A. What are Private Placement Adoptions? *
Private adoptions are typically ones where a private attorney handles the arrangements for the adoption, including the following:
1. Finding or helping your adoptive parent clients find a suitable infant or child for adoption would certainly be job one. I meet with prospective adoptive parents all the time that, for a variety of issues, are not eligible for adoption through an agency. The most common factor is the age of one or both of the prospective parents, but it can range from desires for a particular sex or age of a child to a child from only a certain background, be it social, cultural or ethnic. I counsel these prospective parents that I am not a reliable source for a child and that they need to be their own best advocate in locating a prospective adoptable child or infant. I can be the go-between for them and make contact or follow up on leads that they might get from their sources, even across state lines.
2. Contact with the birth parents and taking care of the needs of the birth mother during the pregnancy. This can include everything from arranging for prenatal care to housing, clothing, transportation and incidentals. One of the biggest concerns with private adoptions, as well as with independent placements, is the fact that often times the biological parent(s) and the adoptive parents do not receive any, or very little, counseling concerning the process, the emotional aspects of the release, and post placement support and counseling for the biological parents.
3. Identifying and dealing with the birth father. Handling a recalcitrant birth father seems to be one of the biggest issues in a private adoption, since the agency folks usually deal with the birth father and arrange for getting his consent or for instituting proceedings to terminate his parental rights.
4. Working with the birth mother to get her through the pre and post natal periods by offering counseling or the opportunity to at least talk with other birth mothers who have released a child for adoption. (See 2 above).
5. Making the arrangements at the hospital for the pick up and delivery of the baby after the consents have been obtained and compliance, if necessary, with the adoption and release laws of other states and the Interstate Compact.
6. The legal matters for finalizing the adoption, including the termination of parental rights, the court hearing for the adoption itself, and final documents such as the birth certificate if you are in a county that allows the attorneys to file for the new birth certificate. Miss. Code sections 93-17-1 through 93-17-31.
7. Home studies are now required in all adoptions, except when the parties are related within the third degree.
B. Agency Adoptions
1. Generally, adoption agencies have certain restrictions on who is eligible for their services, such as age limitations (minimum and maximum), marriage requirements, income requirements, statements of faith, and agreements for fees and expenses.
2. Most agencies allow the birth mother (parents) to chose the adoptive couple or person from a pool of applicants. There are very few identified adoptions with agencies as opposed to private adoption where most adoptions are identified.
3. As part of the agency services, the birth mother will receive counseling from trained professionals both pre and post placement. The agency will often times provide continuing updates or pictures to the birth mother and will have the ability to maintain the adoption records indefinitely. This is very important as birth searches by adoptees are becoming more and more prevalent and almost routine in most adoptions. Based upon my experience representing several agencies, the subject of birth searches could be the topic for one whole segment of this seminar.
4. Most agency adoptions are what I would call “semi-open” as opposed to a closed private adoption. Usually birth mothers (parents) are given first names only and very little other specific identifying information. There may also be a face-to-face meeting between the birth mother and the adoptive parents.
C. Venue
Venue in adoption proceedings is governed by Miss. Code section 93-17-3. It provides that “[t]he adoption shall be by sworn petition filed in the Chancery Court of the county in which the adopting petitioner or petitioners reside or in which the child to be adopted resides or was born, or was found when it was abandoned or deserted, or in which the home is located to which the child has been surrendered by a person authorized to so do.”
D. The Crucial Element of Consent
1. The issue of consent is governed by Miss. Code section 93-17-5, where the legislature prescribes who shall be made parties to an adoption proceeding. This section provides that an adoption may proceed with the consent of the following:
(a) the parents, or parent , if only one (1) parent, though either be under the age of twenty-one (21) years; or (b) in the event both parents are dead, then any two (2) adult kin of the child within the third degree computed according to the civil law, provided that, if one of such kin is in possession of the child , he or she shall join in the petition or be made a party to the suit; or (c) the guardian ad litem of an abandoned child, upon petition showing that the names of the parents are unknown after diligent search and inquiry by the petitioners. In addition to the above, there shall be made parties to any adoption proceeding proposed in the petition, the following: (i) Those persons having physical custody of such child, except persons having such child as foster parents as a result of placement with them by the Department of Human Services of the State of Mississippi. (ii) Any person to whom custody of such child may have been awarded by a court of competent jurisdiction of the State of Mississippi. (iii) The agent of the county Department of Human Services of the State of Mississippi that has placed a child in foster care, either by agreement or by court order. 2. Such consent may also be executed and filed by the duly authorized officer or representative of a home to whose care the child has been delivered. The child shall join the petition by its next friend.
