North Carolina CLE Law to the People, LLC 2 hours Adoption 101 North Carolina CLE Law to the People, LLC 2 hours Presented by Ashley Michael, Esq. of CRAIGE & FOX, PLLC; January 15, 2015

WORKING WITH YOUR CLERK OUTLINE NCGS 48 WORKING WITH YOUR CLERK TYPES OF ADOPTION CHECKLISTS FORMS-NHDDS ADDITIONAL FORMS LAW UPDATE QUESTIONS

RESOURCES NORTH CAROLINA GENERAL STATUTES CHAPTER 48-ADOPTIONS DSS ADOPTION MANUAL CLERK’S MANUAL YOUR LOCAL CLERK ATTORNEY GENERAL’S OFFICE CHECKLISTS DHHS ONLINE FORMS INTERNAL DATABASE -intake -samples

NCGS CHAPTER 48.ADOPTIONS Legislative intent Legislative policy TEST CONFLICT Definitions Spouses may not adopt each other Can change name during adoption Legal effect of Decree Biological Grandparent rights to visitation

NCGS 48 (cont.) Indian Child Welfare Act Rights of Adoptee No right to jury whether contested or not NC must recognize an Adoption Decree by another state NC must recognize international adoption for readoption purposes

CONFIDENTIALITY Closed court if contested Sealed records from court index Files at courthouse not open to general public Original birth certificates are sealed by Registry (local and state) DSS keeps records if involved in case Attorney General’s office keeps records Follow Article 9 for instruction to unseal/open file and obtain records; will have to have a hearing

JURISDICTION Adoptee has lives in NC for past 6 consecutive months; OR Prospective adoptive parent(s) has lived in NC past 6 consecutive months; OR Agency licensed by NC-DSS office or NC-DSS has legal custody of the adoptee No other state or court would currently be exercising jurisdiction of adoptee OR w/i 60 days of filing NC Adoption Petition other states releases jurisdiction Custody Order a/o TPR Order is ok

VENUE County in which Petitioner lives or is domiciled at time of filing; OR Adoptee lives in county; OR An office of the Agency that placed Adoptee is located

VENUE TRANSFER Court on its own motion can move, stay or dismiss to another county Party via motion can move, stay or dismiss If Adoptee under NCGS 7B proceeding, then District Court having Jurisdiction shall retain jurisdiction until final order of Adoption is entered

Where do you find the law to follow for adoptions? Question #1 Where do you find the law to follow for adoptions?

Answers #1 Chapter 7B in NCGS NCGS Chapter 50 UCCJEA NCGS Chapter 48

Right answer #1 d

YOUR CLERK SPECIAL PROCEEDINGS-BEFORE THE CLERK Contested matters go to Judge in Superior Court Transactional in nature “t’s dotted and I’s crossed”NO Use DHHS forms Check with your clerk about use of white out and strike outs Ask your clerk how many copies of each form including originals Meet your clerk, pick their brain, ask for samples, check with clerk before filing things in odd scenarios

GUARDIAN AD LITEM Court appoint an attorney GAL to represent a parent or alleged parent who is unknown or whose whereabouts are unknown Advise the Petitioner(s)/your client(s) they will be paying this GAL fee to the state as state though AOC-IDS will pay GAL attorney Court on their own motion may appoint a GAL to the Adoptee in different cases Adult adoption/incompetent adult Child over 12 who does not consent or who writes the court child in contested adoption matters

TYPES OF ADOPTIONS: ADULT AGENCY DIRECT FOREIGN/READOPTION RELATIVE STEPPARENT ICPC*

Ways to fail at an adoption Notice errors Service errors Consent errors Revocation deadlines

CONSENT CCE standard 48-2-206. Pre-birth determination of right to consent Chapter 48, Part 6. Consent to Adoption. 48-3-608. Revocation. Pre-birth consent from biological father=7 days in utero; don’t count day of execution; inclusive of weekends and holidays; if day 7 is weekend or holiday or court closed then period extends to the next business day Direct Placement=if PPA is required and placement is before PPA is given to parent executing consent-7 days; =5 business days after receiving PPA, or 7 days, whichever longer If revocation, then adoptive parents should return physical custody immediately upon biological/legal parents request Second consent is irrevocable if to same prospective adoptive parents

RELINQUISHMENT TO ADOPTION Only through DSS/Agency not private adoption Part 7

NOTICE 48-2-401. Notice by Petitioner. 48-2-402. Service. Differs per circumstance and type of adoption Summons is not used for Adopt Petitions, regardless of type 48-2-402. Service. Typically use NCGS, RCP, 1A1-4 For unknown parent or location not known of parent use 1A1-4(j) for publication Clerk will require due diligence Affidavit for an Order to Publish Depending on conception circumstances a biological mother might have to prepare an Affidavit Representation of biological mother (caution) 48-2-407. Proof of service. Do an Affidavit of SOP

How many statutory types of adoption are there? QUESTION #2 How many statutory types of adoption are there?

