Child Adoption Laws
Montana

Part 1 (Below)      Part 2 (Click Here)

Title 42.
ADOPTION

CHAPTER 1. GENERAL ADOPTION PROVISIONS
CHAPTER 2. ADOPTION OF CHILD
CHAPTER 3. REQUIREMENTS OF PARTIES IN ADOPTION
CHAPTER 4. PLACEMENTS FOR ADOPTION
CHAPTER 5. LEGAL PROCEEDINGS
CHAPTER 6. RECORDS
CHAPTER 7. FEES AND PROHIBITED ACTIVITIES RELATED TO ADOPTION
CHAPTER 8. LICENSING OF CHILD PLACEMENT AGENCY
CHAPTER 9 RESERVED RESERVED.
CHAPTER 10. SUBSIDIZED ADOPTIONS

CHAPTER 1. GENERAL ADOPTION PROVISIONS

Part 1. Adoption Policy and Procedures

42-1-101. Short title.

This title may be cited as the "Montana Adoption Act".

History: En. Sec. 1, Ch. 480, L. 1997.

42-1-102. Adoption policy. (1) It is the policy of the state of Montana to ensure that the best interests of the child are met by adoption proceedings.
(2) The primary purpose of adoption is to help a child become a permanent member of a nurturing family that can give the child the care, protection, and opportunities essential for healthy personal growth and development.
(3) The well-being of the adopted child is the main objective in the placement of a child for adoption. The needs of the child must be the primary focus of adoption proceedings, with full recognition of the interdependent needs and interests of birth parents and adoptive parents.
(4) It is the policy of the state of Montana to support relationships between adoptees and their birth families when desired by the affected parties.

History: En. Sec. 2, Ch. 480, L. 1997.

42-1-103. Definitions. As used in this title, unless the context requires otherwise, the following definitions apply:
(1) "Adoptee" means an adopted person or a person who is the subject of adoption proceedings that are intended to result in the adoptee becoming the legal child of another person.
(2) "Adoption" means the act of creating the legal relationship between parent and child when it does not exist genetically.
(3) "Adoptive parent" means an adult who has become the mother or father of a child through the legal process of adoption.
(4) "Agency" means a public or nonprofit entity that is licensed by any jurisdiction of the United States and that is expressly empowered to place children preliminary to a possible adoption.
(5) "Birth parent" means the woman who gave birth to the child or the father of genetic origin of the child.
(6) "Child" means any person under 18 years of age.
(7) "Confidential intermediary" means a person certified by the department and under contract with or employed by a nonprofit entity with expertise in adoption.
(8) "Court" means a court of record in a competent jurisdiction and in Montana means a district court or a tribal court.
(9) "Department" means the department of public health and human services, provided for in 2-15-2201.
(10) "Direct parental placement adoption" means an adoption in which the parent of the child places the child with a prospective adoptive parent personally known and selected by the parent independent of an agency.
(11) "Extended family member" means a person who is or was the adoptee's parent, grandparent, aunt or uncle, brother or sister, or child.
(12) "Identifying information" means information that directly reveals or indirectly indicates the identity of a person and includes the person's name or address.
(13) "Nonidentifying information" means information that does not directly reveal or indirectly indicate the identity of a person, including:
(a) medical information and information related to general physical characteristics;
(b) family information, including marital status and the existence of siblings;
(c) religious affiliation;
(d) educational background information that does not reveal specific programs or institutions attended;
(e) general occupation;
(f) hobbies; and
(g) photographs provided by any of the parties involved that were specifically intended to be provided to another party.
(14) "Parent" means the birth or adoptive mother or the birth, adoptive, or legal father whose parental rights have not been terminated.
(15) "Placing parent" means a parent who is voluntarily making a child available for adoption.
(16) "Preplacement evaluation" means the home study process conducted by the department or a licensed child-placing agency that:
(a) assists a prospective adoptive parent or family to assess its own readiness to adopt; and
(b) assesses whether the prospective adoptive parent or family and home meet applicable standards.
(17) "Records" means all documents, exhibits, and data pertaining to an adoption.
(18) "Relinquishment" means the informed and voluntary release in writing of all parental rights with respect to a child by a parent to an agency or individual.

History: En. Sec. 3, Ch. 480, L. 1997.

42-1-104. Venue. (1) Proceedings for adoption must be brought in the district court of the county where the petitioners reside.
(2) Petitions for appointment of a confidential intermediary may be filed:
(a) in the county where the decree of adoption was issued;
(b) in the county of residence of the petitioner; or
(c) if the petitioner resides out of state, in any county.

History: En. Sec. 4, Ch. 480, L. 1997.

42-1-105. Who may be adopted. (1) A child is legally free for adoption if:
(a) the child does not have a living parent;
(b) the parental rights of the living parents of the child have been terminated according to the laws of this state or of another jurisdiction; or
(c) the living parents, guardian authorized by the court, or department or agency with custody of the child consent to the adoption.
(2) An adult may be adopted as provided in 42-4-401 through 42-4-405.
(3) A stepchild may be adopted as provided in 42-4-301 through 42-4-304 and 42-4-309 through 42-4-312.

 

42-1-106. Who may adopt. The following individuals who otherwise meet the requirements of this title are eligible to adopt a child:
(1) a husband and wife jointly or either the husband or wife if the other spouse is a parent of the child;
(2) an unmarried individual who is at least 18 years of age; or
(3) a married individual at least 18 years of age who is legally separated from the other spouse or whose spouse has judicially been declared incompetent.

History: En. Sec. 6, Ch. 480, L. 1997.

42-1-107. Adoption prohibited if child not legally free. (1) An adoption decree may not be entered if the child who is the subject of an adoption proceeding is not legally free for adoption.
(2) A child may be placed for adoption only by:
(a) the department or another agency to which the child has been relinquished for purposes of adoption;
(b) the department or another agency expressly authorized to place the child for adoption by a court order terminating the relationship between the child and the child's parent or guardian;
(c) the child's parents; or
(d) a guardian expressly authorized by the court to place the child for adoption.

History: En. Sec. 7, Ch. 480, L. 1997.

42-1-108. Rights and responsibilities of parties in adoption proceedings. (1) The legislature finds that the rights and interests of all parties affected by an adoption proceeding must be considered and balanced in determining the necessary constitutional protection and appropriate processes.
(2) The legislature finds that:
(a) every child deserves to be raised by a family in which support and care are promptly provided by one or more parents in a nurturing environment on a regular and ongoing basis;
(b) the state has a compelling interest in providing stable and permanent homes for adoptive children in a prompt manner, in preventing the disruption of adoptive placements, and in holding parents accountable for meeting the needs of children;
(c) an unmarried mother, faced with the responsibility of making crucial decisions about the future of a newborn child, is entitled to privacy, has the right to make timely and appropriate decisions regarding the mother's future and the future of the child, and is entitled to assurance regarding the permanence of an adoptive placement;
(d) adoptive children have a right to permanence and stability in adoptive placements;
(e) adoptive parents have a constitutionally protected liberty and privacy interest in retaining custody of an adopted child; and
(f) a birth father who is not married to the child's mother has the primary responsibility to protect the father's rights. The father's inchoate interest in the child requires constitutional protection only when the father has demonstrated a timely commitment to the responsibilities of parenthood, both during pregnancy and upon the child's birth. The state has a compelling interest in requiring a birth father to demonstrate that commitment by:
(i) timely and consistently providing financial support;
(ii) complying with the requirements of the putative father registry; and
(iii) demonstrating the establishment of a substantial relationship with the child as described in 42-2-610.
(3) If a birth father who is not married to the child's mother fails to grasp the opportunities that are available to the father to establish a relationship with the child, the father's parental rights will be lost entirely by the failure to timely exercise it or by the failure to comply with the available legal steps to substantiate the parental interest.

History: En. Sec. 8, Ch. 480, L. 1997.

42-1-109. Need for finality -- balancing of interests. Finality is necessary in order to facilitate the state's compelling interest. The legislature finds that the interests of the child outweigh the interests of the state, the mother, the adoptive parents, and a birth father who is not married to the child's mother.

History: En. Sec. 9, Ch. 480, L. 1997.

42-1-110. Presumed knowledge that child may be adopted without notice. A birth father who is not married to the mother of the child is presumed to know that the child may be adopted without the father's consent and that the father is required to comply with the provisions of this title and manifest a commitment to the father's parental responsibilities.

History: En. Sec. 10, Ch. 480, L. 1997.

42-1-111. Unmarried birth mother's right of privacy. An unmarried birth mother has a right of privacy with regard to the mother's pregnancy and adoption plan. Birth mothers are encouraged to provide all known information about the birth father of any child for whom an adoption is planned.

History: En. Sec. 11, Ch. 480, L. 1997.

42-2-101. Recognition of adoption in another jurisdiction. (1) A decree or order of adoption has the same effect as a decree or order of adoption issued by a court of this state if the decree or order is:
(a) issued by a court of any other state that is entitled to full faith and credit in this state; or
(b) entered by a court or administrative entity in another country acting pursuant to:
(i) that country's law; or
(ii) to any convention or treaty on intercountry adoption that the United States has ratified.
(2) The rights and obligations of the parties as to matters within the jurisdiction of this state must be determined as though the decree or order were issued by a court of this state.

History: En. Sec. 12, Ch. 480, L. 1997.

42-2-102. Proceedings subject to Indian Child Welfare Act. A proceeding under this title that pertains to an Indian child, as defined in the Indian Child Welfare Act of 1978, 25 U.S.C. 1901, et seq., is subject to that act.

History: En. Sec. 13, Ch. 480, L. 1997.

42-2-103. Interstate placement. The Interstate Compact on the Placement of Children, Title 41, chapter 4, governs:
(1) an adoption in this state of a child brought into this state from another state by a prospective adoptive parent;
(2) a person residing in or an agency doing business from another state who places the child for adoption in this state; and
(3) the placement of a Montana child in another state.

History: En. Sec. 14, Ch. 480, L. 1997.

42-2-104. International placement. An adoption in this state of a child brought into this state from another country by a prospective adoptive parent or by a person who places the child for adoption in this state is governed by this title and is subject to any convention or treaty governing adoption that the United States has ratified and to any relevant federal law.

History: En. Sec. 15, Ch. 480, L. 1997.

42-2-105. Fees for services -- special revenue account -- statutory appropriation. (1) The department shall establish fees that it may charge and that are reasonably related to the cost incurred by the department in completing or contracting for adoption services.
(2) The department may contract with licensed social workers or licensed child-placing agencies for the purposes of completing the preplacement or postplacement evaluation or for providing postplacement supervision.
(3) An agency contracting to perform the services may set and charge a reasonable fee commensurate with the services provided.
(4) There is an adoption services account in the state special revenue fund. The fees collected by the department under this title and from the district court filing fee pursuant to 25-1-201(1)(q) must be deposited into this account and may be used by the department for adoption services. The money in the account is statutorily appropriated, as provided in 17-7-502, to the department.

History: En. Sec. 16, Ch. 480, L. 1997.

