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CHAPTER 25-5A

VOLUNTARY TERMINATION OF PARENTAL RELATIONS

25-5A-1      Definition of terms.
25-5A-2      Purposes of termination procedure.
25-5A-3      Parent entitled to petition for termination.
25-5A-4      Waiting period for filing petition.
25-5A-5      Circuit court jurisdiction--Venue.
25-5A-6      Verified petition--Contents.
25-5A-7      Consent not invalidated by minority.
25-5A-7.1      Transferred.
25-5A-7.2      Medical and social history form required prior to termination--Filing--Copy available to adoptive parent--Failure to comply does not void termination.
25-5A-7.3      Rules and regulations adopted by department for securing medical and social history.
25-5A-7.4      Violation of medical and social history provisions as misdemeanor involving moral turpitude.
25-5A-8      Hearing procedure.
25-5A-9      Time and place of hearing--Notice.
25-5A-10      Repealed.
25-5A-11      Service of notice in person or by publication--Time of service.
25-5A-12      Service by publication and mail.
25-5A-13      Private hearings--Opening to public.
25-5A-14      Personal presence of parent required--Appearance by telephone--Power of attorney--Indian Child Welfare Act.
25-5A-15      Hearings informal--Best interest of child.
25-5A-16      Determination that petitioners know consequences.
25-5A-17      Record of proceedings.
25-5A-18      Order terminating parental rights--Consent to adoption--Child support arrearages.
25-5A-19      Order conclusive--Appeal to supreme court.
25-5A-20      Records confidential.
25-5A-21      Remedy cumulative.
25-5A-22      Counseling before termination of parental rights.
25-5A-23      Scope of counseling.
25-5A-24      Written report of counseling--Copy to Department of Social Services.
25-5A-25      Failure to receive counseling.
25-5A-26      Termination of parental rights--Validated--Limitation on claims.
25-5A-27      Voluntary delivery of child 60 days of age or younger--Actions to protect child authorized.
25-5A-28      Delivery of unharmed child not a crime.
25-5A-29      Termination of parental rights to delivered child.
25-5A-30      Questions concerning child's medical history--No parental obligation to provide information.
25-5A-31      No liability for entity accepting custody of delivered child.
25-5A-32      Notification to Department of Social Services upon possession of child--Assumption of care, custody and control of child--Investigation of parent restricted.
25-5A-33      Provisions for custody action by nonrelinquishing parent.
25-5A-34      Emergency medical services provider defined.
25-5A-35      Parental rights termination hearing for voluntarily delivered child.
25-5A-36      Due regard to be afforded Indian Child Welfare Act.


     25-5A-1.   Definition of terms. Terms in this chapter mean:
             (1)      "Authorized agency," the Department of Social Services of South Dakota or any agency licensed by the department to place children for adoption;
             (2)      "Child," any minor;
             (3)      "Parents," the mother and father, if living, of a child;
             (4)      "Putative father," 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.

Source: SL 1971, ch 165, § 1; SL 1972, ch 154, § 6; SL 1973, ch 163, § 1; SL 1995, ch 143, § 1.


     25-5A-2.   Purposes of termination procedure. The procedure for the voluntary termination of parental rights for the purpose of adoption or, if a suitable adoption plan cannot be effected, for the purpose of providing for the care of the child by some other plan which may or may not contemplate the continued possibility of eventual adoption, may be initiated whenever it appears that the parent or parents of any child desires to relinquish such parental rights.

Source: SL 1971, ch 165, § 3; SL 1973, ch 163, § 2.


     25-5A-3.   Parent entitled to petition for termination. A petition for the voluntary termination of parental rights may be filed by a parent.

Source: SL 1971, ch 165, § 4; SL 1973, ch 163, § 7.


     25-5A-4.   Waiting period for filing petition. No petition may be filed under this chapter prior to five days after the birth of the child.

Source: SL 1971, ch 165, § 2.


