1947 session laws – Ch.885 Sec.1

Chapter 48 of the General Statutes of North Carolina is hereby rewritten to read as follows: 48-1. Legislative intent; construction of Chapter. The General Assembly hereby declares as a matter of legislative policy with respect to adoption that -1 The primary purpose of this Chapter is to protect children from unnecessary separation from parents who might give them good homes and loving care, to protect them from adoption by persons unfit to have the responsibility of their care and rearing, and to protect them from interference, long after they have become properly adjusted in their adoptive homes, by natural parents who may have some legal claim because of a defect in the adoption procedure. -2 The secondary purpose of this Chapter is to protect the natural parents from hurried decisions, made under strain and anxiety, to give up a child, and to protect foster parents from assuming responsibility for a child about whose heredity or mental or physical condition they know nothing, and to prevent later disturbance of their relationship to the child by natural parents whose legal rights have not been fully protected. -3 When the interest of a child and those of an adult are in conflict, such conflict should be resolved in favor of the child; and to that end this Chapter should be liberally construed. 48-2. Definitions. In this Chapter, unless the context or subject matter otherwise requires -1 Adult person means any person who has attained the age of twenty-one years. -2 Licensed child-placing agency means any agency operating under a license to place children for adoption issued by the State Board of Public Welfare, or, in the event that such agency is in another state or territory or in the District of Columbia, operating under a license to place children for adoption issued by the State Welfare Agency or other duly authorized agency of such state, territory, or the District of Columbia. 48-3. Who may be adopted. Any minor child may be adopted in accordance with the provisions of this Act. 48-4. Who may adopt children. (a) any person over twentyone years of age may petition in a special proceeding in the Superior Court to adopt a minor child and for a change of the name of such child. If the petitioner has a husband or wife living, competent to join in the petition, such spouse shall join in the petition. (b) Provided, however, that if the spouse of the petitioner in a natural parent of the child to be adopted, such spouse need not join in the petition but need only to give consent as provided in G. S. 48-7, (d). (c) Provided further, that the petitioner or petitioners shall have resided in North Carolina for one year next preceding the filing of the petition. 48-5. Parents, etc., not necessary parties to adoption proceedings upon finding of abandonment. (a) In all cases where a court of competent jurisdiction has declared a child to be an abandoned child, the parent, parents, or guardian of the person shall not be necessary parties to any proceeding under this Chapter, nor shall their consent be required. (b) In the event that a court of competent jurisdiction has not theretofore declared the child to be an abandoned child, then on written notice of not less than five days to the parent, parents, or guardian of the person, the court in the adoption proceeding is hereby authorized to determine that an abandonment has taken place. (c) If the parent, parents, or guardian of the person deny that an abandonment has taken place, this issue of fact shall be determined as provided in G. S. 1-273, and if abandonment be determined, then the consent of the parent, parents, or guardian of the person shall not be required. Upon final determination of this issue of fact the proceeding shall be transferred back to the special proceedings docket for further action by the clerk. (d) A copy of the order of the court declaring a child abandoned must be filed in the proceeding with the petition in which case the consent required under G. S. 48-7 must be given in accordance with G. S. 48-9, Subsection (2). 48-6. When consent of father not necessary. In the case of a child born out of wedlock and when said child has not been legitimated as provided by law, the written consent of the mother alone shall be sufficient under the Chapter and the putative father need not be made a party to the proceeding. 48-7. When consent of parents is necessary. (a) Except as provided in G. S. 48-5, and G. S. 48-6, and if they are living and have not released all rights to the child or consented to an adoption as provided in G. S. 48-9, the parents or surviving parent or guardian of the person of the child must be a party or parties of record to the proceeding and must give written consent to the adoption, which must be filed with the petition. (b) In any case where the parents or surviving parent or guardian of the person of the child whose adoption is sought are necessary parties and their address is known, or can by due and diligent search be ascertained, that fact must be made known to the court by proper allegation in the petition or by affidavit and service of process must be made upon such person as provided by law for service of process on residents of the State or by service of process on non-residents as provided in G. S. 1-104. (c) If the address of such person cannot be ascertained for the purpose of service of process or service of process cannot be made as hereinbefore provided, that fact must be made known to the court by proper allegation in the petition or by affidavit to the effect that after due and diligent search such person cannot be found for the purpose of service of process. Service of process upon such person may then be made by publication of summons as provided by G. S. Jan-98 et seq., and as provided by law. (d) When a step-parent petitions to adopt a step-child, consent to the adoption must be given by the spouse of the petitioner. 