Consent To Adoption Of Minor Child (Page 4 of 5) in pdf

decree of adoption, proves by clear and convincing evidence that the consent was not freely and voluntarily given.

59-2114(a).

Identity of father. Paragraph 8 or 9 should be inserted in consent forms to be signed by the child’s

mother, in order to identify the child’s father.

Indian Child Welfare Act (ICWA). The ICWA applies to adoption placements of Indian children (25

U.S.C. § 1903(1)(iv)), requiring notice to the tribe and adoption placement preferences (25 U.S.C. § 1915(a)).

Indian children are defined as unmarried persons under the age of 18 who are either (a) members of an Indian tribe

or (b) eligible for membership and the biological children of a member of an Indian tribe. 25 U.S.C. § 1903(4).

Paragraph 10 of the consent form is included to provide information about whether the child meets the definition

of Indian child under the ICWA.

If the child is an Indian child, the court may nonetheless determine that the ICWA does not apply if the

child has never been a member of an Indian home or culture, pursuant to the holding in In re Adoption of L., 231

Kan. 199, 643 P.2d 168 (1982). If such facts exist, a paragraph may be added to the form establishing those facts.

Also, even if the ICWA applies, the court may determine that good cause exists not to follow the otherwise

required adoption placement preferences. In re Adoption of B.G.J., 111 P.3d 651 (Kan. Ct. App. 2005).

Comments

Because a parent’s liberty interest in the custody and control of his or her own children is at stake in an

adoption, the adoption, relinquishment and termination of parental rights statutes are strictly construed. In re A.W.,

241 Kan. 810, 814-15, 740 P.2d 82, 86 (1987). Therefore it is critical to the validity of an adoption that required

consents be validly obtained and executed in accord with all the statutory conditions.

Whose consent is required. The consent of both parents is required, unless the court makes a specific

finding that the consent of one is not required, pursuant to K.S.A. 59-2129(a)(2). In re Adoption of A.J.P., 24 Kan.

App. 2d 891, 892, 953 P.2d 1387, 1389 (1998).

Capacity to consent. A parent retains the legal authority to consent to a step-parent adoption of her child

by her spouse, even at a time when guardianship of the child has been granted to another person. In re Adoption

of J.A.B., Jr., 26 Kan. App. 2d 959, 967-69, 997 P.2d 98, 104-05 (2000).

Acknowledgment. Although Kansas notaries public only have authority to acknowledge documents

within the State of Kansas (K.S.A. 53-101), a consent to adoption signed in Missouri before a Kansas notary was

upheld as being in substantial compliance with the law. In re Adoption of Trent, 229 Kan. 224, 624 P.2d 433

(1981). The Court also noted that when a consent to adoption is properly acknowledged, the acknowledgment

serves as prima facie proof of the validity of the consent and that it was freely and voluntarily given.

Time of birth. In 1987 the Kansas Court of Appeals held that a natural mother, who signed an adoption

consent shortly after birth of the child, must have the opportunity to prove the consent was void or voidable

because of her inability to fully comprehend what she was doing due to medication and/or the stress and pain

associated with the birth. In re Adoption of Baby Girl H., 12 Kan. App. 2d 223, 739 P.2d 1 (1987). Thereafter,

in 1990 the legislature amended the adoption act to provide that any consent or relinquishment given by the mother

before 12 hours after birth of the child is voidable, prior to the final decree of adoption. The Baby Girl H. decision

suggests that the timing concern had to do with the mother’s birth experience and does not relate to the father. The

statute does not restrict the timing of the father’s consent, other than the six month requirement explained above.

If a birth mother decides to seek to void a consent obtained prior to 12 hours after the birth, she can do

so prior to the entry of the decree of adoption, simply by proving the consent was obtained within12 hours after

the birth of the child. After the decree is entered, however, a parent cannot seek to void the consent, unless

appropriate under K.S.A. 60-260(b). In re Adoption of J.H.G., 254 Kan. 780, 869 P.2d 640 (1994).

The constitutionality of giving more protection to birth mothers who sign consents prior to 12 hours after

the birth of their child was upheld as reasonable in In re Adoption of Baby Girl T., 28 Kan. App. 2d 712, 722-25,

21 P.3d 581, 590-92 (2001).

Consent of minor parent. When a birth parent is a minor, the parent must have independent

representation. One lawyer cannot represent both the minor birth parent and the adoptive parents. In re Adoption

of N.A.P., 23 Kan. App. 2d 257, 266, 930 P.2d 609, 615 (1997). The N.A.P. decision held that when one lawyer

begins multiple representation of both the minor birth parent and the adoptive parents, a consent later obtained with

representation by independent counsel is not voided, but the trial court may consider the initial multiple

Consent To Adoption Of Minor Child Page 4

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