HF 2328 (LSB 5897YH (5) 87)

HOUSE FILE 2328

BY  FRY

A BILL FOR

An Act providing for open adoptions and voluntary postadoption contact agreements relating to private termination of parental rights and adoption proceedings.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF IOWA:

    Section 1.  Section 144.24, Code 2018, is amended to read as follows:
   144.24  Substituting new for original birth certificates —— inspection.
   If a new certificate of birth is established, the actual place and date of birth shall be shown on the certificate. The certificate shall be substituted for the original certificate of birth. Thereafter, the original certificate and the evidence of adoption, paternity, legitimation, or sex change shall not be subject to inspection except under order of a court of competent jurisdiction, including but not limited to an order issued pursuant to section 600.16A, as provided in an open adoption to the extent specifically allowed in a voluntary postadoption contact agreement pursuant to section 600.12B, or as provided by administrative rule for statistical or administrative purposes only. However, the state registrar shall, upon the application of an adult adopted person, a biological parent, an adoptive parent, or the legal representative of the adult adopted person, the biological parent, or the adoptive parent, inspect the original certificate and the evidence of adoption and reveal to the applicant the date of the adoption and the name and address of the court which issued the adoption decree.
    Sec. 2.  Section 600.2, subsection 1, Code 2018, is amended to read as follows:
   1.  “Child”, “parent”, “parent-child relationship”, “termination of parental rights”, “biological parent”, “stepparent”, “guardian”, “custodian”, “guardian ad litem”, “minor”, “adoption service provider”, “certified adoption investigator”, “adult”, “agency”, “department”, “court”, and “juvenile court”, “gestational carrier”, “open adoption”, and “voluntary postadoption contact agreement”, mean the same as defined in section 600A.2.
    Sec. 3.  Section 600.5, Code 2018, is amended by adding the following new subsection:
   NEW SUBSECTION.  14.  Whether the adoptive parent and any biological parent of the child are establishing an open adoption and entering into a voluntary postadoption contact agreement.
    Sec. 4.  Section 600.6, Code 2018, is amended by adding the following new subsection:
   NEW SUBSECTION.  6.  A copy of any voluntary postadoption contact agreement for which the adoptive parent and any biological parent requires the approval of the juvenile court or court. 
    Sec. 5.  NEW SECTION.  600.12B  Open adoption —— voluntary postadoption contact agreement.
   1.  Open adoption —— voluntary postadoption contact agreement. 
   a.  An adoptive parent of a child may enter into an open adoption by executing a voluntary postadoption contact agreement with any biological parent of the child, unless the adoption involves a gestational carrier or if the biological parent’s parental rights were terminated pursuant to chapter 232.
   b.  An adoption service provider shall, prior to or at the time of seeking a release of custody under section 600A.4, provide notification to an adoptive parent and any biological parent that, subject to court approval, the parties may enter into a voluntary postadoption contact agreement.
   c.  If a child is fourteen years of age or older at the time of the issuance of an adoption decree, the child must consent to the voluntary postadoption contact agreement.
   2.  Prohibited provisions of a voluntary postadoption contact agreement.  The juvenile court or court shall not approve a voluntary postadoption contact agreement that provides for any of the following:
   a.  That the biological parent is allowed unsupervised visitation with the child at any time.
   b.  That the biological parent may reasonably expect the child to refer to the biological parent as “mother”, “father”, or any derivative of those terms.
   c.  That the biological parent may share pictures or videos of the child on any social media platform.
   d.  That the adoptive parent is in any way prohibited from relocating.
   e.  That the biological parent retains any rights generally reserved to a parent.
