Parties in Adoptions

August 6, 2013 § Leave a comment

It’s obvious that the natural parents and adopting parents are necessary parties in adoption cases. But when you read MCA 93-17-5, you will see that the scope of persons to be included is considerably greater.

The statute requires that the following persons be joined by process or by consent to the adoption:

  • the parent or parents, even though one or both are under twenty-one; or
  • if both parents are dead, then any two adult kin of the child within the third degree; or
  • if both parents are dead and an adult kin of the child has “possession” of the child, then that party must be joined or must consent; or
  • the guardian ad litem of an abandoned child, where it is alleged that the parents’ whereabouts are unknown after diligent search and inquiry; or

The statute goes on to say that “In addition,” the following shall be made parties:

  • person(s) having physical custody of the child, except foster parents via DHS.
  • any person who had been awarded custody of the child by a Mississippi court with jurisdiction;
  • the “agent of the county [DHS} that has placed the child” in foster care by agreement or court order;

A consent “may also be executed” and filed by an authorized representative of a “home to whose care a child has been delivered.”

Subsection (2) includes the important requirement that: “The child shall join in the petition by its next friend.”

If the child is more than 14 years old, subsection (4) requires that the child execute a sworn or acknowledged consent, or be joined by service of process.

If the child was born to parents who were not married to each other, the father has no right to object unless he has demonstrated within 30 days after the birth of the child “a full commitment to the responsibilities of parenthood.” Note that the language of the statute only says that the unwed, irresponsible parent has no right to object; it does not say that he is not entitled to notice, although it can be argued that notice is superfluous if he has no standing to object. Determination of the father’s rights may be made in a separate proceeding, pursuant to MCA 93-17-6.

In the recent case of Little v. Norman and DHS, decided July 23, 2013, the COA noted that a grandparent with custody who is required to be joined in the adoption may, nonetheless, have no right to stop it. The sourt stated in ¶16 that: “Mississippi Code Annotated section 93-17-5(1)(ii) (Rev. 2004) provides that certain people ‘shall be made parties to [an adoption] proceeding[,]’ including ‘[a]ny person to whom custody of such child may have been awarded by a court of competent jurisdiction of the State of Mississippi.’ Even so, the Mississippi Supreme Court has held that although a grandfather who was the legal custodian of a child was a necessary party to an adoption, his status did not provide him with ‘the prerogative of consenting to the adoption and by corollary, withholding consent and thereby thwarting the adoption.’” Martin v. Putnam, 427 So. 2d 1373, 1376 (Miss. 1983). And, by way of further explanation, continued in footnote 6 on the same page: “What purpose did the legislature intend by designating parties to an adoption proceeding whose consent was not necessary to its validity? We are of the opinion the legislature’s intention was to bring into the suit those persons most likely to be familiar with the background and needs of the person sought to be adopted so they could give testimony concerning his or her best interest. . . . This of course, accords with our many decisions concerning children wherein we have stated that the best interest of the child is paramount. The designated parties thus become witnesses concerning the facts known to them to aid the trial court in its solemn determination of whether to grant or deny an adoption. We think the testimony from those who are close kin to a child is most significant because, in theory, they love the child best and would give truthful testimony as to the child’s best and enduring interest.” Id., at 1376-77.

I stress with lawyers that it’s better to have to take an extra step in an adoption to get it right than to have to face a motion  to set it aside at a later date. Lack of jurisdiction over all the necessary parties is one of those flaws that can be fatal.

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