§48-22-501. Filing of petition for adoption.
The petition for adoption may be filed at any time after the child who is the subject of the adoption is born, the adoptive placement determined and
all consents or relinquishments that can be obtained have been executed. The hearing on the petition may be held no sooner than forty-five days after the
filing of the petition and only after the child has lived with the adoptive parent or parents for a period of six months, proper notice of the petition
has been given and all necessary consents or relinquishments have been executed and submitted or the rights of all nonconsenting birth parents have otherwise
been terminated.
§48-22-502. Petition and appendix.
(a) The petition shall be verified and set forth:
(1) The name, age and place of residence of the petitioner or petitioners, and of the child, and the name by which the child shall be known;
(2) Whether such child is possessed of any property and a full description of the same, if any;
(3) Whether the petitioner or petitioners know the identity of the persons entitled to parental rights or, that the same are unknown to the petitioner or
petitioners; and
(4) Whether and on what basis the parental rights of any birth parents should be terminated during the pendency of the adoption petition.
(b) In the case of an unknown father, an affidavit signed by the birth mother setting forth the following information must be attached to the petition:
(1) Whether the birth mother was married at the probable time of conception of the child, or at a later time, and if so, the identity and last known address
of such man;
(2) Whether the birth mother was cohabiting with a man at the probable time of conception of the child, and if so, the identity of such man, his last known
address and why the woman contends that such man is not the biological father of the child;
(3) Whether the birth mother has received payments or promise of support from any man with respect to the child or her pregnancy, and if so, the identity
of such man, his last known address and why the birth mother contends that such man is not the biological father of the child;
(4) Whether the birth mother has named any man as the father on the birth certificate of the child or in connection with applying for or receiving public
assistance, and if so, the identity of such man, his last known address and why the birth mother contends such man is not the biological father of the child;
(5) Whether the birth mother identified any man as the father to any hospital personnel, and if so, the identity of such man, his last known address, the
name and address of the hospital and why the birth mother now contends such man is not the biological father of the child;
(6) Whether the birth mother has informed any man that he may be the biological father of the child, and if so, the identity of such man, his last known
address and why the birth mother now contends such man is not the biological father of the child;
(7) Whether any man has formally or informally acknowledged or claimed paternity of the child in any jurisdiction at the time of the inquiry, and if so,
the identity of such man, his last known address and why the birth mother contends such man is not the biological father of the child;
(8) That the birth mother has been advised that the failure to identify or the misidentification of the birth father can result in delays and disruptions
in the processing of the adoption petition;
(9) That the birth mother has been informed that her statement concerning the identity of the father will be used only for the limited purposes of adoption
and that once the adoption is complete, such identity will be sealed; and
(10) That the birth mother has been advised of the remedies available to her for protection against domestic violence pursuant to the provisions of article
27-101, et seq., of this chapter.
(c) In the event the birth mother is deceased or her identity or whereabouts are unknown, no such affidavit shall be required.
(d) The affidavit of the birth mother in the case of an unknown father shall be executed before any person authorized to witness a consent or relinquishment
pursuant to the provisions of section 22-302. Any affidavit filed with the petition pursuant to the provisions of this section shall be sealed in the court
file and may not be opened except by court order upon a showing of good cause.
(e) If the person petitioning for adoption is less than fifteen years older than the child sought to be adopted, such fact shall be set forth specifically
in the petition. In such case, the court shall grant the adoption only upon a specific finding that notwithstanding the differences in age of the petitioner
and the child, such adoption is in the best interest of the child: Provided, That in the case of a stepparent adoption, such specific finding shall not
be required and an adoption shall not be denied on the sole basis of proximity in age.
(f) The petition shall set forth any facts concerning the circumstances of the birth of the child known to the petitioner or petitioners. An effort shall
be made to obtain medical and social information, which information, along with all nonidentifying information about the birth, shall accompany the petition
and be made a part of the nonidentifying information to be sealed in the court file.
(g) Either the petition, the various consents or relinquishments attached thereto or filed in the cause, the affidavit of the birth mother as set forth
herein or in an appendix signed by counsel or other credible persons shall fully disclose all that is known about the parentage of the child.
PART 6. NOTICE OF PROCEEDING FOR ADOPTION.
§48-22-601. Who shall receive notice.
