Ala. Admin. Code r. 660-5-22-.04

Current through Register Vol. 43, No. 1, October 31, 2024

Section 660-5-22-.04 - Adoption Legal Process

(1) Pre-Placement Investigations.

(a) A child may not be placed in a prospective adoptive home, either independently or by an agency, prior to completion of a pre-placement investigation of the petitioners and their home, except for good cause shown to the court on the court's record and with immediate notice by the petitioners to the court and the County Department of Human Resources.

(b) The pre-placement investigation must have been completed within twenty-four months of the placement of the child.

(c) The investigation must be conducted by one of the following:

1. The Department of Human Resources;

2. A licensed child-placing agency;

3. An individual or agency licensed by the Department to perform investigations; or

4. A social worker appointed by the court who is licensed by the Alabama Board of Social Work Examiners and certified by the Board for private independent practice in the social casework speciality.

(d) In the case of persons applying to the Department to become an adoptive resource for a child in the Department's custody, the completion of the adoption home study will meet the requirement for the pre-placement investigation.

(e) When a specific child has been identified, all criteria for the pre-placement investigation as listed in (f) below must be included in the investigation and report. When a specific child has not been identified for placement at the time of the pre-placement investigation, the information pertaining to the child and birth family must be included in the post-placement investigation and report to the court.

(f) Information which must be obtained in the investigation and included in the report to the court includes the following:

1. The suitability of each petitioner and his or her home for adoption;

2. Why the natural parents, if living, desire to be relieved of the care, support, and guardianship of the child;

3. Whether or not the natural parents have abandoned the child or are otherwise unsuited to have custody of the child;

4. Any orders, judgements or decrees affecting the adoptee or any children of the petitioners;

5. Any property owned by the adoptee;

6. The medical histories, physical and mental, of the adoptee and his or her biological parents;

7. Criminal background investigations of the petitioners;

8. All costs and expenses related to the adoption; and

9. Any other circumstances which may be relevant to the placement of the adoptee with the petitioners.

(g) All current and previous marriages, divorces and deaths of the petitioners and their current or former spouses must be verified and current reports of medical examinations must be completed by the petitioners and other residents of the household (must have been completed within two years of date of application).

(h) Medical histories of the adoptee and his or her biological parents must be given to the petitioners prior to finalization of the adoption and the case record must document that this information was provided to the petitioners or their attorney.

2. Petition.

(a) Following placement of a child in the home of the prospective adoptive parents, a petition to adopt the child must be filed in the Probate Court in the county in which the petitioners have legal residence or are in military service, in the county in which the child lives or has legal residence, or in the county in which the agency or institution having custody or guardianship of the child is located.

(b) In independent adoptions, a copy of the child's birth certificate or an affidavit stating that application for the birth certificate has been made must be filed with the petition except in cases of abandonment, along with a copy of the report of the pre-placement investigation. For children placed by the Department, the petition must be accompanied by a copy of the report of the pre-placement investigation and an affidavit by the petitioners that they have requested the Department to provide the court with a copy of the child's birth certificate. The Department will acknowledge to the court the receipt of the adoption petition and forward a copy of the child's original birth certificate.

(c) The petition must be filed within thirty days of placement unless the child is in the custody of the Department or a licensed child-placing agency, or unless the court extends the thirty day period for good cause shown. For children placed by the Department, a three-month post-placement period will precede the issuance of consent by the State Department, unless the Department determines that the best interests of the child warrant an earlier issuance of consent.

(d) The proceedings for the adoption of a child may be transferred to the juvenile court on motion of any party of the proceedings. Provisions of the adoption statute are still applicable in these cases.

(3) Notice of Adoption Proceedings.

