H.B. 130 Enrolled

1

ADOPTION AMENDMENTS
2 2006 GENERAL SESSION
3 STATE OF UTAH
4 Chief Sponsor: Ann W. Hardy
5 Senate Sponsor: Carlene M. Walker
6
7 LONG TITLE
8 General Description:
9 This bill amends provisions of the Judicial Code relating to adoption.
10 Highlighted Provisions:
11 This bill:
12 . defines terms;
13 . describes the persons from whom consent for adoption of a child, or consent to
14 relinquish a child for adoption, must be obtained;
15 . describes when an unmarried biological father is entitled to consent, or withhold
16 consent, to the adoption of a child, or relinquishment of a child for adoption;
17 . establishes a procedure for an unmarried biological father to preserve his right to
18 consent to adoption of a child, or relinquishment of a child for adoption, when a
19 declaration of paternity of the unmarried biological father is rescinded;
20 . describes the requirements necessary for an unmarried biological father to preserve
21 his right to consent to adoption of a child, or relinquishment of a child for adoption:
22 . when the unmarried biological father did not know, and through the exercise of
23 reasonable diligence would not be expected to know, that the state of Utah may
24 have obtained jurisdiction over the child or the child's mother; or
25 . when the unmarried biological father did not have time to take action to
26 preserve his rights within the state of Utah after he became aware, or should
27 have become aware, that the state of Utah may have obtained jurisdiction over
28 the child or the child's mother;
29 . describes the circumstances under which an adoption may be finalized after the

30 death of an adoptive parent or an adoptee;
31 . requires the Office of Vital Records within the Department of Health to mail notice
32 of the rescission of a declaration of paternity to the nonrescinding signatory; and
33 . makes technical changes.
34 Monies Appropriated in this Bill:
35 None
36 Other Special Clauses:
37 None
38 Utah Code Sections Affected:
39 AMENDS:
40 78-30-1.1, as last amended by Chapter 137, Laws of Utah 2005
41 78-30-4.12, as last amended by Chapter 137, Laws of Utah 2005
42 78-30-4.15, as last amended by Chapter 129, Laws of Utah 1998
43 78-30-14, as last amended by Chapter 318, Laws of Utah 1996
44 78-45g-306, as enacted by Chapter 150, Laws of Utah 2005
45 REPEALS AND REENACTS:
46 78-30-4.14, as last amended by Chapter 137, Laws of Utah 2005
47
48 Be it enacted by the Legislature of the state of Utah:
49 Section 11. Section 78-30-1.1 is amended to read:
50 78-30-1.1. Definitions.
51 As used in this chapter:
52 (1) "Adoption service provider" means a:
53 (a) child-placing agency; or
54 (b) licensed counselor who has at least one year of experience providing professional
55 social work services to:
56 (i) adoptive parents; or
57 (ii) birth parents.

58 (2) "Child-placing agency" means an agency licensed to place children for adoption
59 under Title 62A, Chapter 4a, Part 6, Child [and Family Services] Placing.
60 (3) "Division" means the Division of Child and Family Services, within the
61 Department of Human Services, created in Section 62A-4a-103 .
62 [(3)] (4) "Licensed counselor" means a person who is licensed by the state, or another
63 state, district, or territory of the United States as a:
64 (a) certified social worker;
65 (b) clinical social worker;
66 (c) psychologist;
67 (d) marriage and family therapist;
68 (e) professional counselor; or
69 (f) an equivalent licensed professional of another state, district, or territory of the
70 United States.
71 [(4)] (5) "Parent," for purposes of Section 78-30-3.3 , means any person described in
72 Subsections 78-30-4.14 (1)(b) through (f) from whom consent for adoption or relinquishment
73 for adoption is required under Section 78-30-4.14 .
74 [(5)] (6) "Unmarried biological father" means a person who:
75 (a) is the biological father of a child; and
76 (b) was not married to the biological mother of the child described in Subsection [(5)]
77 (6)(a) at the time of the child's:
78 (i) conception; or
79 (ii) birth.
80 Section 22. Section 78-30-4.12 is amended to read:
81 78-30-4.12. Rights and responsibilities of parties in adoption proceedings.
82 (1) The Legislature finds that the rights and interests of all parties affected by an
83 adoption proceeding must be considered and balanced in determining what constitutional
84 protections and processes are necessary and appropriate.
85 (2) The Legislature finds that:

86 (a) the state has a compelling interest in providing stable and permanent homes for
87 adoptive children in a prompt manner, in preventing the disruption of adoptive placements, and
88 in holding parents accountable for meeting the needs of children;
89 (b) an unmarried mother, faced with the responsibility of making crucial decisions
90 about the future of a newborn child, is entitled to privacy, and has the right to make timely and
91 appropriate decisions regarding her future and the future of the child, and is entitled to
92 assurance regarding the permanence of an adoptive placement;
93 (c) adoptive children have a right to permanence and stability in adoptive placements;
94 (d) adoptive parents have a constitutionally protected liberty and privacy interest in
95 retaining custody of an adopted child; and
96 (e) an unmarried biological father has an inchoate interest that acquires constitutional
97 protection only when he demonstrates a timely and full commitment to the responsibilities of
98 parenthood, both during pregnancy and upon the child's birth. The state has a compelling
99 interest in requiring unmarried biological fathers to demonstrate that commitment by providing
100 appropriate medical care and financial support and by establishing legal paternity, in
101 accordance with the requirements of this chapter.
102 (3) (a) In enacting [Subsection 78-30-1.1 (5) and] Sections 78-30-4.12 through
103 78-30-4.21 , the Legislature prescribes the conditions for determining whether an unmarried
104 biological father's action is sufficiently prompt and substantial to require constitutional
105 protection.
106 (b) If an unmarried biological father fails to grasp the opportunities to establish a
107 relationship with his child that are available to him, his biological parental interest may be lost
108 entirely, or greatly diminished in constitutional significance by his failure to timely exercise it,
109 or by his failure to strictly comply with the available legal steps to substantiate it.
110 (c) A certain degree of finality is necessary in order to facilitate the state's compelling
111 interest. The Legislature finds that the interests of the state, the mother, the child, and the
112 adoptive parents described in this section outweigh the interest of an unmarried biological
113 father who does not timely grasp the opportunity to establish and demonstrate a relationship

114 with his child in accordance with the requirements of this chapter.
115 (d) An unmarried biological father has the primary responsibility to protect his rights.
116 (e) An unmarried biological father is presumed to know that the child may be adopted
117 without his consent unless he strictly complies with the provisions of this chapter, manifests a
118 prompt and full commitment to his parental responsibilities, and establishes paternity.
119 (4) The Legislature finds that an unmarried mother has a right of privacy with regard to
120 her pregnancy and adoption plan, and therefore has no legal obligation to disclose the identity
121 of an unmarried biological father prior to or during an adoption proceeding, and has no
122 obligation to volunteer information to the court with respect to the father.
123 Section 33. Section 78-30-4.14 is repealed and reenacted to read:
124 78-30-4.14. Necessary consent to adoption or relinquishment for adoption.
125 (1) Except as provided in Subsection (2), consent to adoption of a child, or
126 relinquishment of a child for adoption, is required from:
127 (a) the adoptee, if the adoptee is more than 12 years of age, unless the adoptee does not
128 have the mental capacity to consent;
129 (b) both parents or the surviving parent of an adoptee who was conceived or born
130 within a marriage;
131 (c) the mother of an adoptee born outside of marriage;
132 (d) any biological parent who has been adjudicated to be the child's biological father by
133 a court of competent jurisdiction prior to the mother's execution of consent to adoption or her
134 relinquishment of the child for adoption;
135 (e) consistent with Subsection (3), any biological parent who has executed and filed a
136 voluntary declaration of paternity with the state registrar of vital statistics within the
137 Department of Health in accordance with Title 78, Chapter 45e, Voluntary Declaration of
138 Paternity Act, prior to the mother's execution of consent to adoption or her relinquishment of
139 the child for adoption;
140 (f) an unmarried biological father of an adoptee, only if he strictly complies with the
141 requirements of Subsections (4) through (8) and (10); and

142 (g) the person or agency to whom an adoptee has been relinquished and that is placing
143 the child for adoption.
144 (2) (a) The consent of a person described in Subsections (1)(b) through (g) is not
145 required if the adoptee is 18 years of age or older.
146 (b) The consent of a person described in Subsections (1)(b) through (f) is not required
147 if the person's parental rights relating to the adoptee have been terminated.
148 (3) For purposes of Subsection (1)(e), a voluntary declaration of paternity is considered
149 filed when it is entered into a database that:
150 (a) can be accessed by the Department of Health; and
151 (b) is designated by the state registrar of vital statistics as the official database for
152 voluntary declarations of paternity.
153 (4) Except as provided in Subsections (5)(a) and (10), and subject to Subsection (8),
154 with regard to a child who is placed with adoptive parents more than six months after birth,
155 consent of an unmarried biological father is not required unless the unmarried biological father:
156 (a) (i) developed a substantial relationship with the child by:
157 (A) visiting the child monthly, unless the unmarried biological father was physically or
158 financially unable to visit the child on a monthly basis; or
159 (B) engaging in regular communication with the child or with the person or authorized
160 agency that has lawful custody of the child;
161 (ii) took some measure of responsibility for the child and the child's future; and
162 (iii) demonstrated a full commitment to the responsibilities of parenthood by financial
163 support of the child of a fair and reasonable sum in accordance with the father's ability; or
164 (b) (i) openly lived with the child:
165 (A) (I) for a period of at least six months during the one-year period immediately
166 preceding the day on which the child is placed with adoptive parents; or
167 (II) if the child is less than one year old, for a period of at least six months during the
168 period of time beginning on the day on which the child is born and ending on the day on which
169 the child is placed with adoptive parents; and