(a) Unless notice has been waived, notice of a proceeding for adoption of a child must be served, within twenty days after a petition for adoption is filed,
upon:
(1) Any person whose consent to the adoption is required pursuant to the provisions of section 22-301, but notice need not be served upon a person whose
parental relationship to the child or whose status as a guardian has been terminated;
(2) Any person whom the petitioner knows is claiming to be the father of the child and whose paternity of the child has been established pursuant to the
provisions of 24-101, et seq.;
(3) Any person other than the petitioner who has legal or physical custody of the child or who has visitation rights with the child under an existing court
order issued by a court in this or another state;
(4) The spouse of the petitioner if the spouse has not joined in the petition; and
(5) A grandparent of the child if the grandparent's child is a deceased parent of the child and, before death, the deceased parent had not executed a consent
or relinquishment or the deceased parent's parental relationship to the child had not been otherwise terminated.
(b) The court shall require notice of a proceeding for adoption to be served upon any person the court finds, at any time during the proceeding, is:
(1) A person described in subsection (a) of this section who has not been given notice;
(2) A person who has revoked consent or relinquishment pursuant to the provisions of section 22-305; or
(3) A person who, on the basis of a previous relationship with the child, a parent, an alleged parent or the petitioner, can provide relevant information
that the court, in its discretion, wants to hear.
§48-22-602. How notice is to be served.
(a) Notice shall be served on each person as required under the provisions of section 22-601, in accordance with rule 4 of the West Virginia rules of civil
procedure, except as otherwise provided in this article.
(b) The notice shall inform the person, in plain language, that his or her parental rights, if any, may be terminated in the proceeding and that such person
may appear and defend any such rights within the required time after such service. The notice shall also provide that if the person upon whom notice is
properly served fails to respond within the required time after its service, said person may not appear in or receive further notice of the adoption proceedings.
(c) In the case of any person who is a nonresident or whose whereabouts are unknown, service shall be achieved: (1) By personal service; (2) by registered
or certified mail, return receipt requested, postage prepaid, to the person's last known address, with instructions to forward; or (3) by publication. If
personal service is not achieved and the person giving notice has any knowledge of the whereabouts of the person to be served, including a last known address,
service by mail shall be first attempted as provided herein. Any service achieved by mail shall be complete upon mailing and shall be sufficient service
without the need for notice by publication. In the event that no return receipt is received giving adequate evidence of receipt of the notice by the addressee
or of receipt of the notice at the address to which the notice was mailed or forwarded, or if the whereabouts of the person is unknown, then the person
required to give notice shall cause service of notice by publication as a Class II publication in compliance with the provisions of article three, chapter
fifty-nine of this code, and the publication area shall be the county where the proceedings are had, and in the county where the person to be served was
last known to reside, except in cases of foreign adoptions where the child is admitted to this country for purposes of adoptive placement and the United
States immigration and naturalization service has issued the foreign-born child a visa or unless good cause is shown for not publishing in the county where
the person was last known to reside. The notice shall state the court and its address but not the names of the adopting parents or birth mother, unless
the court so orders.
(d) In the case of a person under disability, service shall be made on the person and his or her personal representative, or if there be none, on a guardian
ad litem.
(e) In the case of service by publication or mail or service on a personal representative or a guardian ad litem, the person shall be allowed thirty days
from the date of the first publication or mailing or of such service on a personal representative or guardian ad litem in which to appear and defend his
or her parental rights.
§48-22-603. Notice to an unknown father.
(a) In the case of an unknown father, the court shall inspect the affidavit submitted pursuant to the provisions of section 22-502, consider any additional
evidence that the court, in its discretion, determines should be produced, and determine whether said father can be identified. The inspection and consideration
of any additional evidence by the court shall be accomplished as soon as practicable after the filing of the petition, but no later than sixty days before
the final hearing on the adoption petition.
(b) If the court identifies a father pursuant to the provisions of subsection (a) of this section, then notice of the proceeding for adoption shall be served
on the father so identified in accordance with the provisions of section 22-602.
(c) If after consideration of the affidavit and/or the consideration of further evidence, the court finds that proper service cannot be made upon the father
because his identity is unknown, the court shall order publication of the notice only if, on the basis of all information available, the court determines
that publication is likely to lead to receipt of notice by the father. If the court determines that publication or posting is not likely to lead to receipt
of notice, the court may dispense with the publication or posting of a notice.
PART 7. PROCEDURES FOR ADOPTION.
§48-22-701. Proceedings.
(a) When the cause has matured for hearing but not sooner than six months after the child has resided continuously in the home of the petitioner or petitioners,
the court shall decree the adoption if:
(1) It determines that no person retains parental rights in such child except the petitioner and the petitioner's spouse, or the joint petitioners;
(2) That all applicable provisions of this article have been complied with;
(3) That the petitioner is, or the petitioners are, fit persons to adopt the child; and
(4) That it is in the best interests of the child to order such adoption.
