Mary Rafani-Steele of Visalia practices adoption law primarily in Tulare, Kings and Fresno counties in California. The information below applies only to these jurisdictions and is not, nor is it intended to be, legal advice. You should consult an attorney for advice regarding your individual situation. We invite you to contact us and welcome your calls, letters and electronic mail. Contacting us does not create an attorney-client relationship. Please do not send any confidential information to us until such time as an attorney-client relationship has been established.
We practice three types of adoption: (1) Step-parent adoption, (2) Legal Guardians who wish to adop the children who have been entrusted to them and (3) Independent adoptions where the adopting parents have already met and agreed with the biological mother that the adoption will occur after the baby is born, and it appears that the legal rights of the father can be terminated either by the father’s consent to the adoption or by terminating his parental rights in court.
The first step in every adoption case is terminating the parental rights of the parent(s) who are no longer going to be parents. The easiest and fastest way to terminate a person’s parental rights is by his/her CONSENT. Depending on whether the case is a step-parent adoption or an independent adoption, the form used to evidence the parent’s consent, and the process by which the parent’s signature is obtained on the form, varies. In a step-parent adoption the county in which the adoption was filed usually has its own form which must be used, and the parent’s signature must be notarized or otherwise validated by the signature of a specified witness. Independent adoptions, such as Legal Guardians wishing to adopt the child(ren) entrusted to their care or persons who have met a soon-to-be mother who would like to place the newborn baby with them for adoption, must use the services of the Department of Health and Human Services State Department of Adoptions (in Fresno) to assist them with the process. That agency secures the consent of the consenting biological parent(s), guides the adopting parents in their criminal background checks, sends forms to the adopting parents which must be filled out and returned and, performs an investigation into whether the adoption is in the best interest of the minor(s) and makes a recommendation to the court as to whether the adoption should proceed.
If the biological parent’s consent cannot be obtained, his/her parental rights must be terminated by court process. The adopting parent(s) obtain a citation to appear in court from the court, and it must be personally served on the biological parent(s) whose parental rights are being terminated. If the biological parent(s) cannot be found, the adopting parent(s) must file a Declaration of Due Diligence with the court, setting forth all the efforts they have made in order to locate the biological parent(s). At a minimum, courts will require that the adopting parents contact every person who they know, or have known in the past, who also know, or have known, the biological parent(s) who they are searching for, in order to locate the missing parent. The court may also require the adopting parent(s) to check DMV records, tax rolls, phone books, the internet, Facebook, and any other vehicle which the court may deem necessary to complete the search process. When the adopting parent(s) have managed to convince the court that they have exercised “due diligence” in their attempt to locate the missing parent, the court will either order the biological parent(s) “served by publication,” or will altogether waive the requirement that the parent(s) be served. There are statutes that allow adopting parents to obtain the court’s permission to waive the notice requirement without doing a due diligence search but, courts are very reluctant to grant such waivers, due to the nature of the right (parental rights are Constitutional rights) being terminated.
If the biological parent(s) whose rights are being terminated is found and served with the Citation to appear and the Request for Adoption, a proof of service must be filed with the court. At the Citation hearing, if the biological parent appears, s/he is advised of his/her rights, including the right to be represented by appointed counsel, if s/he cannot afford his/her own counsel. Again, this is because parental rights are Constitutional rights, and depriving a person of such rights is done with utmost caution, just like the civil liberties of a person accused of committing a crime. The biological parent(s) whose rights are being removed has a right to trial (not by jury) before his/her rights are terminated and, if s/he does not consent to the adoption, the court schedules a trial. The trial takes place after the Department of Health and Human Services Adoptions Unit submits its report and recommendation, after an investigation, as to whether it is in the minor(s)’ best interest to be adopted. Each party (the adopting parent(s) and the biological parent(s)) has a right to present additional evidence, which include admissible documentary evidence and live witnesses. After presentation of the evidence and hearing arguments from both sides, the court decides whether to terminate the biological parent(s) parental rights. It is the adopting parent(s) burden to prove by clear and convincing evidence that such rights should be terminated. Once parental rights have been terminated, a hearing is scheduled to proceed with the adoption.
When one parent has left the child(ren) in the care and custody of the other parent for 1 year or longer, with no contact (or only token contact) with the minor during that time, this creates a presumption that the first parent intended to abandon the child(ren), and his/her parental rights may be terminated, in order to free the minor for adoption by the spouse who has been caring for the minor(s). Even if the “abandoning” parent has paid some child support, this may not prevent the court from deeming that parent to have abandoned his/her child(ren). For instance, if the child support was imposed on the abandoning parent by wage garnishment or interception of his tax refunds by the Department of Child Support Services, a court may still deem the parent to have abandoned the child.
TO BE CONTINUED.
Fresno County, Kings County, Tulare County, especially Visalia, California, and Surrounding Areas