MISSOURI BAR ADOPTION PRACTICE GUIDELINES

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1 The Missouri Bar provides these guidelines for judges and attorneys in matters brought under Chapter 453, Adoption and Foster Care. These guidelines highlight the necessary process and procedure in actions brought under Chapter 453, as well as in Chapter 453 actions with allegations pled under Chapter 211. These guidelines do not exhaust all issues that arise in adoption litigation. In addition to applicable statutes and Supreme Court Rules, please review Circuit Court local rules and orders for specific requirements in each Circuit. More information may be found in two Missouri Bar Deskbooks, Adoption Law and Practice and Juvenile Law (ch. 9, Termination of Parental Rights).. Adoption: An action for Adoption solely pursuant to Chapter 453 An action for Adoption pursuant to Chapter 453 with allegations pled under The adoptee is over the age of 18 (see ) The adoption occurred pursuant to the laws of other states or countries (see ) Jurisdictional Elements: Pursuant to , at least one of the following jurisdictional elements exists: o The person seeking to adopt resides in the county (1) o The subject child was born in the county (2) o The child is found within the county at the time the petition is filed (3) o Either birth parent resides in the county (4) Pursuant to , if the child to be adopted is under a court s prior and continuing jurisdiction pursuant to Chapter 211, at least one of the following circumstances exists: o o The Petitioner has petitioned the juvenile division which has jurisdiction over the child for permission to adopt. If the Petitioner is requesting any alternate venue set forth in , the Petitioner has filed a motion with the juvenile division and the receiving court has provided consent before jurisdiction is transferred to a juvenile division in an alternative venue permitted under Interstate Compact on the Placement of Children applies (see et seq.) o Approval of receiving state Page 1 of 11

2 Indian Child Welfare Act applies (see 25 U.S.C et seq, regarding the applicability of ICWA and tribal notice and service requirements) o Service/Notice to Tribe o Response of Tribe Other Relevant Documents: Putative Father Registry Response from the State of Missouri or the state of the child s birth, if applicable. Birth Certificate Certificate of Decree of Adoption Accounting pursuant to The court shall require the Petitioner to file a signed and verified full accounting of any money, anything of value or other consideration paid or transferred by or on behalf of the Petitioner in connection with the placement or adoption. The accounting shall show all payments or transfers made or to be made or consideration given or promised by or on behalf of the Petitioner in connection with the placement or adoption (see (1)-(6)) o Filed at the time of the filing of the Petition o Updated pursuant to (3) Guardian ad Litem and/or Volunteer Advocates (such as a court appointed special advocate) Request for and Order of Appointment of Guardian ad Litem o for the subject child and Rule o for the minor parent or the incompetent parent Appointment of Volunteer Advocate pursuant to , Page 2 of 11

3 o Has the volunteer advocate been previously appointed pursuant to in ? Order for deposit of additional Guardian ad Litem fees, if necessary Chapter 453 Adoption with allegations pled under Pursuant to , the juvenile officer or the Children s Division shall seek to be joined as a party to the petition. (see Rules 52.04, and ) Has notice been provided to the Juvenile Officer and/or the Children s Division that allegations under have been pled? Joinder of Necessary Parties o Juvenile Officer o Children s Division Meeting with the juvenile officer to determine whether all proper parties have been served (within 30 days of filing the petition) Investigative Reports/Orders to complete (home studies) Assessment of adoptive parents pursuant to to be completed by (person/agency), and to be submitted to the court prior to transfer of custody pursuant o filed herewith o request for court ordered assessment filed herewith o Motion to Waive Assessment filed herewith If waiver of the investigation and report is granted pursuant to : Criminal background check of all petitioners Other documents required by the court o Statement whether the child is considered as a potential subsidy recipient Page 3 of 11