(b) The court or judge thereof may adjourn the hearing of such petition or the examination of the parties in interest from time to time, as the nature of
the case may require. Between the time of the filing of the petition for adoption and the hearing thereon, the court or judge thereof shall, unless the
court or judge otherwise directs, cause a discreet inquiry to be made to determine whether such child is a proper subject for adoption and whether the home
of the petitioner or petitioners is a suitable home for such child. Any such inquiry, if directed, shall be made by any suitable and discreet person not
related to either the persons previously entitled to parental rights or the adoptive parents, or by an agency designated by the court, or judge thereof,
and the results thereof shall be submitted to the court or judge thereof prior to or upon the hearing on the petition and shall be filed with the records
of the proceeding and become a part thereof. The report shall include, but not be limited to, the following:
(1) A description of the family members, including medical and employment histories;
(2) A physical description of the home and surroundings;
(3) A description of the adjustment of the child and family;
(4) Personal references; and
(5) Other information deemed necessary by the court, which may include a criminal background investigation.
(c) If it shall be necessary, under the provisions of this article, that a discreet and suitable person shall be appointed to act as the next friend of
the child sought to be adopted, then and in that case the court or judge thereof shall order a notice of the petition and of the time and place when and
where the appointment of next friend will be made, to be published as a Class II legal advertisement in compliance with the provisions of article three,
chapter fifty-nine of this code, and the publication area for such publication shall be the county where such court is located. At the time and place so
named and upon due proof of the publication of such notice, the court or judge thereof shall make such appointment, and shall thereupon assign a day for
the hearing of such petition and the examination of the parties interested.
(d) Upon the day so assigned, the court or judge thereof shall proceed to a final hearing of the petition and examination of the parties in interest, under
oath, and of such other witnesses as the court or judge thereof may deem necessary to develop fully the standing of the petitioners and their responsibility,
and the status of the child sought to be adopted; and if the court or judge thereof shall be of the opinion from the testimony that the facts stated in
the petition are true, and if upon examination the court or judge thereof is satisfied that the petitioner is, or the petitioners are, of good moral character,
and of respectable standing in the community, and are able properly to maintain and educate the child sought to be adopted, and that the best interests
of the child would be promoted by such adoption, then and in such case the court or judge thereof shall make an order reciting the facts proved and the
name by which the child shall thereafter be known, and declaring and adjudging that from the date of such order, the rights, duties, privileges and relations,
theretofore existing between the child and those persons previously entitled to parental rights, shall be in all respects at an end, and that the rights,
duties, privileges and relations between the child and his or her parent or parents by adoption shall thenceforth in all respects be the same, including
the rights of inheritance, as if the child had been born to such adopting parent or parents in lawful wedlock, except only as otherwise provided in this
article: Provided, That no such order shall disclose the names or addresses of those persons previously entitled to parental rights.
§48-22-702. Recordation of order; fees; disposition of records; names of adopting parents and persons previously entitled to parental rights not
to be disclosed; disclosure of identifying and nonidentifying information; certificate for state registrar of vital statistics; birth certificate.
(a) The order of adoption shall be recorded in a book kept for that purpose, and the clerk shall receive the same fees as in other cases. All records of
proceedings in adoption cases and all papers and records relating to such proceedings shall be kept in the office of the clerk of the circuit court in a
sealed file, which file shall be kept in a locked or sealed cabinet, vault or other container and shall not be open to inspection or copy by anyone, except
as otherwise provided in this article, or upon court order for good cause shown. No person in charge of adoption records shall disclose the names of the
adopting parent or parents, the names of persons previously entitled to parental rights, or the name of the adopted child, except as otherwise provided
in this article, or upon court order for good cause shown. The clerk of the court keeping and maintaining the records in adoption cases shall keep and maintain
an index of such cases separate and distinct from all other indices kept or maintained by him or her, and the index of adoption cases shall be kept in a
locked or sealed cabinet, vault or other container and shall not be open to inspection or copy by anyone, except as otherwise provided in this article,
or upon court order for good cause shown. Nonidentifying information, the collection of which is provided for in article 23-101, et seq., of this chapter,
shall be provided to the adoptive parents as guardians of the adopted child, or to the adult adoptee, by their submitting a duly acknowledged request to
the clerk of the court. The clerk may charge the requesting party for copies of any documents, as provided in section eleven, article one, chapter fifty-nine
of this code. Either birth parent may from time to time submit additional social, medical or genetic history for the adoptee, which information shall be
placed in the court file by the clerk, who shall bring the existence of this medical information to the attention of the court. The court shall immediately
transmit all such nonidentifying medical, social or genetic information to the adoptive parents or the adult adoptee.
