Marriage & Family Arizona Adoption Laws

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1 Overview Arizona statutes addressing adoption are in Title 8 of the Arizona Revised Statutes. Federal laws concerning Indian Children also apply to adoption and are contained in the Indian Child Welfare Act of 1978 (25 U.S.C ). Center for Arizona Policy (CAP) supports the fundamental right of parents to raise their children, but also supports adoption in appropriate circumstances. Issue Analysis Who May Adopt Any adult resident of the state of Arizona may adopt, whether married, unmarried, or legally separated. A husband and wife may jointly adopt children. 1 Arizona does not allow two same-sex individuals to adopt a child together. 2 Any prospective adoptive parent must be certified to adopt. 3 Step-parents and certain relatives of a child are not required to be certified to adopt, but a background investigation is required. 4 Adoption certification investigations are done by adoption agencies and by the Department of Economic Security. The investigation report is submitted to the juvenile court along with a criminal background check and a child abuse registry check. The juvenile court may either certify the applicant as acceptable to adopt, unacceptable to adopt, or may seek additional investigation. An applicant found unacceptable to adopt may petition the court for review of the decision. If the applicant is certified as unacceptable to adopt, the applicant may not reapply for certification for one year. 5 In 2011, the Arizona Legislature passed a CAP-supported bill that states If all relevant factors are equal and the choice is between a married man and woman certified to adopt and a single adult certified to adopt, placement preference shall be with a married man and woman. 6 Temporary Custody A person who is required to be certified to adopt, but is not certified, may obtain temporary custody of a child while the certification for adoption is pending. Temporary custody is obtained by filing a petition with the grants permission

2 juvenile court not later than five days after the person obtains custody of the child. The hearing shall be held within ten days after the filing of the petition. 7 Consent Required The Court shall not grant an adoption of a child unless consent to adopt has been obtained from the following that apply: 1. The child s birth or adoptive mother 2. The child s father 3. The child if the child is over 12 years of age 4. The guardian of the child 5. An agency that has been given consent to place the child for adoption by the parent or parents 6. The guardian of any adult parent for whom a guardian has been appointed 7. The Department of Economic Security if it has been given consent to place the child for adoption 8 It is not necessary for a person to obtain consent from the following before adopting a child: 1. An adult parent for whom a guardian is currently appointed 2. A parent whose parental rights have been terminated by court order 3. A parent who has previously consented to an agency s or the division s placement of the child for adoption 4. A person whose consent is not required under the list above 9 Legal Fathers The legal father of a child is the father named on the birth certificate. If the mother of the child is married, her husband is presumed to be the legal father, unless paternity is established by another man. In order for the adoption to be finalized, the legal father must either consent to the adoption or his rights must be judicially terminated. Potential Fathers A birth mother is required to sign an affidavit that identifies all potential fathers of the child. 10 Notice is required to be served on all potential fathers identified by the birth mother in a form that follows grants permission

3 requirements in the statute. 11 Once a potential father is served, he must file a paternity action in family court within thirty days after being served. The potential father must also serve the mother with the paternity action within the same thirty days, and he must pursue the paternity action to judgment. 12 If a potential father does not comply with the requirements of the statute, he waives the right to be notified of any hearing regarding the adoption of the child or the termination of his parental rights, and his consent to the adoption is not required. 13 Putative Fathers A putative father is someone who claims to be the father of the child, but has not been identified by the birth mother. A putative father is required to file a notice of claim of paternity with the Department of Health Services on the form prescribed by the Department. A notice of claim of paternity may be filed before the birth of the child, but must be filed within thirty days after the birth of the child. The Department of Health Services maintains a registry of all putative father filings. If a putative father does not file a notice of claim of paternity, his consent to adoption is not required, and he is not entitled to notice of any judicial hearing regarding the child s adoption. The agency or attorney processing the adoption is required to check the registry at least thirty days after the birth of the child. If a putative father has filed with the registry, he must be served with a Notice to Potential Father. 14 Termination of Parental Rights A judge may terminate parental rights in certain circumstances that are laid out in the statutes. 15 The grounds for termination of parental rights are any of the following: 1. The parent has abandoned the child. 2. The parent has neglected or willfully abused a child. This abuse includes serious physical or emotional injury or situations in which the parent knew, or reasonably should have known, that a person was abusing or neglecting a child. 3. The parent is unable to discharge parental responsibilities because of mental illness, mental deficiency, or a history of chronic abuse of dangerous drugs, controlled substances, or alcohol, and there are reasonable grounds to believe that the condition will continue for a prolonged, indeterminate period. 4. The parent is deprived of civil liberties due to the conviction of a felony if the felony of which that parent was convicted is of such nature as to prove the unfitness of that parent to have future custody and control of the child, including: a. Murder of another child of the parent, grants permission