     25-5A-5.   Circuit court jurisdiction--Venue. The circuit court shall have jurisdiction of proceedings under this chapter to terminate parental rights. A petition for voluntary termination of parental rights may be filed in the circuit court for any of the following counties:
             (1)      The county in which the petitioner resides;
             (2)      The county of the location of the authorized agency having care, custody, or control, whether legal or physical, of the child involved;
             (3)      The county in which the child involved resides or is present.

Source: SL 1971, ch 165, § 2.


     25-5A-6.   Verified petition--Contents. The petition for the voluntary termination of parental rights under this chapter shall be verified and contain the:
             (1)      Name and place of residence of the petitioner or petitioners;
             (2)      Name, sex, race, citizenship, and date of birth of the child;
             (3)      Relationship of the petitioner or petitioners to the child;
             (4)      Name, address, race, religion, and citizenship of the parent or parents of the child;
             (5)      Reasons for desiring the termination of parental rights;
             (6)      Name and address of the person or persons or of the authorized agency to whom or to which parental rights are sought to be transferred;
             (7)      Consent of the petitioner or petitioners to the termination of parental rights;
             (8)      Consent executed by the person or persons or authorized agency to whom or to which parental rights are to be transferred;
             (9)      Statement that no temporary assistance for needy families benefits were ever received on behalf of the minor child from the State of South Dakota or any other state.

Source: SL 1971, ch 165, § 5; SL 1973, ch 163, § 3; SL 1995, ch 143, § 3.


     25-5A-7.   Consent not invalidated by minority. If the individual in whom the right exists under this chapter to petition or to execute waivers or consents has not reached majority, this fact shall not affect the validity of such petition, consent or waiver notwithstanding any statutory provisions to the contrary.

Source: SL 1971, ch 165, § 10.


     25-5A-7.1.   Transferred to § 22-22A-4 by SL 2006, ch 130, § 9.


     25-5A-7.2.   Medical and social history form required prior to termination--Filing--Copy available to adoptive parent--Failure to comply does not void termination. Prior to the giving of consent to voluntary termination of parental rights, the parent shall complete a medical and social history form which shall be supplied by the Department of Social Services. When completed such form shall be filed with the court of the state where the medical history portion of the adoption proceedings shall take place. A copy of the completed form shall be made available to the adoptive parent prior to finalization of the adoption and to the adoptee upon reaching the age of eighteen years upon written request and proper proof of identification. No voluntary termination of parental rights heretofore or hereafter entered by any circuit court is void or inoperative due to failure to comply with this section.

Source: SL 1977, ch 205, § 3; SL 1982, ch 193; SL 1994, ch 196, § 1.


     25-5A-7.3.   Rules and regulations adopted by department for securing medical and social history. The Department of Social Services shall adopt rules and regulations pursuant to chapter 1-26 to carry out § 25-5A-7.2. Such rules and regulations shall only provide for securing the minimum amount of information to adequately describe the physical, social, and medical background and history of the minor child.

Source: SL 1977, ch 205, § 5.


     25-5A-7.4.   Violation of medical and social history provisions as misdemeanor involving moral turpitude. Any violation of § 25-5A-7.2 shall be a Class 1 misdemeanor and shall be considered a misdemeanor involving moral turpitude.

Source: SL 1977, ch 205, § 6.


     25-5A-8.   Hearing procedure. The hearing procedure under this chapter shall be as provided in §§ 25-5A-9 to 25-5A-16, inclusive.

Source: SL 1971, ch 165, § 6.


     25-5A-9.   Time and place of hearing--Notice. If a petition for the voluntary termination of parental rights is filed, the court shall set a date for a hearing thereon, and shall cause notice of the time, place, and purpose of the hearing to be served upon the parent or parents. No such notice is necessary if a waiver executed by the parent or parents has been filed with the petition. The court may require notice to be served upon any other person or organization and shall require notice to be served upon the Department of Social Services if the petition indicated that temporary assistance for needy families benefits were ever received on behalf of the minor child in accordance with subdivision 25-5A-6(9). Any failure to provide notice to the Department of Social Services pursuant to this section does not invalidate the proceedings.

Source: SL 1971, ch 165, § 6 (1); SL 1995, ch 143, § 4.