170 (B) immediately preceding placement of the child with adoptive parents; and
171 (ii) openly held himself out to be the father of the child during the six-month period
172 described in Subsection (4)(b)(i)(A).
173 (5) (a) If an unmarried biological father was prevented from complying with a
174 requirement of Subsection (4) by the person or authorized agency having lawful custody of the
175 child, the unmarried biological father is not required to comply with that requirement.
176 (b) The subjective intent of an unmarried biological father, whether expressed or
177 otherwise, that is unsupported by evidence that the requirements in Subsection (4) have been
178 met, shall not preclude a determination that the father failed to meet the requirements of
179 Subsection (4).
180 (6) Except as provided in Subsection (10), and subject to Subsection (8), with regard to
181 a child who is six months of age or less at the time the child is placed with adoptive parents,
182 consent of an unmarried biological father is not required unless, prior to the time the mother
183 executes her consent for adoption or relinquishes the child for adoption, the unmarried
184 biological father:
185 (a) initiates proceedings to establish paternity under Title 78, Chapter 45g, Utah
186 Uniform Parentage Act;
187 (b) files with the court that is presiding over the paternity proceeding a sworn affidavit:
188 (i) stating that he is fully able and willing to have full custody of the child;
189 (ii) setting forth his plans for care of the child; and
190 (iii) agreeing to a court order of child support and the payment of expenses incurred in
191 connection with the mother's pregnancy and the child's birth;
192 (c) consistent with Subsection (7), files notice of the commencement of paternity
193 proceedings with the state registrar of vital statistics within the Department of Health, in a
194 confidential registry established by the department for that purpose; and
195 (d) offered to pay and paid a fair and reasonable amount of the expenses incurred in
196 connection with the mother's pregnancy and the child's birth, in accordance with his financial
197 ability, unless:

198 (i) he did not have actual knowledge of the pregnancy;
199 (ii) he was prevented from paying the expenses by the person or authorized agency
200 having lawful custody of the child; or
201 (iii) the mother refuses to accept the unmarried biological father's offer to pay the
202 expenses described in this Subsection (6)(d).
203 (7) The notice described in Subsection (6)(c) is considered filed when it is entered into
204 the registry described in Subsection (6)(c).
205 (8) Consent of an unmarried biological father is not required under this section if:
206 (a) the court determines, in accordance with the requirements and procedures of Title
207 78, Chapter 3a, Part 4, Termination of Parental Rights Act, that the unmarried biological
208 father's rights should be terminated, based on the petition of any interested party; or
209 (b) (i) a declaration of paternity declaring the unmarried biological father to be the
210 father of the child is rescinded under Section 78-45g-306 ; and
211 (ii) the unmarried biological father fails to comply with Subsection (6) within ten
212 business days after the day that notice of the rescission described in Subsection (8)(b)(i) is
213 mailed by the Office of Vital Records within the Department of Health as provided in Section
214 78-45g-306 .
215 (9) Unless the adoptee is conceived or born within a marriage, the petitioner in an
216 adoption proceeding shall, prior to entrance of a final decree of adoption, file with the court a
217 certificate from the state registrar of vital statistics within the Department of Health, stating:
218 (a) that a diligent search has been made of the registry of notices from unmarried
219 biological fathers described in Subsection (6)(c); and
220 (b) (i) that no filing has been found pertaining to the father of the child in question; or
221 (ii) if a filing is found, the name of the putative father and the time and date of filing.
222 (10) (a) For purposes of this Subsection (10), "qualifying circumstance" means that, at
223 any point during the time period beginning at the conception of the child and ending at the time
224 the mother executed a consent to adoption or relinquishment of the child for adoption:
225 (i) the child or the child's mother resided, on a permanent or temporary basis, in the