48-8. Capacity of parents to consent. A parent who has not reached the age of twenty-one years shall have legal capacity to give consent to an adoption and to release such parents rights in a child, and shall be as fully bound thereby as if said parent had attained twenty-one years of age. 48-9. When consent may be given by persons other than parents. (a) In the following instances written consent sufficient for the purposes of the adoption filed with the petition shall be sufficient to make the person giving consent a party tothe proceeding and no service of any process need be made upon such person. -1 When the parent, parents, or guardian of the person of the child, has in writing surrendered the child to a superintendent of public welfare of a county or to a licensed child-placing agency upon a standard form to be supplied by the State Board of Public Welfare and at the same time in writing has consented to an adoption of the child, the superintendent of public welfare or the executive head of such agency shall give consent to the adoption of the child by the petitioners. A county superintendent of public welfare may accept the surrender of a child who was born in the county or whose parent or parents have established residence in the county. -2 If the court finds as a fact that there is no person qualified to give legal consent as provided in this Section, or that one of them cannot do so because of mental incapacity, the court May appoint some suitable person or the county superintendent of public welfare of the county in which the child resides to act in the proceeding as next friend of the child to give or withhold such consent. (b) The surrender of the child and consent for the child to be adopted given by the parent or guardian of the person to the superintendent of public welfare or to the licensed childplacing agency shall be filed with the petition along with the consent of the superintendent of public welfare or of the executive head of the agency to the adoption prayed for in the petition. 48-10. When childs consent necessary. In any proceeding under this Article, a child who is twelve years of age or over or who becomes twelve years of age before the granting of the final order must also consent to the proposed adoption. 48-11. Consent not revocable. No consent described in G. S. 48-6, 48-7, or 48-9, shall be revocable by the consenting party after the entering of an interlocutory decree or a final order of adoption when the entering of an interlocutory decree has been waived in accordance with the provisions of G. S. 48-21. Any person who has consented to an adoption as herein provided shall be deemed to be a party to the adoption proceeding * and shall be bound thereby. 48-12. Nature of proceeding; venue. Adoption shall be by a special proceeding before the Clerk of the Superior Court. The petition may be filed in the county: -1 where the petitioners reside; or -2 where the child resides; or -3 where the child resided when it became a public charge; or -4 in which is located any child-placing agency or institution operating under the laws of this State and having custody of the child or to which the child shall have been surrendered as provided in G. S. 48-9. 48-13. Reference to parental status. No reference shall be made in any petition, interlocutory decree, or final order of adoption to the marital status of the natural parents of the child sought to be adopted, to their fitness for the care and custody of such child, or to their abandonment thereof, nor shall any reference be made to any child being born out of wedlock. A clerk of court must not receive and file any papers which violate the provisions of this Section. 48-14. Use of original name of child unnecessary; name used in proceedings for adoption. (a) Only in the report required by G. S. 48-16 on the investigation of the condition and antecedents of the child sought to be adopted shall the original name of the child given by the natural parent or parents be necessary. (b) In the petition, interlocutory decree, and final order of adoption and in all other papers related to the case the name selected by the petitioner or petitioners as the name for the child may be used as the TRUE and legal name and the original name shall not be necessary. 48-15. The petition for adoption. (a) The caption of the petition shall be substantially as follows: STATE OF NORTH CAROLINA IN THE SUPERIOR COURT pated a ody toh so eee Mee ae COUNTY BEFORE THE CLERK and PETITION (Full name of adopting mother) FOR ADOPTION FOR THE ADOPTION OF (Full name of child as used in proceeding) Nee Nee eee Nee Ne i Oe le a (b) The petition may be prepared on a standard form to be | supplied by the State Board of Public Welfare, or may be typewritten, giving all the information hereinafter required. (c) Such petition must state: -1 the full names of the petitioners; -2 the information necessary to show that the court to which the petition is addressed has jurisdiction; -3 when the petitioners acquired custody of the child, and from what person or agency; -4 the birth date and birth place of the child; -5 the name used for the child in the proceeding; -6 that it is the desire of the petitioners that the relationship of parent and child be established between them and said child; -7 their desire, if they have such, that the name of the child be changed together with the new name desired; -8 