§ 10-7505-4.1 — Application - Notice - Hearing - Order - Appeal.

A. If a consent to adoption or permanent relinquishment for adoption has not been obtained from both parents of a minor who is the subject of a petition for adoption, and the rights of the nonconsenting parent or parents have not previously been terminated, the petitioner for adoption, a consenting parent, or a legal guardian or legal custodian of the minor to be adopted must file an application to the court stating the reason that the consent or relinquishment of the parent or parents is not necessary. In the alternative, if the nonconsenting parent is a putative father of a minor born out of wedlock, the petitioner for adoption, a consenting parent, or a legal guardian or legal custodian of the minor may file an application to terminate the parental rights of the putative father. The grounds for terminating a putative father pursuant to this section shall be identical to the grounds for permitting an adoption without the consent of a parent, pursuant to Section 7505- 4.2 of this title. B. A hearing on an application for adoption without consent or an application to terminate parental rights cannot be combined with the hearing on the application for a final decree of adoption. For good cause shown, a hearing on the application for a final decree of adoption may be heard as early as the same day as a hearing on an application to terminate parental rights, without prejudice to the rights of any parties to appeal from the order terminating parental rights. C. 1. Prior to the hearing on the application to permit the adoption of the minor without the consent or relinquishment of a parent, or the application to terminate the rights of a putative father filed pursuant to this section, notice of the hearing on the application and a copy of the application shall be served upon the parent or putative father who is the subject of the application in the same manner as summons is served in civil cases, not less than fifteen (15) days prior to the hearing. 2. The notice shall contain the name of the parent, putative father, or if the father is unknown, the name of the child, date of birth of the child, the date of the hearing, and the ground or grounds for which application for adoption without consent or relinquishment or termination of parental rights is sought. The notice shall apprise the parent or putative father of the parent's legal rights and shall include a clear statement that failure to appear at the hearing shall constitute a denial of interest in the child, which denial may result, without further notice of this proceeding or any subsequent proceeding, in the granting of the application for adoption without consent or permanent relinquishment or in the termination of the putative father's parental rights and in the child's adoption. 3. If the identity or whereabouts of a parent or putative father are unknown, the court must determine whether the parent or putative father can be identified or located. Following an inquiry pursuant to Section 7505-4.3 of this title, if the court finds that the identity or whereabouts of the putative father cannot be ascertained, and this fact is attested to by affidavit of the consenting parent, legal guardian or legal custodian of the minor, it shall order that notice be given by publication and, if the identity is known, that a copy be mailed to the last-known address of the parent or putative father. The notice shall be published once pursuant to the laws relating to the service of notice by publication in the county in which the petition to adopt is filed, and the hearing shall not be held for at least fifteen (15) days after publication of the notice. When notice is given by publication, an order terminating parental rights shall not become final for a period of fifteen (15) days from the date of the order. 4. A parent or putative father may waive such person's right to notice pursuant to this section. The waiver, signed by the parent or putative father, shall include a statement affirming that the person signing the waiver understands that the waiver shall constitute grounds for ordering adoption without consent of the parent or for the termination of the parental rights of a putative father pursuant to the provisions of this section and Section 7505- 4.2 of this title. A putative father may waive his right to notice under this section, by signing an extrajudicial consent pursuant to Section 7503-2.6 of this title, or by waiving notice on a form filed with the Paternity Registry of the Department of Human Services, or by failing to register with the Paternity Registry of the Department of Human Services after receiving a Notice of Plan for Adoption pursuant to Section 7503-3.1 of this title. D. When a parent or putative father appears at the hearing and desires counsel but is indigent and cannot for that reason employ counsel, the court shall appoint counsel. In all counties having county indigent defenders, the county's indigent defenders shall assume the duties of representation in such proceedings. E. At the hearing on an application to permit adoption without the consent or relinquishment of a parent, the court may determine whether the minor is eligible for adoption pursuant to Section 7505- 4.2 of this title. At the hearing on an application to terminate the parental rights of a putative father, the court may, if it is in the best interests of the minor, determine that the consent of the putative father to the