Bill Text: VA HB112 | 2024 | Regular Session | Prefiled
Bill Title: Adoption; parental placement and agency adoption.
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Introduced - Dead) 2024-01-26 - Incorporated by Courts of Justice [HB112 Detail]
Download: Virginia-2024-HB112-Prefiled.html
Be it enacted by the General Assembly of Virginia:
1. That §§16.1-277.01, 20-166, 20-167, 54.1-2969, 63.2-1201.1, 63.2-1230, and 63.2-1233 of the Code of Virginia are amended and reenacted as follows:
§16.1-277.01. Approval of entrustment agreement.
A. In any case in which a child has been entrusted pursuant to §63.2-903 or 63.2-1817 to the local board of social services or to a child welfare agency, a petition for approval of the entrustment agreement by the board or agency:
1. Shall be filed within a reasonable period of time, no later than 89 days after the execution of an entrustment agreement for less than 90 days, if the child is not returned to the caretaker from whom he was entrusted within that period;
2. Shall be filed within a reasonable period of time, not to exceed 30 days after the execution of an entrustment agreement for 90 days or longer or for an unspecified period of time, if such entrustment agreement does not provide for the termination of all parental rights and responsibilities with respect to the child; and
3. May be filed in the case of a permanent entrustment agreement which provides for the termination of all parental rights and responsibilities with respect to the child.
The board or agency shall file a foster care plan pursuant to §16.1-281 to be heard with any petition for approval of an entrustment agreement.
B. Upon the filing of a petition for approval of an
entrustment agreement pursuant to subsection A of §16.1-241, the court shall
appoint a guardian ad litem to represent the child in accordance with the
provisions of §16.1-266, and shall schedule the matter for a hearing to be
held as follows: within 45 10 days,
or as soon thereafter is practicable so as to provide the earliest possible
disposition, of the filing of a petition pursuant to
subdivision A 1, A 2 or A 3, except where an order of publication has been
ordered by the court, in which case the hearing shall be held within 75 days of
the filing of the petition. The court shall provide notice of the hearing and a
copy of the petition to the following, each of whom shall be a party entitled
to participate in the proceeding:
1. The local board of social services or child welfare agency;
2. The child, if he is 12 years of age or older;
3. The guardian ad litem for the child; and
4. The child's parents, guardian, legal custodian or other person standing in loco parentis to the child. No such notification shall be required, however, if the judge certifies on the record that the identity of the parent or guardian is not reasonably ascertainable. A birth father shall be given notice of the proceedings if he is an acknowledged father pursuant to § 20-49.1, adjudicated pursuant to §20-49.8, or presumed pursuant to § 63.2-1202, or has registered with the Virginia Birth Father Registry pursuant to Article 7 (§63.2-1249 et seq.). An affidavit of the mother that the identity of the father is not reasonably ascertainable shall be sufficient evidence of this fact, provided there is no other evidence before the court which would refute such an affidavit. Failure to register with the Virginia Birth Father Registry pursuant to Article 7 (§63.2-1249 et seq.) of Chapter 12 of Title 63.2 shall be evidence that the identity of the father is not reasonably ascertainable. The hearing shall be held and an order may be entered, although a parent, guardian, legal custodian or person standing in loco parentis fails to appear and is not represented by counsel, provided personal or substituted service was made on the person, or the court determines that such person cannot be found, after reasonable effort, or in the case of a person who is without the Commonwealth, the person cannot be found or his post office address cannot be ascertained after reasonable effort. However, when a petition seeks approval of a permanent entrustment agreement which provides for the termination of all parental rights and responsibilities with respect to the child, a summons shall be served upon the parent or parents and the other parties specified in §16.1-263. The summons or notice of hearing shall clearly state the consequences of a termination of residual parental rights. Service shall be made pursuant to §16.1-264. The remaining parent's parental rights may be terminated even though that parent has not entered into an entrustment agreement if the court finds, based upon clear and convincing evidence, that it is in the best interest of the child and that (i) the identity of the parent is not reasonably ascertainable; (ii) the identity and whereabouts of the parent are known or reasonably ascertainable, and the parent is personally served with notice of the termination proceeding pursuant to §8.01-296 or 8.01-320; (iii) the whereabouts of the parent are not reasonably ascertainable and the parent is given notice of the termination proceedings by certified or registered mail to the last known address and such parent fails to object to the proceedings within 15 days of the mailing of such notice; or (iv) the whereabouts of the parent are not reasonably ascertainable and the parent is given notice of the termination proceedings through an order of publication pursuant to §§8.01-316 and 8.01-317, and such parent fails to object to the proceedings.
