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Adoption / August 26, 2016

Parental Consent to Adoption: When is it Valid?

Diamondhead Adopted Child Has Three Parents After DHS Mistake

A Diamondhead boy named David now has three parents after a Department of Human Services (DHS) mistake during his adoption process, according to The Sun Herald. David’s mother abandoned him at the hospital, and Shawn and Rachel Self attempted to adopt him. But when a Hancock County DHS employee failed to fill out the paperwork correctly, the Selfs were not able to adopt David immediately. It turns out that Ms. Favre had signed a legal pad with a handwritten version of the DHS service agreement giving up her child for adoption. This service agreement would have created a Termination of Parental Rights (TPR) for Ms. Favre, and is necessary for an adoption. But she never signed the legally binding typewritten form.

This allowed David’s birth mother, Darlene Favre, the opportunity to claim custody, which she did. This resulted in a case in Youth Court and in Chancery Court. But the adoptive parents were able to resolve the dispute with the birth mother and come up with a visitation schedule, just like after a divorce. Now the Selfs have durable legal custody of David. Durable legal custodians have fewer rights than adoptive parents, but do not require the involvement of DHS.

Mississippi Law Allows Parental Consent to Adoption

In Mississippi, there are two different ways that a termination of parental rights (TPR) can occur: as part of an adoption proceeding or separate from an adoption proceeding. According to the Mississippi Code, a lawsuit to terminate parental rights requires a court to appoint a guardian ad litem. But if there is parental consent to the adoption and there is no adoption agency involved, the court can decide whether or not to appoint a guardian ad litem.

A termination of parental rights is uncontested if all parties with parental rights have signed a valid consent to adoption form. The parties who must consent include the biological mother and the legal father, unless they no longer have parental rights at the time of adoption. The parent(s) must wait at least 72 hours after the birth of the child to sign the consent to adoption. DHS policy requires parents to sign a document known as Form 459 to consent to adoption. Once the parent signs a valid consent to adoption form, they may not withdraw their consent unless they can prove that they signed it under duress, fraud, or undue influence. In other words, someone made them sign the agreement and they didn’t want to. DHS does not need to consent to an adoption.

Why Was the Birth Mother’s Consent Invalid?

There are several reasons why the court may have found that, in David’s case, the biological mother Ms. Favre did not consent to adoption. If Ms. Favre signed the legal pad document without waiting at least 72 hours after the birth of the child, then this signature would not create a valid consent to adoption. It appears from reports that Ms. Favre did not sign DHS Form 459. It’s likely that the legal pad writing did not contain all of the necessary language from Form 459 to create a valid consent to adoption. For example, Form 459 explicitly states that the consent to adoption is irrevocable. If the legal pad writing did not contain this statement, it’s possible that Ms. Favre could argue that she did not understand that her consent was irrevocable.

Get Legal Help

If you or a loved one wish to adopt, you can benefit from legal assistance. Get in touch with an experienced family law attorney at the office of Derek L. Hall, PC in Jackson today to get the help you need.

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