the first adoption step: termination of parental rights · the first adoption step: termination of...
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The First Adoption Step: Termination of Parental Rights
9:30 a.m. - 10:00 a.m.
Presented by:David GrootersPappajohn Shriver Eide & Nielsen PC 103 East State Street, Suite 800Mason City, IA 50401Phone: 641-423-4264
Thursday, September 8, 2016Thursday, September 8, 2016Thursday, September 8, 2016Thursday, September 8, 2016Thursday, September 8, 2016Thursday, September 8, 2016Thursday, September 8, 2016Thursday, September 8, 2016Thursday, September 8, 2016
THE FIRST ADOPTION STEP: TERMINATION OF PARENTAL RIGHTS David A. Grooters
Pappajohn, Shriver, Eide & Nielsen P.C. 103 East State Street, Suite 800
Mason City, Iowa 50401 (641) 4234264 (phone) (641) 4233145 (facsimile) [email protected]
www.iowaadoptionattorney.com Fellow: American Academy of Adoption Attorneys
The adoption of a minor child in the state of Iowa consists of two (2) separate legal
proceedings: (1) Termination of Parental Rights (“TPR”) pursuant to Iowa Code Chapter 600A (or Chapter 232 if initiated by the State of Iowa), and thereafter (2) Adoption pursuant to Iowa Code Chapter 600. TPR legally and permanently severs the child’s relationship to his or her biological parents, while adoption legally establishes the child’s relationship to the adoptive parent(s).
Termination of Parental Rights (Chapter 600A)
1. Precious few things can be done prior to the birth of the child.
2. The adoptive family is or may be present at the child’s birth depending on whether it is an open or closed adoption and whether there is an adoption agency
involved.
3. If biological parents are still agreeable to adoption, the child is “placed” with the agency or adoptive family while in the hospital.
4. The parents then sign a Release of Custody which places the custodianship of the child with an agency, attorney or other intermediary allowed by Iowa law. The Release of Custody cannot be signed before 72 hours after the child’s birth. NO EXCEPTIONS! Signing starts the 96hour period in which birthparents can change their mind for any reason. Once expired, birthparents can change their minds only for “good cause” up to time of TPR hearing. Iowa Code 600A.4. *I TAKE THE POSITION THAT MOST/ALL JUDGES WOULD NONETHELESS ALLOW BIOLOGICAL PARENTS TO REVOKE THEIR RELEASE OF CUSTODY AFTER 96 HOURS FOR ANY REASON, GOOD CAUSE NOTWITHSTANDING.
5. Iowa law does not allow a Release of Custody to place custody of a minor child to be adopted with the potential adoptive family directly (see above) unless a prospective adoption petitioner is related within the 4th degree of consanguinity. Iowa Code 600A.4.
6. Birth parents must be offered (they can refuse) a minimum of three (3) hours of birth parent and adoption counseling prior to signing a Release of Custody. Iowa Code 600A.4(2)(d).
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7. File Petition for Termination of Parental Rights. The contents of the Petition as set out in Iowa Code 600A.5 and venue of the Court are very specific. Attach to the Petition the voluntary Releases of Custody. Many times the alleged (referred to as “putative”) father cannot be identified or located, in which case you simply attach the biological mother’s Release of Custody which is by itself effective for placing custody with the intermediary party. See 600B.40 which states that a mother of a child born out of wedlock has sole custody of the child.
8. Grounds for termination set forth in Iowa Code 600A.8 include voluntary execution of release of custody, failure to object after having been given notice and opportunity to do so, and abandonment of the minor child.
9. After filing the Petition, obtain a Court order which sets the termination of parental rights hearing date and appoints a required Guardian ad Litem for the minor child Appoint Custodian in same order. If doing notice by publication, form of publication is set out in 600A.5(5). Parties may accept service of notice also.
10. Service on parties of Original Notice, Petition, and Order Setting Hearing and Appointing GAL is required within statutory time frame. Personal Service is always preferred unless you can get the parties to sign an Acceptance of Service. Publication notice is allowed but query how effective is notice via the legal section
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of a newspaper? Sometimes this is the only way with fathers who cannot be identified or located. If you are going to use publication notice, be prepared to explain to the Judge what efforts you made to locate the father/party. Use of Facebook, social media, people finder sites, and persons who might know of a person’s location is expected! The tendency of many parties is to not want to try to hard to locate the father/etc. but this is potentially fatal if the father later alleges that he was not notified; convince your client to locate, it’s your job.
11. Any parent having their parental rights terminated in a 600A “private” TPR is entitled to representation if they cannot afford it. The Petitioner is responsible for the cost unless the Petitioner is also indigent. 12. Do an Affidavit of Paternity in which biological mother states identity of putative father(s) and the circumstances of conception of said child. This can vary widely. Might be an unknown father. Might be several fathers. Affidavit is signed under penalty of perjury. Criminal violation is merely a simple misdemeanor for deliberate misstatements.
13. Make sure to send an inquiry to the putative father registry at the Iowa Department of Public Health to determine if anyone registered as the father of the minor child. I have had one father ever register but you still have to try. You get a letter back from the IDPH which you should file with the Court.
14. One of the most frequent questions that I get from “cold calls” is from
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adopted children looking for their biological parents. Iowa law deals with this issue by allowing access to an adoption file only if the biological parents executed and filed in the court file an Affidavit to Reveal (or Not Reveal) Name if the child ever seeks court permission for identifying information. See 600.16A. Since the law allowing such an affidavit was not passed until recently, children from “older” adoptions have no possibility to access these records.
15. Termination Hearing. I set these for court service days with the assumption that it will be uncontested. If someone shows up wanting to “contest” and not have their rights terminated, I then set the “trial” for a full day down the road. This gives time to exchange discovery (I send interrogatories and requests for production of documents to verify fitness to parent). If parents have not changed their mind, they do not need to attend. Hearing cannot be sooner than 7 days after birth of child and must be reported. After termination, a “guardian” is named for the child (usually an agency or an attorney) and will have to consent to adoption after sixmonth waiting period. Appeal period is 30 days, which cannot be waived or extended. Child can be adopted anytime after expiration of the appeal period (Iowa has a 180 day waiting period unless an adoption petitioner is related to the child). TPR records are sealed after expiration of appeal period.
II. Adoption: The Second and Final Adoption Step
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Thinking Ahead: Adoption Issues to Consider at TPR Stage
1. Obtain medical and social history information from biological parents as soon as you can. Iowa Code Section 600A.4(2)(f).
2. Ensure that a valid home study is in place prior to the child residing
the adoptive family. This is required unless an adoptoin petitioner is a relative. Iowa has a sixmonth minimum residency requirement with postplacement supervision prior to placement.
3. Adoption Variations: infant child, “DHS child”, relative adoption:
fourth degree of consanguinity, agency adoption, private adoption, single parent adoption, adult adoption, foreign adoption, stepparent adoption.
4. Indian Child Welfare Acts (ICWA and Iowa ICWA)
5. Interstate Compact on the Placement of Children