1. 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

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

3. 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

4. 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

5. 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

6. 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

7. 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

8. 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

9. 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

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

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

12. Right answer #1 d

13. 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

14. 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

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

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

17. CONSENT
CCE standard
Pre-birth determination of right to consent
Chapter 48, Part 6. Consent to Adoption.
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

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

19. 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
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)
Proof of service. Do an Affidavit of SOP

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

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

22. Right answer #2
6 types by statute

23. 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

24. ADULT ADOPTION
Definition=adult defined by (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 ( ); POE standard

25. ADULT ADOPTION
GAL scenario
“Ick” factor

26. 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

27. 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

28. 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

29. 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 for Affidavit accounting
Remind you client to consult with a tax advisor/accountant

30. 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

31. 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

32. 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

33. 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?

34. Answers #3
Agency
Direct
Relative
Stepparent

35. Right Answer#3
Agency

36. 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

37. 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)

38. 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

39. 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

40. 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

41. 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

42. 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

43. RECENT LAW CHANGES
STEPPARENT AND SAME SEX COUPLES

44. QUESTIONS???

45. THANK YOU FOR PARTICIPATING