226 state of Utah;
227 (ii) the mother intended to give birth to the child in the state of Utah;
228 (iii) the child was born in the state of Utah; or
229 (iv) the mother intended to execute a consent to adoption or relinquishment of the child
230 for adoption:
231 (A) in the state of Utah; or
232 (B) under the laws of the state of Utah.
233 (b) Notwithstanding the provisions of Subsections (4) and (6), the consent of an
234 unmarried biological father is required with respect to an adoptee who is under the age of 18 if:
235 (i) (A) the unmarried biological father did not know, and through the exercise of
236 reasonable diligence could not have known, before the time the mother executed a consent to
237 adoption or relinquishment of the child for adoption, that a qualifying circumstance existed;
238 and
239 (B) before the mother executed a consent to adoption or relinquishment of the child for
240 adoption, the unmarried biological father fully complied with the requirements to establish
241 parental rights in the child, and to preserve the right to notice of a proceeding in connection
242 with the adoption of the child, imposed by:
243 (I) the last state where the unmarried biological father knew, or through the exercise of
244 reasonable diligence should have known, that the mother resided in before the mother executed
245 the consent to adoption or relinquishment of the child for adoption; or
246 (II) the state where the child was conceived; or
247 (ii) (A) the unmarried biological father knew, or through the exercise of reasonable
248 diligence should have known, before the time the mother executed a consent to adoption or
249 relinquishment of the child for adoption, that a qualifying circumstance existed; and
250 (B) the unmarried biological father complied with the requirements of Subsection (4)
251 or (6) before the later of:
252 (I) 20 days after the day that the unmarried biological father knew, or through the
253 exercise of reasonable diligence should have known, that a qualifying circumstance existed; or

254 (II) the time that the mother executed a consent to adoption or relinquishment of the
255 child for adoption.
256 (11) An unmarried biological father who does not fully and strictly comply with the
257 requirements of this section is considered to have waived and surrendered any right in relation
258 to the child, including the right to:
259 (a) notice of any judicial proceeding in connection with the adoption of the child; and
260 (b) consent, or refuse to consent, to the adoption of the child.
261 Section 44. Section 78-30-4.15 is amended to read:
262 78-30-4.15. Responsibility of each party for own actions -- Fraud or
263 misrepresentation.
264 (1) Each parent of a child conceived or born outside of marriage is responsible for his
265 or her own actions and is not excused from strict compliance with the provisions of this
266 chapter based upon any action, statement, or omission of the other parent or third parties.
267 (2) Any person injured by fraudulent representations or actions in connection with an
268 adoption is entitled to pursue civil or criminal penalties in accordance with existing law. A
269 fraudulent representation is not a defense to strict compliance with the requirements of this
270 chapter, and is not a basis for dismissal of a petition for adoption, vacation of an adoption
271 decree, or an automatic grant of custody to the offended party. Custody determinations shall be
272 based on the best interest of the child, in accordance with the provisions of Section 78-30-4.16 .
273 (3) The Legislature finds no practical way to remove all risk of fraud or
274 misrepresentation in adoption proceedings, and has provided a method for absolute protection
275 of an unmarried biological father's rights by compliance with the provisions of this chapter. In
276 balancing the rights and interests of the state, and of all parties affected by fraud, specifically
277 the child, the adoptive parents, and the unmarried biological father, the Legislature has
278 determined that the unmarried biological father is in the best position to prevent or ameliorate
279 the effects of fraud and that, therefore, the burden of fraud shall be borne by him.
280 [(4) The Legislature finds that an unmarried biological father who resides in another
281 state may not, in every circumstance, be reasonably presumed to know of, and strictly comply

282 with, the requirements of this chapter. Therefore when all of the following requirements have
283 been met, that unmarried biological father may contest an adoption, prior to finalization of the
284 decree of adoption, and assert his interest in the child; the court may then, in its discretion,
285 proceed with an evidentiary hearing under Subsection 78-30-4.16 (2):]
286 [(a) the unmarried biological father resides and has resided in another state where the
287 unmarried mother was also located or resided;]
288 [(b) the mother left that state without notifying or informing the unmarried biological
289 father that she could be located in the state of Utah;]
290 [(c) the unmarried biological father has, through every reasonable means, attempted to
291 locate the mother but does not know or have reason to know that the mother is residing in the
292 state of Utah; and]
293 [(d) the unmarried biological father has complied with the most stringent and complete
294 requirements of the state where the mother previously resided or was located, in order to
295 protect and preserve his parental interest and right in the child in cases of adoption.]
296 Section 55. Section 78-30-14 is amended to read:
297 78-30-14. Division of Child and Family Services -- Duties -- Report -- Fee.
298 (1) At the request of the court, the [Division of Child and Family Services] division,
299 through its field agents, persons licensed by the division for the care and placement of children,
300 or through the probation officer of the juvenile court or court of like jurisdiction of the county,
301 under the division's supervision, shall:
302 (a) verify the allegations of the petition for adoption of a minor child[,];
303 (b) make a thorough investigation of the matter[,]; and
304 (c) report [its] the division's findings in writing to the court.
305 (2) (a) When the court requests an investigation under Subsection (1), [it] the court
306 shall serve a copy of the petition, together with a statement containing the names and addresses
307 of the child and petitioners, on the division by certified mail.
308 (b) The division, or the person appointed by the division, shall complete the
309 investigation described in Subsection (2)(a) and submit [the] a written report to the court