4 If the child is a recipient, has the contract or confirming documentation been submitted as finalized? (see ) Post Placements Assessments pursuant to to be completed by (person/agency) and submitted to the court The person placing the child for adoption shall provide a written report regarding the child pursuant to before the prospective adoptive parent accepts physical custody of the child (Subject to application of ) to: o The Court o The Guardian ad Litem o The prospective adoptive parent If pursuant to Chapter 453 Adoption with allegations pled under investigation and social study pursuant to (3) to be completed by (agency/person) o The following parties shall have access to the investigation and social study at least 15 days prior to any dispositional hearing, i.e., the trial: Parties Attorneys GAL Volunteer advocates PLACEMENT OF CHILD PURSUANT TO (1)-(4): Who placed the child? o The Department of Social Services, Children s Division (formerly known as Division of Family Services, see Chapter 207) o A child placing agency licensed pursuant to to o The child s parent, without an intermediary s direct or indirect assistance, in the home of a relative of the child within the third degree o An intermediary, which shall include an attorney licensed pursuant to Chapter 484; o A physician licensed pursuant to Chapter 334 Page 4 of 11

5 o A clergyman of the parents Who has custody of the minor child?: o Date of Lawful Custody o Order/Judgment of Custody REQUIRED Consents ( ). With the exceptions specifically enumerated in : FOR ADOPTION OF A CHILD UNDER AGE OF 18 YEARS: Consent of adoptee o If over 14 years ( ) The child s mother Only the man who: o (2)(a) -- is presumed to be the father pursuant to subdivision (1), (2) or (3) of , or o (2)(b) -- has filed an action to establish his paternity in a court of competent jurisdiction no later than fifteen days after the birth of the child and has served a copy of the petition on the mother in accordance with , or o (2)(c) -- has filed with the putative father registry pursuant to , a notice of intent to claim paternity or an acknowledgment of paternity either prior to or within fifteen days after the child s birth, and has filed an action to establish his paternity in a court of competent jurisdiction no later than fifteen days after the birth of the child The child s current adoptive parents Other legally recognized mother or father FOR ADOPTION OF ADOPTEE OVER AGE OF 18 YEARS: The child s consent alone is sufficient Proceeding without Consent Pursuant to CONSENTS ARE NOT REQUIRED FROM: Page 5 of 11

6 (1) - a parent whose rights with reference to the child have been terminated pursuant to law; (2) -- a parent who has legally consented to a further adoption of the child; (3) -- a parent whose identity is unknown and cannot be ascertained at the time of the filing of the petition; (4) -- a man who has not been established to be the father and who is not presumed by law to be the father, and who after the conception of the child, executes a verified statement denying paternity and disclaiming any interest in the child and acknowledging that this statement is irrevocable when executed and follows the consent as set forth in ; (5) -- a parent or other person who has not executed a consent and who, after proper service of process, fails to file an answer or make an appearance in a proceeding for adoption or for termination of parental rights at the time such cause is heard (6) -- a parent who has a mental condition which is shown by competent evidence either to be permanent or such that there is no reasonable likelihood that the condition can be reversed, and which renders the parent unable to knowingly provide the child the necessary care, custody and control; (7) -- a parent who has for a period of at least six months for a child one year of age or older, or at least sixty days for a child under one year of age, immediately prior to the filing of the petition for adoption, willfully abandoned the child or for a period of at least six months immediately prior to the filing of the petition for adoption, willfully, substantially and continuously neglected to provide him with necessary care and protection; or (8) -- a parent whose rights to the child may be terminated for any of the grounds set forth in , and whose rights have been terminated after hearing and proof of such grounds as required by Elements of Consent: Do the forms comply with ? Children s Division Form CD 48 OR CD49 utilized Forms may be found at: Page 6 of 11

7 Responsive Pleading- In adoptions filed pursuant to Chapter 453, review (5) to determine the impact of a party s filing or failing to file a responsive pleading, In adoptions filed pursuant to Chapter 453 with allegations pled under , review Missouri Supreme Court Rule , which states that [n]o party is required to file a responsive pleading in any juvenile proceeding. Service of Process Requirements: Service of Process pursuant to on the following: In Chapter 453 actions, service of process is required on: o Any person, agency, organization or institution whose consent to the adoption is required by law, unless consent is filed in court; (1) o Any person whose consent to the adoption, according to the allegation of the petition for adoption, is not required for the reasons set forth in subdivision (6) or (7) of ; (2); o Any person, agency, organization or institution, within or without the state, having custody of the child sought to be adopted under a decree of a court of competent jurisdiction even though its consent to the adoption is not required by law; (3); o Any legally appointed guardian of the child; (4); o Any person adjudicated by a court of this state or another state, a territory of the U.S. or another country to be the father of the child (5); o Any person who has timely filed a notice of intent to claim paternity of the child pursuant to ; and o Any person who has timely filed an acknowledgment of paternity pursuant to In a Chapter 453 Adoption with allegations pled under in addition to persons required to be served under Chapter 453 pursuant to service of process is required on: o The child s parent(s) (as defined in (3)) (1); The biological parent(s) of a child The husband of the natural mother at the time the child was conceived The child s parent(s) by adoption Page 7 of 11