C. At the hearing held pursuant to this section, the court shall hear evidence on the petition filed and shall review the foster care plan for the child filed by the local board or child welfare agency in accordance with §16.1-281.
D. At the conclusion of the hearing, the court shall make a finding, based upon a preponderance of the evidence, whether approval of the entrustment agreement is in the best interest of the child. However, if the petition seeks approval of a permanent entrustment agreement which provides for the termination of all parental rights and responsibilities with respect to the child, the court shall make a finding, based upon clear and convincing evidence, whether termination of parental rights is in the best interest of the child. If the court makes either of these findings, the court may make any of the orders of disposition permitted in a case involving an abused or neglected child pursuant to §16.1-278.2. Any such order transferring legal custody of the child shall be made in accordance with the provisions of subdivision A 5 of §16.1-278.2 and shall be subject to the provisions of subsection D1. This order shall include, but need not be limited to, the following findings: (i) that there is no less drastic alternative to granting the requested relief; and (ii) that reasonable efforts have been made to prevent removal and that continued placement in the home would be contrary to the welfare of the child, if the order transfers legal custody of the child to a local board of social services. At any time subsequent to the transfer of legal custody of the child pursuant to this section, a birth parent or parents of the child and the pre-adoptive parent or parents may enter into a written post-adoption contact and communication agreement in accordance with the provisions of §16.1-283.1 and Article 1.1 (§63.2-1220.2 et seq.) of Chapter 12 of Title 63.2. The court shall not require a written post-adoption contact and communication agreement as a precondition to entry of an order in any case involving the child.
The effect of the court's order approving a permanent entrustment agreement is to terminate an entrusting parent's residual parental rights. Any order terminating parental rights shall be accompanied by an order (i) continuing or granting custody to a local board of social services or to a licensed child-placing agency or (ii) granting custody or guardianship to a person with a legitimate interest. Such an order continuing or granting custody to a local board of social services or to a licensed child-placing agency shall indicate whether that board or agency shall have the authority to place the child for adoption and consent thereto. A final order terminating parental rights pursuant to this section renders the approved entrustment agreement irrevocable. Such order may be appealed in accordance with the provisions of § 16.1-296.
D1. Any order transferring custody of the child to a person with a legitimate interest pursuant to subsection D shall be entered only upon a finding, based upon a preponderance of the evidence, that such person is one who (i) after an investigation as directed by the court, is found by the court to be willing and qualified to receive and care for the child; (ii) is willing to have a positive, continuous relationship with the child; (iii) is committed to providing a permanent, suitable home for the child; and (iv) is willing and has the ability to protect the child from abuse and neglect; and the order shall so state. The court's order transferring custody to a person with a legitimate interest should further provide for, as appropriate, any terms and conditions which would promote the child's interest and welfare; ongoing provision of social services to the child and the child's custodian; and court review of the child's placement.
E. The local board or licensed child-placing agency to which authority is given to place the child for adoption and consent thereto after an order terminating parental rights is entered pursuant to this section shall file a written Adoption Progress Report with the juvenile court on the progress being made to place the child in an adoptive home. The report shall be filed with the court every six months from the date of the final order terminating parental rights until a final order of adoption is entered on behalf of the child in the circuit court. At the conclusion of the hearing at which termination of parental rights is ordered and authority is given to the local board or licensed child-placing agency to place the child for adoption, the juvenile court shall schedule a date by which the board or agency shall file the first Adoption Progress Report required by this section. A copy of the Adoption Progress Report shall be sent by the court to the guardian ad litem for the child. The court may schedule a hearing on the report with or without the request of a party.
§20-166. Power of attorney to delegate parental or legal custodial powers.