310 within 60 days [of that service] after the day that the petition is served on the division.
311 (3) (a) The division shall charge the petitioner a reasonable fee for the services
312 provided under this section.
313 (b) Fees collected shall be deposited in the General Fund.
314 (4) The written report submitted to the court under this section shall state:
315 (a) why the birth parents, if living, desire to be released from the care, support, and
316 guardianship of the child;
317 (b) whether the birth parents have abandoned the child or are morally unfit for custody;
318 (c) whether the proposed adoptive parent or parents are financially able and morally fit
319 to have the care, supervision, and training of the child;
320 (d) the physical and mental condition of the child, so far as that may be determined;
321 and
322 (e) any other facts and circumstances pertaining to the child and [his] the child's
323 welfare.
324 (5) (a) The court shall conduct a full hearing on the petition for adoption and examine
325 the parties in interest under oath.
326 (b) The court may adjourn the hearing from time to time as the nature of the case
327 requires.
328 (6) If the report submitted by the [Division of Child and Family Services] division
329 under Subsection (2) disapproves of the adoption of the child by the petitioner, the court may
330 dismiss the petition.
331 (7) (a) [A] Except as provided in Subsection (7)(b), a final decree of adoption may not
332 be entered until the child has lived in the home of the adoptive parent or parents for six months.
333 [However, if]
334 (b) If the adoptive parent is the spouse of the birth parent, a final decree of adoption
335 may not be entered until the child has lived in the home of that adoptive parent for one year.
336 (c) In the event the child dies [prior to the expiration of that six-month or one-year
337 period,] during the time that the child is placed in the home of an adoptive parent or parents for

338 the purpose of adoption, the court has authority to enter a final decree of adoption after the
339 child's death upon the request of the adoptive parents. [This subsection shall not]
340 (d) The court may enter a final decree of adoption declaring that a child is adopted by
341 both a deceased and a surviving adoptive parent if, after the child is placed in the home of the
342 child's adoptive parents:
343 (i) one of the adoptive parents dies;
344 (ii) the surviving adoptive parent requests that the court enter the decree; and
345 (iii) the decree is entered after the child has lived in the home of the surviving adoptive
346 parent for at least six months.
347 (e) Upon request of a surviving birth parent, or a surviving parent for whom adoption
348 of a child has been finalized, the court may enter a final decree of adoption declaring that a
349 child is adopted by a deceased adoptive parent who was the spouse of the surviving parent at
350 the time of the adoptive parent's death.
351 (f) The court may enter a final decree of adoption declaring that a child is adopted by
352 both deceased adoptive parents if:
353 (i) both of the adoptive parents die after the child is placed in the adoptive parent's
354 home; and
355 (ii) it is in the best interests of the child to enter the decree.
356 (8) Nothing in this section shall be construed to grant any rights to the birth parents of
357 a child to assert any interest in the child during [that] the six-month or one-year [period]
358 periods described in this section.
359 Section 66. Section 78-45g-306 is amended to read:
360 78-45g-306. Proceeding for rescission.
361 (1) A signatory may rescind a declaration of paternity or denial of paternity by filing a
362 voluntary rescission document with the Office of Vital Records in a form prescribed by the
363 office before the earlier of:
364 [(1)] (a) 60 days after the effective date of the declaration or denial, as provided in
365 Sections 78-45g-303 and 78-45g-304 ; or

366 [(2)] (b) the date of notice of the first adjudicative proceeding to which the signatory is
367 a party, before a tribunal to adjudicate an issue relating to the child, including a proceeding that
368 establishes support.
369 (2) Upon receiving a voluntary rescission document from a signatory under Subsection
370 (1), the Office of Vital Records shall provide notice of the recision, by mail, to the other
371 signatory at the last-known address of that signatory.