3. In the case of a child born out of wedlock, the father shall not have a right to object to an adoption unless he has demonstrated, within the period ending thirty (30) days after the birth of the child, a full commitment to the responsibilities of parenthood. Determination of the rights of the father of a child born out of wedlock may be made in proceedings pursuant to a petition for determination of rights as provided in section 93-17-6.
4. If such consent be not filed, then process shall be had upon the parties as provided by law for process in person or by publication, if they be nonresidents of the state or are not found therein, after diligent search and inquiry, or are unknown after diligent search and inquiry; provided that the court or chancellor in vacation may fix a date in term time or in vacation to which process may be returnable and shall have power to proceed in term time or vacation. In any event, if the child is more than fourteen (14) years of age, a consent to the adoption, sworn to or acknowledged by the child, shall also be required or personal service of process shall be had upon the child in the same manner and in the same effect as if it were an adult.
Miss. Code section 93-15-103 (2) provides that, “[t]he rights of a parent with reference to a child, including parental rights to control or withhold consent to an adoption, and the right to receive notice of a hearing on a petition for adoption, may be relinquished and the relationship of the parent and child terminated by the execution of a written voluntary release, signed by the parent, regardless of the age of the parent.” The written voluntary release or consent by the natural parents terminates their parental rights, and thereafter, no objection to an adoption may be sustained. Miss. Code Ann. sections 93-15-103(2), 93-17-7, Grafe v. Olds, 556 So.2d 690, (Miss. 1990). What a mouthful by our Supreme Court. Nowhere does this pronouncement say anything about fraud, duress, or undue influence. Nowhere does this pronouncement say anything about whether or not and under what circumstances, if any, can a consent be withdrawn. Nowhere does this pronouncement say anything about whether the “voluntary consent” operates as a termination of the natural parents’ rights as against all other individuals. For many years now, those of us who practice in this area of the law have always been of the opinion that, because obtaining the consent of the biological parents was so very important, the Mississippi Supreme Court meant what it said in the Grafe case and many others with the same or similar holdings. Then, in 2008, along comes the opinion in A.D.R. v. J.L.H, 994 So.2d 177 (Miss. 2008) that says that a consent to adoption signed by the biological mother does not wholly terminate her parental rights as the mother only consented to a proposed adoption by the adopting couple and termination of her rights as against the couple only and not against all other individuals.
As a matter of public policy, no final decree granting an adoption can be set aside except for under two very specific grounds: (1) jurisdiction and (2) for failure to file and prosecute the adoption petition in accordance with state statute. See Miss. Code section 93-17-17. In such case, the Complainant must also bring an action to overturn the disputed adoption within six months after the entry of the Final Decree. See Miss Code section 93-17-15. The Mississippi Supreme Court has, time and again, indicated its alignment with a strict interpretation of these important Code provisions. See In the Matter of the Adoption of M.D.T., 722 So.2d 702, 705 (Paragraph 13)(Miss. 1998). With regard to setting aside consents, the Mississippi Supreme Court has been unrelenting in applying the rule that, absent a very defined group of exceptions, consents entered into by the natural parents are irrevocable. Grafe v. Olds, 556 So.2d 690, 694 (Miss. 1990). See also C. C. I. v. Natural Parents, 398 So.2d 220, 226 (Miss. 1981). The Court there held,
An absent showing by the parent(s) establishing either fraud, duress, or undue influence by clear and convincing evidence, surrenders executed in strict compliance with the safeguard provision of section 93-17-5, supra, are irrevocable. Strong policy reasons support such a holding. If a parent is allowed an unrestricted right to challenge his act of surrender, uncertainty and confusion among adoption agencies would undoubtedly result, making placement more difficult which would be detrimental to the children involved as well as to the public welfare. The statutory safeguards for themselves are sufficient to guard against a hastily made decision. The Court in Grafe v. Olds applied this same rule to a private, non-agency, adoption. 556 So. 2d at 695. It cannot be overemphasized enough that the only way for any birth parent to successfully overturn their individual consent is to demonstrate, by clear and convincing evidence, a showing of fraud, duress, or intimidation. Id. at 694-95. Courts are admonished that “consent is not to be arbitrarily withdrawn.” C.C.I. v. Natural Parents, 398 So. 2d at 226.