A. A parent or legal custodian of a child, by a properly executed power of attorney pursuant to §20-167, may delegate to another person, for a period not to exceed 180 days, any of the powers regarding the custody, care, and property of the child except the power to consent to marriage or adoption of the child, the performance or inducement of an abortion on or for the child, or the termination of parental rights to the child. In the event that both parents of a child are exercising joint custody, both parents shall be required to execute such power of attorney.
Such parent or legal custodian who is a service member may delegate such powers for a period longer than 180 days while on active duty service if such active duty is longer than 180 days, but such period shall not exceed the term of active duty service plus 30 days. For the purposes of this section, "service member" means (i) a member of the Armed Forces of the United States, (ii) a member of the Armed Forces Reserves, (iii) a member of the National Guard, (iv) a member of the commissioned corps of the National Oceanic and Atmospheric Administration, (v) a member of the commissioned corps of the U.S. Public Health Services, or (vi) any person otherwise required to enter or serve in the active military services of the United States under a call or order of the President of the United States or to serve on state active duty.
A delegation of powers under this section shall not operate to change or modify any parental or legal rights, obligations, or authority established by an existing court order or deprive a parent or legal custodian of any parental or legal rights, obligations, or authority regarding the custody, visitation, or support of any child under this title.
B. Any power of attorney properly executed pursuant to §
20-167 shall be signed by all persons with authority to make decisions
concerning the child pursuant to Chapter 6.1 (§20-124.1 et seq.), the person
to whom powers are delegated under the power of attorney, and including
adoptive parents in a direct parental placement adoption pursuant to §
63.2-1230, or a representative of a licensed child-placing
agency that assists parents and legal guardians with the process of delegating
parental and legal custodial powers of their children, including assistance
with identifying appropriate placements for their children and providing
services and resources to support children, parents and legal guardians, and
persons to whom parental or legal custodial powers are delegated pursuant to
this chapter. That Such licensed child-placing
agency shall file notice of the arrangement authorized by the power of attorney
with the local department of social services in the jurisdiction where the
parents or legal guardian resides within seven days of its execution.
C. Any person who has signed the form under §20-167 shall have the authority to revoke or withdraw the power of attorney authorized by subsection A at any time unless such authority is superseded by a court order. If the delegation of authority lasts longer than 180 days, a new power of attorney shall be executed. Where such delegation is executed by a service member, if the delegation is longer than 180 days while on active duty service and exceeds the term of active duty service plus 30 days, a new power of attorney shall be executed.
D. The attorney-in-fact shall exercise parental or legal authority on a continuous basis for not less than 24 hours and without compensation for the intended duration of the power of attorney authorized by subsection A and shall not be subject to the licensing requirements of §63.2-1701.
E. The execution of a power of attorney by a parent or legal custodian authorized by subsection A shall not constitute abandonment, abuse, or neglect as defined in §63.2-100 unless the parent or legal custodian fails to make contact or execute a new power of attorney after the time limit has elapsed.
F. Under a delegation of powers as authorized by subsection A, the child subject to the power of attorney shall not be deemed placed in foster care, in a foster home, or in an independent foster home as defined in § 63.2-100, and the parties shall not be subject to any of the licensing requirements or regulations for foster care.
G. A licensed child-placing agency that assists parents and legal guardians with the process of delegating parental and legal custodial powers of their children shall (i) comply with background check requirements established by regulations of the Board of Social Services or otherwise provided by law; (ii) develop and implement written policies and procedures for (a) governing active and closed cases, (b) governing admissions, (c) monitoring the administration of medications, (d) prohibiting corporal punishment, (e) ensuring that children are not subjected to abuse or neglect, (f) investigating allegations of misconduct toward children, (g) implementing back-up emergency care plans for children, (h) assigning designated casework staff, (i) managing all records, (j) utilizing discharge policies, and (k) regulating the use of seclusion and restraint; and (iii) provide pre-service and ongoing training for temporary placement providers and staff. Any person to whom any powers are delegated pursuant to this section shall comply with background check requirements established by regulations of the Board of Social Services or otherwise provided by law.