42-2-106. Rulemaking authority. The department may adopt rules to implement the administration and purposes of this title.

History: En. Sec. 17, Ch. 480, L. 1997.

42-2-201. Definitions. As used in this part, unless the context requires otherwise, the following definitions apply:
(1) "Child" includes an unborn child.
(2) (a) "Putative father" means an individual who may be a child's birth father but who:
(i) is not married to the child's mother on or before the date that the child is born; or
(ii) has not established paternity of the child prior to the filing of a petition for termination of parental rights to the child for purposes of adoption.
(b) The term includes an individual who is:
(i) less than 18 years of age; and
(ii) not married to the child's mother even though the individual is a presumed father within the meaning of 40-6-105.
(3) "Registry" means the putative father registry established under 42-2-202.

History: En. Sec. 18, Ch. 480, L. 1997.

42-2-202. Putative father registry. The putative father registry is established within the vital statistics bureau of the department. The department shall adopt rules to administer the registry.

History: En. Sec. 19, Ch. 480, L. 1997.

42-2-203. Purpose of registry. (1) The purpose of the putative father registry is to provide notice of termination of parental rights to a putative father who asserts a parental interest in a child so that the putative father may appear in a proceeding and have an opportunity to establish that the putative father's inchoate rights in the child have vested because a substantial relationship with the child has been established as provided in 42-2-610.
(2) In addition to any other notice to which the putative father is entitled, a putative father of a child who complies with the requirements of the putative father registry is entitled to notice of any proceedings involving termination of parental rights to the child.

History: En. Sec. 20, Ch. 480, L. 1997.

42-2-204. Presumed knowledge of pregnancy -- duty to register to be afforded notice -- putative and presumed fathers. (1) A person who engages in sexual relations with a member of the opposite sex is presumed to know that a pregnancy could result.
(2) In addition to any other notice to which the putative father is entitled, a putative father is entitled to notice of termination of parental rights proceedings for the purposes of adoption if the putative father has complied with the requirements of the putative father registry.
(3) An individual who is not married to the mother but who is presumed to be a father under 40-6-105 and registers in accordance with this part is entitled to receive notice of a termination of parental rights proceeding.

History: En. Sec. 21, Ch. 480, L. 1997.

42-2-205. Registration. (1) In addition to any other notice to which the putative father is entitled, a putative father is entitled to notice of any proceedings to terminate parental rights involving a child whom the putative father might have fathered if the putative father timely files the following information with the department:
(a) the putative father's:
(i) full name;
(ii) address at which the putative father may be served by certified mail, return receipt requested, with notice of a proceeding to terminate parental rights;
(iii) social security number;
(iv) date of birth; and
(v) tribal affiliation if applicable;
(b) the mother's:
(i) name, including all other names known to the putative father that the mother uses; and
(ii) address, social security number, and date of birth, if known;
(c) the child's:
(i) name and place of birth, if known; or
(ii) the approximate date and location of a possible conception and the approximate expected date of delivery.
(2) If a putative father does not have an address where the putative father can receive notice of a termination of parental rights proceeding, the putative father may designate another person as an agent for the purpose of receiving notice. The putative father shall provide the department with the agent's name and the address at which the agent may be served. Service of notice by certified mail, return receipt requested, constitutes service of notice upon the putative father.
(3) A putative father shall register under this section on a registration form prescribed by the department or with a legibly typed or handwritten statement that provides the required information and that is submitted to the department pursuant to 42-2-207. The registration must be signed by the putative father and notarized.
(4) A putative father who registers under this section is responsible for providing written updates regarding any change of the putative father's name or address.

History: En. Sec. 22, Ch. 480, L. 1997

42-2-206. When putative father to register -- actual knowledge of pregnancy not required. (1) In order to be entitled, because of registration, to receive notice of a termination of parental rights proceeding, a putative father's registration form complying with the requirements of 42-2-205 must be received by the department not later than 72 hours after the child's birth.
(2) A putative father may file all information required by 42-2-205 before a child's birth even though the putative father has no actual knowledge that a pregnancy has occurred or that a pregnancy has continued through gestation.

History: En. Sec. 23, Ch. 480, L. 1997; amd. Sec. 2, Ch. 257, L. 1999.

42-2-207. How registration submitted. A putative father shall submit a registration form:
(1) in person; or
(2) by facsimile transmission, mail, private courier, or express delivery service.

History: En. Sec. 24, Ch. 480, L. 1997.

42-2-208. Burden of putative father to preserve rights upon receipt of notice. When a putative father receives notice that a child in whom the putative father claims a parental interest is the subject of a termination of parental rights proceeding, the putative father must appear at the hearing held on the petition to terminate parental rights and demonstrate, at a minimum, that the criteria set out in 42-2-610 for determining whether the putative father has made reasonable efforts to establish a substantial relationship with the child who is the subject of the proceedings have been met.

History: En. Sec. 25, Ch. 480, L. 1997.

42-2-209. Presumption created -- admissibility in other proceedings. A person filing a registration form is presumed to be the father of the child for purposes of adoption unless the mother denies that the registrant is the father. The registration or any revocation that is filed is admissible in a paternity proceeding and creates a rebuttable presumption as to the paternity of the child. The registration creates a rebuttable presumption as to paternity of the child for purposes of an abuse or neglect proceeding under Title 41, chapter 3, or a child support enforcement action under Title 40, chapter 5.

History: En. Sec. 26, Ch. 480, L. 1997.

42-2-210 through 42-2-213 reserved.

42-2-214. Duties of department. (1) The department shall:
(a) prescribe a registration form for the information that a putative father submits under 42-2-205; and
(b) make the registration forms available through:
(i) the department;
(ii) each clerk of a district court; and
(iii) each local health department.
(2) A notice provided by the department that informs the public about the purpose and operation of the registry must be posted in a conspicuous place by each:
(a) clerk of a district court;
(b) driver's examination station of the motor vehicle division of the department of justice;
(c) local health department; and
(d) county clerk and recorder.
(3) The notice under subsection (2) must include information regarding:
(a) where to obtain a registration form;
(b) where to register;
(c) the circumstances under which a putative father is required to register;
(d) the period under 42-2-206 during which a putative father is required to register in order to entitle the putative father to receive notice of an adoption;
(e) the information that must be provided for the registry and what other actions the putative father is required to take to preserve a right to notice;
(f) the consequences of not submitting a timely registration; and
(g) the penalties for filing a false claim with the putative father registry.

History: En. Secs. 27, 28, Ch. 480, L. 1997.

42-2-215. Information maintained in registry. The department shall maintain the following information in the registry:
(1) the registration information provided by the putative father under 42-2-205;
(2) the date that the department receives a putative father's registration;
(3) the name and affiliation of any person who requests that the department search the registry to determine whether a putative father is registered in relation to a mother whose child is or may be the subject of a termination proceeding and the date the request is submitted; and
(4) any other information that the department determines is necessary to access the information in the registry.

History: En. Sec. 29, Ch. 480, L. 1997.

42-2-216. Storage of data. The department shall store the registry's data in a manner so that the data is accessible through:
(1) the putative father's name;
(2) the mother's name, including her maiden name, if known;
(3) the date of birth of the putative father, the mother, and the child, if known;
(4) the child's name, if known; and
(5) the social security number for the putative father, the mother, and the child, if known.

History: En. Sec. 30, Ch. 480, L. 1997.

42-2-217. Registry search -- request -- affidavit. (1) The following persons may at any time request that the department search the registry to determine whether a putative father is registered in relation to a child who is or may be the subject of a proceeding to terminate parental rights:
(a) a representative of the department;
(b) a representative of an agency when the agency is or may be arranging an adoption;
(c) a prospective adoptive parent or an attorney representing a prospective adoptive parent in a direct parental placement adoption who has the notarized consent of the birth mother; or
(d) any woman who is the subject of a registration.
(2) Upon request of a person listed in subsection (1), the department shall submit an affidavit pursuant to the requirements of subsections (4) and (5).
(3) A request for information about a registration from the department must be in writing.
(4) Not later than 5 days after receiving a request for a registry search, the department shall submit an affidavit to the requestor verifying whether a putative father has registered within the period allowed under 42-2-206 in relation to a mother whose child or expected child is the subject of the termination proceeding.
(5) Whenever the department finds that one or more putative fathers are registered, the department shall:
(a) submit a copy of each registration form with the department's affidavit; and
(b) include in the affidavit the date that the department representative, agency, or attorney submitted the request for the search.
(6) A court may not issue an order terminating parental rights unless the department's affidavit under subsection (5) is filed with the court.

History: En. Sec. 31, Ch. 480, L. 1997; amd. Sec. 3, Ch. 257, L. 1999.

42-2-218. Duties of department upon receipt of request. (1) Whenever the department receives a request, the department shall:
(a) search its records of putative father registrations and search its records for any acknowledgment of paternity filed pursuant to 40-6-105; and
(b) notify the requestor as to whether a paternity action has been filed and a paternity order issued to the department requiring the issuance of a new birth certificate concerning a child who is or may be the subject of an adoption that the attorney or agency is arranging.
(2) The department may charge a reasonable fee for responding to a request under this section.

History: En. Sec. 32, Ch. 480, L. 1997.

42-2-219 through 42-2-221 reserved.

42-2-222. Failure of agency to post notice. Failure of an agency to post a proper notice under 42-2-214 does not relieve a putative father of the obligation to register with the department in accordance with the putative father registry in order to entitle the putative father, because of registration, to notice of proceedings involving a child who may have been fathered by the putative father.

History: En. Sec. 33, Ch. 480, L. 1997.

42-2-223. Revocation of registration. Unless a support order has been issued, a putative father may revoke a registration at any time by submitting to the department a signed, notarized statement revoking the registration.

History: En. Sec. 34, Ch. 480, L. 1997.

42-2-224. Certified copy of registration form to be furnished upon request. The department shall furnish a certified copy of the putative father's registration form upon written request by:
(1) a putative father whose name appears on the registration form being requested;
(2) a mother whose name appears on the registration form being requested;
(3) upon reaching majority, a person who was the subject of a registration;
(4) a prospective adoptive parent or an attorney representing a prospective adoptive parent in a direct parental placement adoption who has the notarized consent of the birth mother;
(5) a licensed child-placing agency;
(6) a court that presides over a pending adoption;
(7) the child support enforcement division of the department; or
(8) a representative of the department involved in an adoption or a neglect and dependency proceeding under Title 41, chapter 3.

History: En. Sec. 35, Ch. 480, L. 1997.

42-2-225. Information confidential. Except as otherwise provided in this part, information contained within the registry is confidential.

History: En. Sec. 36, Ch. 480, L. 1997.

42-2-226. Registration of false information -- criminal and civil penalties A person who purposely or knowingly registers false information or requests confidential information in violation of a putative father registry commits a misdemeanor and may be civilly liable for damages.

History: En. Sec. 37, Ch. 480, L. 1997.

42-2-227 through 42-2-229 reserved.