You should take note of the Supreme Court’s decision in Grafe v. Olds, wherein the natural mother, described as “an unwed minor,” was deemed not to make a sufficient showing to set aside a consent. See 556 So. 2d at 691. In the Grafe case, the natural mother was not represented by counsel, was not given the opportunity to take the consent that she signed to an attorney, and she was not given copies of the consent after she signed it. 556 So. 2d at 692. Likewise, as the Supreme Court has stated on numerous occasions, “the Court cannot prevent people who are in their right mind and are under no disability, from making contracts or excuse them from their folly.” Early v. Williams, 123 So. 2d 446 (Miss. 1960). “A person cannot void or blank a written contract on the grounds that he did not read it.” Hicks v. Bridges, 580 So. 2d 743, 746 (Miss. 1991).
There have been numerous attempts to get the Mississippi Supreme Court to overturn consents that have been signed by minors. The Mississippi Code states, plainly:
There shall be made parties to the proceeding by process or by the filing therein of a consent to the adoption proposed in the Petition, which consent shall be duly sworn to or acknowledged, and executed only by the following persons, but not before seventy-two (72) hours of the birth of said child: (a) the parents, . . . , though either be under the age of 21 years; . . . .Miss. Cod Ann. section 93-17-5. Further, you can look to Grafe as an example of how the age of the consenting natural parent is not a basis for overturning said consent. (Case involved a minor unwed mother, presumably under the age of 21). See also the case of C.C.I. v. Natural Parents as another example of this point. See 398 So. 2d at 221 (natural mother being 20 years old at the time of consent).
The Mississippi Supreme Court has endorsed a very stringent standard in determining what constitutes undue influence.
Undue influence is one of several grounds demonstrating a lack of voluntary consent on the part of the parties. Several other means which may constitute undue influence include over-persuasion, a threat of economic detriment, or promise of economic benefit, the invoking of extreme family hostility, both to the child and mother, and undue moral persuasion. Because undue influence is such a broad concept, cases must be resolved on their particular facts. General law is that the party asserting undue influence has the heavy burden to show that the consent was obtained by undue influence. Such a burden must be met by clear and convincing evidence, and there is no presumption that a party has exercised undue influence upon another. A mere preponderance of the evidence on the issue of undue influence is not sufficient. . . . . .
Not every influence is undue. An undue influence cannot be predicated of any act unless free agency is destroyed, and that influence exerted by means of advice, arguments, persuasions, solicitation, suggestion, wherein treatment is not undue, unless it is so importunate and persistent, or otherwise so operates as to subdue and subordinate the will and take away its free agency. Nor is influence ordinarily considered undue which arises out of sympathy, kindness, attention, attachment, or affection, gratitude for past services, desire of gratifying the wishes of another, or relieving distress, claims of kindred in family or other intimate personal relationships, love, esteem, social relations, prejudices or flattery. C.C.I. v. Natural Parents, 398 So. 2d at 222-24. “The ultimate fact for determination is whether the complaining party was deprived of the free exercise of his own will. The conduct of the dominant party must have been such as to override the volition of the victim.” Id. The mere showing of emotional strain does not constitute legal cause for the revocation of consent. Grafe v. Olds, 556 So. 2d at 695.