(b) If an adoptee, or parent of a minor adoptee, is unsuccessful in obtaining identifying information by use of the mutual consent voluntary adoption registry
provided for in 23-101, et seq., identifying information may be sought through the following process:
(1) Upon verified petition of an adoptee at least eighteen years of age, or, if less than eighteen, his or her adoptive parent or legal guardian, the court
may also attempt, either itself, or through its designated agent, to contact the birth parents, if known, to obtain their consent to release identifying
information to the adoptee. The petition shall state the reasons why the adoptee desires to contact his or her birth parents, which reasons shall be disclosed
to the birth parents if contacted. The court and its agent shall take any and all care possible to assure that none but the birth parents themselves are
informed of the adoptee's existence in relationship to them. The court may appoint the bureau of children and families, or a private agency which provides
adoption services in accordance with standards established by law, to contact birth parents as its designated agent, the said agent shall report to the
court the results of said contact.
(2) Upon the filing of a verified petition as provided in subdivision (1) of this subsection, should the court be unable to obtain consent from either of
the birth parents to release identifying information, the court may release such identifying information to the adoptee, or if a minor, the adoptee's parents
or guardian, after notice to the birth parents and a hearing thereon, at which hearing the court must specifically find that there exists evidence of compelling
medical or other good cause for release of such identifying information.
(c) Identifying information may only be obtained with the duly acknowledged consent of the mother or the legal or determined father who consented to the
adoption or whose rights were otherwise relinquished or terminated, together with the duly acknowledged consent of the adopted child upon reaching majority,
or upon court order for good cause shown. Any person previously entitled to parental rights may from time to time submit additional social or medical information
which, notwithstanding other provisions of this article, shall be inserted into the record by the clerk of the court.
(d) Immediately upon the entry of such order of adoption, the court shall direct the clerk thereof forthwith to make and deliver to the state registrar
of vital statistics a certificate under the seal of said court, showing:
(1) The date and place of birth of the child, if known;
(2) The name of the mother of the child, if known, and the name of the legal or determined father of the child, if known;
(3) The name by which said child has previously been known;
(4) The names and addresses of the adopting parents;
(5) The name by which the child is to be thereafter known; and
(6) Such other information from the record of the adoption proceedings as may be required by the law governing vital statistics and as may enable the state
registrar of vital statistics to carry out the duties imposed upon him or her by this section.
(e) Upon receipt of the certificate, the registrar of vital statistics shall forthwith issue and deliver by mail to the adopting parents at their last-known
address and to the clerk of the county commission of the county wherein such order of adoption was entered a birth certificate in the form prescribed by
law, except that the name of the child shown in said certificate shall be the name given him or her by the order of adoption. The clerk shall record such
birth certificate in the manner set forth in section twelve, article five, chapter sixteen of this code.
§48-22-703. Effect of order as to relations of parents and child and as to rights of inheritance; intestacy of adopted child.
(a) Upon the entry of such order of adoption, any person previously entitled to parental rights, any parent or parents by any previous legal adoption, and
the lineal or collateral kindred of any such person, parent or parents, except any such person or parent who is the husband or wife of the petitioner for
adoption, shall be divested of all legal rights, including the right of inheritance from or through the adopted child under the statutes of descent and
distribution of this state, and shall be divested of all obligations in respect to the said adopted child, and the said adopted child shall be free from
all legal obligations, including obedience and maintenance, in respect to any such person, parent or parents. From and after the entry of such order of
adoption, the adopted child shall be, to all intents and for all purposes, the legitimate issue of the person or persons so adopting him or her and shall
be entitled to all the rights and privileges and subject to all the obligations of a natural child of such adopting parent or parents.
(b) For the purpose of descent and distribution, from and after the entry of such order of adoption, a legally adopted child shall inherit from and through
the parent or parents of such child by adoption and from or through the lineal or collateral kindred of such adopting parent or parents in the same manner
and to the same extent as though said adopted child were a natural child of such adopting parent or parents, but such child shall not inherit from any person
entitled to parental rights prior to the adoption nor their lineal or collateral kindred, except that a child legally adopted by a husband or wife of a
person entitled to parental rights prior to the adoption shall inherit from such person as well as from the adopting parent. If a legally adopted child
shall die intestate, all property, including real and personal, of such adopted child shall pass, according to the statutes of descent and distribution
of this state, to those persons who would have taken had the decedent been the natural child of the adopting parent or parents.
§48-22-704. Finality of order; challenges to order of adoption.
(a) An order or decree of adoption is a final order for purposes of appeal to the supreme court of appeals on the date when the order is entered. An order
or decree of adoption for any other purpose is final upon the expiration of the time for filing an appeal when no appeal is filed or when an appeal is not
timely filed, or upon the date of the denial or dismissal of any appeal which has been timely filed.