42-2-230. Responsibility of each party to protect interests -- putative fathers -- fraud no defense. (1) The legislature finds no practical way to remove all risk of fraud or misrepresentation in adoption proceedings and has provided protection of a putative father's rights. In balancing the rights and interests of the state and of all parties affected by fraud, specifically the child, the adoptive parents, and the putative father, the legislature determines that the putative father is in the best position to prevent or ameliorate the effects of fraud and that, therefore, the burden of establishing fraud against the putative father by clear and convincing evidence must be born by the putative father.
(2) Each parent of a child conceived or born outside of marriage to the other parent is responsible for that parent's own actions and assertion of their parental rights notwithstanding any action, statement, or omission of the other parent or third parties.
(3) A person injured by fraudulent representations or actions in connection with an adoption is entitled to pursue civil or criminal penalties. A fraudulent representation is not a defense for failure to comply with the requirements of the putative father registry and is not a basis for dismissal of a petition for adoption, vacation of an adoption decree, or an automatic grant of custody to the injured party.
(4) A putative father who resides in another state may contest an adoption prior to issuance of a decree of adoption and may assert the putative father's interest in the child. If the adoption is contested, the court shall hold an evidentiary hearing to determine if:
(a) the putative father resides and has resided in another state where the unmarried mother lived or resided either at the time of conception or through a portion of the pregnancy;
(b) the mother left that state, concealing the location from the putative father regarding where the mother could be contacted or located;
(c) the father has, through every reasonable means, attempted to locate the mother but has been unable to do so; and
(d) the putative father has complied with the requirements of the state where the mother previously resided or was located in order to protect and preserve the putative father's parental interest and rights concerning the child in cases of adoption.

History: En. Sec. 38, Ch. 480, L. 1997.

42-2-301. Consent required. An adoption of a child may be decreed when written consents to adoption have been executed by:
(1) the birth mother;
(2) the husband of the birth mother if the husband is the presumed father of the child under 40-6-105;
(3) any other person whose parental rights have been established by a court;
(4) the department or an agency that has custody of the child and the authority to place the child for adoption;
(5) the legal guardian of the child if both parents are dead or their rights have been judicially terminated and the guardian has authority by order of the court appointing the guardian to consent to the adoption;
(6) the child, either in writing or in court, if the child is 12 years of age or older unless the child does not have the mental capacity to consent.

History: En. Sec. 39, Ch. 480, L. 1997.

42-2-302. Persons whose consent not required. Consent to adoption of a child is not required from:
(1) an individual whose parental relationship to the child has been judicially terminated for unfitness or has been determined not to exist or who has waived parental rights;
(2) a parent who has been judicially declared incompetent;
(3) an individual who has not been married to the mother of the child and who, after the conception of the child, executes a notarized statement denying paternity or a notarized statement acknowledging paternity and denying any interest in the child; or
(4) the personal representative of a deceased parent's estate.

History: En. Sec. 40, Ch. 480, L. 1997.

42-2-303. Form of consent. The consents required by 42-2-301 must be acknowledged before an officer authorized to take acknowledgments or witnessed by a representative of the department, an agency, or the court.

History: En. Sec. 41, Ch. 480, L. 1997.

42-2-401. Child available for adoption -- voluntary acts of parents. A parent may voluntarily make a child available for adoption by:
(1) executing a voluntary relinquishment and consent to adoption;
(2) executing a denial of paternity; or
(3) submitting a notarized acknowledgment of paternity and a denial of any interest in custody of the child.

History: En. Sec. 42, Ch. 480, L. 1997.

42-2-402. Voluntary relinquishment -- validity. (1) A voluntary relinquishment is not valid unless the parent specifically relinquishes custody of the child to the department, a licensed child-placing agency, or a specifically identified prospective adoptive parent and:
(a) the department or agency to whom the child is being relinquished has agreed in writing to accept custody of the child until the child is adopted; or
(b) the identified prospective adoptive parent has agreed in writing to accept temporary custody and to provide support and care to the child until that person's adoption petition is granted or denied.
(2) A voluntary relinquishment of a parent's rights solely to the child's other parent does not relieve the parent executing the relinquishment of any duty owed to the child or for the child's support.

History: En. Sec. 43, Ch. 480, L. 1997.

42-2-403. Arrearages of child support -- responsibility to child. (1) A voluntary relinquishment of a parent's rights and responsibilities toward a child does not cancel any responsibility to pay arrearages of child support unless the party to whom the arrearages are owed agrees in writing to waive the payment of the arrearages.
(2) A parent who executes a voluntary relinquishment of rights and responsibilities toward a child remains financially responsible for the child until a court actually terminates parental rights to the child.

History: En. Sec. 44, Ch. 480, L. 1997.

42-2-404. Who may relinquish -- to whom. (1) A parent or guardian whose consent to the adoption of a child is required may relinquish to the department or an agency all rights with respect to the child, including legal and physical custody and the right to consent to the child's adoption.
(2) A parent or guardian whose consent to the adoption of a child is required and who has filed a notice of parental placement under 42-4-103 for a direct parental placement adoption may:
(a) relinquish to the prospective adoptive parent all rights with respect to the child, including legal and physical custody; and
(b) consent to the child's adoption by the prospective adoptive parents.

History: En. Sec. 45, Ch. 480, L. 1997.

42-2-405. Relinquishment by minor parent -- separate legal counsel in direct parental placement adoption. (1) A parent who is a minor has the right to relinquish all rights to that minor parent's child and to consent to the child's adoption. The relinquishment is not subject to revocation by reason of minority.
(2) In a direct parental placement adoption, a relinquishment and consent to adopt executed by a parent who is a minor is not valid unless the minor parent has been advised by an attorney who does not represent the prospective adoptive parent. Legal fees charged by the minor parent's attorney are an allowable expense that may be paid by prospective adoptive parents under 42-7-101, subject to the limitations in 42-7-102.

History: En. Sec. 46, Ch. 480, L. 1997.

42-2-406 through 42-2-407 reserved.

42-2-408. Time and prerequisites for execution of relinquishment and consent to adoption -- copy of preplacement evaluation -- notarization. (1) A parent whose consent to the adoption of a child is required may execute a relinquishment and consent to adoption only after the following criteria have been met:
(a) the child has been born;
(b) not less than 72 hours have elapsed since the birth of the child;
(c) the parent has received counseling in accordance with 42-2-409; and
(d) in a direct parental placement adoption:
(i) the parent has been informed that fees for any required counseling and legal fees are allowable expenses that may be paid by a prospective adoptive parent under 42-7-101, subject to the limitations set in 42-7-102;
(ii) if the parent is a minor, the parent has been represented by separate legal counsel; and
(iii) prior to the execution of the relinquishment, the parent has been provided a copy of the preplacement evaluation prepared pursuant to 42-3-204 pertaining to the prospective adoptive parent.
(2) A guardian may execute a relinquishment and consent to adopt at any time after being authorized by a court.
(3) The department or a licensed child-placing agency may execute a consent for the adoption at any time before or during the hearing on the petition for adoption.
(4) A child whose consent is required may execute a consent at any time before or during the hearing on the petition to adopt.
(5) Except as provided in this section, a relinquishment and consent to adopt must be a separate instrument executed before a notary public.
(6) If the person from whom a relinquishment and consent to adopt is required is a member of the armed services or is in prison, the relinquishment may be executed and acknowledged before any person authorized by law to administer oaths.

History: En. Sec. 47, Ch. 480, L. 1997.

42-2-409. Counseling requirements. (1) Counseling of the birth mother is required in department, agency, and direct parental placement adoptions. If any other parent is involved in an adoptive placement, counseling of that parent is encouraged.
(2) Counseling must be performed by a person employed by the department or by a staff person of a licensed child-placing agency designated to provide this type of counseling. Unless the counseling requirement is waived for good cause by a court, a minimum of 3 hours of counseling must be completed prior to execution of a relinquishment of parental rights and consent to adopt. A relinquishment and consent to adopt executed prior to completion of required counseling is void.
(3) During counseling, the counselor shall offer an explanation of:
(a) adoption procedures and options that are available to a parent through the department or licensed child-placing agencies;
(b) adoption procedures and options that are available to a parent through direct parental placement adoptions, including the right to an attorney and that legal expenses are an allowable expense that may be paid by a prospective adoptive parent as provided in 42-7-101 and 42-7-102;
(c) the alternative of parenting rather than relinquishing the child for adoption;
(d) the resources that are available to provide assistance or support for the parent and the child if the parent chooses not to relinquish the child;
(e) the legal and personal effect and impact of terminating parental rights and of adoption;
(f) the options for contact and communication between the birth family and the adoptive family;
(g) postadoptive issues, including grief and loss;
(h) the reasons for and importance of providing accurate medical and social history information under 42-3-101;
(i) the operation of the confidential intermediary program; and
(j) the fact that the adoptee may be provided with a copy of the original birth certificate upon request after reaching 18 years of age, unless the birth parent has specifically requested in writing that the vital statistics bureau withhold release of the original birth certificate.
(4) The counselor shall prepare a written report containing a description of the topics covered and the number of hours of counseling. The report must specifically include the counselor's opinion of whether or not the parent understood all of the issues and was capable of informed consent. The report must, on request, be released to the person counseled, to the department, to an agency, or with the consent of the person counseled, to an attorney for the prospective adoptive parents.

History: En. Sec. 48, Ch. 480, L. 1997.

42-2-410. Revocation of relinquishment and consent. (1) The parent who executed the relinquishment and consent to adopt and the department, agency, or prospective adoptive parent named or described in the relinquishment and consent to adopt may mutually agree to its revocation prior to the issuance of an order terminating parental rights.
(2) A relinquishment may not be revoked if an order has been issued terminating parental rights.

History: En. Sec. 49, Ch. 480, L. 1997.

42-2-411. Conditional relinquishment and consent. (1) A relinquishment and consent to adopt may provide that it not take effect only if:
(a) the other parent does not execute a relinquishment and consent to adopt within a specified period; or
(b) a court decides to not terminate another individual's parental relationship to the child.
(2) A relinquishment and consent to adopt may not be conditioned on whether or not existing agreements for matters, including but not limited to visitation and ongoing communication with the child, are later performed.

History: En. Sec. 50, Ch. 480, L. 1997.