(a) Unless previously waived, notice of the adoption proceedings must be served by the petitioner on the following:

1. Any person or agency whose consent is required by law;

2. The child's legal custodian or guardian;

3. The spouse of any petitioner who has not joined in the petition;

4. The spouse of the adoptee (if applicable);

5. The surviving parent or parents of a deceased parent of the adoptee;

6. The child's physical custodian, excluding foster parents or licensed child-placing agencies, or persons having court ordered visitation rights;

7. The agency or individual appointed by the court to investigate the adoption;

8. Any other person designated by the court;

9. The Department of Human Resources; and

10. The father and putative father of the adoptee if made known by the mother or otherwise known by the court.

(b) A copy of the petition must accompany the notice to persons in numbers 2 through 10 above and all persons served must respond within thirty days if they intend to contest the adoption.

(c) Upon receipt of the notice of adoption proceedings and petition, the State Department will acknowledge to the appropriate court the receipt of the petition and identify the investigator in the adoption if that information is known to the Department.

(4) Interlocutory Order. After placement of the child with the petitioners and the adoption petition has been filed, the court will enter the interlocutory order. In an independent adoption, the order will grant legal custody of the child to the petitioners. If the child was placed by the Department or a licensed child-placing agency which held legal custody of the child at the time of placement, custody will be retained by the Department or the agency through finalization of the adoption unless there is a relinquishment.

(5) Post-Placement Investigation and Report to the Court.

(a) A post-placement investigation and report to the court must be made in all adoptions, except that no pre- or post-placement investigation or report is required in a related or stepparent adoption unless otherwise ordered by the court.

(b) If a pre-placement investigation was completed by the Department within 24 months of placement, the post-placement investigation will reflect any subsequent changes in the family's situation and the additional information as described below. If the pre-placement investigation was not completed within 24 months of placement, the post-placement investigation must include all information as required in the pre-placement investigation.

(c) The Department must verify all of the allegations of the petition and include sufficient information for the court to determine whether there has been compliance with the consent or relinquishment provision of the adoption statute.

(d) The natural parents, unless they have lost custody or guardianship of the child through court proceedings or unless they cannot be found, must be interviewed.

(e) The adoptee must be observed and the petitioners interviewed in their home within 45 days after placement.

(f) If the Department considers the adoption not to be in the best interests of the child, the Department's objections shall be included in a report to the court in order for the judge to consider in determining whether or not the adoption may proceed.

(g) If the adoptive parents wish to be relieved of custody of the child or if the child is in need of protective services, the same procedure is to be followed for any child in need of protective services.

(h) The petitioners are required to file with the court a sworn statement of all fees and charges related to the adoption prior to finalization of the adoption. A description of these fees, charges, costs and expenses must also be a part of the Department's report to the court. The petitioners must have court approval for all charges for expenses, fees or services they will be paying related to the adoption. These expenses include fees in independent adoptions and other charges incurred in agency as well as independent adoptions.

1. It is a crime to pay or offer to pay money or anything of value to a birth parent for their consent or cooperation in an adoption or for placement of a child for adoption.

2. It is permissible to pay for the maternity-connected medical or hospital and necessary living expenses of the birth mother preceding and during her pregnancy-related incapacity as an act of charity, as long as payment of these expenses is not contingent upon placement of the child for adoption.

(i) The completed report of the post-placement investigation must be filed with the court within 60 days from receipt of notice of the adoption proceedings unless the court grants an extension upon a showing of good cause.

(j) In investigating the circumstances of the placement, if it appears that an unlicensed third-party arranged the placement, all relevant information should be obtained, reported to the court and sent to the State Department of Human Resources.

(6) Consents and Relinquishments.

(a) The following persons or agencies are required to consent to an adoption:

1. The adoptee if he or she is fourteen years of age or older, unless the court finds that the adoptee does not have the mental capacity to consent;

2. The adoptee's mother and presumed, or legal, father unless their parental rights have been terminated by the court, or they have relinquished the child to the Department of Human Resources or a licensed child-placing agency for the purpose of adoption, or they have been adjudged by a court to be incompetent or mentally incapable of consenting or relinquishing or are dead or presumed deceased;

3. The putative or alleged father if his identity is made known by the mother or is otherwise known to the court provided he responds within 30 days to the notice of the adoption proceedings; unless he has signed a statement denying paternity; and

4. The Department of Human Resources or licensed child-placing agency to which the adoptee has been relinquished or which holds permanent custody of the child has placed the child for adoption. A relinquishment signed by the parents transfers the physical custody of the child to the Department or a licensed child-placing agency which then has the authority to place the child for adoption.