(b) An order or decree of adoption may not be vacated, on any ground, if a petition to vacate the judgment is filed more than six months after the date
the order is final.
(c) If a challenge is brought within the six-month period by an individual who did not receive proper notice of the proceedings pursuant to the provisions
of this article, the court shall deny the challenge, unless the individual proves by clear and convincing evidence that the decree or order is not in the
best interest of the child.
(d) A decree or order entered under this article may not be vacated or set aside upon application of a person who waived notice, or who was properly served
with notice pursuant to this article and failed to respond or appear, file an answer or file a claim of paternity within the time allowed.
(e) A decree or order entered under this article may not be vacated or set aside upon application of a person alleging there is a failure to comply with
an agreement for visitation or communication with the adopted child: Provided, That the court may hear a petition to enforce the agreement, in which case
the court shall determine whether enforcement of the agreement would serve the best interests of the child. The court may, in its sole discretion, consider
the position of a child of the age and maturity to express such position to the court.
(f) The supreme court of appeals shall consider and issue rulings on any petition for appeal from an order or decree of adoption and petitions for appeal
from any other order entered pursuant to the provisions of this article as expeditiously as possible. The circuit court shall consider and issue rulings
on any petition filed to vacate an order or decree of adoption and any other pleadings or petitions filed in connection with any adoption proceeding as
expeditiously as possible.
(g) When any minor has been adopted, he or she may, within one year after becoming of age, sign, seal and acknowledge before proper authority, in the county
in which the order of adoption was made, a dissent from such adoption, and file such instrument of dissent in the office of the clerk of the circuit court
which granted said adoption. The clerk of the county commission of such county and the circuit clerk shall record and index the same. The adoption shall
be vacated upon the filing of such instrument of dissent.
§48-22-801. Adoption of adults.
Any adult person who is a resident of West Virginia may petition the circuit court or any other court of record having jurisdiction of adoption proceedings
for permission to adopt one who has reached the age of eighteen years or over, and, if desired, to change the name of such person. The consent of the person
to be adopted shall be the only consent necessary. The order of adoption shall create the same relationship between the adopting parent or parents and the
person adopted and the same rights of inheritance as in the case of an adopted minor child. If a change in name is desired, the adoption order shall so
state.
§48-22-802. Contracts limiting or restraining adoptions.
Any contract, agreement or stipulation which endeavors to deny to any person or persons the right to petition for adoption of any person, or which endeavors
to alter the time or manner of adoption as provided in this article, is contrary to the public policy of the state and such portion of any contract, agreement
or stipulation is null and void and of no effect.
§48-22-803. Prohibition of purchase or sale of child; penalty; definitions; exceptions.
(a) Any person or agency who knowingly offers, gives or agrees to give to another person money, property, service or other thing of value in consideration
for the recipient's locating, providing or procuring a minor child for any purpose which entails a transfer of the legal or physical custody of said child,
including, but not limited to, adoption or placement, is guilty of a felony and subject to fine and imprisonment as provided herein.
(b) Any person who knowingly receives, accepts or offers to accept money, property, service or other thing of value to locate, provide or procure a minor
child for any purpose which entails a transfer of the legal or physical custody of said child, including, but not limited to, adoption or placement, is
guilty of a felony and subject to fine and imprisonment as provided herein.
(c) Any person who violates the provisions of this section is guilty of a felony and, upon conviction thereof, may be confined in the state correctional
facility for not less than one year nor more than five years or, in the discretion of the court, be confined in jail not more than one year and fined not
less than one hundred dollars nor more than two thousand dollars.
(d) A child whose parent, guardian or custodian has sold or attempted to sell said child in violation of the provisions of this article may be deemed an
abused child as defined by section three, article one, chapter forty-nine of this code. The court may place such a child in the custody of the department
of health and human resources or with such other responsible person as the best interests of the child dictate.
(e) This section does not prohibit the payment or receipt of the following:
(1) Fees paid for reasonable and customary services provided by the department of health and human resources or any licensed or duly authorized adoption
or child-placing agency.
(2) Reasonable and customary legal, medical, hospital or other expenses incurred in connection with the pregnancy, birth and adoption proceedings.
(3) Fees and expenses included in any agreement in which a woman agrees to become a surrogate mother.
(4) Any fees or charges authorized by law or approved by a court in a proceeding relating to the placement plan, prospective placement or placement of a
minor child for adoption.
(f) At the final hearing on the adoption, an affidavit of any fees and expenses paid or promised by the adoptive parents shall be submitted to the court.
§48-22-901. Recognition of foreign adoption decree.
