CONSENT TO ADOPTION IN SOUTH DAKOTA

Current Through March 2017

WHO MUST CONSENT TO AN ADOPTION

Citation: Codified Laws § 25-6-4

No child may be adopted without the consent of the child’s parents.

CONSENT OF CHILD BEING ADOPTED

Citation: Codified Laws § 25-6-5

A child who is age 12 or older must consent to the adoption.

WHEN PARENTAL CONSENT IS NOT NEEDED

Citation: Codified Laws § 25-6-4

If it is in the best interests of the child, the court may waive consent from a parent or putative father who:

• Has been convicted of any crime punishable by imprisonment in the penitentiary for a period that, in the opinion of the court, will deprive the child of the parent’s companionship for a critical period of time
• Has, by clear and convincing evidence, abandoned the child for 6 months or more immediately prior to the filing of the petition
• Has substantially and continuously or repeatedly neglected the child and refused to give the child necessary parental care and protection
• Being financially able, has willfully neglected to provide the child with the necessary subsistence, education, or other care necessary for the child’s health, morals, or welfare or has neglected to pay for such subsistence, education, or other care, if legal custody of the child is lodged with others and such payment has been ordered by the court
• Is unfit by reason of habitual abuse of intoxicating liquor or narcotic drugs
• Has been judicially deprived of the custody of the child if the adjudication is final on appeal to the court of last resort or the time for an appeal has expired
• Has caused the child to be conceived as a result of rape or incest
• Does not appear personally or by counsel at the hearing to terminate parental rights after notice was received at least 30 days prior to the hearing

WHEN CONSENT CAN BE EXECUTED

Citation: Codified Laws § 25-5A-4

No petition to terminate rights or consent to adoption may be filed until 5 days after the child’s birth.

HOW CONSENT MUST BE EXECUTED

Citation: Codified Laws §§ 25-6-12; 25-5A-16

Before the hearing on a petition for adoption, the person adopting a child, the child adopted, and the other persons whose consent is necessary shall execute their consent in writing, and the person adopting shall execute an agreement to the effect that the child adopted shall be treated in all respects as his or her own. The consent forms and the agreement of the person adopting shall be filed with the court.

At the time of the hearing on the petition, the person adopting the child and the child to be adopted shall appear in court. All persons whose consent is necessary, except the child and the person adopting the child, may be represented by a person who has power of attorney. A guardian may appear on behalf of the child, or a duly incorporated home or society for the care of dependent or neglected children may, by its authorized officer or agent, consent to the adoption of a child surrendered to such home or society by a court of competent jurisdiction. The Department of Social Services may appear in court and consent to the adoption of a child surrendered to it by any court of competent jurisdiction or, if the department has custody of a child by written agreement of a parent or parents with power of attorney to consent to adoption, by the officer of the department holding such power of attorney.

At the time of the hearing, the court, after full and complete inquiry, shall determine whether the petitioner or petitioners are fully aware of the purpose of the proceedings and the consequences of their act.

REVOCATION OF CONSENT

Citation: Codified Laws § 25-6-21

Except in any case involving fraud, any proceeding for the adoption of a child shall be in all things legalized, cured, and validated 1 year after the proceeding is finalized. If any person has a claim or right arising from any adoption proceeding, that person must initiate any action to enforce such right or claim within 1 year of the date when the proceeding is finalized, unless a 2-year statute of limitations is imposed by the Indian Child Welfare Act.

POSTADOPTION CONTACT AGREEMENTS BETWEEN BIRTH AND ADOPTIVE FAMILIES IN SOUTH DAKOTA

Current Through August 2018

WHAT MAY BE INCLUDED IN POSTADOPTION CONTACT AGREEMENTS?

Citation: Codified Laws § 25-6-17

The natural parents of an adopted child shall retain no rights or privileges to visitation or other postadoption contact with the child, except in cases where a natural parent consents to the adoption of a child by the child’s stepfather or stepmother who is the present spouse of the natural parent, or in cases of voluntary termination where there is a written preadoption agreement between the natural parent or parents and the adoptive parents.

WHO MAY BE A PARTY TO A POSTADOPTION CONTACT AGREEMENT?

Citation: Codified Laws § 25-6-17

In cases where the natural parent consents to an adoption by the child’s stepparent, or where there is a voluntary termination of the natural parent(s)’ rights, the natural parents may enter into a written preadoption agreement with the adoptive parents.

WHAT IS THE ROLE OF THE COURT IN POSTADOPTION CONTACT AGREEMENTS?

Citation: Codified Laws § 25-6-17

The courts do not have jurisdiction over the agreements. The South Dakota Supreme Court decision, People in Interest of S.A.H., 537 N.W.2d 1 (S.D. 1995), is abrogated by the South Dakota Legislature insofar as the case gave circuit courts the option to order an open adoption or posttermination visitation. This section does not apply to preadoption agreements entered into before July 1, 1997.

ARE AGREEMENTS LEGALLY ENFORCEABLE?