(b) Consents or relinquishments may be given before a Probate Judge or clerk of the court, or other officers appointed by the court to take consents; designated representatives of the Department of Human Resources or a licensed child-placing agency; or, a notary public. However, the consent of a birth mother taken prior to the child's birth must be signed or confirmed before a probate judge. The Department will not take consents in independent adoptions, but must verify that the consent was taken by an authorized party.

(c) For children placed by the Department, the State Department will provide consent for the adoption upon recommendation and request from the County Department following the initial three-month period after placement and two post-placement visits by the county worker with the adoptee and adoptive parents, provided the Department and the adoptive parents indicate their willingness to proceed with the adoption.

(d) In interstate placements, the Department will recognize consents or relinquishments to agencies taken by persons appointed to take consents and relinquishments by any agency which is authorized by the other state's law to conduct investigations and home studies for adoptions.

(e) In the case of a minor parent who is consenting to the adoption of his or her child, a guardian ad litem must be appointed to represent the interests of the minor parent prior to giving consent, the consent of the minor parent may not be revoked solely on the basis of the parent's minority.

(f) The consent or relinquishment must be in writing and signed by the person(s) giving consent or relinquishment and must state the following:

1. The date, place, and time of execution;

2. The child's name and date of birth or expected date of birth where consent or relinquishment is taken prior to the birth of the child;

3. The relationship of the person consenting or relinquishing;

4. The names of each petitioner unless the document is a relinquishment to the Department or a licensed child-placing agency or, if a consent, the person executing the consent has waived his or her right to know the identity of the petitioners;

5. The address of the court in which the petition will be filed, if known, and if not known, the name and address of the agency, petitioner, or their attorney on whom notice of the withdrawal of the consent may be served;

6. If a relinquishment, the name and address of the agency to which the child is being relinquished; and

7. Certification that the person executing the document:

(i) Is voluntarily and unequivocally consenting to the adoption;

(ii) Understands that the document may be irrevocable and should not sign it if he or she desires psychological counseling or legal advice;

(iii) Understands that by signing the document all rights and obligations to the child are forfeited;

(iv) That in signing the document in conjunction with the subsequent court order ratifying the consent, notice of adoption proceedings are waived, except in the case of a contest or appeal, and if indeed the consenter actually is waiving the right to further notice; and

(v) That the person executing the document understands it and executes it freely and voluntarily, and that the person has received or been offered a copy of the consent or relinquishment.

(g) The required consent or relinquishment may be implied when the parents have left the child for a period of 30 days without providing for his or her identification; left the child with others for a period of 6 months without providing for the child's support and without communication, or not otherwise maintaining a significant parental relationship with the child; or having received notice of the adoption proceedings fails to answer or respond within 30 days.

(h) Consents or relinquishments may be taken at any time, including prior to the birth of the adoptee, but the consent of the adoptee's natural mother taken prior to birth must be signed or confirmed before a Probate Judge. At the time of taking the mother's pre-birth consent, the Judge must explain to the mother the legal effect of signing the consent and the time limits and procedures for withdrawal of the consent, and must give the mother a form for withdrawing the consent. Although the law allows parents to sign pre-birth consents and relinquishments, under no circumstances will the Department accept a child for placement on a relinquishment signed prior to the birth of the child.