E. Exploring Other Adoption Alternatives
1. When and How to Use Independent Options
Independent adoptions and private placement adoptions are almost identical with the primary distinction being that the adoptive parents, in independent adoptions, do all of the work in locating a suitable adoptive infant or child. In this way, independent adoptions can be very attractive to both the birth parents and the prospective adoptive parents because it allows the parties in the adoption to maintain control over the entire adoption process. However, in independent adoptions, there can be risks and costs involved that do not come with agency or private adoptions, and, certainly much more work for the prospective adoptive parents.
As I have discussed previously, many private placement adoptions are completely confidential or with very little non-identifying information being provided to the birth mother or parents. This is usually because both parties want the process to be kept confidential. Many birth parents are reassured by knowing their adoptive parents personally and dealing with them directly instead of having to deal with an attorney or an adoption agency. Rather than relying on an agency as the go-between, the birth parents and the adoptive parents can meet, get to know each other and decide for themselves how they want to proceed with the adoption. The biggest factor in considering an independent adoption is that the adoptive parents can usually avoid long waiting lists and restrictive qualifying criteria that can be a part of agency adoptions. Finally, many independent adoptions can be less expensive than using an attorney or going through an agency. Even though the adoptive parents may still have many of the same costs, like paying birth mother’s expenses, they can save the agency fees and the on-going attorneys’ fees until such time as the adoption is finalized in court.
While many states have significant restrictions on independent adoptions, Mississippi is not necessarily one of them. However, one must be aware of and act in accordance with Miss. Code Ann. section 43-15-23, regarding the placing out of children and the expenses and compensation that can be paid in connection with an adoption. See Balouch v. State of MS, 938 So.2d 262 (Miss. 2005). Criminal prosecution for violating this code section reversed by the Mississippi Supreme Court.
Independent adoptions can be a lot of work. An adoptive parent often spends enormous amounts of time and money just finding a birth mother, not to mention the efforts required to follow through and bring the adoption legally to a close. Because each situation is unique, fees for independent adoptions vary widely. Now most birth mothers are eligible for medicaid, which covers the costs of the hospital and the birth. As with other adoptions, adoptive parents in independent adoptions may be required to pay certain reasonable, actual, and necessary costs related to the adoption process and to the birth mother’s care and well-being during the pregnancy. Because it is illegal in Mississippi, or in any state, to buy or sell a baby, adoptive parents must be very careful to adhere to these laws when contemplating providing any money, expenses or other compensation to the birth mother.
2. Circumstances When It’s Appropriate to Adopt an Adult
Miss. Code Ann. section 93-17-3(4) provides that any person may be adopted in accordance with the provisions of this chapter in term time or in vacation by an unmarried adult or by a married person whose spouse joins in the petition. This code section provides for the adoption of an adult by another adult in the State of Mississippi. I have been asked to comment on when it would be appropriate for one adult to adopt another one, and the only situations that I could think of that would be applicable or where it would be appropriate, would be for certain inheritance rights and estate planning matters, such as eligibility for retirement benefits, pensions, or other types of deferred compensation. Adult adoption could also possibly include situations where one wanted to provide for an adult stepchild, distant relative, same sex partner, or even a loyal employee. Anyone considering adopting an adult should be advised to consider what might happen if your relationship with the adoptee ends. Adoptions are very difficult to reverse, so the strategy of using adoption as an estate planning tool can have undesired consequences if the relationship ends. Under the parent- adult child legal relationship, the adoptee may still inherit the money or other benefits. The adoption process for adopting an adult is the same as that for a child. A new birth certificate will be issued and the legal relationships with the biological parents are severed. The adopted adult can have their last name changed, and as with other adoptions, the records are sealed.