Citation: Codified Laws § 25-6-17

Enforcement is not specifically addressed in the statutes reviewed.

Postadoption visitation is an extraordinary remedy that may be exercised only by the adoptive parents when in the child’s best interests.

HOW MAY AN AGREEMENT BE TERMINATED OR MODIFIED?

This issue is not addressed in the statutes reviewed.

RIGHTS OF UNMARRIED FATHERS IN SOUTH DAKOTA

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Current Through August 2017

LEGAL DEFINITION OF ‘FATHER’

Citation: Ann. Laws § 25-5A-1

The term ‘parents’ means the mother and father, if living, of a child.

The term ‘putative father’ means any person who claims to be, or is named as, the biological father or a possible biological father of a child and whose paternity of the child has not been judicially determined.

PATERNITY REGISTRY

Citation: Ann. Laws § 25-8-50; 25-8-63

Upon the birth of a child to an unmarried woman, and prior to discharge, any hospital, physician, health-care provider, midwife, or nurse who assists in the birth of the child shall:

• Provide an opportunity for the child’s mother and alleged father to sign under oath an affidavit of paternity
• Provide to the mother and to the alleged father any necessary information furnished by the Department of Social Services that describes, among other things:
  • The rights and responsibilities of parentage
  • The benefits of having the child’s paternity established
  • The alleged father’s legal rights and responsibilities, including his right to request genetic testing
  • The child’s right to receive child support
  • That a signed affidavit of paternity creates a rebuttable presumption of paternity
  • That a signed affidavit of paternity allows the establishment of a support obligation without requiring further proceedings to establish paternity
  • That completion of the affidavit of paternity is voluntary and is not required of either the mother or the alleged father

If obtained, the fully completed, signed, and notarized original affidavit of paternity shall be forwarded to the Department of Health within 7 days following the birth of the child. Every affidavit or adjudication of paternity shall be filed with the Department of Health for comparison with information contained within the state case registry.

ALTERNATE MEANS TO ESTABLISH PATERNITY

CITATION: ANN. LAWS §§ 25-8-7; 25-8-7.1

An action to determine paternity is a civil action governed by the Rules of Civil Procedure. They are not exclusive of other proceedings that may be available on principles of law or equity.

Upon determining paternity of a child, the court shall give judgment declaring the paternity of the father to the child. The court may award a money judgment to the appropriate party for the recovery of the reasonable expenses of the mother’s pregnancy and confinement; for the education, support, or funeral expenses for the child; or for any other expenses with respect to the child as the court deems reasonable.

In any action or proceeding in which the parentage of a child is at issue, including disestablishment proceedings pursuant to § 25-8-64, upon motion of the court or the department or any of the interested parties, the court shall, for good cause shown, order the mother, the child, or any alleged father to submit to an examination of blood, tissue, or other bodily substances for the purpose of testing any genetic systems that are generally accepted within the scientific community for the conclusive determination of paternity probability. The results of the tests, together with the opinions and conclusions of the testing laboratory, shall be filed with the court.

REQUIRED INFORMATION

This issue is not addressed in the statutes reviewed.

REVOCATION OF CLAIM TO PATERNITY

Citation: Ann. Laws § 25-8-59

Any action contesting a rebuttable presumption of paternity shall be commenced in circuit court either 60 days after the creation of the presumption of paternity or the date of any administrative or judicial proceedings relating to the child, including proceedings to establish a support obligation, whichever occurs earlier, except in cases where there are allegations of fraud, duress, or material mistake of fact.

In cases involving allegations of fraud, duress, or material mistake of fact, any action contesting a rebuttable presumption of paternity shall be commenced within 3 years after the creation of any presumption. The burden of proof shall be upon the moving party, and the payment of child support or any other legal responsibilities of the parties may not be suspended during the pendency of the proceedings, except upon a showing of good cause by the moving party.

ACCESS TO INFORMATION

This issue is not addressed in the statutes reviewed.

WHO MAY ADOPT, BE ADOPTED, OR PLACE A CHILD FOR ADOPTION IN SOUTH DAKOTA

Current Through December 2015

WHO MAY ADOPT

Citation: Ann. Laws §§ 25-6-2; 25-6-3

Any adult person who is at least 10 years older than the child may adopt. A married person must have the consent of his or her spouse unless they are legally separated.

WHO MAY BE ADOPTED

Citation: Ann. Laws §§ 25-6-2; 25-6-18; 25-6-24

Any minor child may be adopted. An adult may be adopted if he or she consents and if he or she lived in the home of the adoptive parents during his or her minority for at least 6 months.

Due regard shall be afforded to the Indian Child Welfare Act (25 U.S.C. § 1901, et seq.), if that act is applicable.

WHO MAY PLACE A CHILD FOR ADOPTION

Citation: Ann. Laws § 26-6-8

Only the following entities may place a child for adoption:

• The child’s parents
• A guardian of the child
• A home or society for the care of dependent or neglected children to which the child has been surrendered for adoption by the court
• The Department of Social Services if the department has custody of the child

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