(i) The consent or relinquishment may be withdrawn without court action for any reason within 5 days after the birth of a child or within 5 days after signing or confirming (before the court) the consent or relinquishment, whichever comes last. The person withdrawing the consent must deliver or have postmarked a signed and dated written withdrawal signed by two witnesses to the court within the five day period. Within 14 days after the birth of the adoptee or of signing the consent, whichever comes last, the consent may be withdrawn by petitioning the court for withdrawal. Within this 14-day period, if the court finds the withdrawal to be reasonable and in the best interest of the child, the consent or relinquishment may be withdrawn. The parent may withdraw the consent or relinquishment at any time up until the final decree upon a showing that the consent or relinquishment was obtained by fraud, duress, mistake, or under influence. The consent or relinquishment may not be challenged on any grounds after one year from the date of the formal decree except in cases where the adoptee has been kidnapped.

(7) Dispositional Hearing and Final Decree. The court is to schedule the adoption petition for a dispositional hearing within 90 days (120 days for special needs child) after filing the petition unless the court extends the time period for good cause shown. The court may set the dispositional hearing earlier than the 90 or 120 days upon receipt of all required information and when the child has been in the actual physical custody of the petitioners for a period of 60 days or when the time requirement is waived by the court for good cause. The court issues the Final Decree of adoption after which the child's new birth record is prepared by the Division of Vital Statistics.

(8) Adoption of Adults. The Department of Human Resources has no responsibility in regard to adoption of adults.

(9) Contested Hearings.

(a) If a motion is filed by any party contesting an adoption, the court will set the matter for a contested hearing. The court is required to give notice to all parties who have appeared before the court in the adoption, including the party contesting the adoption and the petitioners. Based upon the court's findings, the adoption proceedings may be dismissed or the motion to dismiss may be denied.

(b) A contested hearing may be transferred to juvenile court upon motion of any of the parties or on the court's own motion. If the contested hearing is held in Probate Court, the judge may proceed immediately to the dispositional hearing after completion of the contested hearing.

(c) Guardians ad litem must be appointed for the adoptee and minor natural parents in a contested adoption hearing.

(10) Appeals. Appeals from any Final Decree of adoption are filed with the Alabama Court of Civil Appeals and must be filed within 14 days from the Final Decree.

(11) Removal of Adoptee From County. After a child has been placed in an adoptive home and prior to issuance of the Final Decree, in independent and agency adoptions, the child may not be removed from the county of the petitioner's residence for a period longer than 15 consecutive days without prior notice to the investigating agency or individual. Children placed by the Department may not leave the state for any period of time without prior approval from the Office of Adoption.

(12) Related Proceedings. If it is determined at any point during the adoption proceedings that other custody actions concerning the adoptee are pending in any other court, a motion must be filed to stay the adoption proceedings until a determination is made by the appropriate court of the pending custody action.

(13) Responsibility for Making Other Plans for Child for Whom Adoption Proceedings Are Final. The responsibility of the County Department is not always ended when adoption proceedings are final. The child may continue to need agency service. If it is deemed necessary to make plans for removal of the child from the petitioner's home and place him elsewhere, the County Department should stand ready to assist in making such plans, and the report to the court should so indicate.

(14) Court and Agency Records of Adoption.

(a) After the petition is filed and prior to the entry of the final decree, the court records of adoption proceedings will only be open to inspection by the petitioners or their attorney, the investigator, and any attorney that is representing the adoptee except upon court order for good cause. Court proceedings in adoption proceedings are confidential and not open to persons other than the parties in interest and their attorneys, except by order of the court.

(b) After the final decree has been entered, the court records will be sealed, kept as a permanent record of the court and withheld from inspection, except by order of the court which entered the final decree.

(c) All adoption files of the Department or other investigating agency are confidential and may not be inspected except with a court order. However, the State Department of Human Resources, Office of Adoption, will release to the adoptive parents, natural parents, or the adoptee who is at least 19 years old, upon request, the non-identifying information described in the second summary sheet noted below. If the natural mother or the natural or presumed father have consented in writing under oath to the release of identifying information, the State Department of Human Resources, Office of Adoption, will, upon request, release such identifying information to the adoptee who is at least 19 years old, including a copy of the adoptee's birth certificate, as it related to the consenting parent.