F. Understanding Step Parent Adoptions
In most instances, a stepparent adoption in Mississippi is easier to complete than other types of adoptions. Just as in any other adoptions, the child’s other birth or legal parent will need to consent to the adoption and if that consent is not forthcoming, then those parent’s rights will have to be terminated for cause such as abandonment, unfitness, habitual use of drugs or alcohol, or neglect. It is often times difficult to get the consent of the other birth parent because giving such consent to the adoption means giving up all parental rights, including any right to visit the child or make decisions regarding issues, such as medical treatment or education. Also, in my experience, grandparents can be a significant factor in whether or not a birth parent will consent in a stepparent adoption. Many times, however, when the stepparent is the husband of the biological mother and has been the only father figure in the child’s life for many years, most birthfathers seem to be willing to consent to such an adoption because they will no longer be responsible for child support once their parental rights are terminated. If it becomes necessary in the stepparents’ adoption process to terminate the parental rights of the child’s other biological parent, the Court will require the appointment of a Guardian Ad Litem, as in other termination cases, and the grounds for terminating the parental rights will have to be proved by clear and convincing evidence. It has been my experience, at least in the three (3) counties in the area, that in an uncontested stepparent adoption with the consent of the other biological parent, the Courts do not require a home study, nor do they require the appointment of a Guardian Ad Litem. Finally, even though section 93-17-3 was amended in 2006-2007, subparagraph 5 still provides that adoptions by a couple of the same gender is prohibited. (Florida is the only other state with a similar law that has an express prohibition).
G. Issues That May Arise If Something Goes Wrong
1. Rights of the Biological Parents vs Adoptive Parents: Who Takes Precedence?
Natural parents may not revoke their consent to adoptions to which they have previously agreed, unless there is a clear and convincing showing of fraud, duress or undue influence. CCI v. Natural Parents, 398 So.2d 220, 226 (Miss. 1981). Absent a clear and convincing showing of fraud, duress, or undue influence, the surrender of a child to an adoption agency is also irrevocable by statute. See Miss. Code Ann. section 93-17-9. “Strong policy reasons support such a holding. If a parent is allowed an unrestricted right to challenge his act of surrender, uncertainty and confusion among adoption agencies would undoubtedly result, making placement more difficult which would be detrimental to the children involved as well as to the public welfare.” CCI, 398 So. 2d at 226.
In Grafe v. Olds, 556 So.2d 690, 696 (Miss. 1990), the Court reiterated that an adoption cannot be revoked unless there is fraud, duress or undue influence. However, the Court further explained that “we do not mean to pronounce that consent may never be withdrawn. We emphasize that such a determination must be made on a case-by-case basis in timely fashion without unnecessary delay in the proceedings, always keeping in mind that the best interest of the child is paramount.” Id. at 695-96.
In L.T. v. J.H., 787 So. 2d 1268 (Miss. 2001), the natural father consented to the adoption of his child and relinquished any rights to the child, having been told by the mother that he was not the natural father. When the natural father discovered that he was the natural father of the child, he joined the custody suit and contested the validity of his consent and relinquishment of rights. However, the Court would not allow the revocation of consent despite the fraud because the natural father sought to assert his parental rights only so he could assign them to the grandmother. Id. at 1272.
As to the rights of the biological parents following the adoption, legal “abandonment” is held to have occurred at the time of the decision to forever relinquish any parental claims with a consent to adoption. See In re Adoption of D.N.T., 843 So. 690, 707 (Miss. 2003); see also Pace v. Barrett, 205 So. 2d 647, 649 (Miss. 1968)(parental grandparents can assert right to custody upon proof of abandonment by natural mother). As to any future claim for custody by the biological parents, they lose any “natural parent presumption” of custody. See Carter v. Taylor, 611 So. 2d 874, 876 (Miss. 1992) (natural parent is entitled to custody as against any third party unless there is clear proof of abandonment, immoral conduct adversely affecting child’s interest or unfitness). Once an adoption is finalized and complete, all parental rights of the natural parent, or parents, are considered abandoned and shall be terminated by the decree. Miss. Code Ann. section 93-17-13 (decree is to include language regarding termination of parental rights of the natural parents).
In A.D.R. v. J.L.H., 994 So. 2d 177 (Miss. 2008), a natural mother consented to the adoption of her child to a married couple, but the adoption was never finalized. Because the adoption to which she consented was denied by the Court, the mother challenged the parental rights subsequently asserted by the natural father. The A.D.R. Court found that only where a parent consents to specific individuals to adopt her child and that adoption fails, then the parent may seek to regain custody of the child since the policy underlying the relevant Mississippi law is not furthered by preventing the parent from even contesting the custody of the child in that particular situation. Id. at 183.