8 The child s mother The putative father of a child shall have no legal relationship unless he, prior to the entry of a decree under to , has acknowledged the child as his own by affirmatively asserting his paternity. o The putative father who has acknowledged the child as his own by affirmatively asserting his paternity, unless the parent has filed a consent to the termination of parents rights in court; (1); o Guardian of person of the child; (2); o A person, Agency or organization having custody of the child; (3); o A foster parent, relative or other person with whom the child has been placed; (4); and o Any other person whose presences the court deems necessary; (5) If a parent s identity is unknown and cannot be ascertained or cannot be located, no service is required; Service waived or Entry of Appearance filed by a person required to received summons; Service by publication requested if service of process cannot be made in the manner prescribed in ; such service shall be made by mail or publication as provided in section; RIGHT TO COUNSEL Adoptions pursuant to Chapter A birth parent, including a birth parent less than eighteen years of age, shall have the right to legal representation and payment of any reasonable legal fees incurred throughout the adoption process. The Court may appoint counsel to represent the birth parent pursuant to if: o The birth parent requests representation, o The court finds that hiring an attorney to represent the birth parent would cause a financial hardship for the birth parent, and Page 8 of 11

9 o The birth parent is not already represented by counsel. Payment of attorney fees for the birth parent: Except where the court determines that the adoptive parents are unable to pay reasonable attorney fees and appoints pro bono counsel for the birth parent, the court shall order the costs of the attorney fees incurred pursuant to (5) to be paid by the prospective adoptive parents or the child-placing agency. Additional Right to Counsel Considerations when a Chapter 453 Adoption with allegations pled under A party is entitled to be represented by counsel in all proceedings When a child s custodian appears before the court without counsel, the court shall appoint counsel for the custodian if it finds: o The custodian is indigent, (1); o Custodian desires the appointment of counsel, (2); and o A full and fair hearing requires the appointment of counsel for the custodian (3) Notification to parent, or guardian of the person of the child, of the right to have counsel The court shall appoint counsel if the child s parent or guardian of the person of the child: o requests counsel, and o is financially unable to employ counsel The court shall address PAYMENT issues regarding the fees and costs of the appointed counsel. ADDITIONAL DUE PROCESS CONSIDERATIONS - A party requires an interpreter for the deaf A party requires an interpreter for the following language: Page 9 of 11

10 The interpreter is qualified/certified by: Cost of the interpreter is assessed to: NOTICE OF HEARINGS: To determine who shall receive notice of any temporary or final hearing, refer to the statutory requirements and applicable civil procedure rules for service of process in actions under Chapter 453 and Chapter 453 Adoption with allegations pled under The notice requirements may be different based upon the allegations pled. Considerations before Transfer of Custody If Applicable See for a list of the findings the court must make prior to entering an order transferring custody. See to determine whether a hearing is required. Considerations Before Entry of Judgment of Adoptions Has the adoption subsidy contract pursuant to been completed and submitted as finalized? Is the Petitioner the minor child s current foster parent? o Has the Petitioner requested waiver of 6 months of lawful and actual custody pursuant to (1)? Considerations for Entry of Judgment of Adoptions Findings entered pursuant to if the adoption is pursuant to Chapter 453 only Findings entered pursuant to and if the adoption is pursuant to Chapter 453 with allegations pled under Adoption that occurred pursuant to the laws of other states or countries, see (Recognition of Foreign Adoption) Original Documents (copy to be filed, with originals offered as an exhibit at the hearing) Translation Verification (copy to be filed, with originals offered as an exhibit at the hearing) Page 10 of 11

11 Proof of Immigration (copy to be filed, with originals offered as an exhibit at the hearing) such as United States Visa or United States Permanent Residence Card. Page 11 of 11