[29ASR2d20]
District
Court of
AD
No. 51-95
[1]
A.S.C.A. § 45.0420 (a) requires a petition for adoption to be filed not
later that 30 days after the child is placed in the home of the adoptive
applicants for the purpose of adoption, unless the court finds that there was
reasonable causes or excusable neglect for not timely filing the petition. If the court does so find, “[t]he court then
fixes a date for the hearing.” A.S..
[2]
A.S.C.A. § 45.0420(d) requires that a petition for adoption be
accompanied by a statement of any fee charged relative to the adoption. [29ASR2d21] That statement must also include
a clause that no additional fees are to be charged.
[3]
Under the statutory scheme whereby the High Court hears relinquishment
and termination of parental rights actions and the District Court separately
hears the subsequent adoption actions, the only way for the government to
monitor the minor child's best interests throughout this process is to appoint
a Guardian of the person of the minor child. See A.S.C.A. § 45.0103(16). The logical choice for any such appointment
would be the Child Protective Services Agency, Department of Human Resources,
which could then actively monitor the minor child and his home environment
until the decree of adoption is finally issued.
[4]
The rigid statutory adoption procedures of the Juvenile Justice Act of
1980, A.S.C.A. § 45.0101 et seq., has little effective application to
relinquishment or termination of parental rights or adoptions in
[5] By statute, parents who place their children
with relatives in accordance with local customs are technically subjecting
themselves to potential criminal prosecution under A.S.C.A. § 45.0370(2) which
provides that "[a]ny adult who ..... neglects, or abandons a child is
guilty of a Class A Misdemeanor" punishable by up to one year imprisonment
or a $1,000.00 fine or both.
[6] Although the pre - 1980 adoption statutes
were subject to some abuses, they at least provided a more culturally
compatible and economical statutory scheme than the present statutes. While the Juvenile Justice Act of 1980
contains several workable chapters dealing with child shelter, care, support,
and juvenile delinquency adjudications, the legislature may wish to reexamine
those chapters dealing with adoption proceedings, including relinquishment or
termination of parental rights for purposes of adoptions, and amend these
statutes to work more effectively within the unique local context of the Samoan
extended family child rearing practices.
In the interim, however, all petitions for adoption must be timely filed
and address all of the statutory requirements of A.S.C.A. § 45.0420(a), (b),
(c), and (d).
Before WARD, District Court Judge.
Counsel:
For Petitioners, Robert A.
Porter, L.P.
Order on Motion to Set:[29ASR2d22]
This matter came regularly before the
court upon a petition for adoption being filed on
[1]
Although the petition generally follows the statutory requirements
of A.S.C.A. § 45.0420, neither subsection (a) nor subsection (d) of that
statute was addressed in these filings.
Subsection (a) requires a petition for adoption to be filed not later
that 30 days after the child is placed in the home of the adoptive applicants for
the purpose of adoption unless the court finds that there was reasonable causes
or excusable neglect for not timely filing the petition. If the court does so find, "[t]he court
then fixes a date for the hearing."
A.S..
The instant petition states that the
petitioner(s) have raised the child since birth, some eight years ago. The petition does not address A.S.C.A. §
45.0420(a) on its face and no separate motion for a pre-adoption hearing
supported by legal memorandum has been filed.
Even if the court were to engage in the
legal fiction that the 8 year old child raised by petitioner(s) was
technically "first placed in the
home of the adoptive applicants for the purpose of adoption" as of the
date of the order of relinquishment by the High Court, that order was dated
April 12, 1995, well over 30 days before the "Petition for Adoption"
was filed with this court on June 9, 1995.
[2]
The petition for adoption also fails to be a accompanied by a
statement of any fee charged relative to the adoption as required by A.S.C.A. §
45.0420(d). That statement must also
include a clause that no additional fees are to be charged.
[3]
On page two, line 10 of the petition appears the statement: "There are no guardians appointed in
this matter". This phrase is always
disturbing to the court and all the more so when included in adoption petitions
that are filed weeks, months, or even years after the mandatory 30 day period
after placement. Under the statutory
scheme whereby the High Court hears relinquishment and termination of parental rights
actions and the District Court separately hears the subsequent adoption
actions, the only way for the government to monitor the minor child's best
interests throughout this process is to appoint a Guardian of the person
of the minor child. See A.S.C.A.