There is a case out of LeFlore County Chancery Court concerning this area of the law as to the rights of the biological parent(s). The case involves a very unusual set of facts, but most of these cases always involve complicated and unusual facts. The biological mother, C.F., of a two-year old, D.F., and the biological father, C.L., both released their parental rights to D.F. to allow the maternal grandparents to adopt him. The adoption was accomplished and approved by the Chancery Court of LeFlore County and the Judgement of Adoption included the usual language that by virtue of the adoption being approved and finalized that the parental rights of C.F. and C.L. were terminated. The adoption made C.F. the legal sister of her biological son, D.F. Thereafter, within the next eight months, both of the adoptive parents (maternal grandparents) died, leaving D.F. without legal parents. C.F. was pursuing another career described by her as an “artistic dancer,” and C.L. was incarcerated in prison, so the Court awarded custody and guardianship of D.F. to the paternal grandfather and his wife, the step-paternal grandmother. All of this occurred from 2005 to 2007. Sometime after 2007, C.F. showed back up with renewed interest in obtaining custody of D.F., her biological child. The A.D.R. case is the basis of her attempt to regain custody of D.F. Until September 2009, she had been unsuccessful, and the Court had even found her to be unfit and to have abandoned D.F. under the holding of the Grafe case when she executed her consent to the adoption by her parents. In September of 2009, the court, sua sponte, asked the DHS, Division of Division of Child Support Enforcement, Mississippi Access and Visitation Program, to become involved and to attempt to facilitate a visitation schedule for C.F. to have visitation with D.F. This was accomplished, and then C.F. again sought primary custody of D.F. claiming she should be accorded the “natural parent presumption” and utilizing her visitations as evidence of her bonding with the child. The paternal grandparents, as guardians of D.F., had also filed for adoption of D.F. Although the lower court ruled in favor of the biological mother, the Mississippi Supreme Court reversed and awarded custody to the paternal grandparents, finding that the previous adoption by the maternal grandparents established abandonment and that the biological mother was not entitlted to the natural parent presumption at any time thereafter, thus preserving the finality of a valid adoption as to any future claims by the biological parents.
2. Proving a Parent is Unfit in Contested Adoptions
Miss. Code Ann. section 93-17-7 governs contested adoptions by a third party and proof of the objecting parent’s unfitness. It provides the following:
No infant shall be adopted to any person if either parent, after having been summoned, shall appear and object thereto before the making of a decree for adoption, unless it shall be made to appear to the court from evidence touching such matters that the parent so objecting had abandoned or deserted such infant or is mentally, or morally, or otherwise unfit to rear and train it, including, but not limited to, those matters set out in subsection (2) of this section, in either of which cases the adoption may be decreed notwithstanding the objection of such parent, first considering the welfare of the child, or children sought to be adopted. Provided, however, the parents shall not be summoned in the adoption proceedings nor have the right to object thereto if the parental rights of the parent or parents have been terminated by the procedure set forth in Sections 93-15-101 through 93-15-111, and such termination shall be res judicata on the question of parental abandonment or unfitness in the adoption proceedings.
An adoption may be allowed over the objection of a parent where:
(a) The parent has abused the child. For purposes of this paragraph, abuse means the infliction of physical or mental injury which causes deterioration to the child, sexual abuse, exploitation or overworking of a child to such an extent that his health or moral or emotional well-being is endangered. (b) The parent has not consistently offered to provide reasonably necessary food, clothing, appropriate shelter and treatment for the child. For purposes of this paragraph, treatment means medical care or other health services provided in accordance with the tenets of a well-recognized religious method of healing with a reasonable, proven record of success. (c) The parent suffers from a medical or emotional illness, mental deficiency, behavior or conduct disorder, severe physical disability, substance abuse or chemical dependency which makes him unable or unwilling to provide an adequate permanent home for the child at the present time or in the reasonably near future based upon expert opinion or based upon an established pattern of behavior. (d) Viewed in its entirety, the parent’s past or present conduct, including his criminal convictions, would pose a risk of substantial harm to the physical, mental or emotional health of the child. (e) The parent has engaged in acts or omissions permitting termination of parental rights under Section 93-15-103. (f) The enumeration of conduct or omissions in this subsection (2) in no way limits the court’s power to such enumerated conduct or omissions in determining a parent’s abandonment or desertion of the child or unfitness under subsection (1) of this section.