42-2-412. Content of relinquishment and consent to adopt. (1) A relinquishment and consent to adopt must be in writing and must contain:
(a) the date, place, and time of the execution of relinquishment and consent to adopt;
(b) the name, date of birth, and current mailing address of the individual executing the relinquishment and consent to adopt;
(c) the date of birth and the name of the child to be adopted; and
(d) the name, address, and telephone numbers of the department or agency to which the child is being relinquished or the name, address, and telephone numbers of the prospective adoptive parent with whom the individual executing the relinquishment and consent has placed or intends to place the child for adoption.
(2) A relinquishment and consent to adopt executed by a parent or guardian must state that the parent or guardian executing the document is voluntarily and unequivocally consenting to the:
(a) permanent transfer of legal and physical custody of the child to the department or agency for the purposes of adoption; or
(b) transfer of permanent legal and physical custody to, and the adoption of the child by, a specific identified adoptive parent whom the parent or guardian has selected.
(3) A relinquishment and consent to adopt must state:
(a) that after the document is signed or confirmed in substantial compliance with this section, it is final and, except under a circumstance stated in 42-2-411, may not be revoked or set aside for any reason, including the failure of an adoptive parent to permit the individual executing the relinquishment and consent to adopt to visit or communicate with the child;
(b) that the relinquishment will result in the extinguishment of all parental rights and obligations that the individual executing the relinquishment and consent to adopt has with respect to the child, except for arrearages of child support unless the arrearages are waived by the person to whom they are owed, and that the relinquishment will remain valid whether or not any agreement for visitation or communication with the child is later performed;
(c) that the individual executing the relinquishment and consent to adopt has:
(i) received a copy of the relinquishment and consent to adopt;
(ii) received a copy of a written agreement by the department, agency, or prospective adoptive parent to accept temporary custody and to provide support and care to the child until an adoption petition is granted or denied;
(iii) if required, received counseling services pursuant to 42-2-409 explaining the meaning and consequences of an adoption;
(d) in direct parental placement adoptions, that the individual has:
(i) if a minor parent, been advised by a lawyer who is not representing the adoptive parent;
(ii) if an adult, been advised of the right to have a lawyer who is not representing the adoptive parent;
(iii) been advised that the attorney fees are allowable expenses that can be paid by the prospective adoptive parents; and
(iv) been provided with a copy of the prospective adoptive parent's preplacement evaluation;
(e) in agency and direct parental placement adoptions, that the individual has:
(i) been advised of the obligation to provide the medical and social history information required under 42-3-101 pertaining to disclosures; and
(ii) not received or been promised any money or anything of value for execution of the relinquishment and consent to adopt, except for payments authorized by 42-7-101 and 42-7-102.
(4) A relinquishment and consent to adopt may provide that the individual who is relinquishing waives notice of any proceeding for adoption.

History: En. Sec. 51, Ch. 480, L. 1997; amd. Sec. 4, Ch. 257, L. 1999.

42-2-413. Consequences of relinquishment and consent to adopt. Except under a circumstance stated in 42-2-411 a relinquishment and consent to the adoption of a child that is executed by a parent or guardian in substantial compliance with 42-2-412 is final and irrevocable. The relinquishment and consent to adopt:
(1) unless a court orders otherwise to protect the welfare of the child, entitles the department, agency, or prospective adoptive parent named or described to the legal and physical custody of the child and imposes on that department, agency, or prospective adoptive parent responsibility for the support and medical and other care of the child;
(2) terminates, as provided in 42-2-403, any duty of the parent who executed the document with respect to the child except for arrearages of child support; and
(3) terminates any right of the parent or guardian who executed the document to:
(a) object to the placement of the child for adoption by the department or agency; and
(b) object to the child's adoption by the prospective adoptive parent.

History: En. Sec. 52, Ch. 480, L. 1997.

42-2-414 through 42-2-416 reserved.

42-2-417. Grounds for court to set aside relinquishment and consent. (1) The court shall set aside a relinquishment and consent to adopt if the individual who executed the relinquishment and consent establishes:
(a) by clear and convincing evidence, before a decree of adoption is issued, that the consent was obtained by fraud or duress; or
(b) by a preponderance of the evidence, that a condition permitting revocation has occurred, as expressly provided for in 42-2-411.
(2) A verbatim record of testimony must be made.

History: En. Sec. 53, Ch. 480, L. 1997.

42-2-418. Remedy when relinquishment and consent to adopt revoked or set aside -- expediency. (1) If a relinquishment and consent to adopt that was executed by an individual is revoked or set aside, the department, agency, or prospective adoptive parent shall immediately return the child to the individual's custody and move to dismiss a proceeding for adoption or termination of the individual's parental rights to the child unless:
(a) the department has legal custody pursuant to a court order;
(b) there are grounds for the department to seek a court order under the provisions of Title 41, chapter 3; or
(c) the individual did not have legal custody of the child at the time the relinquishment and consent to adopt was executed.
(2) In the circumstances described in subsections (1)(a) through (1)(c) and when there is no existing court order providing for care and custody, the court shall issue an order providing for the care and custody of the child according to the best interests of the child under any law applicable to the circumstances of the case.
(3) Except as provided in subsection (1), if after revocation or the setting aside of a relinquishment or consent a child is not returned immediately by the department, agency, or prospective adoptive parent, the individual may petition the court for appropriate relief. The action must take precedence over other cases and matters in the court. The court shall examine the petition, hear the case, and render a decision as soon as possible.

History: En. Sec. 54, Ch. 480, L. 1997.

42-2-419 through 42-2-420 reserved.

42-2-421. Notarized denial of paternity -- no entitlement to notice. (1) Execution of a notarized denial of paternity of a child is a voluntary act that constitutes a waiver of all parental rights to the child, except for the duty to pay support if paternity is established or presumed.
(2) A notarized denial of paternity is irrevocable when executed. An individual who has executed a denial of paternity toward a child who is the subject of adoption proceedings is not entitled to notice of either the hearing to terminate parental rights or the hearing on an adoption petition.

History: En. Sec. 55, Ch. 480, L. 1997.

42-2-422. Notarized acknowledgment of paternity and denial of interest in custody -- no entitlement to notice. (1) Submission of a notarized acknowledgment of paternity and a denial of any interest in the custody of the child is a voluntary act that constitutes a waiver of all parental rights to the child but does not absolve the person of the duty to pay support.
(2) An individual who has executed an acknowledgment of paternity and denial of interest in the custody in a child who is the subject of adoption proceedings is not entitled to notice of either the hearing to terminate parental rights or the hearing on an adoption petition unless, subsequent to execution of the acknowledgment of paternity and denial of interest in custody, the individual has complied with all of the requirements of 42-2-205 and has done so within the time limits established in 42-2-206.

History: En. Sec. 56, Ch. 480, L. 1997.

42-2-501. Timing of proceedings to terminate. (1) In order to provide notice to a putative father at the earliest possible time of an expectant mother's intent to release an expected child for adoption and in order to facilitate early placement of a child for adoption, an expectant mother may initiate proceedings to terminate paternal rights by filing a petition of intent to place a child for adoption prior to the birth of the child.
(2) A petition to terminate parental rights may also be filed after a child is born.

History: En. Sec. 57, Ch. 480, L. 1997.

42-2-502. Expected child -- filing of petition indicating intent to release or consent to adoption. (1) A pregnant individual may file a petition with the court indicating the intention to place an expected child for adoption.
(2) The petition must include the following information:
(a) the individual's intent to release the expected child for adoption;
(b) the approximate date and location of conception;
(c) the expected date of delivery;
(d) any information concerning the identity and whereabouts of any putative or presumed father of the expected child; and
(e) in a situation in which there is a presumed father, the grounds upon which the individual relies in contending that the nonexistence of the father and child relationship can be established in an action brought under 40-6-107.
(3) The petition may allege more than one putative or presumed father.
(4) The petition must be signed by the petitioner and notarized.

History: En. Sec. 58, Ch. 480, L. 1997.

42-2-503. Notice to any named father of intent to release child for adoption. (1) Upon the filing of the petition under 42-2-502, the court shall issue a notice of intent to release a child for adoption.
(2) The notice must be served by the petitioner, in the manner provided by the Montana Rules of Civil Procedure, upon each putative or presumed father at least 20 days prior to the expected date of birth of the child. Proof of service must be filed with the court.
(3) A notice of intent to release directed to a putative father must indicate the approximate date and location of conception of the child and the expected date of birth and must inform the putative father:
(a) that the putative father is required to appear at the hearing at the time and date set by the court;
(b) of the rights and responsibilities to which the putative father will be entitled upon registering with the putative father registry; and
(c) that the failure to timely comply with all requirements of filing with the putative father registry:
(i) constitutes a waiver of the right to receive the notice provided for in 42-2-205; and
(ii) may result in the court's termination of the putative father's rights to the child.
(4) In addition to the information contained in subsection (3), a notice of intent to release directed to an individual presumed to be the father under 40-6-105 must also indicate the intention of the mother to ask for a declaration establishing the nonexistence of the father and child relationship and the grounds for seeking the declaration.

History: En. Secs. 59, 60, Ch. 480, L. 1997.

42-2-601. Venue. Proceedings to terminate parental rights may be filed in the court in the county in which a petitioner resides, the child resides, or an office of the agency that is placing the child is located.

History: En. Sec. 61, Ch. 480, L. 1997.

42-2-602. Necessity for parental rights to be terminated. A child is not legally free for adoption until the parental rights of the birth parent or parents have been terminated by a court:
(1) as provided in this title;
(2) pursuant to Title 41, chapter 3; or
(3) of competent jurisdiction in another state or country.

History: En. Sec. 62, Ch. 480, L. 1997.

42-2-603. Petition for termination of parental rights. (1) Pending the termination or other disposition of the rights of the father of the child, the birth mother may execute a relinquishment and consent to adoption.
(2) The department, a licensed child-placing agency, the prospective adoptive parent to whom the relinquishment is issued, or a guardian with custody of the child shall file with the court a signed and notarized petition for termination of parental rights pursuant to Title 41, chapter 3, or pursuant to this title.
(3) At the request of the relinquishing parent, the execution of a relinquishment may be conditioned as set forth in 42-2-411.
(4) Pending disposition of the petition, the court may enter an order authorizing temporary care of the child.

History: En. Sec. 63, Ch. 480, L. 1997.

42-2-604. Contents of petition for termination of parental rights. (1) The petition for termination of parental rights must state:
(a) the identity of the petitioner;
(b) the date and location of the birth of the child;
(c) the date of the relinquishment by the birth mother or relinquishing parent;
(d) the current location of the child;
(e) the names and locations, if known, of any putative or presumed father of the child;
(f) whether a parent is one from whom consent is not required;
(g) whether court orders from any other proceeding have been issued terminating parental rights to the child that is the subject of the petition;
(h) any other evidence supporting termination of the legal rights that a person has with regard to the child; and
(i) a request for temporary custody of the child prior to the adoption.
(2) The petitioner shall file with the petition for termination of parental rights the following documents received in support of the petition:
(a) any relinquishments and consents to adoption;
(b) any denials of paternity;
(c) any acknowledgments of paternity and denial of parental rights;
(d) any affidavits from the putative father registry that have been executed by the department;
(e) a counseling report required under 42-2-409;
(f) proof of prior service of any notice or acknowledgment of service or waiver of service received; and
(g) proof of compliance with the Indian Child Welfare Act of 1978 and Interstate Compact on the Placement of Children, if applicable.