     25-5A-10.   Repealed by SL 1973, ch 163, § 8


     25-5A-11.   Service of notice in person or by publication--Time of service. A notice required pursuant to § 25-5A-9, may be served by any person authorized by the laws of this state to serve a summons in a civil action. Such notice shall be personally served upon every person required to be served if such person resides within the state and may be served upon such person, if without the state, by like personal service or by publication as provided in § 25-5A-12. Such service, whether personally or by publication, shall be made at least five days prior to the time for hearing.

Source: SL 1971, ch 165, § 6 (6); SL 1973, ch 164, § 1.


     25-5A-12.   Service by publication and mail. If the court finds that personal service as provided in § 25-5A-11 cannot be accomplished, the court shall publish notice of the time, place, and purpose of the hearing as provided in § 26-7A-48. The form and wording of notice shall be prescribed by the court.

Source: SL 1971, ch 165, § 6 (4); SL 1973, ch 164, § 2; SL 1991, ch 217, § 168.


     25-5A-13.   Private hearings--Opening to public. All hearings shall be held before the court, privately, but for reasons appearing sufficient to the court, the hearing in any particular case may be made public.

Source: SL 1971, ch 165, § 6 (7).


     25-5A-14.   Personal presence of parent required--Appearance by telephone--Power of attorney--Indian Child Welfare Act. The personal presence of one parent at the hearing is required for jurisdictional purposes. However, for good cause shown, and upon notice to any other person or authorized agency whose consent is required pursuant to § 25-5A-6, the court may permit a parent to appear telephonically if the parent is incarcerated, the parent appears telephonically in the physical presence of a law enforcement or correctional officer designated by the court to monitor the parent's appearance, and the parental rights of the other parent have been terminated or the other parent is deceased. Any other person whose consent is necessary may appear by filing with the court a power of attorney. If the Department of Social Services or a licensed child placement agency has custody of a child by written agreement of a parent with power of attorney to consent, the secretary or an authorized agent may appear and consent. Notwithstanding the foregoing provisions of this section, due regard shall be given to the Indian Child Welfare Act (25 U.S.C. §§ 1901 to 1963, inclusive,) as in effect on January 1, 2005, if applicable.

Source: SL 1971, ch 165, § 6 (2); SL 1974, ch 175; SL 1997, ch 151, § 1; SL 2005, ch 133, § 1.


     25-5A-15.   Hearings informal--Best interest of child. Hearings shall be informal in nature and the best interest of the child shall be considered paramount.

Source: SL 1971, ch 165, § 6 (5).


     25-5A-16.   Determination that petitioners know consequences. 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.

Source: SL 1971, ch 165, § 6 (8).


     25-5A-17.   Record of proceedings. The court shall make a verbatim record of all proceedings under this chapter.

Source: SL 1971, ch 165, § 11.


     25-5A-18.   Order terminating parental rights--Consent to adoption--Child support arrearages. Upon proof of the notice required by § 25-5A-9 and personal service as required by §§ 25-5A-11 and 25-5A-12 to all parents and putative fathers of a child, if, after the court determines that the parents have consented or have waived consent pursuant to § 25-6-4, the court finds that the termination of parental rights and the transfer of parental rights to be in the best interests of the child, and finds that the petitioner or petitioners are fully aware of the purpose of the proceedings and the consequences of their act, the court shall make an order terminating all parental rights and obligations in the parent or parents in which they have existed and releasing the child from all legal obligations to the parents, even though the proceeding for termination is brought by only one parent. The court shall also order that the parental rights are transferred to some other person or persons, or authorized agency as may, in the opinion of the court, be best qualified to receive them. The order may contain the power by the person or persons or authorized agency to consent to the adoption of the child, as provided for in § 25-6-12, without further notice to the child's parent or parents or any other person having parental rights over the child. The court may specifically terminate the parental rights of all parents and putative fathers regardless of whether they are personally present in court except as required in § 25-5A-14. Any existing child support arrearages shall be addressed by the court in the order terminating parental rights.