When an adoption occurs in a foreign country and the adopted child has immigrated to the United States with the permission of the United States, this state
shall recognize the adoption. The rights and obligations of the parties as to matters within the jurisdiction of this state shall be determined as though
the adoption decree was issued by a court of this state
§48-22-902. Filing of petition for recognition of foreign adoption decree.
(a) At any time after the child has immigrated to the United States, the adoptive parent or parents may commence proceedings with the circuit court in their
county of residence to have the foreign adoption decree recognized by filing a petition for recognition of foreign adoption decree. The verified petition
shall set forth the following:
(1) The name and address of the petitioner or petitioners;
(2) The name of the child adopted in a foreign country;
(3) The name by which the child shall be known henceforth;
(4) The child's country of origin and date of birth, if known;
(5) That the child has been issued a visa or other document authorizing entry into the United States and the date of entry. A copy of such a document shall
be attached to the petition;
(6) That a home study of the petitioner or petitioners was prepared. A copy of the same shall be attached to the petition;
(7) The date on which the adoption was decreed in the foreign country. A copy of the foreign adoption decree or such other document or documents which evidence
finalization of the adoption in the foreign country shall be attached to the petition, along with an English translation thereof.
(b) The verified petition may set forth requests for specific relief or findings to meet the best interests of the child which may be granted, in the court's
discretion, specifically including, but not limited to, a revised birth date if a physician has recommended a revision of the child's birth date.
§48-22-903. Proceedings for recognition of foreign adoption decree.
The court shall review the petition and accompanying documentation and, if the court finds the petition and documentation to be satisfactory, it shall enter
an order of adoption stating that the documentation required has been submitted and is satisfactory and that the adoption must be recognized in West Virginia
and shall have the same force and effect as if the decree of adoption was granted in accordance with the provisions of the West Virginia adoption act. The
order shall further set forth the name by which the child shall be known henceforth and such other pertinent findings of the court. The court shall enter
the order without the necessity of a hearing unless it deems a hearing necessary or a hearing is requested. The provisions of subsections (a), (d) and (e),
section seven hundred two of this article shall apply to all orders issued hereunder and a new birth certificate shall be issued forthwith.
ARTICLE 23. VOLUNTARY ADOPTION REGISTRY.
§48-23-101. Policy regarding persons obtaining identifying information after adoption.
(a) Adoption is based upon the legal termination of parental rights and responsibilities of birth parents and the creation of the legal relationship of
parent and child between an adoptee and his or her adoptive parents. These legal and social premises underlying adoption must be maintained. The Legislature
recognizes that some adults who were adopted as children have a strong desire to obtain identifying information about their birth parents while other such
adult adoptees have no such desire. The Legislature further recognizes that some birth parents have a strong desire to obtain identifying information about
their biological children who were surrendered for adoption, while other birth parents have no such desire.
(b) The Legislature fully recognizes the right to privacy and confidentiality of:
(1) Birth parents whose children were adopted;
(2) The adoptees; and
(3) The adoptive parents.
§48-23-102. Legislative purpose.
The purpose of this article is to:
(1) Set up a mutual consent voluntary adoption registry where birth parents and adult adoptees may register their willingness to the release of identifying
information to each other;
(2) To provide for the disclosure of such identifying information to birth parents or adoptees, or both, through a social worker employed by a licensed
adoption agency, provided each birth parent and the adult adoptee voluntarily registers on his or her own; and
(3) To provide for the transmission of nonidentifying health and social and genetic history to the adult adoptees, birth parents and other specified persons;
and
(4) To provide for disclosure of identifying information for cause shown.
Part 2. DEFINITIONS
§48-23-201. Applicability of definitions.
For the purposes of this article the words or terms defined in this article, and any variation of those words or terms required by the context, have the
meanings ascribed to them in this article. These definitions are applicable unless a different meaning clearly appears from the context.
§48-23-202. Adoptee defined.
"Adoptee" means a person who has been legally adopted in the state of West Virginia.
§48-23-203. Adoption defined.
"Adoption" means the judicial act of creating the relationship of parent and child where it did not exist previously.
§48-23-204. Adult defined.
"Adult" means a person who is eighteen years of age or more.
§48-23-205. Agency defined.
"Agency" means any public or voluntary organization licensed or approved pursuant to the laws of any jurisdiction within the United States to
place children for adoption.
§48-23-206. Genetic and social history defined.
"Genetic and social history" means a comprehensive report, when obtainable, on the birth parents, siblings to the birth parents, if any, other
children of either birth parent, if any, and parents of the birth parents, which shall contain the following information:
(1) Medical history;
(2) Health status;
(3) Cause of and age at death;
(4) Height, weight, eye and hair color;
(5) Ethnic origins;
(6) Where appropriate, levels of educational and professional achievement; and
(7) Religion, if any.