(d) When a final decree is issued, two separate summary sheets, one containing identifying information and the other containing non-identifying information, on children placed for adoption, including those placed by licensed child-placing agencies and wards placed by the Department and children placed independently are to be sent to the State Department of Human Resources. The summary containing identifying information will be sealed.

1. The sealed summary sheet will contain the following identifying information:

(i) The adoptee's birth name and adoptive name;

(ii) The date and place of birth of the adoptee, except in case of abandonment;

(iii) The circumstances under which the child came to be placed for adoption;

(iv) The physical and mental condition of the adoptee, insofar as this can be determined by a competent medical authority;

(v) The names and last known address(es) of the child's natural parents, along with their dates of birth and Social Security numbers, if known;

(vi) The age of the natural parents at the time of the child's birth;

(vii) The nationality, ethnic background, race and religious preferences of the natural parents;

(viii) The educational level of the natural parents;

(xi) Information pertaining to pre-adoptive brother/sister relationships; and

(x) Whether the identity and location of the natural father is known or ascertainable.

2. The second summary sheet will contain the following non-identifying information:

(i) Health and medical history of the adoptee;

(ii) Health and medical histories of the adoptee's natural parents;

(iii) The adoptee's general family background, including ancestral information, without name references or geographical designations;

(iv) Physical description of family members;

(v) The length of time the adoptee was in the care and custody of one other than the petitioner; and

(vi) The circumstances under which the child came to be placed for adoption.

(15) Status of Adopted Child. Upon entry of the final decree, the natural parents of the adoptee, except for a natural parent who is the spouse of the adopting parent as in a stepparent adoption, are relieved of all parental responsibility for the adoptee and will have no parental rights over the adoptee. The adoptee will take the name designated by the adoptive parent(s) and will be treated as the natural child of the adopting parent(s), having all rights and duties of a natural child of the adoptive parent(s) including the right of inheritance. The adoptee may not inherit from his or her natural parents or other biological family who die intestate.

(16) Persons Who May Place Children for Adoption. Only a parent, a parent of a deceased parent, a relative of the degree of relationship specified in the law, the Department of Human Resources, a licensed child-placing agency, or an agency approved by the Department of Human Resources may place a child for adoption. Other persons may not be in the business of placing children for adoption and they will be deemed to be in the business of placing children for adoption if they place more than two unrelated children within a twelve-month period.

(17) The Adult Who Was Adopted as a Child.

(a) Any adoptee who has arrived at the age of 19 shall have the right to receive information from the appropriate agency about his placement. Identifying information pertaining to the adoptee's natural parent, including a copy of the adoptee's birth certificate, shall be given only with the written consent under oath of the natural parent.

(b) Any persons, including adoptees, natural parents and adoptive parents, who have a compelling need for additional non-identifying information that can only be obtained through contact with an adoptee, natural parents or adoptive parents, may petition the court for assistance. The court may direct the Department or another intermediary to establish contact with the adoptee, natural parents or adoptive parents and obtain the requested information without disclosing identifying information to or about the petitioner. The information will then be filed with the court and the court will release the non-identifying information using its own discretion.

(c) When an adoptee reaches age 19, if the natural parents have not consented to release of identifying information, the adoptee may petition the court for assistance. The court will direct the Department or another intermediary to contact the natural parents and determine if they will consent to the release of their identity. If the natural parents consent to release of their identity, the court will direct the release of the information to the petitioner. If the natural parents are deceased, cannot be found, or do not consent to the release of identifying information, the court will weigh the interests and rights of all parties and determine if the identifying information should be released without consent of the natural parents. If the court does release the identifying information without consent of the natural parents, the court may restrict use of the information, including prohibiting contact between parties.

(18) Release of Children from Health Facilities for Adoption. No hospital or other health facility may release a child to be adopted to any person other than the Department of Human Resources, a licensed child-placing agency, the child's parent, relative by blood or marriage, or a person holding legal custody of the child, unless the release of the child is authorized in writing by one of the child's parents or any agency which holds legal custody of the child after the birth of the child. The hospital is required to send to the Department within 48 hours, the name and address of any person and, in the case of a person acting as an agent for an organization, the name and address of the organization, to whose physical custody the child is released from the hospital for adoption.