   3.  Approval of a voluntary postadoption contact agreement.  The juvenile court or court shall approve a voluntary postadoption contact agreement required to be filed as an attachment to an adoption petition pursuant to section 600.6, if the juvenile court or court determines that all of the following conditions are met:
   a.  The agreement has been entered into knowingly and voluntarily by all parties and is accompanied by an affidavit made under oath that affirmatively states the agreement was entered into knowingly and voluntarily and is not the product of coercion, fraud, or duress. The affidavit may be executed jointly or separately by the biological parent and the adoptive parent. 
   b.  The agreement specifically advises the biological parent that the agreement is based on the personal circumstances of the parties at the time the agreement is entered into, and that continuation of the agreement is subject to the adoptive parent’s continuing assessment that such agreement is in the best interest of the child.
   c.  The agreement does not contain any of the prohibited conditions specified in subsection 2.
   d.  The agreement is otherwise in the best interest of the child. In making this determination, the factors that the juvenile court or court shall consider but is not limited to considering include:
   (1)  The stated desires of the adoptive parent and the biological parent.
   (2)  The willingness and ability of the biological parent to respect and appreciate the parent-child relationship between the child and the adoptive parent.
   (3)  The willingness and ability of the adoptive parent to respect and appreciate the benefit to the child of continuing contact between the child and the biological parent.
   (4)  Any evidence of abuse or neglect of the child by the biological parent.
   (5)  Any history of alcohol or substance abuse on the part of the biological parent.
   (6)  Any other factor the court deems relevant.
   4.  Legal effect of voluntary postadoption contact agreement.  A voluntary postadoption contact agreement shall not be legally enforceable unless approved by the juvenile court or court. Such agreement shall not be entered into by the parties until the parental rights of the biological parents have been terminated and all time frames for appeal or vacation of the termination of parental rights order have expired. The fact that a biological parent believes that a prospective adoptive parent will agree to enter into a voluntary postadoption contact agreement and later does not agree to enter into such an agreement, or the refusal of an adoptive parent to enter into such an agreement, shall not be considered fraud and does not otherwise constitute good cause pursuant to section 600A.4, subsection 4, for the purposes of revocation of a release of custody previously executed.
   5.  Termination or modification of voluntary postadoption contact agreement —— recourse for adoptive parent.  Following approval of a voluntary postadoption contact agreement by the juvenile court or court, if an adoptive parent reasonably believes that it is no longer in the best interest of the child for the adoptive parent to comply with the terms of the agreement, the adoptive parent may do any of the following:
   a.  Notify the biological parent, in writing, of the determination that compliance with the agreement is no longer in the best interest of the child and the reasons for the determination, and provide the biological parent the opportunity to address the reasons for the determination. 
   b.  Petition the juvenile court or court to modify or terminate the agreement. Only an adoptive parent may file a petition to modify or terminate a voluntary postadoption contact agreement. 
   (1)  An action to modify or terminate a voluntary postadoption contact agreement shall be brought in the juvenile court or court of the county in which the adoption decree was entered or in which the adopted child resides. There shall be a rebuttable presumption that the adoptive parent’s request to modify or terminate the agreement is in the best interest of the child. 
   (2)  Following notice and hearing, the juvenile court or court may grant an order to modify or terminate a voluntary postadoption contact agreement, if the court finds by clear and convincing evidence that the modification or termination is in the best interest of the child. If the action involves a child fourteen years of age or older, the juvenile court or court shall consider the stated objections of the child in determining the best interest of the child. 
   6.  Refusal to comply with a voluntary postadoption contact agreement —— recourse for biological parent.  Following approval of a voluntary postadoption contact agreement by the juvenile court or court, if a biological parent reasonably believes an adoptive parent is improperly refusing to comply with the agreement, the biological parent may petition the juvenile court or court to compel the adoptive parent to comply with the terms of the agreement. The action to compel compliance with the voluntary postadoption contact agreement shall be brought in the juvenile court or court of the county in which the adoption decree was entered or in which the adopted child resides.
   a.  In any action to compel compliance under this subsection, the burden of proof shall be on the biological parent to show by clear and convincing evidence that a continuation of the voluntary postadoption contact agreement is in the best interest of the child. There shall be a rebuttable presumption that the adoptive parent’s failure to comply with the agreement is in the best interest of the child.