§48-23-207. Health history defined.
"Health history" means a comprehensive report of the child's health status at the time of placement for adoption and medical history, including
neonatal, psychological, physiological and medical care history.
§48-23-208. Mutual consent voluntary adoption registry or registry defined.
"Mutual consent voluntary adoption registry" or "registry" means a place provided for herein where eligible persons as described in
section 23-501 may indicate their willingness to have their identity and whereabouts disclosed to each other under conditions specified in this article.
§48-23-209. Putative father defined.
"Putative father" means any man not deemed or adjudicated under the laws of a jurisdiction of the United States to be the father of genetic origin
of a child and who claims or is alleged to be the father of genetic origin of such child.
PART 3. ESTABLISHMENT AND MAINTENANCE
OF VOLUNTARY ADOPTION REGISTRY.
§48-23-301. Division of human services to establish and maintain mutual consent voluntary adoption registry.
The division of human services, as provided for in §9-2-1, et seq. of this code, shall establish and maintain the mutual consent voluntary adoption
registry, except that the division may contract out the function of establishing and maintaining the registry to a licensed voluntary agency with expertise
in providing post-legal adoption services, in which case the agency shall establish and maintain the registry that would otherwise be operated by the division.
The secretary of the department of health and human resources shall promulgate and adopt such rules as are necessary for implementing this article.
PART 4. USE OF THE VOLUNTARY ADOPTION REGISTRY.
§48-23-401. Persons to whom use of the mutual consent voluntary adoption registry is available.
Use of the mutual consent voluntary adoption registry for obtaining identifying information about birth parents and adult adoptees is available to birth
parents and adult adoptees, except as otherwise limited by section 23-402.
§48-23-402. Age limitations on use of the mutual consent voluntary adoption registry.
(a) A birth parent is not eligible to use the registry until his or her child who was adopted is eighteen years of age or older.
(b) An adult adoptee is not eligible to use the registry if he or she has a sibling in his or her adoptive family who is under the age of eighteen years.
§48-23-403. Registration by a birth father.
A birth father may register if:
(1) He was named as the father in the original sealed birth certificate;
(2) He legitimated or formally acknowledged the child as provided by law; or
(3) He signed a voluntary abandonment and release for the child's adoption as provided by law.
§48-23-404. Registration by a birth parent who used an alias in terminating parental rights.
If a birth parent used an alias name in terminating his or her parental rights, and the alias is listed in the original sealed birth record, that birth
parent may register if the agency, organization, entity or person that placed the child for adoption, certifies to the court that the individual seeking
to register used the alias name set forth in the original sealed birth certificate.
PART 5. OPERATION OF THE VOLUNTARY ADOPTION REGISTRY.
§48-23-501. Prerequisites to disclosure of identifying information.
The adult adoptee and each birth parent may voluntarily, without having been contacted by any employee or agent of the entity operating the registry, place
his or her name in the appropriate registry before any disclosure or identifying information can be made. A qualified person may register by submitting
a notarized affidavit to the appropriate registry stating his or her name, address and telephone number and his or her willingness to be identified solely
to the other relevant persons who register. No registration may be accepted until the prospective registrant submits satisfactory proof of his or her identity
in accord with the provisions specified in section 23-601 of this article. The failure of any of the three above described persons to file a notarized affidavit
with the registry for any reason, including death or disability, precludes the disclosure of identifying information to those relevant persons who do register.
§48-23-502. Counseling of registrants.
Upon registering, the registrant shall participate in not less than one hour of counseling with a social worker employed by the entity that operates the
registry, except if a birth parent or adult adoptee is domiciled outside the state, he or she shall obtain counseling from a social worker employed by a
licensed agency in that other state selected by the entity that operates the registry. When an eligible person registers concerning an adoption that was
arranged through an agency which has not merged or otherwise ceased operations, and that same agency is not operating the registry, the entity operating
the registry shall notify by certified mail the agency which handled the adoption within ten business days after the date of registration
§48-23-503. Cases where disclosure of identifying information cannot occur.
In any case where the identity of the birth father was unknown to the birth mother, or where the administrator learns that one or both of the birth parents
are deceased, this information shall be shared with the adult adoptee. In these kinds of cases, the adoptee will not be able to obtain identifying information
through the registry, and he or she would be told of his or her right to pursue whatever right otherwise exists by law to petition a court to release the
identifying information.
§48-23-504. Matching and disclosure procedures.
(a) Each mutual consent voluntary adoption registry must be operated under the direction of an administrator.