§ 45.0103(16). The logical choice for
any such appointment would be the Child Protective Services Agency, Department
of Human Resources, which could then actively monitor the minor child and his
home environment until the decree of adoption is finally issued.[29ASR2d23]
[4]
There are several other problems facing the High Court, the
District Court, and especially citizens seeking to adopt children in the
Territory under the cumbersome, costly, and mostly cumulative procedures
mandated by the Juvenile Justice Act of 1980, A.S.C.A. § 45.0101 et seq., (“Juvenile
Justice Act of 1980”) to perfect a child's adoption. For years the High Court and District Court
have struggled to fashion a Samoan "silk purse" out of this stateside
"sow's ear" of a statute. Although this Act may work fine in
(a) The unwed mother would be counseled by
hospital social service personnel as to her options of keeping the child, suing
the natural father for child support, or having the state bring suit on her
behalf, or giving up the child for adoption;
(b) If the unwed mother, after counseling,
decided to put the child up for adoption, the social services agency would
petition the appropriate court for relinquishment of parental rights;
(c) That court would hold a hearing, generally
before or immediately after the unwed mother gave up custody of the child to
the state social services agency. The
court would also determine if the natural father had acquired any parental
rights which required relinquishment or termination pursuant to Lehr v.
Robertson, 463 U.S. 248 (1983), and the court would decide if the best
interests of the parent(s) and child required the parental rights be
relinquished or terminated;
(d) The custody and guardianship of the child in
cases where parental rights were relinquished or terminated, would then be
granted by the court to the state social services agency. That agency, usually with prior court
approval would effect a child placement with pre-approved couples desiring to
adopt a child;
(e) As soon as possible after the placement of
the child with the prospective adoptive parents, a petition for adoption would
be filed with the court and set for a hearing; and
(f)
At the adoption hearing the court would hear testimony from the state social
services personnel who had been monitoring the child's [29ASR2d24] placement
and determine, with the consent of that agency, whether the best interest of
the child would be served by granting the adoption.
Yet when these rigid statutory
procedures are compared with traditional child rearing and child placement
practices in Samoa, at almost no point can the statutes be bent to fit the
local situation, as required of the court under the legislature's policy
declarations set forth under A.S.C.A. § 45.0102.
[5]
The typical relinquishment or termination of parental rights
action does not come before the court until months, or more, usually years,
after the natural parent or parents have placed the child with their
parents, childless brothers or sisters, cousins, close friends, fellow church
members, etc. Such traditional
placements by the natural parent or parents serve a vital cultural interest in
strengthening extended family ties and, in certain circumstances, creating new
family ties and alliances. The problem
is, by statute, parents who follow such local customs are technically subjecting
themselves to potential criminal prosecution under A.S.C.A. § 45.0370(2) which
provides that "[a]ny adult who ..... neglects, or abandons a child is
guilty of a Class A Misdemeanor" punishable by up to one year imprisonment
or a $1,000.00 fine or both.
It is also difficult for the courts to
meet the legislative mandates of preserving aiga ties and maintaining the
child/parent relationship except when the child's welfare or safety would
otherwise be endangered. See A.S.C.A.
§ 45.0102. Most cases never come before
the court until years after the child has been given to the prospective
adoptive parents. Of what real value is
counseling to the unwed mother years after she voluntarily surrendered
the child? How does the court preserve
the parent/child relationship after the child had already bonded with the
prospective adoptive parents? And where
do the best interests of the child lie, when, after the child had been raised
by the prospective adoptive parents for years, the court must consider whether
the natural parents should regain custody of the child? And finally, why are local citizens who
desire to adopt a child put to the expense, time, and difficulty of two
separate petitions and two court hearings to receive official approval of a
years old parent/child relationship?
[6]
Although the pre - 1980 adoption statutes were subject to some
abuses, at least they provided a more culturally compatible and economical
statutory scheme than the present statutes.
The District Court hears well over 100 adoption actions each year and an
equal or greater number of relinquishment or termination of parental rights
actions are separately heard by the High Court.
Child Protective Services conducts well over 100 investigations and home
studies per year after petitions for relinquishment or termination of parental
rights are filed in the High [29ASR2d25] Court.
All of this considerable effort usually occurs well after the fact and
serves no real purpose save to legitimize the longstanding relationships
between the minor child and its adoptive parents.
The instant case, involving an eight
year old child who has been raised since birth by the prospective adoptive
parents now seeking to adopt the child, is reflective of the problems outlined
above. Although the Juvenile Justice Act
of 1980 contains several workable chapters dealing with child shelter, care,
support, and juvenile delinquency adjudications, the legislature may wish to
reexamine those chapters dealing with adoption proceedings, including
relinquishment or termination of parental rights for purposes of adoptions, and
amend these statutes to work more effectively within the unique local context
of the Samoan extended family child rearing practices. The present statutes undoubtedly work well in
the several states but are difficult to apply to the bulk of the local adoption
proceedings processed by the court.
In the interim, however, this court must
enforce the statutory requirements as enacted by the legislature. All petitions for adoption must be timely
filed and address all of the statutory requirements of A.S.C.A. § 45.0420(a),
(b), (c), and (d). The Clerk of Courts
shall serve all members of the Bar with a copy of this order so that all future
petitions for adoption filed with the court fully comply with statutory
mandates. The motion to set is denied.
It is so ordered.
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