Source: SL 1971, ch 165, § 7; SL 1995, ch 143, § 2; SL 1996, ch 164, § 1; SL 2013, ch 119, § 19.


     25-5A-19.   Order conclusive--Appeal to supreme court. Any order entered under this chapter is conclusive and binding on all parties. However, an appeal may be taken to the Supreme Court from a judgment, decree, or order of the circuit court under this chapter within thirty days from the date of its filing. The appeal shall be taken in the manner provided in chapter 15-26A. Initials shall appear in place of the name of the child on the record on appeal.

Source: SL 1971, ch 165, § 8; SL 1991, ch 217, § 169.


     25-5A-20.   Records confidential. The files and records of the court in proceedings under this chapter, and all matters therein, shall remain confidential and shall not be open to inspection or copy by any person, except under order of the court expressly permitting inspection or copy.

Source: SL 1971, ch 165, § 9.


     25-5A-21.   Remedy cumulative. This chapter shall not be treated or construed as exclusive of any other remedy authorized by law but as cumulative merely.

Source: SL 1971, ch 165, § 12.


     25-5A-22.   Counseling before termination of parental rights. Any birthparent who plans to petition the court for the voluntary termination of parental rights shall obtain counseling regarding the termination from a licensed child-placement agency as defined in § 26-6-14, the Department of Social Services, or either a certified social worker eligible to engage in private independent practice as defined in § 36-26-17, a licensed counselor, or a licensed psychologist, each of whom must have at least two years of experience in adoption practice.

Source: SL 1994, ch 197, § 1.


     25-5A-23.   Scope of counseling. Any person providing counseling pursuant to § 25-5A-22 shall make every reasonable effort to meet with the birthparents at least fifteen days before termination of parental rights for the purpose of counseling the birthparents. The counseling shall include the following:
             (1)      Verification that the motivation to relinquish is voluntary without undue influence of others, and the birthparent is not under the influence of any substance which affects judgment;
             (2)      Discussion of the alternatives and resources available, the permanency of the decision, the emotional issues involved in termination, and the legal rights of a birthparent to legal counsel, if indicated; and
             (3)      Assessment of the ability of the birthparent to understand the consequences of the decision.

Source: SL 1994, ch 197, § 2.


     25-5A-24.   Written report of counseling--Copy to Department of Social Services. A written report of the counseling shall be submitted directly to the court, and a copy shall be mailed to the Department of Social Services. The report shall contain the following information regarding the birthparent counseled:
             (1)      A statement signed by the birthparent that certifies that each of the points listed in § 25-5A-24 were covered and fully understood;
             (2)      Identifying information of the birthparent, which includes the full name, address, and birth date of the birthparent; a summary of social history of the birthparent; and the reason for relinquishment;
             (3)      The name, address, agency affiliation, or credentials of the social worker;
             (4)      The dates and number of hours that counseling occurred;
             (5)      The total number of hours of counseling;
             (6)      Documentation of the discussion of the topics listed in § 25-5A-23;
             (7)      Documentation of efforts to locate the alleged, legal, or presumed father or birthmother and the cooperation or lack of cooperation of that parent;
             (8)      The cost of the counseling and who has or is expected to pay for the counseling.

Source: SL 1994, ch 197, § 3; SL 1996, ch 165.


     25-5A-25.   Failure to receive counseling. Failure to comply with §§ 25-5A-22 to 25-5A-24, inclusive, may not be considered a basis for setting aside a voluntary termination of parental rights or an adoption.

Source: SL 1994, ch 197, § 4.


     25-5A-26.   Termination of parental rights--Validated--Limitation on claims. Except in any case involving fraud, any proceeding for the termination of parental rights commenced by a parent under chapter 25-5A is in all things legalized, cured, and validated two years after the proceeding is finalized. If any person has a claim or right arising from the termination of parental rights finalized, that person shall initiate any action to enforce such right or claim no later than two years of the date when the proceeding is finalized.

Source: SL 1994, ch 198; SL 2000, ch 116, § 1.