(19) Independent Adoptions.

(a) The term "independent adoption" refers to those adoptive placements of children with unrelated individuals arranged outside of the auspices of the Department or a licensed child-placing agency. The term generally does not include related and stepparent adoptions.

(b) Although a pre-placement investigation is required by law, there will be situations when a child is placed without the pre-placement investigation. In those situations, all of the required information for the investigation will be obtained after placement and reported to the court within 60 days of receiving notification of the adoption proceedings. If the child has been in the home less than 45 days when notification of adoption proceedings is received, the worker should visit the child and family in their home within the 45 day period following placement. If the child has been in the home 45 days or more, the Department is to immediately initiate an investigation of the child's circumstances upon receipt of a request for a pre-placement investigation or an adoption petition.

(c) Fees for Investigations in Independent Adoptions. The Department is required to collect a fee of $300.00 for investigation services in certain adoptions. Unless waived by the Department, the fee will be charged to the petitioners in all adoptions except those in which an investigation is specifically not required by statute, e.g., stepparent adoptions and closely related adoptions. The fee is also not to be collected for investigations where parental rights have been terminated, or in those adoptions involving children placed for adoption by the Department or a licensed child-placing agency, or in cases in which the investigative services were performed by a licensed child-placing agency. The fee is also not to be collected without evidence of the prior court approval for the Department to collect the fee.

1. The Department shall waive the fee for the investigation in cases of indigency of the petitioners where the family's gross income does not exceed 100% of the Annual Federal Poverty Income Guidelines.

2. The Department may waive the fee for other good cause under the following circumstances:

(i) Where the Department determines that the best interests of the child would not be served through imposition of the fee for the adoption investigation, including but not limited to the following circumstances:

(I) Where the petitioners are related to the child beyond the degree of relationship required by law to exempt them for an investigation and imposition of the fee would prevent the adoption of child, or

(II) Where the child has lived in the home of the petitioners for several years and imposition of the fee would prevent adoption of the child, or

(III) Where the child's relationship with siblings would be injured or severed if the adoption does not proceed and the imposition of the fee would prevent the adoption of the child, or

(IV) Where the child has diagnosed special needs for medical care or appliances, counseling, therapy, educational tutoring, or other treatment and the imposition of the fee would deny the child these services and prevent the adoption of the child, or

(V) Where the child is one of a sibling group of three or more children being adopted by the same petitioners and imposition of the fee would prevent the adoption of the child, or

(VI) Where the child's approved foster parents are adopting the child independently with the parents' consent and with the approval of the Department of Human Resources, and imposition of the fee would prevent the adoption of the child, or

(VII) Other unusual circumstances in which the Department determines that imposition of the fee would be contrary to the best interests of the child and would prevent the adoption of the child; or

(ii) Where the Department already has in its written files, through previous home studies, casework activities, investigations, etc. the information needed to report to the court on the pending adoption.

3. The fee may not be waived in cases where violations of Alabama's statutes relating to adoption and placement of children for adoption have occurred, such as placement by an unauthorized party, transporting the child across state lines in violation of the Interstate Compact on Placement of Children (irrespective of later attempts to comply with the ICPC), or failure to obtain a pre-placement investigation where one is required.

Author: Jeanette Gautney.

Ala. Admin. Code r. 660-5-22-.04

Effective October 11, 1983. Emergency amendment effective February 6, 1989. Permanent amendment effective May 10, 1989. Emergency amendment effective June 1, 1990. Succedent permanent amendment effective September 7, 1990. Succedent emergency amendment effective January 23, 1991. Succedent permanent amendment effective May 9, 1991. Amended effective November 10, 1992.

Statutory Authority:Code of Ala. 1975, Title 26, Chapter 10, §§ 26-10A-1 through 26-10A-38, and Title 38, Chapter 7.