History: En. Secs. 64, 65, Ch. 480, L. 1997.
42-2-605. Notice of hearing -- service. (1) Notice of a hearing to be held on the petition for termination of parental rights must be served in any manner appropriate under the Montana Rules of Civil Procedure or in any manner that the court may direct on:
(a) a putative or presumed father who has timely and properly complied with the putative father registry;
(b) a putative father who was not served with a notice of intent to release at least 20 days before the expected date of birth as specified in the notice of intent to release;
(c) a person adjudicated, in Montana, to be the father of the child for the purpose of child support;
(d) a person who is recorded on the child's birth certificate as the child's father;
(e) a person who is openly living with the child and the child's mother at the time that the proceeding is initiated or at the time the child was placed in the care of an authorized agency and who is representing to the public that the person is the child's father;
(f) a spouse, if the parent relinquishing the child for adoption was married to that person at the time of conception of the child or at any time after conception but prior to birth; or
(g) a parent or legal guardian of the child in question who has not waived notice.
(2) The notice of hearing must inform the putative or presumed father or other parent that failure to appear at the hearing constitutes a waiver of the individual's interest in custody of the child and will result in the court's termination of the individual's rights to the child.
(3) Proof of service of the notice of hearing must be filed with the court. A notarized acknowledgment of service by the party to be served is proof of personal service. Proof of service is not required if the putative father is present at the hearing. A waiver of notice of the hearing by an individual entitled to receive notice is sufficient.
(4) If the court finds that the father of the child is a person who did not receive either a timely notice of intent to release pursuant to 42-2-205 or a notice required pursuant to this section and who has not waived the right to notice of hearing and that person is not present at the hearing, the court shall adjourn further proceedings until that person is served with a notice of hearing.

History: En. Secs. 66, 67, Ch. 480, L. 1997.
42-2-606. Hearing on petition to terminate parental rights. (1) The court shall hold a hearing as soon as practical to determine the identity of and terminate the parental rights of the parents of the child.
(2) If a putative father has not been named and no one has registered with the putative father registry, the court shall cause inquiry to be made in an effort to identify any legal father. The inquiry must include whether the mother was married at the time of conception of the child or at any time after conception and prior to birth.
(3) Based on the evidence received and the court's inquiry, the court shall enter a finding identifying the father or declaring that the identity of the father could not be determined.
(4) Based on the grounds set forth in 42-2-607 and the evidence received at the hearing, the court shall enter an order concerning the parental rights to the child.
(5) If the court terminates the parental rights to the child and the department, agency, or prospective adoptive parent has agreed to accept custody of the child until the child is adopted, the court shall issue an order awarding custody of the child to the petitioner.

History: En. Secs. 68, 69, Ch. 480, L. 1997.

42-2-607. Grounds for termination of parental rights. The court may terminate a parent's rights to a child who is the subject of an adoption proceeding based upon:
(1) the voluntary acts of the parent in:
(a) executing a voluntary relinquishment and consent to adopt;
(b) submitting a notarized denial of paternity executed pursuant to 42-2-421; or
(c) submitting a notarized acknowledgment of paternity and denial of interest in custody of the child executed pursuant to 42-2-422;
(2) a determination under 42-2-608 that the parent is unfit;
(3) a determination under 42-2-609 that the relationship of parent and child does not exist;
(4) a determination under 42-2-610 that a putative father has failed to establish and maintain a substantial relationship with the child; or
(5) a determination that the parent has irrevocably waived parental rights by failing to timely act to protect the rights.

History: En. Sec. 70, Ch. 480, L. 1997; amd. Sec. 5, Ch. 257, L. 1999.

42-2-608. Finding of unfitness. (1) The court may terminate parental rights for purposes of making a child available for adoption on the grounds of unfitness if:
(a) the court makes a determination that the parent has been judicially deprived of custody of the child on account of abuse or neglect toward the child;
(b) the parent has willfully abandoned the child, as defined in 41-3-102, in Montana or in any other jurisdiction of the United States;
(c) it is proven to the satisfaction of the court that the parent, if able, has not contributed to the support of the child for an aggregate period of 1 year before the filing of a petition for adoption;
(d) it is proven to the satisfaction of the court that the parent is in violation of a court order to support either the child that is the subject of the adoption proceedings or other children with the same birth mother;
(e) the parent has been found guilty by a court of competent jurisdiction of:
(i) aggravated assault on the adoptee, as provided in 45-5-202;
(ii) sexual assault on a child, as provided in 45-5-502;
(iii) sexual intercourse without consent, as provided in 45-5-503, if the victim was a child;
(iv) incest, as provided in 45-5-507, if the victim was a child;
(v) homicide of a child, as provided in 45-5-102 or 45-5-103;
(vi) sexual abuse of a child, as provided in 45-5-625; or
(vii) ritual abuse of a minor, as provided in 45-5-627;
(f) the child has been maintained by a public or private children's institution, a charitable agency, a licensed child-placing agency, or the department for a period of 1 year without the parent contributing to the support of the child during that period, if able;
(g) a finding is made for a parent who is given proper notice of hearing:
(i) that the parent has been convicted of a crime of violence or of violating a restraining or protective order; and
(ii) the facts of the crime or violation and the parent's behavior indicate that the parent is unfit to maintain a relationship of parent and child with the child;
(h) a finding is made for a parent who is given proper notice of hearing and is a respondent to the petition to terminate parental rights and:
(i) by a preponderance of the evidence, it is found that termination is in the best interests of the child; and
(ii) upon clear and convincing evidence, it is found that one of the following grounds exists:
(A) if the child is not in the legal and physical custody of the other parent, that the respondent is not able or willing to promptly assume legal and physical custody of the child and to pay for the child's support in accordance with the respondent's financial means;
(B) if the child is in the legal and physical custody of the other parent and a stepparent who is the prospective adoptive parent, that the respondent is not able or willing to promptly establish and maintain contact with the child and to pay for the child's support in accordance with the respondent's financial means;
(C) placing the child in the respondent's legal and physical custody would pose a risk of substantial harm to the physical or psychological well-being of the child because the circumstances of the child's conception, the respondent's behavior during the mother's pregnancy or since the child's birth, or the respondent's behavior with respect to other children indicates that the respondent is unfit to maintain a relationship of parent and child with the child; or
(D) failure to terminate the relationship of parent and child would be detrimental to the child.
(2) In making a determination under subsection (1)(h)(ii)(D), the court shall consider any relevant factor, including the respondent's efforts to obtain or maintain legal and physical custody of the child, the role of other persons in thwarting the respondent's efforts to assert parental rights, the respondent's ability to care for the child, the age of the child, the quality of any previous relationship between the respondent and the child and between the respondent and any other children, the duration and suitability of the child's present custodial environment, and the effect of a change of physical custody on the child.

History: En. Sec. 71, Ch. 480, L. 1997; amd. Sec. 77, Ch. 51, L. 1999; amd. Sec. 19, Ch. 566, L. 1999.

42-2-609. Determination that no parent and child relationship exists. For purposes of making a child available for adoption, the court may terminate the parental rights of a putative father on the grounds that the parent and child relationship does not exist if:
(1) a judicial determination is made under 40-6-107 that the parent and child relationship does not exist. This includes the termination of the parental rights of the husband of the mother who is placing the child for adoption or the parental rights of an individual who is a presumed father of the child.
(2) a determination is made that:
(a) an individual has not timely registered with the putative father registry;
(b) an individual has not been adjudicated, in Montana, to be the father of the child for the purpose of child support;
(c) an individual has not been recorded on the child's birth certificate as the child's father;
(d) an individual has not openly lived with the child and the child's mother at the time that the proceeding is initiated or at the time that the child was placed in the care of an authorized agency and an individual is not representing to the public that the individual is the child's father; and
(e) the child's mother was not married to the person who is the subject of the termination proceedings at the probable time of the child's conception or at the time that the child was born; or
(3) a putative father appears at the hearing but is unable to establish by a preponderance of the evidence the minimum requirements provided in 42-2-610 for demonstrating the establishment of a substantial relationship with the child.

History: En. Sec. 72, Ch. 480, L. 1997; amd. Sec. 6, Ch. 257, L. 1999.

42-2-610. Putative father -- termination based upon failure to establish substantial relationship. (1) The parental rights of a putative father may be terminated by the court if the putative father has failed to timely establish and maintain a substantial relationship with the child.
(2) A putative father who is not married to the child's mother but who has openly lived with the child since the child's birth or for a period of 6 months immediately preceding placement of the child with adoptive parents and has openly claimed to be the father of the child during that period is considered to have developed a substantial relationship with the child and to have otherwise met the requirements of this section.
(3) In order to meet the minimal showing of having established a substantial relationship with regard to a child who is the subject of an adoption proceeding, a putative father has the burden of showing that the putative father has:
(a) demonstrated a full commitment to the responsibilities of parenthood by providing financial support for the child in a fair and reasonable sum and in accordance with the putative father's ability and by either:
(i) visiting the child at least monthly when physically and financially able to do so; or
(ii) having regular contact with the child or with the person or agency having the care and custody of the child when physically and financially able to do so; and
(b) manifested an ability and willingness to assume legal and physical custody of the child if the child was not in the physical custody of the other parent.
(4) In order to meet the minimal showing of having established a substantial relationship with regard to a child who is the subject of an adoption proceeding involving a child who is under 6 months of age at the time that the child becomes the subject of adoption proceedings, a putative father has the burden to show that the putative father has manifested a full commitment to parental responsibilities by:
(a) performing all of the acts described in this subsection (4) prior to the time that the mother executed a relinquishment and consent to adopt;
(b) if the putative father had actual knowledge of the pregnancy, paying a fair and reasonable amount of the expenses incurred in connection with the pregnancy and the child's birth in accordance with the putative father's means when not prevented from doing so by the person or authorized agency having lawful custody of the child;
(c) making reasonable and consistent payments, in accordance with the putative father's means, for the support of the child since birth;
(d) visiting regularly with the child; and
(e) manifesting an ability and willingness to assume legal and physical custody of the child if, during this time, the child was not in the physical custody of the mother.
(5) The subjective intent of a putative father, whether expressed or otherwise, unsupported by evidence of acts specified in this section does not preclude a determination that the father failed to meet the requirements of this section.

History: En. Sec. 73, Ch. 480, L. 1997; amd. Sec. 7, Ch. 257, L. 1999.

42-2-611. Irrevocable waiver of parental rights. (1) The court may find an irrevocable waiver of parental rights of:
(a) a putative father who was timely served with notice of intent to release if the court is provided with proof of service and proof that the putative father failed to timely comply with the requirements of the putative father registry;
(b) a parent or putative father who is served with notice of proceedings and fails to appear at the hearing; or
(c) a parent or putative father who is served with notice of proceedings and appears and denies any interest in custody of the child.
(2) The court may terminate parental rights under this section upon a finding of irrevocable waiver of all rights to the child.

History: En. Secs. 74, 75, Ch. 480, L. 1997.

42-2-612 through 42-2-615 reserved.

42-2-616. Appearance of parent at hearing -- determination of custody. (1) If a parent appears at the hearing on the petition to terminate parental rights, objects to the termination of rights, and requests custody of the child, the court shall set deadlines that allow the parties to complete discovery and shall set a hearing on the determination of the parent's rights to the child.
(2) At the hearing, the court shall consider whether there is a basis for terminating parental rights and whether the best interests of the child will be served by granting custody to the respondent parent, the department, a licensed child-placing agency, or a prospective adoptive parent in a direct parental placement adoption.
(3) If the petitioner has established that there are grounds for terminating parental rights and it is in the best interests of the child for termination to occur, those rights must be terminated.