the desire of the petitioners that the said child shall, upon adoption, inherit real and personal property in accordance with the statutes of descent and distribution; -9 the values of the personal property and of the real estate owned by the child as far as can be ascertained; -10 that the petitioners are fit persons to have the care and custody of the child; -11 that they are financially able to provide for him; and -12 that there has been full compliance with the law in regard to consent to adoption or that proper service of process will be had. (d) The petition must be signed and verified by the petitioners and must be filed in duplicate. The original of the petition shall be held in the office of the Clerk of the Superior Court and the duplicate sent to the State Board of Public Welfare. (e) The names of the adopting parents must be indexed on the plaintiffs or petitioners side of the cross index of special proceedings. The childs name as used in the proceeding must be indexed on the defendants or respondents side of such index. 48-16. Investigation of conditions and antecedents of child anc of suitableness of foster home. (a) Upon the filing of a petition for adoption the court shall order the county superintendent of public welfare, or a licensed child-placing agency through its authorized representatives, to investigate the condition and antecedents of the child for the purpose of ascertaining whether he is a proper subject for adoption, to make appropriate inquiry to determine whether the proposed foster home is a suitable one for the child; and to investigate any other circumstances or conditions which may have a bearing on the adoption and of which the court should have knowledge. (b) The court may order the superintendent of public welfare of one county to make an investigation of the condition and antecedents of the child and the superintendent of public welfare of another county or counties to make any other part of the necessary investigation. (c) The county superintendent or superintendents of public welfare or the authorized representative of such agency described hereinbefore must make a written report within 60 days of his or their findings, on a standard form or following an outline supplied by the State Board of Public Welfare, for the examination by the court of adoption. 48-17. Interlocutory decree of adoption. (a) Upon examination of the written report required in Section 48-16, the court may issue in triplicate an interlocutory decree of adoption giving the care and custody of the child to the petitioners. Such interlocutory decree must be issued within six months of the filing of the petition unless a final order is entered as provided in G. S. 48-21 (c). It may be issued on a standard form supplied by the State Board of Public Welfare or may be typewritten, giving all the information hereinafter required. (b) The interlocutory decree must state: -1 that all necessary parties are properly before the court and that the time for answering has expired; -2 the name of the child used in the petition; -3 the full names of the petitioners and their county of residence; -4 the fact and date of filing of the petition; and -5 when the petitioners acquired custody of the child and from what person or agency. The interlocutory decree must also state the findings of the court that: -6 the petitioners are fit persons to have the care and custody of the child; -7 the petitioners are financially able to provide for him; -8 the child is a suitable child for adoption; and -9 the adoption is for the best interest of the child. 48-18. Effect of interlocutory decree. (a) Upon issuance of the interlocutory decree the child shall be placed in the care and custody of the petitioners pending further orders of the court. Such decree shall be provisional only and may be rescinded or modified at any time prior to the final order of adoption. Until the final order of adoption is made, the child shall be a ward of the court having jurisdiction. (b) When a husband and wife have petitioned jointly to adopt and an interlocutory decree has been entered, and the death of one spouse occurs before the time for the entering of the final order, the petition of the living petitioner shall not be invalidated by the fact of the death of the other petitioner, and the court may proceed to grant the adoption to the surviving petitioner. 48-19. Report on placement after interlocutory decree. When the court enters an interlocutory decree of adoption, it must order the county superintendent of public welfare or a licensed child-placing agency through its duly authorized representative to supervise the child in its adoptive home and report to the court on the placement in writing in accordance with an outline or form supplied by the State Board of Public Welfare, such report being for examination by the court before entering any final order. 48-20. Dismissal of proceeding. (a) If at any time between the filing of a petition and the issuance of the final order completing the adoption it is made known to the court that circumstances are such that the child should not be given in adoption to the DEMON the court may dismiss the proceeding. (b) The court shall give notice to the petitioners of the impending dismissal of the proceeding and they shall be entitled to a hearing to admit or refute the facts upon which the action of the court is to be based. 