the Court shall determine whether he can be identified. The determination must be based on evidence that includes a review of:

1. the information required by Section 1105(a)(9) of this title;
2. whether the woman has filed for or received payments or promises of support, other than from a governmental agency, with respect to the child or because of her pregnancy; and
3. whether any individual has formally acknowledged or claimed paternity of the child.

1. If inquiry pursuant to subsection (c) identifies as the father of the child an individual who has not received notice of the proceeding, the Court shall require notice to be served upon him pursuant to this Section.
2. If, in an inquiry pursuant to this Section, the woman who gave birth to the child and who is consenting to the termination of her parental rights fails to disclose the identity of a possible father or reveal his whereabouts, she must be advised by the petitioner that the proceeding for adoption may be delayed or subject to challenge if a possible father is not given notice of the proceeding and that the lack of information about the father’s medical and genetic history may be detrimental to the child.
3. If the Court shall find that personal service within the State cannot be accomplished upon the parent or parents, person or persons or organization holding parental rights, the Court shall then cause notice of the time, place and purpose of the hearing to be published once a week, for 3 successive weeks, in such newspaper of the county, 1 or more, as the Court may judge best for giving the parent or parents, or person or persons or organization holding parental rights notice, the formal wording of said notice to be approved by the Court. Publication shall also be made in the locality in which the parent or parents, person or persons or organization holding parental rights is believed to be located if different from the county where the publication just described has been caused. The Court may, upon request by the petitioner, order that personal service and publication occur simultaneously.
4. If any publication is ordered pursuant to subsection (c) of this section, the Court shall also order that the Clerk of the Court, at least 3 weeks prior to the hearing, send by regular and registered or certified mail to the parent or parents or person or persons or organization holding parental rights, at the address or addresses given in the petition, a copy of the same notice, or a similar notice of the time, place and purpose of the hearing.
5. Personal service at any time prior to the hearing shall be sufficient to give jurisdiction.
6. Notice provided pursuant to this Section shall constitute conclusive evidence of service and a hearing will then proceed at the time and date set, with or without the appearance of the parent or parents, person or persons or organization so notified."

1. a judge of a court of record;
2. an individual designated by a judge to take consents or relinquishments;
3. an employee designated by an agency to take consents or relinquishments, but not an employee of an agency to which a child is relinquished;
4. a hospital social worker;
5. a lawyer other than a lawyer who is representing an adoptive parent or the agency to which a child is relinquished;
6. a commissioned officer on active duty in the military service of the United States, if the individual executing the consent or relinquishment is in military service; or
7. an officer of the foreign service or a consular officer of the United States in another country, if the individual executing the consent or relinquishment is in that country.

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

1. read or was read the consent and understood it;
2. entered into the consent voluntarily; and
3. if the individual executing the consent or relinquishment is a parent who is a child, was advised by a lawyer who is not representing an adoptive parent or the agnecy to which the parent’s child is being relinquished, and, if an adult, was informed of the right to retain a lawyer who is not representing an adoptive parent or an agency to which the parent’s child is being relinquished.

1. Every petition shall be accompanied by a formal written consent executed by the person or persons for whom or the organization to which parental rights are requested to be transferred."

Section 6. Amend Chapter 11, Title 13 of the Delaware Code by adding a new Section 1106A to read as follows:

1. A consent required from a parent or guardian must contain:

1. The date, place, and time of the execution of the consent or relinquishment;
2. The name, date of birth, and current mailing address of the individual executing the consent or relinquishment;
3. The date of birth and the name or pseudonym of the child;
4. The name, address, and telephone and telecopier number of the agency or individual to which parental rights are being relinquished;
5. Information regarding the birth parent’s right to file a notarized statement pursuant to Section 923(b) of this Title to prevent the child from accessing identifying information regarding the birth parent, if the minor is adopted; and
6. Specific instructions for how a parent who executes a consent may revoke the consent or commence an action to set aside the consent.

1. A consent must state that the individual executing the consent voluntarily agrees to the permanent transfer of legal and physical custody of the minor to the agency.
2. A consent must state:

1. an understanding that after the consent or relinquishment is signed or confirmed in substantial compliance with Section 1106, it is final and, except under a circumstance stated in Section 1106B, may not be revoked or set aside for any reason;
2. an understanding that the termination will extinguish all parental rights and obligations the individual executing the consent has with respect to the child, except for arrearages of child support;
3. that the individual executing the consent has received a copy of the consent; and
4. that the individual executing the consent has not received or been promised any money or anything of value for the consent;

1. A consent may provide that the individual who is consenting waives notice of any proceeding for termination of parental rights, or waives notice unless the termination proceedings is contested, appealed, or denied.
2. A consent may provide for its revocation if:

1. another consent is not executed within a specified period; or
2. a court decides not to terminate another individual’s parental relationship to the child."