H. Except as may be permitted by the federal No Child Left Behind Act, 20 U.S.C. §§6301 et seq. and 7801 et seq., a power of attorney executed pursuant to §20-167 shall be invalid if executed for the primary purpose of enrolling the child in a school for the sole purpose of participating in the academic or interscholastic athletics programs provided by that school or for any other unlawful purpose. Violation of this subsection shall be punishable in accordance with the laws of the Commonwealth and may require, in addition to any other remedies, repayment by such parent of all costs incurred by the school as a result of the violation.
§20-167. Statutory form for power of attorney to delegate parental or legal custodial powers.
A. A power of attorney to delegate parental or legal authority executed pursuant to this chapter shall be substantially as follows:
POWER OF ATTORNEY TO DELEGATE PARENTAL OR LEGAL CUSTODIAL POWERS
1. I/We certify that I/we am/are the parent or legal custodian of:
Full name of minor child: __________________________ Date of birth: __________
Full name of minor child: __________________________ Date of birth: __________
Full name of minor child: __________________________ Date of birth: __________
2. I/We designate ____________________ (insert full name, address, and phone number of designated attorney-in-fact) as the attorney-in-fact of each child listed above.
3. I/We delegate to the attorney-in-fact all of my/our power and authority regarding the care, custody, and property of each minor child named above, including discharge of a newborn infant from the hospital of birth, the initial physical placement of a child with the adoptive parent in accordance with the provisions of Title 63.2 of the Code of Virginia, the right to enroll the child in school, the right to inspect and obtain copies of education records and other records concerning the child, the right to attend school activities and other functions concerning the child, and the right to give or withhold any consent or waiver with respect to school activities, medical and dental treatment, and any other activity, function, or treatment that may concern the child. This delegation shall not include the power or authority to consent to marriage or adoption of the child, the performance or inducement of an abortion on or for the child, or the termination of parental rights to the child. I/We understand that this power of attorney shall not operate to change or modify any parental or legal rights, obligations, or authority established by an existing court order or deprive a parent or legal custodian of any parental or legal rights, obligations, or authority regarding the custody, visitation, or support of any child under Title 20 of the Code of Virginia, and I/we understand that I/we shall continue to be bound by any obligations in such order. By my/our signature below, I/we hereby certify that I/we am/are not executing this power of attorney for any unlawful purpose or for the primary purpose of enrolling my/our child/children in a school for the sole purpose of participating in the academic or interscholastic athletics programs provided by that school.
OR
3. I/We delegate to the attorney-in-fact the following specific powers and responsibilities:
_____________________________________________________________________
_____________________________________________________________________.
This delegation shall not include the power or authority to consent to marriage or adoption of the child, the performance or inducement of an abortion on or for the child, or the termination of parental rights to the child. I/We understand that this power of attorney shall not operate to change or modify any parental or legal rights, obligations, or authority established by an existing court order or deprive a parent or legal custodian of any parental or legal rights, obligations, or authority regarding the custody, visitation, or support of any child under Title 20 of the Code of Virginia, and I/we understand that I/we shall continue to be bound by any obligations in such order. By my/our signature below, I/we hereby certify that I/we am/are not executing this power of attorney for any unlawful purpose or for the primary purpose of enrolling my/our child/children in a school for the sole purpose of participating in the academic or interscholastic athletics programs provided by that school.
4. This power of attorney is effective for a period not to exceed 180 days, beginning __________ (insert date) and ending __________ (insert date). I/We reserve the right to revoke this authority at any time.
OR
4. I/We am/are a service member, as defined by §20-166 of the Code of Virginia, and am/are on, or am/are scheduled to be on, active duty for a period that is set to last longer than 180 days. This power of attorney is effective for a period not to exceed the period of active duty plus 30 days, beginning __________ (insert date) and ending __________ (insert date). I/We reserve the right to revoke this authority at any time.
Signature(s) of parent/legal custodian: __________________________ Date: _______
5. I hereby accept my designation as attorney-in-fact for the minor child/children specified in this power of attorney and agree to act at all times in the best interests of the child/children specified herein and within the limits of the powers delegated to me. I understand that this power of attorney does not change or modify any parental or legal rights, obligations, or authority established by an existing court order or deprive a parent or legal custodian of any parental or legal rights, obligations, or authority regarding the custody, visitation, or support of the child/children specified herein. By my signature below, I affirm that I have received notice of any existing court order regarding the custody, visitation, or support of the child/children and agree to honor the rights of a parent or legal custodian of the child/children as specified in such order.