     25-5A-27.   Voluntary delivery of child 60 days of age or younger--Actions to protect child authorized. An emergency medical services provider or licensed child placement agency shall take possession of a child who appears to be sixty days of age or younger if the child is voluntarily delivered to the provider or agency by the child's parent and the parent does not express an intent to return for the child. Any provider or agency who takes possession of a child pursuant to this section shall perform any act necessary to protect the physical health and safety of the child.

Source: SL 2001, ch 132, § 1.


     25-5A-28.   Delivery of unharmed child not a crime. It is not a crime for a parent to deliver a child to an emergency medical services provider or a licensed child placement agency if the child has not been harmed prior to being left with the emergency medical services provider or a licensed child placement agency.

Source: SL 2001, ch 132, § 2.


     25-5A-29.   Termination of parental rights to delivered child. If a parent of a child relinquishes custody of the child to an emergency medical services provider or a licensed child placement agency as provided in § 25-5A-27, then, after fourteen days, by operation of law:
             (1)      All of that parent's rights with respect to the child are terminated; and
             (2)      The child becomes a ward of the state or licensed child placement agency.

Source: SL 2001, ch 132, § 3.


     25-5A-30.   Questions concerning child's medical history--No parental obligation to provide information. Any emergency medical services provider or licensed child placement agency that accepts custody of a child pursuant to § 25-5A-27 may ask the child's parent for pertinent medical information relating to the child's medical history. However, the parent leaving the child is not required to provide any information, including the name of the parents.

Source: SL 2001, ch 132, § 4.


     25-5A-31.   No liability for entity accepting custody of delivered child. Any emergency medical services provider or licensed child placement agency that accepts physical custody of a child pursuant to § 25-5A-27 is immune from civil, criminal, and administrative liability for any act of commission or omission in connection with the acceptance of that custody or the provision of care for the child while the child is in the provider's or agency's custody.

Source: SL 2001, ch 132, § 5.


     25-5A-32.   Notification to Department of Social Services upon possession of child--Assumption of care, custody and control of child--Investigation of parent restricted. The emergency medical services provider or a licensed child placement agency shall immediately notify the Department of Social Services that the provider or agency has taken possession of the child. The department or licensed child placement agency shall assume the care, custody, and control of the child immediately upon receipt of the notice. However, a licensed child placement agency that has taken possession of a child may assume the care, custody, and control of the child. The department or licensed child placement agency may not attempt to identify, contact, or investigate the parent who voluntarily delivered the child to an emergency medical services provider or a licensed child placement agency unless it appears the child has been harmed.

Source: SL 2001, ch 132, § 6.


     25-5A-33.   Provisions for custody action by nonrelinquishing parent. If one parent of a child relinquishes custody of the child to an emergency medical services provider or a licensed child placement agency as provided in § 25-5A-27, the other parent may file an action for custody of the child. The nonrelinquishing parent shall file such an action within thirty days after the provider or agency accepts custody of the child from the relinquishing parent. In such an action, the nonrelinquishing parent shall prove the following by a preponderance of the evidence:
             (1)      He or she is the parent of the child; and
             (2)      He or she did not consent to relinquishment of the child's custody to the provider or agency.

Source: SL 2001, ch 132, § 7.


     25-5A-34.   Emergency medical services provider defined. For the purposes of §§ 25-5A-27 to 25-5A-35, inclusive, an emergency medical services provider is a licensed health care facility or a clinic, any agent of a licensed health care facility or a clinic, a law enforcement officer, an emergency medical technician, or a firefighter.

Source: SL 2001, ch 132, § 8.


     25-5A-35.   Parental rights termination hearing for voluntarily delivered child. Sixty days after the emergency medical services provider or licensed child placement agency takes possession of the child a hearing shall be held in circuit court to terminate parental rights.

Source: SL 2001, ch 132, § 9; SL 2004, ch 2, § 7.


     25-5A-36.   Due regard to be afforded Indian Child Welfare Act. Due regard shall be afforded to the Indian Child Welfare Act (25 U.S.C. §§ 1901-1963), as amended to January 1, 2004, if that Act is applicable.

Source: SL 2004, ch 2, § 8.


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