Section 7. Amend Chapter 11, Title 13 of the Delaware Code by adding a new Section 1106B to read as follows:

1. A consent is revoked if:

1. within 192 hours after the birth of the child, the parent who executed the consent notifies in writing the agency or individual to which the parental rights had been relinquished, that the parent revokes the consent, or the parent complies with any other instructions for revocation specified in the consent; or
2. the individual who executed the consent and the agency or individual that accepted it agree to its revocation.

1. The Court shall set aside a consent if the individual who executed the consent establishes:

1. by clear and convincing evidence, before a decree of adoption is issued, that the consent was obtained by fraud or duress; or
2. by a preponderance of the evidence, that a condition permitting revocation has occurred, as expressly provided for in the consent.

1. If a consent by an individual who had legal and physical custody of a child when the consent was executed is revoked under subsection (a)(1) or (2), the agency shall immediately return the child to the individual’s custody and move to dismiss any proceeding for adoption. If the child is not returned immediately, the individual may petition the Court named in the consent for appropriate relief.
2. If a consent by an individual who had legal and physical custody of a child when the consent was executed is set aside under subsection (b)(1), the court shall dismiss any proceeding for adoption and order the return of the child to the physical custody of the individual.
3. If a consent by an individual who had legal and physical custody of a child when the consent was executed is set aside under subsection (b)(2) and no ground exists for terminating the parental relationship between the individual and the child, the Court shall dismiss a proceeding for adoption and order the return of the child to the custody of the individual, unless the Court finds that return will be detrimental to the child.
4. If a consent by an individual who did not have physical custody of a child when the consent was executed is revoked under subsection (a) or set aside under subsection (b) and no ground exists for terminating the parental relationship between the individual and the child, the Court shall dismiss any pending proceeding for adoption and shall issue an order providing for the care and custody of the child according to the best interest of the child."

Section 8. Amend Section 1107, Chapter 11 of Title 13 of the Delaware Code by striking that section in its entirety and inserting in lieu thereof the following:

1. When a petition for the termination of parental rights is filed in which the Department or licensed agency is a party to the proceedings, the Court shall set a date for hearing thereon, and shall cause notice of the time, place and purpose of the hearing to be provided as required in Section 1107A.
2. When a petition for termination of parental rights is filed and the Department or a licensed agency is not a party to the proceeding, the Court shall, before any hearing, order a social study and report on the petition, by the Department or a licensed agency, to be filed within 4 months, subject to such additional time as the Court shall determine is reasonably required. The Court shall set a date for hearing to take place after the report is to be filed and notice shall be accomplished as provided in Section 1107A.
3. All hearings shall be held before the Court privately, but for reasons appearing sufficient to the Court the hearing in any particular case may be public."

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

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 convicted of a crime other than a minor traffic violation;
8. 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 home and the functioning of other children in the individual’s household.

Section 10. Amend Section 918, Chapter 9 of Title 13 of the Delaware Code by removing the phrase "2 years" and inserting in lieu thereof "6 months".

Section 11. Amend Section 1109, Chapter 11 of Title 13 of the Delaware Code by removing the period "." at the end of subsection (4) and inserting in lieu thereof:

"; and

1. A statement that petitioner has explored the possibility of placement of the child with blood relatives and the results of such efforts."

Section 12. Amend Subsection 1103(b), Chapter 11 of Title 13 of the Delaware Code by deleting the phrase "by the other parent".

This bill makes several changes to the procedures in Delaware's adoption and termination of parental rights ("TPR") laws, to further ensure that any adoption or TPR that is entered cannot be successfully challenged. First, the bill clarifies the Court's responsibility in cases in which the father's name or address are not known, since these cases provide the greatest risk of challenge. Second, the bill increases the reliability of parental consents to TPRs by requiring that such consents be signed in the presence of specified uninvolved individuals and clarifying what the consent must contain. Third, it provides for revocation of a TPR consent within 8 days of the birth of the child. Fourth, it reduces the amount of time a child must be in an adoption placement prior to the filing of the adoption petition from one year to six months, but requires that a pre-placement evaluation be completed prior to the child's placement. Finally, it reduces the amount of time that must pass before an adoption decree becomes final from two years to six months.