48-21. Final order of adoption; termination of proceeding within three years. (a) If no appeal has been taken from any order of the court, the court must complete or dismiss the proceeding ly entering a final order within three years of the filing of the petition. A final order of adoption must not be entered earlier than one year from the date of the interlocutory decree except as hereinafter provided. (b) If an appeal is taken from any order of the court, the proceeding must be completed by the court by entering a final order of adoption or a final order dismissing the proceeding within two years from the final judgment upon the appeal. (c) Upon examination of the written report required under G. S. 48-16, the court may, in its discretion, waive the entering of the interlocutory decree and the probationary period and grant a final order of adoption when the child is by blood a grandchild, nephew or niece of one of the petitioners or is the step-child of the petitioner. (d) Upon examination of the written report required under G. S. 48-16 the court may, in its discretion, shorten the probationary period between the granting of the interlocutory decree and the final order of adoption by the length of the time the child has resided in the home of the petitioners prior to the granting of the interlocutory decree; provided that the child was placed in the home of the petitioners by a superintendent of public welfare or by a licensed child-placing agency and such fact has been certified to the court by the superintendent of public welfare or the executive head of the child-placing agency, but no final order shall be entered until the child shall have resided in the home of the petitioners for a period of one year. 48-22. Contents of final order. (a) The final order of adoption must be entered in triplicate and may be made on a standard form furnished by the State Board of Public Welfare or may be typewritten, giving all the information hereinafter required. (b) The final order of adoption must state: -1 that all necessary parties are properly before the court and that the time for answering has expired; -2 the name of the child used in the proceeding; -83 the full names of the petitioners and their county of residence; -4 the date when the petitioners acquired custody of the child and from what person or agency; -5 the fact and date of the filing of the petition; and -6 the fact and date of the interlocutory decree if such a decree has been entered. It must also state the findings of the court that: -7 the petitioners are fit persons to have the care and custody of the child; -8 the petitioners are financially able to provide for him; -9 the child is a suitable child for adoption; and -10 the adoption is for the best interest of the child. (c) The order shall thereupon decree the adoption of the child by the petitioners and shall order that the name of the child be changed to that requested in the petition. 48-23. Effect of final order. The final order forthwith shall establish the relationship of parent and child between the petitioners and the child, and, from the date of the signing of the final order of adoption, the child shall be entitled to inherit real and personal property in accordance with the statutes of descent and distribution. 42-24. Recordation of adoption proceedings. (a) Only the final order of adoption or the final order dismissing the proceeding, and no other papers relating to the proceeding, shall be recorded in the office of the Clerk of the Superior Court in the county in which the adoption takes place. (b) A copy of the petition, the consent, the report on the condition and antecedents of the child and the suitability of the foster home, a copy of the interlocutory decree, the report on the placement, and’a copy of the final order, must be sent by the Clerk of Superior Court to the State Board of Public Welfare in the following order; -1 Within ten days after the petition is filed with the Clerk of Superior Court, a copy of the petition giving the date of the filing of the original petition, and the consent must be filed by the clerk with the State Board of Public Welfare. -2 Within ten days after an interlocutory decree is entered, a copy of the interlocutory decree giving the date of the issuance of the decree and the report to the court on the condition and antecedents of the child and the suitability of the foster home must be filed by the clerk with the State Board of Public Welfare. When the interlocutory decree is waived, as provided in G. S. 48-21 the said report and the reccomendations to waive the interlocutory decree shall be so filed by the clerk. -3 Within ten days after the final order of adoption is made the clerk must file with the State Board of Public Welfare the report on the supervision of the placement during the interlocutory period, and a copy of the final order. (c) The said board must cause all papers and reports related to the proceeding to be permanently indexed and filed. 48-25. Record not to be made public; violation a misdemeanor. (a) Neither the original file of the proceeding in the office of the clerk nor the recording of the proceeding by the State Board of Public Welfare shall be open for general public inspection. (b) With the exception of the information contained in the petition, the interlocutory decree, and the final order, it shall be a misdemeanor for any person having charge of the file or of the record to disclose, except as provided in G. S. 48-26, any information concerninig the contents of any other papers in the proceeding. 