Signature of attorney-in-fact: _________________________________ Date: ________
6. I, ___________________ (insert name of representative of licensed child-placing agency), on behalf of __________________ (insert name of licensed child-placing agency), hereby approve the designation of the aforementioned attorney-in-fact for the minor child/children specified in this power of attorney and accept responsibility for the supervision of the placement during the time the child/children is/are in the care of the attorney-in-fact.
Signature of representative of licensed child-placing agency: _________________ Date: ________
B. A power of attorney executed under this chapter is legally sufficient if the wording of the form complies substantially with subsection A, the form is properly completed, and the signatures of the parties are acknowledged or verified before a notary public.
§54.1-2969. Authority to consent to surgical and medical treatment of certain minors.
A. Whenever any minor who has been separated from the custody of his parent or guardian is in need of surgical or medical treatment, authority commensurate with that of a parent in like cases is conferred, for the purpose of giving consent to such surgical or medical treatment, as follows:
1. Upon judges with respect to minors whose custody is within the control of their respective courts.
2. Upon local directors of social services or their designees with respect to (i) minors who are committed to the care and custody of the local board by courts of competent jurisdiction, (ii) minors who are taken into custody pursuant to §63.2-1517, and (iii) minors who are entrusted to the local board by the parent, parents or guardian, when the consent of the parent or guardian cannot be obtained immediately and, in the absence of such consent, a court order for such treatment cannot be obtained immediately.
3. Upon licensed child-placing agencies in the Commonwealth with respect to minors who are voluntarily entrusted to the care and custody of such child-placing agency for foster care or adoptive placement by the parent or legal guardian pursuant to §§63.2-902, 63.2-903, 63.2-1221, 63.2-1222, and 63.2-1817.
4. Upon a prospective adoptive parent with respect to minors who will be placed in his care and custody for the purpose of adoption by such prospective adoptive parent prior to the execution of the consent for adoption, to be executed in court or in a sworn written statement pursuant to §§63.2-1230 and 63.2-1233.
5. Upon the Director of the Department of Corrections or the Director of the Department of Juvenile Justice or his designees with respect to any minor who is sentenced or committed to his custody.
4. 6. Upon
the principal executive officers of state institutions with respect to the
wards of such institutions.
5. 7. Upon
the principal executive officer of any other institution or agency legally
qualified to receive minors for care and maintenance separated from their
parents or guardians, with respect to any minor whose custody is within the
control of such institution or agency.
6. 8. Upon
any person standing in loco parentis, or upon a conservator or custodian for
his ward or other charge under disability.
B. Whenever the consent of the parent or guardian of any minor who is in need of surgical or medical treatment is unobtainable because such parent or guardian is not a resident of the Commonwealth or his whereabouts is unknown or he cannot be consulted with promptness reasonable under the circumstances, authority commensurate with that of a parent in like cases is conferred, for the purpose of giving consent to such surgical or medical treatment, upon judges of juvenile and domestic relations district courts.
C. Whenever delay in providing medical or surgical treatment to a minor may adversely affect such minor's recovery and no person authorized in this section to consent to such treatment for such minor is available within a reasonable time under the circumstances, no liability shall be imposed upon qualified emergency medical services personnel as defined in §32.1-111.1 at the scene of an accident, fire or other emergency, a licensed health professional, or a licensed hospital by reason of lack of consent to such medical or surgical treatment. However, in the case of a minor 14 years of age or older who is physically capable of giving consent, such consent shall be obtained first.
D. Whenever delay in providing transportation to a minor from the scene of an accident, fire or other emergency prior to hospital admission may adversely affect such minor's recovery and no person authorized in this section to consent to such transportation for such minor is available within a reasonable time under the circumstances, no liability shall be imposed upon emergency medical services personnel as defined in §32.1-111.1, by reason of lack of consent to such transportation. However, in the case of a minor 14 years of age or older who is physically capable of giving consent, such consent shall be obtained first.