   b.  If the action involves a child fourteen years of age or older, the juvenile court or court shall consider the stated objections of the child in determining the best interest of the child. 
   c.  The best interest of the child shall be the paramount factor in determining whether the terms of the voluntary postadoption contact agreement should be enforced.
   d.  Any action brought by a biological parent to enforce the terms of a voluntary postadoption contact agreement shall be tried in equity and the appointment of counsel by the court to represent the interest of the biological parent is not required regardless of the financial circumstances of the biological parent. 
   e.  If the juvenile court or court determines by clear and convincing evidence that an adoptive parent is violating a court-ordered voluntary postadoption contact agreement and the violation is contrary to the best interest of the child, the court may do any of the following: 
   (1)  Require the adoptive parent to immediately comply with the agreement.
   (2)  Order the adoptive parent to participate in counseling or mediation with the biological parent to resolve the dispute which led to the adoptive parent’s failure to comply with the agreement.
   f.  (1)  After notice and hearing, if the court orders an adoptive parent to comply with the voluntary postadoption contact agreement or to participate in counseling or mediation with the biological parent pursuant to paragraph “e”, but the adoptive parent willfully and intentionally continues to violate the court order to comply or participate, the adoptive parent may be held in contempt and punished in accordance with chapter 665.
   (2)  Failure of an adoptive parent to comply with a court order to comply with the voluntary postadoption contact agreement or to participate in counseling or mediation, even after being held in contempt, shall not be grounds for setting aside an adoption decree. 
    Sec. 6.  Section 600.16, Code 2018, is amended by adding the following new subsection:
   NEW SUBSECTION.  5.  Notwithstanding any provision to the contrary, this section shall not apply to an open adoption to the extent disclosure of information otherwise protected under this section is specifically allowed in a voluntary postadoption contact agreement.
    Sec. 7.  Section 600.16A, Code 2018, is amended by adding the following new subsection:
   NEW SUBSECTION.  7.  Notwithstanding any provision to the contrary, this section shall not apply to an open adoption to the extent disclosure of information otherwise protected under this section is specifically allowed in a voluntary postadoption contact agreement.
    Sec. 8.  Section 600A.2, Code 2018, is amended by adding the following new subsections:
   NEW SUBSECTION.  9A.  “Gestational carrier” means a woman who carries a fertilized embryo, to which she has no biological relationship, to term. 
   NEW SUBSECTION.  14A.  “Open adoption” means an agreement, the specific terms of which shall be incorporated into a voluntary postadoption contact agreement, between one or both biological parents and an adoptive parent of a child that allows a biological parent to maintain contact with the adopted child and establish a nonparental relationship with the child following adoption. 
   NEW SUBSECTION.  21.  “Voluntary postadoption contact agreement” means a voluntary written agreement between an adoptive parent and a biological parent whose rights have been terminated pursuant to chapter 600A, that is approved by the court and provides for continuing contact or communication between the child and the biological parent or between the adoptive parent and the biological parent. 
    Sec. 9.  Section 600A.4, subsection 2, Code 2018, is amended by adding the following new paragraph:
   NEW PARAGRAPH.  l.  Shall state that a biological parent was informed of the possibility of entering into a voluntary postadoption contact agreement with the adoptive parent, subject to approval of the juvenile court or court. The biological parent shall be informed that a voluntary postadoption contact agreement shall not be entered into until the parental rights of the biological parents have been terminated and all time frames for appeal or vacation of the termination of parental rights order have expired. The fact that a biological parent believes that a prospective adoptive parent will agree to enter into a voluntary postadoption contact agreement but later does not agree to enter into such an agreement, or the refusal of an adoptive parent to enter into such an agreement, shall not be considered fraud and does not otherwise constitute good cause pursuant to subsection 4 for the purposes of revocation of a release of custody previously executed. 
EXPLANATION
The inclusion of this explanation does not constitute agreement with
the explanation’s substance by the members of the general assembly.