Answers #2 5 6 7 An unlimited amount depending on the totality of circumstances

Right answer #2 6 types by statute

PETITIONER(S) If married, spouse has to join Must use full legal name If no middle name then use “NMN” Sometimes clerk might require an Affidavit if the legal name has an initial or symbol

ADULT ADOPTION Definition=adult defined by 48-1-101(3) and is over the age of 18, married or emancipated Notice of adoption goes to any adult children of Petitioner(s) Notice of adoption also goes to any parent, spouse, or adult child of the adult Adoptee Court can waive notice to parent of adult Adoptee for good cause shown Still transactional in nature and informal but clerk must have a hearing (48-2-605); POE standard

ADULT ADOPTION GAL scenario “Ick” factor

AGENCY ADOPTIONS Definition=if have legal and physical custody of minor by means of relinquishment or by TPR Social worker acts as legal guardian for minor Agency has identified the prospective adoptive parent(s) Social worker completes some of the initial filing court packet

AGENCY ADOPTIONS Follow checklist Ask your clerk if typically the court will waive 90 days Needs preplacement assessment; comes from Agency Clerk provides “notice” to DSS/Agency in mailing the Order for Report and sends to DSS/Agency that prepared the PPA

DIRECT PLACEMENT Definition=parent/guardian (not agency) selects a prospective adoptive parent and executes consent Revocation period #1; 7 days Certification of delivery of PPA is revocation period #2; 5 business days or 7, whichever longer Can have many different Affidavits/supplements depending on consents missing, clearance necessary for consents or waiver, notice, service, no forms included in adoption packet and/or paternity matters

DIRECT PLACEMENT Most common Can have many different levels of clearance for consents Most expensive Could have an adoptive placement facilitator Educate your clients about acceptable expenses under 48-3-05 for Affidavit accounting Remind you client to consult with a tax advisor/accountant

ATTACHMENTS TO PETITION Affidavit of Parentage Not necessary if have TPR Can be prepared by others than bio/legal parent Consents Only fathers can execute pre-birth TPR Order needs to be certified by Juvenile Court Custody Order is usually ok with a filed copy Don’t forget the B.C.; can use mother’s copy from hospital Affidavit of no health/history forms Various Affidavits

PREPLACEMENT ASSESSMENTS AGENCY DIRECT FOREIGN Not necessary for stepparent or adult adoptions Be careful of the delivery of PPA as this is the second opportunity for the biological/legal parent(s) to revoke consent Completed or updated w/i 18 months of placement

PPA (cont.) Who can perform (48-1-109): DSS in state of adoption Private agency licensed by DSS PPA from another state acceptable if: Prospective adoptive parents resided in state where prepared; AND Person authorized by that state E.g. usually in ICPC scenarios

Question #3 A biological mother would like to have her sister’s husband adopt the biological mother’s minor child. The sister is deceased. DSS has legal custody. The mother signs a relinquishment. What type of adoption checklist do you use?

Answers #3 Agency Direct Relative Stepparent

Right Answer#3 Agency

FOREIGN ADOPTION Definition=minor is adopted in their country of origin/birth (i.e. foreign county) based on that countries laws and procedures The home country will give the clearance for minor to leave their country with adoptive parent(s) Sometimes called a “re-adoption” Child is actually adopted twice but important to adopt the child in your home state Need Motion/Order to release from vital records for reapplication of Visa

FOREIGN ADOPTION Check with your clerk after consult about any problems or odd scenarios Most expensive and time consuming is to have the adoption records from the birth country already translated into English and notarized by translator Need the raised or original seal from notary; i.e. have the original document Ask your clerk if you may show these originals then take back to your office; keep in a fire safe! If spouses adopted internationally and have separated/divorced they must join in this adoption Family law; who is your client (caution)

RELATIVE ADOPTION Definition=a direct placement adoption by parent/guardian by grandparent, sibling, first cousin, aunt, uncle, great-aunt, great-uncle or great-grandparent of minor No PPA All other relatives, blood relation, a/o kin should follow a Direct Placement Adoption checklist Needs PPA

STEPPARENT ADOPTION Definition=must be married under any valid state’s law in USA Minor must have lived with stepparent and parent for more than 6 months (after marriage date) unless clerk waives for cause No PPA

CHILD OVER 12 GIVES CONSENT You should meet the child with their prospective adoptive parent You should also meet the child alone Remember to offer counseling and their own attorney Tell the child your client is/are the Petitioner/s

DISPOSITION If Petition not contested and all consents and relevant attachments are in the file, clerk will issue Decree w/o formal hearing (except for Adult Adoptions) POE standard If contested, clerk shall transfer to district court judge If a hearing, gather case law, COA and SC rulings because most likely you will have to educate your judge

DECREE & BIRTH CERTIFICATE Decree is the court’s order you have adopted the minor All legal rights are now vested Decree is what is necessary to change school records, SSA records, DSS-state/federal documents for benefit purposes, DMV id cards, bank accounts, medical records Birth certificate comes from Office of Vital Records & Statistics in Raleigh How to advise your client Might take 6 months to receive Register of Deeds

RECENT LAW CHANGES STEPPARENT AND SAME SEX COUPLES

QUESTIONS???

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