E. A minor shall be deemed an adult for the purpose of consenting to:
1. Medical or health services needed to determine the presence of or to treat venereal disease or any infectious or contagious disease that the State Board of Health requires to be reported;
2. Medical or health services required in case of birth control, pregnancy or family planning except for the purposes of sexual sterilization;
3. Medical or health services needed in the case of outpatient care, treatment or rehabilitation for substance abuse as defined in §37.2-100; or
4. Medical or health services needed in the case of outpatient care, treatment or rehabilitation for mental illness or emotional disturbance.
A minor shall also be deemed an adult for the purpose of accessing or authorizing the disclosure of medical records related to subdivisions 1 through 4.
F. Except for the purposes of sexual sterilization, any minor who is or has been married shall be deemed an adult for the purpose of giving consent to surgical and medical treatment.
G. A pregnant minor shall be deemed an adult for the sole purpose of giving consent for herself and her child to surgical and medical treatment relating to the delivery of her child when such surgical or medical treatment is provided during the delivery of the child or the duration of the hospital admission for such delivery; thereafter, the minor mother of such child shall also be deemed an adult for the purpose of giving consent to surgical and medical treatment for her child.
H. Any minor 16 years of age or older may, with the consent of a parent or legal guardian, consent to donate blood and may donate blood if such minor meets donor eligibility requirements. However, parental consent to donate blood by any minor 17 years of age shall not be required if such minor receives no consideration for his blood donation and the procurer of the blood is a nonprofit, voluntary organization.
I. Any judge, local director of social services, Director of the Department of Corrections, Director of the Department of Juvenile Justice, or principal executive officer of any state or other institution or agency who consents to surgical or medical treatment of a minor in accordance with this section shall make a reasonable effort to notify the minor's parent or guardian of such action as soon as practicable.
J. Nothing in subsection G shall be construed to permit a minor to consent to an abortion without complying with §16.1-241.
K. Nothing in subsection E shall prevent a parent, legal guardian or person standing in loco parentis from obtaining (i) the results of a minor's nondiagnostic drug test when the minor is not receiving care, treatment or rehabilitation for substance abuse as defined in §37.2-100 or (ii) a minor's other health records, except when the minor's treating physician, clinical psychologist, clinical social worker, or licensed professional counselor has determined, in the exercise of his professional judgment, that the disclosure of health records to the parent, legal guardian, or person standing in loco parentis would be reasonably likely to cause substantial harm to the minor or another person pursuant to subsection B of § 20-124.6.
§63.2-1201.1. Previously married persons who stood in loco parentis during the time of the marriage may adopt in the same manner as married persons.
A. A man and woman Persons previously married to
each other who stood in loco parentis to a child during their marriage to each
other, and who could have adopted or readopted the child pursuant to this
chapter while married to each other, but whose marriage is void, has been
annulled or has dissolved, may adopt or readopt the child pursuant to the
provisions in this chapter that are applicable to married persons.
B. An individual previously married to a parent of a child by birth or adoption, and who stood in loco parentis to that child during the marriage, and who could have adopted the child pursuant to §63.2-1241 during the marriage, may, with the consent of the prior spouse who is a parent of the child by birth or adoption, adopt the child, after the marriage has been dissolved, annulled or voided, pursuant to the provisions of this chapter that are applicable to step-parents.
C. Any person or persons seeking to adopt or readopt pursuant to this section may be permitted to do so even if they have remarried.
D. Nothing in this section shall be construed to permit any
child to have more than two living parents by birth or adoption, who have legal
rights and obligations in respect to the child,
in the form of one father and one mother.
§63.2-1230. Placement of children by parent or guardian.
The birth parent, legal guardian, or adoptive parent of a
child may place his child for adoption directly with the adoptive parents of his
choice. Such parent
or legal guardian may execute a
power of attorney to the adoptive parent for discharge of a newborn infant from
a hospital or for the initial physical placement of a child with an adoptive
parent pursuant to subsection B of
§20-166 and subsection A of §54.1-2969. Consent to the proposed adoption shall be executed upon
compliance with the provisions of this chapter before a juvenile and domestic
relations district court or, if the birth parent or legal guardian does not
reside in Virginia, before a court having jurisdiction over child custody
matters in the jurisdiction where the birth parent or legal guardian resides when requested by a juvenile and domestic
relations district court of this Commonwealth, pursuant to §20-146.11. Such out-of-state consent shall be accepted by the
juvenile and domestic relations district court. Consent
proceedings shall be advanced on the juvenile and domestic relations district
court docket so as to be heard by the court within ten days of filing of the
petition, or as soon thereafter as practicable so as to provide the earliest
possible disposition.
