Termination of Parental Rights by Consent

The juvenile court in a Chapter 211 TPR proceeding or the court before which a Chapter 453 adoption proceeding is pending may terminate the parental rights of a parent to a child if it finds that the termination is:

1. In the best interests of the child and

2. That the parent whose rights will be terminated has consented in writing to the termination of his parental rights.  Section 211.444.1, RSMo.

A consent form in a Chapter 211 termination of parental rights by consent under Section 211.444, RSMo., must:

(1) be in writing;

(2) be signed before or after institution of the proceedings;

(3) be acknowledged by a notary or;

(4) in lieu of acknowledgment by a notary, the consent form must be acknowledged by two adult witnesses (who are not the adoptive parents), provided the witnesses must be present when the document is signed, the signatures, names and addresses of the witnesses must be plainly written on the form, and the witnesses must "determine and certify" that the consent is knowingly and freely given;

(5) the notary or witnesses shall "verify the identity of the person consenting";

(6) the consent is valid and effective only after the child is at least 48 hours old;

(7) the consent must comply with the "other requirements of Section 453.030, RSMo."

Although somewhat unclear, it appears that a consent used in a Chapter 211 termination of parental rights must also comply with the requirements for a consent under Section 453.030, RSMo., relating to consents in adoptions.  Section 453.030, RSMo., contains a set of requirements for the consent to be signed by the biological mother, and a slightly different set of requirements for all other adoption consent forms.  All consents, except that of the mother, must be:

(1) in writing;

(2) signed before or after commencement of the proceedings;

(3) be acknowledged by a notary or;

(4) in lieu of acknowledgment by notary, be witnessed by two adult witnesses who are not the adoptive parents or any attorney representing a party to the adoption proceeding, provided that the signatures, names and addresses of witnesses must be plainly written on the consent form;

(5) the notary and witnesses must "verify the identity" of the person signing the form and;

(6) the consent form must contain certain statements as set forth in Section 453.030.9, RSMo.

The mother's consent in a Chapter 453 adoption must be:

(1) in writing;

(2) not be executed before the child is 48 hours old;

(3) signed in front of a judge or notary or;

(4) in lieu of the signature in front of a judge or notary, be witnessed by two adult witnesses who are not the adoptive parents or any attorney representing a party to the adoption proceeding, provided that the witnesses are present at the execution and that the names, addresses and signatures of the witnesses be plainly written on the form, and provided that the witnesses "determine and certify" that the consent was knowingly and freely given;

(5) that the notary or witnesses "verify the identity" of the person signing the form and;

(6) that the form contains certain required statements contained in Section 453.030.9, RSMo.

It is suggested that the consent form be set forth in affidavit format, that it include waiver of counsel provisions (where appropriate), and provisions related to compliance with the Interstate Compact on the Placement of Children, the Indian Child Welfare Act, the Uniform Child Custody jurisdiction Act and the Soldiers and Sailors Civil Relief Act.  It is unclear how the notary or witnesses are supposed to "verify the identity" of the person signing the form, however, it is suggested that two forms of photo I.D. or some similar method be utilized.  In addition, the consent form should contain an affidavit to be signed by the witnesses related to the "determine and certify" requirements of the statute.  Further, there should be statements in the notarial certificate concerning the verification of identity, the date and time of signing and the other new requirements contained herein.

It is suggested that, although consent forms may be different for the parents in a termination of parental rights proceeding and that a differentiation is made between a mother and other persons in a Chapter 453 adoption, that one unified consent form be adopted for use in Chapter 211 TPR proceedings as well as Chapter 453 adoptions, and such form should comply with the requirements of Chapter 211 as well as Chapter 453.

The Department of Social Services has developed a form, and use of the ”state form” appears to be mandatory.  Section 453.030.8 provides that if a written consent is obtained after August 28, 1997, but prior to the development of the consent form by the Department of Social Services the written consent used prior to development of the state form and after August 28, 1997, is deemed valid if it complies with Section 453.030.9.  This language would seem to suggest that use of the state form is mandatory after development of the state form.

Section 453.030.7 provides that the written consent may be withdrawn at any time until it has been reviewed and accepted by a judge.  Thus, where mother’s consent was reviewed and accepted by a family court commissioner, and mother moved to withdraw her consent prior to confirmation by a judge, mother could withdraw her consent. In Interest of K.L.S., ED81837 (Mo.App.E.D. 9-16- 2003).  See also In Interest of Baby Girl P., WD64497 (Mo.App.W.D. 4-12-2005)(no requirement that withdrawal of consent be in writing). The written consent shall be reviewed and, if found to be compliance with Section 453.030, approved by the court within three business days of such consent being presented to the court.  Upon review, and in lieu of approving the consent within three business days, the court may set a date for a prompt evidentiary hearing upon notice to the parties.  Failure to review and approve the written consent within three business days shall not void the consent.  Instead, a party may seek a writ of mandamus from the appropriate court, unless an evidentiary hearing has been set by the court pursuant to Section 453.030.6.  Thus, after the 1997 amendments to Section 453.030, it appears that a consent form may only be withdrawn up until the review and acceptance by a judge.

A finding that a parent knowingly, voluntarily and intelligently consented to termination of her parental rights was supported by evidence that the parent told her psychotherapist that she wanted to give her children up for adoption because she recognized that she could not provide for them and that the children were too great of a strain on her. In Interest of A.M.K., 723 S.W.2d 50 (Mo.App.E.D. 1986).  Withdrawal of consent to termination of parental rights is within the trial court's discretion where the crux of the contention regarding consent is that a parent has changed her mind. Id.

Despite expert testimony from a psychiatrist and a psychologist that mother suffered from major depression and probably did not understand the consent form, termination of mother’s parental rights based on a voluntary consent was affirmed where mother told DFS she had not bonded with the child, that she might hurt the child, that she wanted the child taken into foster care and where the mother refused to avail herself of DFS services.  Mother appeared rational during her meeting with DFS and was insistent that DFS remove the child from her custody.  In Interest of A.M.W., 64 S.W.3d 899 (Mo.App.S.D. 2002).

Where a foster mother testified that she had discussed her philosophy that an adopted child should be available for visits after adoption, but informed the father that he would have no parental rights after the termination, the father's consent to termination of his parental rights was valid despite his contention that he signed under a false impression based on the conversation with the foster mother. In Interest of R.R.T., 744 S.W.2d 829 (Mo.App.W.D. 1988).

However, rejection of a motion to set aside a consent to adoption without the benefit of a hearing where there are allegations of fraud and misrepresentation constitutes and abuse of discretion.  In such a case, the court will remand the matter for hearing on the motion to set aside.  In Interest of D.C.C., 971 S.W.2d 843 (Mo.App.W.D. 1998).

Even though a consent to termination of parental rights has been signed knowingly, voluntarily and intelligently, parental rights may not be terminated unless it is in the best interests of the child.  Thus, where parental rights are sought to be terminated voluntarily in order that former husband (who had adopted wife's child) could be relieved of his financial obligations imposed on him by a dissolution of marriage decree, and it was not in the best interests of the child that support payments stop, then parental rights may not be terminated despite the fact that former husband had consented. In Interest of B.L.G., 731 S.W.2d 492 (Mo.App.S.D. 1987).  Evidence as to why the former husband adopted the child is inadmissible. Id. (Former husband alleged he had been coerced into adopting wife's child.) See also In Interest of R.A.S., 826 S.W.2d 397 (Mo.App.W.D. 1992).