   This bill provides for open adoptions and voluntary postadoption contact agreements relative to private termination of parental rights and adoption proceedings.
   The bill provides definitions used in the bill including “gestational carrier”, “open adoption”, and “voluntary postadoption contact agreement”.
   The bill requires that an adoption petition include a statement as to whether the adoptive parent and any biological parent of the child are establishing an open adoption and entering into a voluntary postadoption contact agreement. Additionally, a copy of the voluntary postadoption contact agreement, for which the adoptive parent and any biological parent requires the approval of the juvenile court or court, must be attached to the adoption petition. 
   The bill provides that an adoptive parent of a child may enter into an open adoption by executing a voluntary postadoption contact agreement with any biological parent of the child, unless the adoption involves a gestational carrier or if the biological parent’s parental rights were terminated pursuant to Code chapter 232 (juvenile justice). An adoption service provider is required, prior to or at the time of seeking a release of custody, to provide notification to an adoptive parent and any biological parent that, subject to court approval, the parties may enter into a voluntary postadoption contact agreement. Such agreement shall not be entered into by the parties until the parental rights of the biological parents have been terminated and all time frames for appeal or vacation of the termination of parental rights order have expired. The fact that a biological parent believes that a prospective adoptive parent will agree to enter into a voluntary postadoption contact agreement but later does not agree to enter into such an agreement, or the refusal by the adoptive parent to enter into a voluntary postadoption contact agreement, shall not be considered fraud and does not otherwise constitute good cause for the purposes of revocation of a release of custody. If a child who is being adopted is 14 years of age or older at the time of the issuance of an adoption decree, the child must consent to the voluntary postadoption contact agreement.
   The bill specifies certain prohibited provisions from being included in a voluntary postadoption contact agreement, and requires approval of the agreement, which was filed as an attachment to the adoption petition, by a juvenile court or court based on certain factors in order to be legally enforceable, including that the agreement is in the best interest of the child. 
   The bill provides recourse for the adoptive parent to either notify the biological parent to informally address issues relating to compliance with a voluntary postadoption contract agreement, or to petition the juvenile court or court to modify or terminate a voluntary postadoption contact agreement following approval by the juvenile court or court, if an adoptive parent reasonably believes that it is no longer in the best interest of the child for the adoptive parent to comply with the terms of the agreement. Additionally, the bill provides recourse for a biological parent to petition the juvenile court or court to compel an adoptive parent to comply with the agreement if a biological parent reasonably believes an adoptive parent is improperly refusing to comply with the agreement. The court’s decision in both cases is based on the best interest of the child, and if the action involves a child 14 years of age or older, the juvenile court or court shall consider input from the child in determining what is in the child’s best interest. If the juvenile court or court determines by clear and convincing evidence that an adoptive parent is violating a court-ordered voluntary postadoption contact agreement and the violation is contrary to the best interest of the child, the court may require the adoptive parent to immediately comply with the agreement or order the adoptive parent to participate in counseling or mediation with the biological parent to resolve the dispute which led to the adoptive parent’s failure to comply with the agreement. After notice and hearing, if the court orders an adoptive parent to comply with the voluntary postadoption contact agreement or to participate in counseling or mediation with the biological parent, but the adoptive parent willfully and intentionally continues to violate the court order to comply with the voluntary postadoption contact agreement or participate in counseling or mediation with the biological parent, the adoptive parent may be held in contempt. However, failure of an adoptive parent to comply with a court order to comply with the voluntary postadoption contact agreement or to participate in counseling or mediation, even after being held in contempt, shall not be grounds for setting aside an adoption decree.
   The bill also provides that the disclosure of certain information relating to adoption records and termination of parental rights records is inapplicable to an open adoption to the extent the disclosure of information otherwise protected is specifically allowed in the voluntary postadoption contact agreement. The bill also makes conforming changes in Code section 144.24 (substituting new for original birth certificates —— inspection) and in Code chapter 600A (termination of parental rights).