4 b. Manslaughter of another child of the parent, c. Aiding, abetting, attempting, conspiring or soliciting to commit murder or manslaughter of another child of the parent, or d. If the sentence of that parent is of such length that the child will be deprived of a normal home for a period of years. 5. The potential father failed to file a paternity action within thirty days of completion of service of notice as required by the statute ( 8-106, subsection G). 6. The putative father failed to file a notice of claim of paternity as required by the statute ( ). 7. The parents have relinquished their rights to a child to an agency or have consented to the adoption. 8. The child is being cared for in an out-of-home placement under the supervision of the juvenile court, the division or a licensed child welfare agency, the agency responsible for the care of the child has made a diligent effort to provide appropriate reunification services, and one of the following circumstances exists: a. The child has been in an out-of-home placement for a cumulative total period of nine months or longer pursuant to court order or voluntary placement pursuant to 8-806, and the parent has substantially neglected or willfully refused to remedy the circumstances that cause the child to be in an out-of-home placement. b. The child who is under three years of age has been in an out-of-home placement for a cumulative total period of six months or longer pursuant to court order, and the parent has substantially neglected or willfully refused to remedy the circumstances that cause the child to be in an out-of-home placement, including refusal to participate in reunification services offered by the department. c. The child has been in an out-of-home placement for a cumulative total period of fifteen months or longer pursuant to court order or voluntary placement pursuant to 8-806, the parent has been unable to remedy the circumstances that cause the child to be in an out-ofhome placement, and there is a substantial likelihood that the parent will not be capable of exercising proper and effective parental care and control in the near future. 9. The identity of the parent is unknown and continues to be unknown following three months of diligent efforts to identify and locate the parent. 10. The parent has had parental rights to another child terminated within the preceding two years for the same cause and is currently unable to discharge parental responsibilities due to the same cause. 11. All of the following are true: a. The child was cared for in an out-of-home placement pursuant to court order. b. The agency responsible for the care of the child made diligent efforts to provide appropriate reunification services. grants permission

5 c. The child, pursuant to court order, was returned to the legal custody of the parent from whom the child had been removed. d. Within eighteen months after the child was returned, pursuant to court order, the child was removed from that parent's legal custody, the child is being cared for in an out-of-home placement under the supervision of the juvenile court, the division or a licensed child welfare agency, and the parent is currently unable to discharge parental responsibilities. 16 In addition to proving one of the grounds for termination, a petitioner must also prove that termination of parental rights is in the best interests of the child. 17 The ground or grounds for termination must be proved by clear and convincing evidence. The best interests of the child must be proved by a preponderance of the evidence. 18 Indian Child Welfare Act If the child is an Indian child, as defined by the Indian Child Welfare Act, additional Federal statutory requirements apply, including that: 1. Consent to adoption must be taken in front of a judge. 2. Consent to adoption may not occur less than ten days after the birth of the child. 3. The tribe is entitled to certain notice, additional elements are necessary in order to judicially terminate parental rights. 4. Proof beyond a reasonable doubt is required to show that it would be dangerous for the child to return to the parent or Indian custodians with expert testimony. 5. Active efforts are required to attempt to reunify the child with the Indian parents. In 2013, the U.S. Supreme Court ruled that the heightened standard required for severing parental rights pursuant to the Indian Child Welfare Act does not apply when the Indian parent in question never had custody of the child. 19 Conclusion There is a tremendous need in Arizona for adoptive parents. Under Arizona law, any adult resident is able to bless a child with a stable home, as long as they become certified by the state. There are a number of ministries in Arizona to help parents who have or are considering adopting: Christian Family Care: cfcare.org No Child Waiting: nochildwaiting.org AZ 127: az127.com grants permission

6 January 2014 All rights reserved. This publication includes summaries of many complex areas of law and is not specific legal advice to any person. Consult an attorney if you have questions about your specific situation or believe your legal rights have been infringed. This publication is educational in nature and should not be construed as an effort to aid or hinder any legislation. 1 Ariz. Rev. Stat Id. 3 Ariz. Rev. Stat Ariz. Rev. Stat (N). 5 Ariz. Rev. Stat Ariz. Rev. Stat (c). 7 Ariz. Rev. Stat Ariz. Rev. Stat (A). 9 Ariz. Rev. Stat (B). 10 Ariz. Rev. Stat (F). 11 Ariz. Rev. Stat (G). 12 Ariz. Rev. Stat (G) and (J). 13 Ariz. Rev. Stat (J). 14 Ariz. Rev. Stat Ariz. Rev. Stat through Ariz. Rev. Stat (B). 17 Id. 18 Arizona Rules of Juvenile Court, Rule 66(C). 19 Adoptive Couple v. Baby Girl, 570 U.S. (2013). grants permission

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