Text of UT HB 108 (2011)

H.B. 108 LEGISLATIVE GENERAL COUNSEL 6 Approved for Filing: T.R. Vaughn 6 6 02-02-11 12:45 PM 6 H.B. 108 *HB0108* 1 ADOPTION AMENDMENTS 2 2011 GENERAL SESSION 3 STATE OF UTAH 4 Chief Sponsor: Rebecca Chavez-Houck 5 Senate Sponsor: ____________ 6 7 LONG TITLE 8 General Description: 9 This bill amends provisions of the Utah Adoption Act relating to who may adopt a 10 child. 11 Highlighted Provisions: 12 This bill: 13 < amends a legislative finding relating to who may adopt a child; 14 < permits a person who is an unmarried cohabitant to adopt a child if: 15 C the child has only one legal parent; 16 C the child's parent joins in the adoption petition; 17 C the person has developed a parental relationship with the child; and 18 C establishing a legal parental relationship with the person is in the child's best 19 interest; 20 < provides that a person's parental rights are not terminated if, at the time the child is 21 adopted: 22 C the legal parent is cohabiting with the person who is adopting the child, in a 23 relationship that is not a legally valid and binding marriage under the laws of 24 this state; and 25 C the person who is adopting the child is permitted to adopt the child under the 26 provisions of this bill; and 27 < makes technical changes. H.B. 108 02-02-11 12:45 PM - 2 - 28 Money Appropriated in this Bill: 29 None 30 Other Special Clauses: 31 None 32 Utah Code Sections Affected: 33 AMENDS: 34 78B-6-102, as renumbered and amended by Laws of Utah 2008, Chapter 3 35 78B-6-117, as enacted by Laws of Utah 2008, Chapter 3 36 78B-6-138, as last amended by Laws of Utah 2010, Chapter 237 37 38 Be it enacted by the Legislature of the state of Utah: 39 Section 1. Section 78B-6-102 is amended to read: 40 78B-6-102. Legislative intent and findings -- Best interest of child -- Interests of 41 each party. 42 (1) It is the intent and desire of the Legislature that in every adoption the best interest 43 of the child should govern and be of foremost concern in the court's determination. 44 (2) The court shall make a specific finding regarding the best interest of the child, 45 taking into consideration information provided to the court pursuant to the requirements of this 46 chapter relating to the health, safety, and welfare of the child and the moral climate of the 47 potential adoptive placement. 48 (3) The Legislature finds that the rights and interests of all parties affected by an 49 adoption proceeding must be considered and balanced in determining what constitutional 50 protections and processes are necessary and appropriate. 51 (4) (a) The Legislature specifically finds that it is [not] in a child's best interest to be 52 adopted by [a person or persons who are cohabiting in a relationship that is not a legally valid 53 and binding marriage under the laws of this state] married persons. Nothing in this section 54 limits or prohibits the court's placement of a child with a single adult [who is not cohabiting as 55 defined in this part]. 56 (b) The Legislature further finds that when a child is being raised by two unmarried 57 cohabiting adults: 58 (i) it is in the best interest of the child to have a legal parent-child relationship with 02-02-11 12:45 PM H.B. 108 - 3 - 59 both adults; and 60 (ii) the legal parent of the child has a fundamental right to choose to allow adoption of 61 the parent's child by the other cohabiting adult. 62 (5) The Legislature also finds that: 63 (a) the state has a compelling interest in providing stable and permanent homes for 64 adoptive children in a prompt manner, in preventing the disruption of adoptive placements, and 65 in holding parents accountable for meeting the needs of children; 66 (b) an unmarried mother, faced with the responsibility of making crucial decisions 67 about the future of a newborn child, is entitled to privacy, and has the right to make timely and 68 appropriate decisions regarding her future and the future of the child, and is entitled to 69 assurance regarding the permanence of an adoptive placement; 70 (c) adoptive children have a right to permanence and stability in adoptive placements; 71 (d) adoptive parents have a constitutionally protected liberty and privacy interest in 72 retaining custody of an adopted child; 73 (e) an unmarried biological father has an inchoate interest that acquires constitutional 74 protection only when he demonstrates a timely and full commitment to the responsibilities of 75 parenthood, both during pregnancy and upon the child's birth; and 76 (f) the state has a compelling interest in requiring unmarried biological fathers to 77 demonstrate commitment by providing appropriate medical care and financial support and by 78 establishing legal paternity, in accordance with the requirements of this chapter. 79 (6) (a) In enacting this chapter, the Legislature has prescribed the conditions for 80 determining whether an unmarried biological father's action is sufficiently prompt and 81 substantial to require constitutional protection. 82 (b) If an unmarried biological father fails to grasp the opportunities to establish a 83 relationship with his child that are available to him, his biological parental interest may be lost 84 entirely, or greatly diminished in constitutional significance by his failure to timely exercise it, 85 or by his failure to strictly comply with the available legal steps to substantiate it. 86 (c) A certain degree of finality is necessary in order to facilitate the state's compelling 87 interest. The Legislature finds that the interests of the state, the mother, the child, and the 88 adoptive parents described in this section outweigh the interest of an unmarried biological 89 father who does not timely grasp the opportunity to establish and demonstrate a relationship H.B. 108 02-02-11 12:45 PM - 4 - 90 with his child in accordance with the requirements of this chapter. 