History: En. Sec. 76, Ch. 480, L. 1997.

42-2-617. Effect of order terminating parental rights. (1) An order granting the petition for termination of parental rights:
(a) terminates the parent and child relationship except for an obligation for arrearages of child support;
(b) terminates the jurisdiction of the court over the child in any dissolution or separate maintenance action;
(c) extinguishes any right the parent had to withhold consent to a proposed adoption of the child or to further notice of a proceeding for adoption; and
(d) awards custody of the child to the department, agency, or prospective adoptive parent to whom the relinquishment was given if the department, agency, or prospective adoptive parent has agreed in writing to accept custody of the child until the adoption is finalized.
(2) A person accepting custody is responsible for the support of the child.

History: En. Sec. 77, Ch. 480, L. 1997.

42-2-618. Appeal. An order terminating parental rights is a final order for purposes of appeal.

History: En. Sec. 78, Ch. 480, L. 1997.

42-2-619. Expediency. A contested termination of parental rights action must take precedence over other cases and matters in the court or on appeal. The court shall examine any issues raised in challenging termination of a parent's rights or regarding the validity of any adoption decree and shall render a decision as soon as possible.

History: En. Sec. 79, Ch. 480, L. 1997; amd. Sec. 8, Ch. 257, L. 1999.

42-2-620. Finality. Subject to the disposition of a timely appeal, upon expiration of 6 months after an order terminating parental rights has been issued, the order may not be questioned by any person, in any manner, or upon any ground, including fraud, misrepresentation, failure to give any required notice, or lack of jurisdiction of the parties or the subject matter.

History: En. Sec. 80, Ch. 480, L. 1997.

42-3-101. Duty to disclose information -- form -- availability -- filing. (1) Except for an adoption proceeding by a stepparent, in any adoption under this title, a birth parent, the department, or an agency shall provide a prospective adoptive parent with social and medical histories of the birth families, including tribal affiliation, if applicable.
(2) In a direct parental placement adoption, the birth family social and medical histories must be completed on a form provided by the department and filed with the court when the adoption petition is filed.
(3) The department shall make a form available to agencies and court administrators for public distribution.

History: En. Sec. 81, Ch. 480, L. 1997.

42-3-102. Retention of disclosures. (1) In a direct parental placement adoption, the disclosures required by 42-3-101 must be filed with the court in support of the notice of parental placement filed pursuant to 42-4-103 and must be permanently maintained.
(2) In an adoption arranged by the department or an agency, the disclosures required by 42-3-101 must be permanently maintained in the files of the department or the agency.

History: En. Sec. 82, Ch. 480, L. 1997.

42-3-201. Preplacement evaluation -- timing. (1) A child may not be placed for purposes of adoption unless the person with whom a child is proposed to be placed has had a preplacement evaluation completed to determine fitness and readiness as an adoptive parent.
(2) In a direct parental placement adoption, the placing parent must be provided with a copy of the preplacement evaluation prior to execution of a relinquishment and consent to adoption of the child.
(3) The required preplacement evaluation must provide all pertinent information pertaining to the topics identified in 42-3-203.

History: En. Sec. 83, Ch. 480, L. 1997.

42-3-202. Initiation of preplacement evaluation -- who conducts evaluation -- payment of fees. (1) A prospective adoptive parent who wishes to adopt a child may initiate the process by:
(a) establishing a client relationship with the department or a licensed child-placing agency; or
(b) requesting a preplacement evaluation from either the department or a licensed child-placing agency.
(2) The department may contract with a licensed social worker or a licensed child-placing agency to conduct the evaluation.
(3) The prospective adoptive parent and the home of the prospective adoptive parent must be studied and evaluated according to the department's or licensed child-placing agency's standards for placement of a child.
(4) A department or agency from which an individual is seeking to adopt a child may require the individual to be evaluated by its own qualified employee or independent contractor even if the individual has received a favorable preplacement evaluation from another evaluator.
(5) Fees for the study and report are set by the entity completing them and must be paid for by the prospective adoptive parent.

History: En. Sec. 84, Ch. 480, L. 1997.

42-3-203. Information to be reviewed in conducting preplacement evaluation. (1) A preplacement evaluation must include a review of the following information about the prospective adoptive parent:
(a) a check of criminal conviction data, data on substantiated abuse or neglect of a child under Title 41, chapter 3, and data pertaining to any involvement in incidents of domestic violence;
(b) medical and social history and current health;
(c) assessment of potential parenting skills;
(d) assessment of ability to provide adequate financial support for a child; and
(e) assessment of the level of knowledge and awareness of adoption issues, including, when appropriate, matters relating to open, interracial, cross-cultural, and special needs adoptions.
(2) (a) The prospective adoptive parent, the department of justice, and other state, county, and local agencies, after written notice to the subject of the study, shall give the evaluator completing the adoption study substantiated data pertaining to criminal convictions and any reports concerning domestic violence and substantiated abuse or neglect of children or vulnerable adults.
(b) The adoption study may also include a check of the youth court records of any person living in the prospective home. Pursuant to 41-5-215 and 41-5-216, the youth court shall release the requested information to the evaluator completing the adoption study. If applicable, the study must include an evaluation of the effect of a conviction, adjudication, or finding of substantiated abuse or neglect on the ability to care for a child.
(3) The preplacement evaluation must include at least one in-home visit with the prospective adoptive parent and at least one interview with each family member.

History: En. Sec. 85, Ch. 480, L. 1997; amd. Sec. 9, Ch. 257, L. 1999.

42-3-204. Contents of preplacement evaluation. (1) The preplacement evaluation report must contain the following information if available:
(a) age and date of birth, nationality, racial or ethnic background, and any religious affiliation;
(b) marital status and family history, including the age and location of any child of the individual and the identity of and relationship to anyone else living in the individual's household;
(c) physical and mental health and any history of abuse of alcohol or drugs;
(d) educational and employment history and any special skills;
(e) property and income, including outstanding financial obligations as indicated in a current credit report or financial statement furnished by the individual;
(f) any previous request for an evaluation or involvement in an adoptive placement and the outcome of the evaluation or placement;
(g) whether the individual has been charged with or convicted of domestic violence or has been involved in a substantiated charge of child abuse or neglect or elder abuse or neglect and the disposition of the charges;
(h) whether the individual is subject to a court order restricting the individual's right to custody or visitation with a child;
(i) whether the individual has been convicted of a crime other than a minor traffic violation;
(j) whether the individual has located a parent interested in placing a child with the individual for adoption and, if so, a brief description of the parent and the child; and
(k) any other fact or circumstance that may be relevant in determining whether the individual is suited to be an adoptive parent, including the quality of the environment in the individual's home and the functioning of other children in the individual's household.
(2) The report must contain recommendations regarding the suitability of the subject of the study to be an adoptive parent.
(3) A preplacement evaluation is valid for 1 year following its date of completion and must be updated if there is a significant change in circumstances.
(4) Prior to accepting physical custody of a child for purposes of adoption, a prospective adoptive parent must have the preplacement evaluation completed by the evaluator, and the evaluation must specifically address the appropriateness of placing the specifically identified child or children who will be the subject of the adoption proceedings with the prospective adoptive parent.

History: En. Sec. 86, Ch. 480, L. 1997.

42-3-205. Recommendation. (1) An evaluator shall assess the information required by 42-3-203 to determine if it raises a specific concern that placement of any child or a particular child in the home of the individual would pose a significant risk of harm to the physical or psychological well-being of the child.
(2) If an evaluator determines that the information assessed does not raise a specific concern, the evaluator shall find that the individual is suited to be an adoptive parent. The evaluator may comment about any factor that in the evaluator's opinion makes the individual suited in general or for a particular child.
(3) If an evaluator determines that the information assessed raises a specific concern, the evaluator, on the basis of the original or any further investigation, shall find that the individual is or is not suited to be an adoptive parent. The evaluator shall support the finding with a written explanation.

History: En. Sec. 87, Ch. 480, L. 1997

42-3-206. Distribution of evaluation -- retention -- immunity for evaluator. (1) The evaluator shall furnish a copy of the evaluation to a department, agency, or other person authorized to place a child for adoption and, upon payment by the person evaluated of the cost of the evaluation services, to the person evaluated.
(2) An evaluator shall retain the original of a completed or incomplete preplacement evaluation and a list of each source for each item of information in the evaluation. An evaluator who ceases to do business in Montana shall give the evaluator's records to the department for retention.
(3) An evaluator, except a department evaluator, who conducted an evaluation in good faith is not subject to civil liability for anything contained in the evaluation.

History: En. Sec. 88, Ch. 480, L. 1997.

42-3-207. Action by department. If, before a decree of adoption is issued, the department learns from an evaluator or another person that a child has been placed for adoption with an individual who is the subject of a preplacement evaluation on file with the department containing a finding of unsuitability, the department shall immediately review the evaluation and make a determination of whether the department has authority pursuant to Title 41, chapter 3, to intervene.

History: En. Sec. 89, Ch. 480, L. 1997.

42-3-208 through 42-3-211 reserved.

42-3-212. Court waiver for relatives. In a direct parental placement adoption, if the court is satisfied that adoption is in the best interests of the child, the court may waive the requirement of a preplacement evaluation when a parent or guardian places a child for adoption directly with an extended family member of the child. A postplacement evaluation must be conducted during the pendency of a proceeding for adoption.

History: En. Sec. 90, Ch. 480, L. 1997; amd. Sec. 10, Ch. 257, L. 1999.

42-3-213. Filing of evaluation in adoption proceedings. (1) In a direct parental placement adoption, the preplacement evaluation report must be filed with the court in support of the petition to terminate parental rights for purposes of adoption.
(2) In an adoption arranged by the department or a licensed child-placing agency, the preplacement evaluation report must be permanently maintained in the files of the department or the licensed child-placing agency.

History: En. Sec. 91, Ch. 480, L. 1997; amd. Sec. 11, Ch. 257, L. 1999.

42-3-301. Requirement for preplacement evaluation. (1) Before the department or licensed child-placing agency may place a child for purposes of adoption, the prospective adoptive parent and the home of the prospective adoptive parent must be studied and evaluated as provided in 42-3-202.
(2) The department or agency shall prepare a written report containing the results of its evaluation.

History: En. Sec. 92, Ch. 480, L. 1997.

42-4-101. Parties to direct parental placement adoption. A parent of a child may directly place the child for adoption with a specifically identified prospective adoptive parent who:
(1) resides in Montana or in another state that allows direct parental placement;
(2) is known to and has been personally selected by the parent; and
(3) has previously obtained a favorable preplacement evaluation.

History: En. Sec. 93, Ch. 480, L. 1997.