(b) A person eligible to register may request the administrator to disclose identifying information by filing an affidavit which sets forth the following:
(1) The current name and address of the affiant;
(2) Any previous name by which the affiant was known;
(3) The original and adopted names, if known, of the adopted child;
(4) The place and date of birth of the adopted child; or
(5) The name and address of the adoption agency or other entity, organization or person placing the adopted child, if known.
(c) The affiant shall notify the registry of any change in name or location which occurs subsequent to his or her filing the affidavit. The registry has
no duty to search for an affiant who fails to register his or her most recent address.
(d) The administrator of the mutual consent voluntary adoption registry shall process each affidavit in an attempt to match the adult adoptee and the birth
parents. Such processing shall include research from agency records, when available, and when agency records are not available, research from court records
to determine conclusively whether the affiants match.
(e) The administrator shall determine that there is a match when the adult adoptee and the birth mother or the adult adoptee and the birth father have each
filed affidavits with the mutual consent voluntary adoption registry and have each received the counseling required in section 23-502.
(f) When a match has taken place, the department shall directly notify all parties through a direct and confidential contact. The contact shall be made
by an employee or agent of the agency receiving the assignment and shall be made face to face, rather than by mail, telephone or other indirect means. The
employee or agent shall be a trained social worker who has expertise in post-legal adoption services.
§48-23-505. Retention of data by the registry.
Any affidavits filed and other information collected shall be retained for ten years following the date of registration by any qualified person to which
the information pertains. Any qualified person who registers may renew his or her registration for ten additional years within one hundred eighty days prior
to the last day of ten years from the date of initial registration.
§48-23-506. Scope of information obtained by the mutual consent voluntary adoption registry.
A mutual consent voluntary adoption registry shall obtain only information necessary for identifying a birth parent or adult adoptee and in no event shall
obtain information of any kind pertaining to the adoptive parents, any siblings to the adult adoptee who are children of the adoptive parents, the income
of anyone and reasons for adoptive placement.
§48-23-507. Fees for operations of the mutual consent voluntary adoption registry.
All costs for establishing and maintaining a mutual consent voluntary adoption registry shall be obtained through user's fees charged to all persons who
register.
PART 6. HEALTH HISTORY; SOCIAL AND GENETIC HISTORY.
§48-23-601. Compilation of nonidentifying information on health history and social and genetic history.
(a) Prior to placement for adoption, the court shall require that the licensed adoption agency or, where an agency is not involved, the person, entity or
organization handling the adoption, shall compile and provide to the prospective adoptive parents a detailed written health history and genetic and social
history of the child. These histories must exclude information that would identify birth parents or members of a birth parent's family. The histories must
be set forth in a document that is separate from any document containing such identifying information.
(b) The court, or an agency designated by the court, or judge thereof, shall provide to an agency, person, or organization handling the adoption the forms
which must be utilized in the acquisition of the above-described detailed nonidentifying written health history and genetic and social history of the child.
If the records cannot be obtained, the court shall make specific findings as to why the records are unobtainable.
(c) Records containing such nonidentifying information and which are set forth on a document described in subsection (a) above, separate from any document
containing identifying data:
(1) Shall be retained by the clerk of the court for ninety-nine years; and
(2) Shall be available upon request, throughout the time specified in subdivision (1) of this subsection together with any additional nonidentifying information
which may have been added on health or on genetic and social history, but which excludes information identifying any birth parent or member of a birth parent's
family, or the adoptee or any adoptive parent of the adoptee, to the following persons only:
(A) The adoptive parents of the child or, in the event of death of the adoptive parents, the child's guardian;
(B) The adoptee upon reaching the age of eighteen;
(C) In the event of the death of the adoptee, the adoptee's spouse if he or she is the legal parent of the adoptee's child or the guardian of any child
of the adoptee;
(D) In the event of the death of the adoptee, any progeny of the adoptee who is age eighteen or older; and
(E) The birth parent of the adoptee.
(d) The person requesting nonidentifying health history and genetic and social history shall pay the actual and reasonable costs of providing that information.
This provision requiring payment of costs is subject to sections of this article that provide for the adoptee to obtain information by petitioning the court.
§48-23-701. Prohibited conduct.
(a) No person, agency, entity or organization of any kind, including, but not limited to, any officer or employee of this state and any employee, officer
or judge of any court of this state, may disclose any confidential information relating to an adoption except as provided in this article or pursuant to
a court order. Any employer who knowingly or negligently allows any employee to disclose information in violation of this article is subject to the penalties
provided in subsection (b) of this section, together with the employee who made any disclosure prohibited by this law.
(b) Any person, agency, entity or organization of any kind who discloses information in violation of this law is liable to the parties so injured in an
action to recover damages in respect thereto.