§63.2-1233. Consent to be executed in juvenile and domestic relations district court; exceptions.
When the juvenile and domestic relations district court is satisfied that all requirements of §63.2-1232 have been met with respect to at least one birth parent and the adoptive child is at least in the third calendar day of life, that birth parent or both birth parents, as the case may be, shall execute consent to the proposed adoption in compliance with the provisions of § 63.2-1202 while before the juvenile and domestic relations district court in person and in the presence of the prospective adoptive parents. The juvenile and domestic relations district court shall accept the consent of the birth parent(s) and transfer custody of the child to the prospective adoptive parents, pending notification to any nonconsenting birth parent, as described hereinafter.
1. a. The execution of consent before the juvenile and domestic relations district court shall not be required of a birth father if the birth father consents under oath and in writing to the adoption.
b. The consent of a birth father who is not married to the mother of the child at the time of the child's conception or birth shall not be required if the putative father named by the birth mother denies under oath and in writing the paternity of the child or if the putative father did not register with the Virginia Birth Father Registry pursuant to Article 7 (§ 63.2-1249 et seq.) of this chapter. If the identity of the birth father is reasonably ascertainable, but the whereabouts of the birth father are not reasonably ascertainable, verification of compliance with the Virginia Birth Father Registry shall be provided to the court.
c. When a birth father is required to be given notice, he may be given notice of the adoption by registered or certified mail to his last known address and if he fails to object to the adoption within 15 days of the mailing of such notice, his consent shall not be required. An objection shall be in writing, signed by the objecting party or counsel of record for the objecting party and shall be filed with the clerk of the juvenile and domestic relations district court in which the petition was filed during the business day of the court, within the time period specified in this section. When no timely objection is filed, no hearing on this issue is required. Failure of the objecting party to appear at any scheduled hearing, either in person or by counsel, shall constitute a waiver of such objection.
d. The juvenile and domestic relations district court may accept the written consent of the birth father at the time of the child's conception or birth, provided that his identifying information required in § 63.2-1232 is filed in writing with the juvenile and domestic relations district court of jurisdiction. Such consent shall advise the birth father of his opportunity for legal representation, shall identify the court in which the case was or is intended to be filed, and shall be presented to the juvenile and domestic relations district court for acceptance. The consent may waive further notice of the adoption proceedings and shall contain the name, address and telephone number of the birth father's legal counsel or an acknowledgment that he was informed of his opportunity to be represented by legal counsel and declined such representation. For good cause shown, the court may dispense with the requirements regarding the filing of the birth father's identifying information pursuant to this subdivision 1. d.
e. In the event that the birth mother's consent is not executed in the juvenile and domestic relations district court, the consent of the birth father shall be executed in the juvenile and domestic relations district court.
f. A child born to a married birth mother shall be presumed to be the child of her husband and his consent shall be required, unless the court finds that the father's consent is withheld contrary to the best interests of the child as provided in §63.2-1205 or if his consent is unobtainable. The consent of such presumed father shall be under oath and in writing and may be executed in or out of court. The presumption that the husband is the father of the child may be rebutted by sufficient evidence, satisfactory to the juvenile and domestic relations district court, which would establish by a preponderance of the evidence the paternity of another man or the impossibility or improbability of cohabitation of the birth mother and her husband for a period of at least 300 days preceding the birth of the child, in which case the husband's consent shall not be required. The executed denial of paternity by the putative father shall be sufficient to rebut the presumption that he is the father of the child. If the court is satisfied that the presumption has been rebutted, notice of the adoption shall not be required to be given to the presumed father.
