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§10-7505-4.1.
§10-7505-4.1.
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.
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