The burden of proof in a contested adoption and termination case is clear and convincing evidence. On appeal from a chancellor’s decision regarding adoption and termination of parental rights, the standard of review by the Mississippi Supreme Court is one of manifest error/substantial credible evidence test. N.E. and R.H. v. L.H. Jr. and L.T. 761 So.2d 956 (No.1998-CA-01242-COA 2000).
(a) Abandonment or neglect.
First of all, “neglect” is not a label that is placed upon a parent, but is used to describe a child that has been neglected by his parent(s) according to Miss. Code Ann. section 43-21-105(l). Neglect can be shown where a child’s parent neglects or refuses, when able to do so, to provide proper and necessary care or support, or medical, surgical, or other care necessary for the child’s well being or who, for any reason, lacks the care necessary for his health, morals, or well being. In re A.M.A. 986 So.2d 999 (Miss. Ct. App. 2007). Neglect is usually predicated upon a finding that the offending parent has a history of drug or alcohol abuse, mental and physical disorders (such as severe bipolar disorder and depression) or a finding and adjudication of neglect by the Youth Court.
Abandonment must be for a continuous period of six (6) months for a child under three years of age, and for a period of one year for a child over the age of three. The offending parent must exhibit behavior which indicates a severance of all ties with the child. In re Adoption of a Minor Child, 931 So.2d 566, (Miss. 2006). Incarceration in prison, while constituting a significant factor, does not necessarily justify termination of a father’s parental rights where there was testimony that the father communicated with his children and exercised his visitation rights up until the time he went to jail. Gunter v Gray, 876 So.2d 315, (Miss. 2004)
(b) Erosion of parent/child relationship.
The grounds of erosion of the parent/child relationship must be shown by proving an extreme and deep-seated antipathy by the child toward the parent. This is usually done with expert testimony and using the best interest of the child standard. Vance v. Lincoln County Dept. Of Pub. Welfare ex rel Weathers, 582 So.2d 414 (Miss. 1991); May v. Harrison County Dept of Human Services, 883 So.2d 74 (Miss. 2004).
(c) Commission of a crime or imprisonment.
Most often this is used in conjunction with a claim of abandonment or neglect. There must be substantial evidence to support the finding that the incarceration alone caused the erosion of the parent/child relationship to justify termination on this basis. However, incarceration seems to be sufficient to terminate parental rights if the parent committed a crime against children, whether or not they were his own, or was found guilty of abuse or neglect. H.D.H. v. Prentiss County DHS, 979 So.2d 6 (Miss. Ct. App. 2008).
(d) Moral unfitness.
In today’s world this seems to be a real moving target. Our Mississippi Appellate Courts have held that the fact that the mother worked as a stripper did not constitute moral unfitness justifying terminating her parental rights, Hillman v Vance, 910 So.2d 43 (Miss. Ct. App. 2005); that a natural father was not morally “unfit” where he had failed to make child support payments, been arrested for possession of marijuana with intent to deliver, and had cohabited with someone other than his spouse. In re J.D. 512 So.2d 684 (Miss. 1987).