42-4-102. Duties of placing parent. (1) A parent who is directly placing a child for adoption shall execute a voluntary relinquishment and consent to adopt, including:
(a) receiving the counseling required by 42-2-409; and
(b) if the parent is a minor, being advised by legal counsel other than the attorney representing the prospective adoptive parent.
(2) A placing parent shall identify and provide information on the location of any other legal parent or guardian of the child and any other person required to receive notice under 42-2-605, including:
(a) any current spouse;
(b) any spouse who is the other birth parent and to whom the parent was married at the probable time of conception or birth of the child; and
(c) any adoptive parent.
(3) A placing parent shall identify and provide information pertaining to any Indian heritage of the child that would bring the child within the jurisdiction of the Indian Child Welfare Act, 25 U.S.C. 1901, et seq.
(4) A parent placing a child for adoption in a direct parental placement adoption shall provide:
(a) the disclosures of medical and social history required pursuant to 42-3-101;
(b) a certified copy of the child's birth certificate or other document certifying the place and date of the child's birth; and
(c) a certified copy of any existing court orders pertaining to custody or visitation of the child.
(5) A parent placing a child for adoption in a direct parental placement adoption shall file a notice of parental placement.
(6) A parent placing a child for adoption in a direct parental placement adoption shall file a disclosure of all disbursements made to or for the benefit of the parent by the prospective adoptive parent or any person acting on behalf of the prospective adoptive parent.
(7) Subject to the limitations set in 42-7-102, counseling expenses, legal fees, and the reasonable costs of preparing reports documenting the required disclosures of medical and social history and the disclosures documenting disbursements are allowable expenses that can be paid for by the prospective adoptive parent.

History: En. Sec. 94, Ch. 480, L. 1997.

42-4-103. Direct parental placement -- information to be filed. (1) A parent who proposes to place a child for adoption with a prospective adoptive parent who resides in Montana and who is not the child's stepparent or an extended family member shall file with the court of the county in which the prospective adoptive parent or the parent making the placement resides the following:
(a) a notice of parental placement containing the following information:
(i) the name and address of the placing parent;
(ii) the name and address of each prospective adoptive parent;
(iii) the name and address or expected date and place of birth of the child;
(iv) the identity and information on the location of any other legal parent or guardian of the child and any other person required to receive notice under 42-2-605, including any current spouse, any spouse who is the other birth parent and to whom the parent was married at the probable time of conception or birth of the child, and any adoptive parent;
(v) all relevant information pertaining to any Indian heritage of the child that would bring the child within the jurisdiction of the Indian Child Welfare Act, 25 U.S.C. 1901, et seq.; and
(vi) the name and address of counsel, a guardian ad litem, or other representative, if any, of each of the parties mentioned in subsections (1)(a)(i) through (1)(a)(iii);
(b) a relinquishment and consent to adoption of the child by the adoptive parent;
(c) the counseling report required by 42-2-409;
(d) the medical and social history disclosures required by 42-3-101;
(e) a report of disbursements identifying all payments made to or to the benefit of the placing parent by the prospective adoptive parent or anyone acting on the parent's behalf that contains a statement by each person furnishing information in the report attesting to the truthfulness of the information furnished by that person;
(f) a certified copy of the child's birth certificate or other document certifying the place and date of the child's birth;
(g) a certified copy of any existing court orders pertaining to custody or visitation of the child; and
(h) the preplacement evaluation.
(2) The notice of parental placement must be signed by the parent making the placement.

History: En. Sec. 95, Ch. 480, L. 1997.

42-4-104 through 42-4-105 reserved.

42-4-106. Duty of prospective adoptive parent to provide preplacement evaluation. (1) Prior to taking custody of a child whom the prospective adoptive parent intends to adopt, the prospective adoptive parent shall obtain a favorable preplacement evaluation.
(2) A placing parent must be provided with a copy of the preplacement evaluation prior to execution of a relinquishment and consent to adoption of the child.

History: En. Sec. 96, Ch. 480, L. 1997.

42-4-107 through 42-4-109 reserved.

42-4-110. Duty to promptly petition. (1) Within 30 days after the filing of a notice of parental placement or the execution of a relinquishment and consent to the adoption of the child, whichever is later, a prospective adoptive parent shall promptly act to resolve the child's legal status by filing:
(a) a petition for termination of parental rights for purposes of adoption, including a request for custody, that includes:
(i) the relinquishment and consent to adopt executed by any legal parent other than the placing parent who has filed the notice of parental placement;
(ii) a certified copy of any court order terminating the rights and duties of any parent or guardian of the child; and
(iii) any other evidence supporting termination of the legal rights a person has with regard to the child;
(b) a petition to adopt the child who is the subject of the proceedings;
(c) a copy of the preplacement evaluation pertaining to the adoptive parent;
(d) a copy of an agreement with the department or a licensed child-placing agency agreeing to accept supervision over the postplacement evaluation period and to prepare the postplacement evaluation;
(e) a disclosure of all disbursements made with regard to the adoptive placement to date; and
(f) an affidavit from the department reporting on whether any individual has registered with the putative father registry and claims an interest in the child.
(2) The prospective adoptive parent shall request that the court promptly notice the matters provided for in subsection (1) for hearing in a timely manner.

History: En. Sec. 97, Ch. 480, L. 1997.

42-4-111. Custody order. (1) The court shall consider the petition to adopt and shall make a determination as to whether temporary custody should be awarded to the petitioner. In making that determination, the court shall consider:
(a) the preplacement evaluation that pertains specifically to placement of the child who is the subject of the adoption petition with the petitioner; and
(b) if any significant change in the petitioner's or child's circumstances has occurred since preparation of the preplacement evaluation.
(2) Upon a determination that it is in the best interests of the child, the court shall enter an order granting temporary custody to the prospective adoptive parent.
(3) Upon a determination that it is not in the best interests of the child to place custody with the prospective adoptive parent, the court shall deny the petition to terminate parental rights of the placing parent and shall make any other order with regard to the custody of the child that is necessary to protect the well-being of the child.

History: En. Sec. 98, Ch. 480, L. 1997.

42-4-112. Period for postplacement supervision. (1) In a direct parental placement adoption, the court shall maintain jurisdiction over the placement during a postplacement evaluation period and issue an order for postplacement supervision and a postplacement evaluation.
(2) The postplacement evaluation period must be supervised and evaluated by a qualified person appointed, contracted with, or employed by:
(a) the department, if the department has accepted supervision of the placement; or
(b) a licensed child-placing agency.
(3) The court shall provide the evaluator with copies of the petition for adoption and the items filed with the petition.
(4) A decree of adoption may not be entered for at least 6 months from the date an order is entered granting temporary custody during the pendency of the proceedings.

History: En. Sec. 99, Ch. 480, L. 1997.

42-4-113. Postplacement evaluation for direct parental placement adoption. (1) An evaluation must be based on a personal interview with the prospective adoptive parent in the prospective parent's home and an observation of the relationship between the child and the prospective adoptive parent.
(2) An evaluation must be in writing.
(3) At a minimum, the evaluation must include the following information:
(a) assessment of adaptation by the prospective adoptive parent to parenting the child;
(b) assessment of the health and well-being of the child in the prospective adoptive home;
(c) analysis of the level of incorporation by the child into the prospective adoptive parent's home, extended family, and community;
(d) assessment of the level of incorporation of the child's previous history into the prospective adoptive home, such as cultural or ethnic practices, or contact with former foster parents or biological relatives; and
(e) an account of any change in the prospective adoptive parent's marital status or family history, physical or mental health, home environment, property, income, or financial obligations since the filing of the preplacement evaluation.
(4) The evaluation must contain a definite recommendation stating the reasons for or against the proposed adoption.

History: En. Sec. 100, Ch. 480, L. 1997.

42-4-114. Time and filing of evaluation. (1) Unless the court for good cause allows an earlier or later filing, the evaluator shall file a complete written evaluation with the court within not less than 90 days and not more than 180 days after receipt of the court's order for an evaluation.
(2) If an evaluation raises a specific concern, as described in 42-3-205, the evaluation must be filed immediately and must explain why the concern poses a significant risk of harm to the physical or psychological well-being of the child.
(3) An evaluator shall give the prospective adoptive parent a copy of the evaluation when it is filed with the court and shall permanently retain a copy of the evaluation and a list of every source for each item of information in the evaluation. If the evaluator ceases to conduct business in Montana, all evaluations in the evaluator's possession must be forwarded to the department for permanent retention.

History: En. Sec. 101, Ch. 480, L. 1997.

42-4-115. Motion to enter adoption decree. (1) The prospective adoptive parent may file a motion for entry of an adoption decree no sooner than 6 months after the court has granted temporary custody to the prospective adoptive parent.
(2) The motion must be supported by the following documents:
(a) the postplacement evaluation prepared pursuant to 42-4-113; and
(b) an updated list of all disbursements made in connection with the adoption proceeding.
(3) A notice of hearing is not required for any party whose parental rights have been terminated in prior proceedings.
(4) The court shall consider the petition and shall grant or deny the petition pursuant to the provisions of 42-4-405 and 42-5-101 through 42-5-109.
(5) If the petition to adopt is denied, the court shall provide notice to the placing parent that the petition has been denied and shall take appropriate action for placement of the child pursuant to 42-5-106.
(6) Finality of the decree or the order denying the decree and the time for appeal are determined pursuant to 42-5-203.

History: En. Sec. 102, Ch. 480, L. 1997.

42-4-116. Records. All records filed with the court in a direct parental placement adoption must be permanently maintained by the court.

History: En. Sec. 103, Ch. 480, L. 1997.

42-4-201. Factors to be considered -- best interests of child. (1) All relevant factors must be considered in determining the best interests of the child in an adoption proceeding. Factors relevant to the determination of a prospective adoptive parent's parenting ability, the future security for a child, and familial stability must be considered. In determining the best interests of the child, the following factors with regard to a prospective adoptive parent may be considered:
(a) age, as it relates to health, earning capacity, provisions for the support of a child, or other relevant circumstances;
(b) marital status, as it relates to the ability to serve as a parent in particularized circumstances; and
(c) religion, as it relates to the ability to provide the child with an opportunity for religious or spiritual and ethical development and as it relates to the express preference of a birth parent or a child to be placed with an adoptive parent of a particular religious faith or denomination.
(2) For purposes of ensuring that the best interests of the child are met, the department or a licensed child-placing agency is authorized to gather and use, in an appropriate, nonarbitrary manner, information concerning the age, marital status, and religious beliefs of a prospective adoptive parent. The authority granted by this subsection includes the authority to receive and to consider, consistent with the best interests of the child, the preferences of birth parents relating to the age, marital status, or religious beliefs of an adoptive parent.
(3) Consideration of religious factors by a licensed child-placing agency that is affiliated with a particular religious faith is not arbitrary consideration of religion within the meaning of this section.

History: En. Sec. 104, Ch. 480, L. 1997.

42-4-202. Parties to department or agency placement. A parent of a child may relinquish the child for adoption to the department or a licensed child-placing agency. The department or agency shall agree in writing to accept the relinquishment of a placing parent as provided in 42-2-402 before the relinquishment is valid.