adoption of the minor is not required, and terminate any parental rights which the putative father may have, as provided in Section 7505-4.2 of this title. F. The court shall terminate the parental rights of a putative father if he fails to appear at the hearing on the application to terminate his parental rights or if he has waived notice pursuant to paragraph 4 of subsection C of this section. G. A proceeding pursuant to this section for determination of necessity of parental consent or for termination of parental rights shall be heard by the court without a jury. H. No order of the court shall be vacated, set aside, or annulled upon the application of any person who was properly served with notice in accordance with this section but failed to appear, unless the applicant has established by clear and convincing evidence that such failure to appear was due to unavoidable circumstances. Such application must be filed within ten (10) days of the date of the hearing at which the applicant failed to appear. No order of the court shall be vacated, set aside or annulled upon the application of any person who waived notice pursuant to paragraph 4 of subsection C of this section. I. 1. a. An appeal may be taken from any final order, judgment, or decree terminating parental rights rendered pursuant to this section to the Supreme Court by any person aggrieved thereby, in the manner provided for appeals from the court as provided in this subsection. b. An appeal from an order determining a child eligible for adoption which does not terminate parental rights may be taken in the same manner provided for appeals from the court as provided in this subsection. The failure of a parent to appeal from an order declaring a child eligible for adoption without consent of the parent which does not terminate parental rights shall not preclude such parent from asserting error in the order after the final decree is rendered. 2. In an appeal concerning the termination of parental rights for purposes of adoption pursuant to this section or from an order determining a child eligible for adoption which does not terminate parental rights pursuant to this section, the appellant's designation of record shall be filed in the trial court within ten (10) days after the date of the judgment or order. Appellee's counter designation of record shall be filed in the trial court ten (10) days after appellant's designation of record is filed in the trial court. 3. All appeals of cases concerning the termination of parental rights for purposes of adoption or an order determining a child eligible for adoption which does not terminate parental rights pursuant to this section shall be initiated by filing a petition in error in the Supreme Court within thirty (30) days of the filing of the order, judgment, or decree appealed from. The record on appeal shall be completed within thirty (30) days from the filing of the petition in error. Any response to the petition in error shall be filed within twenty (20) days from the filing of the petition in error. 4. The briefing schedule is established as follows: a. appellant's brief in chief shall be filed twenty (20) days after the trial court clerk notifies all parties that the record is complete and such notice has been filed in the office of the Clerk of the Supreme Court, b. appellant's answer brief shall be filed fifteen (15) days after the appellant's brief in chief is filed, and c. appellant's reply brief may be filed within ten (10) days after the appellee's answer brief is filed. J. Any appeal when docketed should have priority over all cases pending on said docket. Adjudication of appeals and any other proceedings concerning the termination of parental rights or the determination that a child is eligible for adoption without consent which does not terminate parental rights pursuant to this section shall be expedited by the Supreme Court. K. The pendency of an appeal shall not suspend the order of the district court regarding a minor, nor shall it remove the minor from the custody of that court or of the person, institution, or agency to whose care such minor has been committed, unless the Supreme Court shall so order. L. 1. The termination of parental rights terminates the parent-child relationship, including the parent's right to the custody of the child and the parent's right to visit the child, the parent's right to control the child's training and education, the necessity for the parent to consent to the adoption of the child, the parent's right to the earnings of the child, and the parent's right to inherit from or through the child. Provided, that this subsection shall not in any way affect the right of the child to inherit from the parent. 2. Termination of parental rights pursuant to this section shall not terminate the duty of either parent to support the minor child of such parent. The duty of the parent to support the minor child shall not be terminated until such time as a final decree of adoption has been entered. 3. A determination that the consent to adoption is not required from the parent of a minor shall not, by itself, act to relieve such parent of the obligation to provide for the support of the minor as otherwise required by law. The duty of the parent to support the minor child shall not be terminated until such time as a final decree of adoption has been entered.

Legislative History

Added by Laws 1997, c. 366, § 26, eff. Nov. 1, 1997. Amended by Laws 1998, c. 415, § 20, emerg. eff. June 11, 1998.