48-26. Procedure for opening record for necessary information. (a) Any necessary information in the files or the record of an adoption proceeding may be disclosed, to the party requiring it, upon a written motion in the cause before the clerk of original jurisdiction who may issue an order to open the record. Such order must be reviewed by a Judge of the Superior Court and if, in the opinion of said judge, it be to the best interest of the child or of the public to have such information disclosed, he may approve the order to open the record. (b) The original order to open the record must be filed with the proceeding in the office of the Clerk of Superior Court. If the clerk shall refuse to issue such order, the party requesting such order may appeal to the judge who may order that the record be opened, if, in his opinion, it be to the best interest of the child or the public. 48-27. Procedure when appeal is taken. (a) In the event of an appeal from ruling of the clerk in an adoption proceeding, the clerk must impound all papers and reports not open to the public pending final determination of the appeal. Within ten days after final determination of the appeal, the clerk must forward all papers and reports as specified in G. S. 48-24. (b) The clerk must not at any time furnish to anyone copies or certified copies of any documents in the proceeding other than the petition, the interlocutory decree, and the final order. 48-28. Questioning validity of adoption proceeding. (a) After the final order of adoption is signed, no party to an adoption proceeding nor anyone claiming under such a party may later question the validity of the adoption proceeding by reason of any defect or irregularity therein, jurisdictional or otherwise, but shall be fully bound thereby, save for such appeal as may be allowed by law. No adoption may be questioned by reason of any procedural or other defect by any one not injured by such defect, nor may any adoption proceeding be attacked either directly or collaterally by any person other than a natural parent or guardian of the person of the child. The failure on the part of the Clerk of the Superior Court, the county superintendent of public welfare, or the executive head of a licensed child-placing agency to perform any of the duties or acts within the time required by the provisions of this Act shall not affect the validity of any adoption proceeding. (b) The final order of adoption shall have the force and effect of, and shall be entitled to, all the presumptions attached to a judgment rendered by a court of general jurisdiction. 48-29. Report of change of name to registrar of vital statistics; entry on birth certificate. (a) Whenever in the final order of adoption the name of a child is changed, the court must immediately enter an order directing the State Registrar of Vital Statistics to make a new birth certificate for the child bearing the new name as shown in the order of adoption, name of the adoptive father, maiden name of the adoptive mother, sex, race, and date of birth of the child. No reference in the new birth certificate shall be made to the adoption nor shall the adopting parents be referred to as foster parents. (b) The State Registrar shall place the original certificate of birth and all papers in his possession relating to the adoption under seal which shall not be broken except upon order of a court of competent jurisdiction. Thereafter, when a certified copy of the certificate of birth of such person is issued, it shall be a copy of the new birth certificate, except when an order of a court of competent jurisdiction shall require the issuance of a copy of the original certificate of birth. (c) The State Registrar shall send a copy of the new birth certificate to the register of deeds of the county where the adoption proceedings were instituted. 48-30. Guardian appointed when custody granted of child with estate. When the court grants the petitioners custody of a child, if the child is an orphan and without guardian and possesses any estate to be administered, the court must appoint a guardian as provided by law. 48-31. Rights of adoptive parents. When a child is adopted pursuant to the provisions of this Chapter, the adoptive parents shall not thereafter be deprived of any rights in the child, at the instance of the natural parents or otherwise, except in the same manner and for the same causes as are applicable in proceedings to deprive natural parents of their children. 48-32. Procuring custody of child by forfeiting parents declared crime. Any parent whose rights and privileges have been forefeited as provided by G. S. 48-5 and who shall, otherwise than by legal process, procure the possession and custody of such child with respect to whom his rights and privileges have been forfeited shall be guilty of a crime, and shall be punished as for abduction. 48-33. Past adoption proceedings validated. All proceedings for the adoption of minors in courts of this State are hereby validated and confirmed, and the orders and judgments heretofore entered therein are declared to be binding upon all parties to said proceedings and their privies and all other persons, until such orders or judgments shall be vacated as provided by law; provided that this Section shall not apply to litigation pending on the effective date of this Act in which the validity of a prior adoption proceeding is involved. 48-34. Prior proceedings not affected. Adoption proceedings pending on June 30th, 1947 shall not be affected, except that the provisions of G. S. 48-33 shall apply thereto and such proceedings shall be completed in accordance with provisions of the Statutes in effect at the time such proceedings were instituted; provided that the petitioners in proceedings pending on June 30th, 1947 may discontinue. such proceedings by taking voluntary nonsuits and, upon paying the costs accrued in such discontinued proceedings, may institute new proceedings under the provisions of this Act, in which cases all of the provisions of this Act shall apply.