History: En. Sec. 105, Ch. 480, L. 1997.

42-4-203. Duties of placing parent. (1) A parent who is placing a child for adoption shall comply with the provisions for executing a voluntary relinquishment and consent to adopt.
(2) A parent placing a child for adoption shall identify and provide information on the location of:
(a) any other legal parent or guardian of the child and any other person required to receive notice under 42-2-605, including any current spouse; and
(b) any spouse who is the other birth parent and to whom the parent was married at the probable time of conception or birth of the child.
(3) A parent placing a child for adoption shall identify and provide information pertaining to any Indian heritage of the child that would bring the child within the jurisdiction of the Indian Child Welfare Act, 25 U.S.C. 1901, et seq.
(4) A parent placing a child for adoption shall provide:
(a) the disclosures of medical and social history;
(b) a certified copy of the child's birth certificate or other document certifying the place and date of the child's birth; and
(c) a certified copy of any existing court orders pertaining to custody or visitation of the child.

History: En. Sec. 106, Ch. 480, L. 1997.

42-4-204. Counseling requirements. To the extent required by this title and the department's or agency's standards, the department or agency shall provide counseling to the parties involved in the adoption.

History: En. Sec. 107, Ch. 480, L. 1997.

42-4-205. Waiting period following placement of child. (1) Once the department or agency has received custody of the child and placed the child for adoption, the department or agency shall supervise and evaluate the placement during a 6-month postplacement evaluation period.
(2) The department or agency may recommend in the postplacement evaluation filed with the petition for adoption that the court issue a decree of adoption sooner than the 6-month postplacement evaluation period if:
(a) (i) a period of at least 6 months has elapsed since the department or agency placed the child in the prospective adoptive home; and
(ii) the department or agency has completed a postplacement evaluation during that period; or
(b) (i) a postplacement evaluation has been completed and filed with the court; and
(ii) there are detailed extenuating circumstances supporting a waiver of the 6-month postplacement evaluation period.
(3) The department or an agency may recommend the waiver of the 6-month postplacement evaluation period and the postplacement evaluation if the adoptee has been in the petitioner's home as a foster child for at least 1 year.

History: En. Sec. 108, Ch. 480, L. 1997.
42-4-206. Petition for adoption filed by prospective adoptive parent. After the child has been placed by the department or agency with the prospective adoptive parent, the parent shall file a petition for adoption.

History: En. Sec. 109, Ch. 480, L. 1997.

42-4-207 through 42-4-208 reserved.

42-4-209. Postplacement department or agency evaluation. (1) The department or agency shall complete a written postplacement evaluation. The postplacement evaluation must be conducted according to the department's or agency's standards for placement of a child and at a minimum must include a personal interview with the prospective adoptive parent in that person's home and observation of the relationship between the child and the prospective adoptive parent.
(2) Upon the filing of a petition for adoption by the prospective adoptive parent, the department or agency shall file the postplacement evaluation.
(3) The evaluation must include the following information:
(a) whether the child is legally free for adoption;
(b) whether the proposed home is suitable for the child;
(c) a statement that the medical and social histories of the birth parents and child have been provided to the prospective adoptive parent;
(d) an assessment of adaptation by the prospective adoptive parent to parenting the child;
(e) a statement that the 6-month postplacement evaluation period has been complied with or should be waived;
(f) any other circumstances and conditions that may have a bearing on the adoption and of which the court should have knowledge;
(g) whether the agency waives notice of the proceeding;
(h) a statement that any applicable provision of law governing an interstate or intercountry placement of the child has been complied with; and
(i) a statement of compliance with any applicable provisions of the Indian Child Welfare Act, 25 U.S.C. 1901, et seq.
(4) The evaluation must contain a definite recommendation stating the reasons for or against the proposed adoption.

History: En. Sec. 110, Ch. 480, L. 1997.

42-4-210. Consent to adoption. (1) Upon the filing of the petition for adoption by the prospective adoptive parent, the department or agency that has custody of the child shall file its consent to adoption.
(2) Except as provided in subsection (3), the withdrawal of a consent for an adoption filed by the department or an agency in connection with that petition for adoption is not permitted.
(3) Upon a motion to withdraw consent, notice and opportunity to be heard must be given to the petitioner and to the person seeking to withdraw consent. The court may, if it finds that the best interests of the child will be furthered, issue a written order permitting the withdrawal of the consent.
(4) The entry of a decree of adoption renders a consent irrevocable.

History: En. Sec. 111, Ch. 480, L. 1997.

42-4-301. Relinquishment to stepparent. (1) A parent may relinquish parental rights for the purposes of adoption of a child by the child's stepparent or a member of the child's extended family. The relinquishment must be executed in accordance with 42-2-401 through 42-2-405 and 42-2-408 through 42-2-413. The relinquishment may be executed at any time after the child is 72 hours old.
(2) The stepparent or extended family member shall accept the relinquishment in writing.

History: En. Sec. 112, Ch. 480, L. 1997.

42-4-302. Standing to adopt stepchild. (1) A stepparent has standing to file a petition for adoption of a minor child of the stepparent's spouse if:
(a) the spouse has legal and physical custody of the child and the child has been in the physical custody of the spouse and the stepparent during the 60 days preceding the filing of a petition for adoption;
(b) the spouse is deceased or mentally incompetent but, before dying or being judicially declared mentally incompetent, had legal and physical custody of the child, and the child has resided primarily with the stepparent during the 12 months preceding the filing of the petition; or
(c) the department or an agency placed the child with the stepparent.
(2) For good cause shown, a court may allow an individual who is not the stepparent but who has the consent of the custodial parent of a child to file a petition for adoption. The petition must be treated as if the petitioner were a stepparent.
(3) A petition for adoption by a stepparent may be joined with a petition for termination of parental rights.

History: En. Sec. 113, Ch. 480, L. 1997; amd. Sec. 12, Ch. 257, L. 1999.

42-4-303. Consent to adoption. (1) Upon the filing of the petition for adoption by the stepparent, the child's custodial parent shall file consent to adoption executed pursuant to 42-4-304.
(2) If the child has attained 12 years of age, the child shall consent to the adoption.

History: En. Sec. 114, Ch. 480, L. 1997; amd. Sec. 13, Ch. 257, L. 1999

42-4-304. Consent to adoption -- stepparent's spouse. (1) A consent to adoption executed by a parent who is the stepparent's spouse must be signed in the presence of an individual authorized to take acknowledgments.
(2) A consent must be in writing and must state that:
(a) the parent executing the consent has legal and physical custody of the child and voluntarily and unequivocally consents to the adoption of the child by the stepparent;
(b) the adoption will not terminate the parental relationship between the parent executing the consent and the child; and
(c) the parent executing the consent understands and agrees that:
(i) the adoption will terminate the relationship of parent and child between the child's other parent and the child and will terminate any existing court order for custody, visitation, or communication with the child;
(ii) the child and any descendant of the child will retain rights of inheritance from or through the child's other parent; and
(iii) a court order for visitation or communication with the child by an individual related to the child through the parent executing the relinquishment or an agreement or order concerning another individual that is approved by the court survives the decree of adoption, but that failure to comply with the terms of the order or agreement is not a ground for revoking or setting aside the consent or the adoption.

History: En. Sec. 115, Ch. 480, L. 1997; amd. Sec. 14, Ch. 257, L. 1999.

42-4-305. Repealed. Sec. 20, Ch. 257, L. 1999.

History: En. Sec. 116, Ch. 480, L. 1997.

42-4-306 through 42-4-308 reserved.

42-4-309. Preplacement and postplacement evaluation period -- waiver. In a stepparent adoption, if the court is satisfied that the adoption is in the best interests of the child, the court may waive the requirement of a preplacement evaluation and the 6-month postplacement evaluation and report and grant a decree of adoption.

History: En. Sec. 117, Ch. 480, L. 1997; amd. Sec. 15, Ch. 257, L. 1999.

42-4-310. Petition for adoption -- notice -- hearing. A stepparent who desires to adopt a stepchild shall obtain an order of termination of parental rights of the child's noncustodial parent prior to or contemporaneously with the petition to adopt. Any necessary consents must be filed with the petition for adoption. Notice of the hearing on the petition must be given, and the stepparent shall attend the hearing conducted by the court.

History: En. Sec. 118, Ch. 480, L. 1997; amd. Sec. 16, Ch. 257, L. 1999.

42-4-311. Legal consequences of adoption of stepchild. (1) Except as provided in subsections (2) and (3), the legal consequences of an adoption of a stepchild by a stepparent are the same as the consequences under 42-5-202.
(2) An adoption by a stepparent does not affect:
(a) the relationship between the adoptee and the adoptee's parent who is the adoptive stepparent's spouse or deceased spouse;
(b) an existing court order for visitation or communication with a child by an individual related to the adoptee through either parent; or
(c) the right of the adoptee or a descendant of the adoptee to inheritance or intestate succession through or from the adoptee's former parent.
(3) Failure to comply with an agreement or order is not a ground for challenging the validity of an adoption by a stepparent.

History: En. Sec. 119, Ch. 480, L. 1997.

42-4-312. Arrearages of child support. A termination of a parent's rights and responsibilities toward a child does not cancel any responsibility to pay arrearages of child support unless the party to whom the arrearages are owed agrees in writing to waive payment.

History: En. Sec. 120, Ch. 480, L. 1997.

42-4-401. Adoption of adult. A person who has attained the age of legal majority may be adopted without the consent of the person's parents.

History: En. Sec. 121, Ch. 480, L. 1997.

42-4-402. Who may adopt adult or emancipated minor. (1) An adult may adopt another adult or an emancipated minor pursuant to this section. However, an adult may not adopt the adult's spouse. An adoption of an incompetent individual of any age must comply with all requirements set by law for the adoption of a child.
(2) An individual who has adopted an adult or emancipated minor may not adopt another adult or emancipated minor within 1 year after the adoption unless the prospective adoptee is a sibling of the adoptee.

History: En. Sec. 122, Ch. 480, L. 1997.

42-4-403. Consent to adoption. (1) Consent to the adoption of an adult or emancipated minor is required only of:
(a) the adoptee;
(b) the prospective adoptive parent; and
(c) the spouse of the prospective adoptive parent unless:
(i) the spouse and the prospective adoptive parent are legally separated; or
(ii) the court finds that the spouse is not capable of giving consent or is withholding consent contrary to the best interests of the adoptee and the prospective adoptive parent.
(2) The consent of the adoptee and the prospective adoptive parent must:
(a) be in writing and be signed in the presence of the court or an individual authorized to take acknowledgments;
(b) state that the parties agree to assume toward each other the legal relationship of parent and child and to have all of the rights and be subject to all of the duties of that relationship; and
(c) state that the parties understand the consequences that the adoption may have for any right of inheritance, property, or support.
(3) The consent of the spouse of the prospective adoptive parent:
(a) must be in writing and be signed in the presence of the court or an individual authorized to take acknowledgments;
(b) must state that the spouse:
(i) consents to the proposed adoption; and
(ii) understands the consequences that the adoption may have for an