H. Tackling Third-Party Challenges
We do have one reported decision in Mississippi regarding an adult adoption, which is the Estate of Reid v. Pluskat, 825 So.2d 1 (Miss. 2002). In this case, a young man named Michael Cupit, 24-years old, made an uninvited appearance at the home of Mary Lee Reid, a 78-year old widow. Mrs. Reid’s home is located in Liberty, Mississippi, and Cupit claims that his motivation for the visit was his interest in antebellum homes. That visit occurred in the summer of 1979, and shortly thereafter, Cupit begin attending the University of Mississippi Law School. However, his relationship with Mrs. Reid continued, and the record indicates that it may have even become intimate at some point in time. In 1986, Reid adopted Cupit, and by 1995, Cupit had managed to have Mrs. Reid change her Will and to grant him power of attorney. Mrs. Reid died in 1997, and Cupit sought to have Letters of Administration for her estate issued to himself, which resulted in the subject litigation. This case was instituted by Thomas Pluskat, who was a potential heir of Mrs. Reid, and who sought to have not only the Will, but the adoption overturned by the Chancery Court. Based upon Miss Code Ann. §93-17-7, only a natural parent has a statutory right to object to the adoption of a child. Also, there is a six-month statute of limitation for challenging final adoptions. Miss. Code Ann. section 93-17-15. Based on those two statutes, Cupit sought to have the attack by Pluskat dismissed because he lacked standing to challenge the adoption. The Mississippi Court stated as follows:
“We recognize that the adoption of children is sacred and the finality of adoption is of the upmost necessity. However, we are not dealing with the adoption of a child in this case. We are dealing with an adult with the adoption of an adult man with a law degree who gained the trust and dependance of an elderly lady”.
Because the Supreme Court found that Cupit had committed a fraud on the adoption court, Thomas Pluskat was allowed to attack and set aside the adoption, even though he was not “a natural parent.” The Supreme Court in this case was careful to issue it admonishment that the ruling in this opinion and the Court’s findings concerning the adoption in this case are specific to the facts to this case and this alone.
In 2008, in the case of In the Matter of the Adoption of B.C.S., Jr.: D.D.S. and D.J.S. v. Illinois Central Railroad Company, Mississippi No.: 2008-CA-00764-COA, the Court of Appeals again affirmed this State’s long-standing position that only a natural parent has the right to object to the adoption of a child.I. Procedures for Dissolution of Adoption
The only procedure in Mississippi for the dissolution of an adoption would be judicial based on jurisdictional deficiencies such as:
1. Obtaining the consent prior to the expiration of the seventy-two hour waiting period;
2. Not meeting the residency requirements;
3. Failing to obtain the consent of any person to be adopted that is fourteen years or older;
4. Failure to join all necessary parties; and
5. See Miss. Code Ann. section 93-17-17.
J. Withdrawal of Consent? What to do Next?
A valid consent cannot be “withdrawn” except by a judicial proceeding upon a showing that it was obtained by fraud, duress or undue influence. Any attempt by a parent who has freely and voluntarily given a consent is ineffective as to the adopting parents or the agency unless and until such parent obtains a court order allowing the consent to be withdrawn. There is a common misconception under Mississippi law that a birth parent has up to six months from the date of the consent to withdraw or cancel it. That is simply not the law in this state. Consents are effective upon their proper execution.
I. Correctly Handling an Appeal of an Adoption Decree
The appeal of an adoption case will be no different from that of other cases with two possible exceptions:
1. Contested Adoptions. Miss. Code Ann. section 93-17-8 provides that the Chancery Court shall schedule all such hearings concerning the contested adoption as expeditiously as possible. Because a contested adoption is a case that is to be expedited in the trial court, you will be entitled to request by motion that the Appellate Court designate the case as one that is to be expedited on its docket. This will potentially shorten considerably the appeal time and get you a decision from the Court much sooner than the standard appeal track for other cases.
2. In the appeal of a contested adoption, be it a case to terminate rights or one where the birth parent(s) seek to withdraw their consent, the issue of the custody of the baby or child may be an issue pending the appeal. Even on an expedited basis, the appeal is going to take several months, if not longer, and the welfare, care and custody of the child needs to be addressed during that time period. M.R.A.P. 8 allows you to make a motion for a stay, first in the trial court, and then in the Supreme Court for an order keeping the baby or child in the custody of the adoptive parents if that is an issue.
*This web page is provided only for the purpose of facilitating your search for legal counsel and the additional research that will be critical in determining the needs of your particular adoption matter.