2. After the application of the provisions of subdivision 1, if a birth parent is entitled to a hearing, the birth parent shall be given notice of the date and location of the hearing and be given the opportunity to appear before the juvenile and domestic relations district court. Such hearing may occur subsequent to the proceeding wherein the consenting birth parent appeared but may not be held until 15 days after personal service of notice on the nonconsenting birth parent, or if personal service is unobtainable, 10 days after the completion of the execution of an order of publication against such birth parent. The juvenile and domestic relations district court may appoint counsel for the birth parent(s). If the juvenile and domestic relations district court finds that consent is withheld contrary to the best interests of the child, as set forth in §63.2-1205, or is unobtainable, it may grant the petition without such consent and enter an order waiving the requirement of consent of the nonconsenting birth parent and transferring custody of the child to the prospective adoptive parents. No further consent or notice shall be required of a birth parent who fails to appear at any scheduled hearing, either in person or by counsel. If the juvenile and domestic relations district court denies the petition, the juvenile and domestic relations district court shall order that any consent given for the purpose of such placement shall be void and, if necessary, the court shall determine custody of the child as between the birth parents.
3. Except as provided in subdivisions 4 and 5, if consent cannot be obtained from at least one birth parent, the juvenile and domestic relations district court shall deny the petition and determine custody of the child pursuant to §16.1-278.2.
4. If a child has been under the physical care and custody of
the prospective adoptive parents who desire to
adopt such child but no birth parent has given or has executed consent,
and if one or
both birth parents have failed, without good cause, to appear at a hearing to
execute consent under this section for which they were given proper notice
pursuant to §16.1-264, the juvenile and domestic relations district court may
grant the petition without the consent of
either such
birth parent who has failed
to execute consent and enter an order waiving consent and transferring
custody of the child to the prospective adoptive parents.
Such adoption shall be considered a parental placement adoption pursuant to
this subdivision.
Prior to the entry of such an order, the juvenile and domestic relations
district court may appoint legal counsel for the birth parents and shall find
by clear and convincing evidence (i) that the birth
parents were parent who
failed to execute consent was given proper notice of the
hearing(s) to execute consent and of the hearing to proceed without their
such birth parent's consent; and (ii) that the
such birth parents parent failed to show good
cause for their his failure to appear at such
hearing(s); and (iii). Alternatively, if a birth parent has been given
proper notice and appears at such hearing or withholds consent, the court may
find that pursuant to §63.2-1205, the consent of the birth
parents is withheld contrary to the best interests of the child or is
unobtainable. Under this subdivision, the court or the parties may waive the
requirement of the simultaneous meeting under §63.2-1231 and the requirements
of subdivisions A 1, A 3, and A 7 of §63.2-1232 where the opportunity for
compliance is not reasonably available under the applicable circumstances.
5. If both birth parents are deceased, the juvenile and domestic relations district court, after hearing evidence to that effect, may grant the petition without the filing of any consent.
6. No consent shall be required from the birth father of a child placed pursuant to this section when such father is convicted of a violation of subsection A of §18.2-61, §18.2-63, subsection B of §18.2-366, or an equivalent offense of another state, the United States, or any foreign jurisdiction, and the child was conceived as a result of such violation, nor shall the birth father be entitled to notice of any of the proceedings under this section.
7. No consent shall be required of a birth father if he denies under oath and in writing the paternity of the child. Such denial of paternity may be withdrawn no more than 10 days after it is executed. Once the child is 10 days old, any executed denial of paternity is final and constitutes a waiver of all rights with the respect to the adoption of the child and cannot be withdrawn.
8. A birth father may consent to the adoption prior to the birth of the child.
9. The effect of the order of the juvenile and domestic relations district court accepting the birth parent's consent and finding that any applicable revocation period has expired is to terminate the consenting birth parent's residual parental rights. The court may also proceed to address and terminate any other birth parent's or putative birth parent's rights. The juvenile and domestic relations district court shall review each order entered under this section at least annually until such time as the final order of adoption is entered.
10. When there has been an interstate transfer of the child in a parental placement adoption in compliance with Chapter 10 (§63.2-1000 et seq.) of this title, all matters relating to the adoption of the child including, but not limited to, custody and parentage shall be determined in the court of appropriate jurisdiction in the state that was approved for finalization of the adoption by the interstate compact authorities.