91 (d) The Legislature finds no practical way to remove all risk of fraud or 92 misrepresentation in adoption proceedings, and has provided a method for absolute protection 93 of an unmarried biological father's rights by compliance with the provisions of this chapter. In 94 balancing the rights and interests of the state, and of all parties affected by fraud, specifically 95 the child, the adoptive parents, and the unmarried biological father, the Legislature has 96 determined that the unmarried biological father is in the best position to prevent or ameliorate 97 the effects of fraud and that, therefore, the burden of fraud shall be borne by him. 98 (e) An unmarried biological father has the primary responsibility to protect his rights. 99 (f) An unmarried biological father is presumed to know that the child may be adopted 100 without his consent unless he strictly complies with the provisions of this chapter, manifests a 101 prompt and full commitment to his parental responsibilities, and establishes paternity. 102 (7) The Legislature finds that an unmarried mother has a right of privacy with regard to 103 her pregnancy and adoption plan, and therefore has no legal obligation to disclose the identity 104 of an unmarried biological father prior to or during an adoption proceeding, and has no 105 obligation to volunteer information to the court with respect to the father. 106 Section 2. Section 78B-6-117 is amended to read: 107 78B-6-117. Who may adopt -- Adoption of minor. 108 (1) A minor child may be adopted by an adult person, in accordance with the 109 provisions and requirements of this section and this part. 110 (2) A child may be adopted by: 111 (a) adults who are legally married to each other in accordance with the laws of this 112 state, including adoption by a stepparent; or 113 (b) subject to Subsection (4), any single adult, except as provided in Subsection (3). 114 (3) A child may not be adopted by a person who is cohabiting in a relationship that is 115 not a legally valid and binding marriage under the laws of this state[.], unless: 116 (a) the child only has one legal parent; 117 (b) the child's legal parent joins in the petition for the person to adopt the child; 118 (c) the person: 119 (i) has developed a parental relationship with the child; and 120 (ii) has contributed to the child's emotional or financial well-being; and 02-02-11 12:45 PM H.B. 108 - 5 - 121 (d) establishing a legal parental relationship with the person described in Subsection 122 (3)(c) is in the best interest of the child. 123 (4) In order to provide a child who is in the custody of the division with the most 124 beneficial family structure, when a child in the custody of the division is placed for adoption, 125 the division or child-placing agency shall place the child with a man and a woman who are 126 married to each other, unless: 127 (a) there are no qualified married couples who: 128 (i) have applied to adopt a child; 129 (ii) are willing to adopt the child; and 130 (iii) are an appropriate placement for the child; 131 (b) the child is placed with a relative of the child; 132 (c) the child is placed with a person who has already developed a substantial 133 relationship with the child; 134 (d) the child is placed with a person who: 135 (i) is selected by a parent or former parent of the child, if the parent or former parent 136 consented to the adoption of the child; and 137 (ii) the parent or former parent described in Subsection (4)(d)(i): 138 (A) knew the person with whom the child is placed before the parent consented to the 139 adoption; or 140 (B) became aware of the person with whom the child is placed through a source other 141 than the division or the child-placing agency that assists with the adoption of the child; or 142 (e) it is in the best interests of the child to place the child with a single person. 143 Section 3. Section 78B-6-138 is amended to read: 144 78B-6-138. Pre-existing parent's rights and duties dissolved. 145 (1) A pre-existing parent of an adopted child is released from all parental duties toward 146 and all responsibilities for the adopted child, including residual rights, and has no further rights 147 with regard to that child at the earlier of: 148 (a) the time the pre-existing parent's parental rights are terminated; or 149 (b) except as provided in Subsection (2), and subject to Subsection (3), the time the 150 final decree of adoption is entered. 151 (2) The rights and duties of a pre-existing parent described in Subsection (1) [who, at H.B. 108 02-02-11 12:45 PM - 6 - 152 the time the child is adopted, is lawfully married to the person adopting the child] are not 153 released or terminated under Subsection (1)(b)[.] if, at the time the child is adopted: 154 (a) the legal parent is lawfully married to the person who is adopting the child; or 155 (b) (i) the legal parent is cohabiting with the person who is adopting the child, in a 156 relationship described in Subsection 78B-6-117(3); and 157 (ii) the person who is adopting the child is permitted to adopt the child under 158 Subsection 78B-6-117(3). 159 (3) [The] Except as provided in Subsection (2)(b), the rights and duties of a 160 pre-existing parent described in Subsection (1) who, at the time the child is adopted, is not 161 lawfully married to the person adopting the child are terminated as provided in Subsection 162 (1)(b). Legislative Review Note as of 2-2-11 10:21 AM Office of Legislative Research and General Counsel