Posts Tagged ‘Mississippi Adoption Articles’

In the State of Mississippi is terminating Parental Rights necessary to adopt a child?

Wednesday, November 9th, 2011

In several Mississippi Chancery Court jurisdictions, Courts have begun requiring that a third party or interested person/relative step in and adopt any child in order to grant the termination of parental rights against a natural parent.  This same situation can be said to apply to parents who have previously adopted or had other custodial rights adjudicated by a court.  Conversely, it is absolutely necessary to terminate the parental rights of biological parents in order to have a valid adoption.  The interplay between these two distinct sections of Mississippi statue present some difficult questions for lawyers, but they can be addressed relatively simply by review of both statues and common law principles.

First of all, the standard definition for adoption is the statutory process of terminating a child’s legal rights and duties toward the natural parents and substituting similar rights and duties toward adopted parents.  In this regard it appears that adoption is actually akin to effecting the rights of a child in relation to both natural and adoptive parents.  This tends to explain the reason that a termination of parental rights is necessary in order for an adoption to take place and be upheld by a court in Mississippi if later challenged.

Adoption exists solely by the virtue of statue in the State of Mississippi; however it needs to be stated clearly that the court’s consideration of the child’s best interest can only arise in adoption proceedings at a point of which the court has determined that the natural parents have either consented to the adoption, are unfit to rear the child or children, or have abandoned the child.  Also the parental rights must have previously have been terminated in order for the adoption to take place.  This can be done in the same proceeding although commonly terminations take place in a separate proceeding before the adoption, however they usually do end up in the same action and case file.

Chancery Court has exclusive jurisdiction over adoptions in the State of Mississippi, see Mississippi Code Ann., 93-17-3.  The proper venue for adoption proceedings is the place of residence of the plaintiff, or where the child resides.  It is possible to actually have an adoption proceeding where the child was born or where the child to be adopted was found or abandoned although, the residence of the child or plaintiff’s as appropriate venue has been challenged less often than these later mentioned possibilities.

According to the MS Code Annotated any person including an adult may be adopted.  An unmarried adult may adopt a child, or an adult, or a married couple may adopt together thereby vesting joint rights of parentage and two people both jointly and severely.  If natural parents have not abandoned a child, or have not been determined to be unfit, or had their parental rights terminated, the consent of both would be necessary for an adoption to take place.  The consent to adoption that is procured by fraud, duress, or undue influence, proved by clear and convincing evidence may be set aside.  However recent Mississippi jurisprudence makes clear that in a situation where a father is not served with process of an adoption and has no notice of the proceeding, it does not absolutely guarantee that he will be able to set that adoption aside upon filing a petition with the chancery court when he becomes aware of the proceeding.  This creates some confusion when compared with due process requirements as well as  the 5th and 14th Amendments to the United States Constitution which tend to require notice of just about any proceeding effecting the property rights or other rights which are fundamental to a respondent or one that should have been made a respondent in a chancery court matter.

Generally speaking, a father will have to show additional facts in order to mandate that he be served with process in the adoption if he seeks to set aside an adoption ex post facto.  For instance, the Mississippi statute now indicates that the father must demonstrate the responsibilities of parenthood  by taking care or providing for the mother while pregnant, paying for medical bills, or other showings that he committed himself to being a parent and is not simply a semen donor.  In essence, the Mississippi statute and common law requires that a father take steps to legitimize the child as his own before permitting him to challenge an adoption later for lack of proper notice, as would normally be required by due process.  This area of law is still developing but the Mississippi Code seems to have taken some steps toward providing unwed father’s rights which they may not have had fifty years ago, but they’re still not placed in the same standing as a biological mother in terms of their ability to challenge an adoption ex post facto, even where no notice was provided.

The Constitution upholds the right to be a parent and it is cherished virtually by every state and country in the world. However, the term “dead beat dad” has become a commonly used word and one of concern to many.  There’s several grounds for termination of parental rights recognized by Mississippi Statutory law.  Firstly this applies to a parent who has deserted a child without means of identification; or has abandoned and made no contact with the child under the age of three for six months, or a child three years or older for the period of one year.  Similarly a parent responsible for a series of abusive incidents concerning one or more children may meet the statutory grounds for termination of their rights.  Also, if the child has been in care and custody of a licensed child care agency for a year and the agency has made diligent efforts to develop and implement a plan for retuning the child to it’s parents but the parent or parents have failed to exercise reasonable available visitation with the child, or the parent has agreed to a plan to effect placement of a child with a parent but has failed to implement the plan so that the child care agency is unable to return the child to the parent.

Another possibility is that the parent has exhibited ongoing behavior which would make it impossible to return the child to the parent’s care and custody because the parent is diagnosed as a alcoholic, drug addict, or is so severely mentally deficient, mentally ill, or physically handicapped that the parent is unable to provide minimally acceptable care of the child; or if the parent has failed to eliminate behavior which prevents placement of the child with a parent in spite of diligent efforts of the child care agency to  assist the parent.  If there is an existing and extreme deep-seated antipathy by the child toward the parent, or there is some substantial erosion of the relationship between parent and child which was caused at least in part by serious neglect, abuse, prolonged and unreasonable absence, unreasonable failure to visit or  communicate, or prolonged imprisonment on the part of the parent, there are grounds for termination of parental rights.  I hope this brief summary gives you a basic grasp of termination of parental rights and adoption laws in the State of Mississippi and the common  interplay between them.