§578-2 - Consent to adoption.

§578-2 Consent to adoption. (a)
Persons required to consent to adoption. Unless consent is not required or is
dispensed with under subsection (c) hereof, a petition to adopt a child may be
granted only if written consent to the proposed adoption has been executed by:

(1) The mother of the child;

(2) A legal father as to whom the child is a
legitimate child;

(3) An adjudicated father whose relationship to the
child has been determined by a court;

(4) A presumed father under section 578-2(d);

(5) A concerned natural father who is not the legal,
adjudicated, or presumed father but who has demonstrated a reasonable degree of
interest, concern or responsibility as to the welfare of a child, either:

(A) During the first thirty days after such
child's birth; or

(B) Prior to the execution of a valid consent
by the mother of the child; or

whichever period of time is greater;

(6) Any person or agency having legal custody of the
child or legally empowered to consent;

(7) The court having jurisdiction of the custody of
the child, if the legal guardian or legal custodian of the person of the child
is not empowered to consent to adoption;

(8) The child to be adopted if more than ten years of
age, unless the court in the best interest of the child dispenses with the
child's consent.

(b) A petition to adopt an adult may be
granted only if written consent to adoption has been executed by the adult and
the adult's spouse, if the adult is married.

(1) Persons as to whom consent not required:

(A) A parent who has deserted a child without
affording means of identification for a period of ninety days;

(B) A parent who has voluntarily surrendered
the care and custody of the child to another for a period of two years;

(C) A parent of the child in the custody of
another, if the parent for a period of at least one year has failed to communicate
with the child when able to do so;

(D) A parent of a child in the custody of
another, if the parent for a period of at least one year has failed to provide
for the care and support of the child when able to do so;

(E) A natural father who was not married to
the child's mother at the time of the child's conception or birth and who does
not fall within the provisions of subsection (a)(3), (4), or (5);

(F) A parent whose parental rights have been
judicially terminated under the provisions of sections 571-61 to 571-63, or
under the provisions of any other state or other law by a court or other agency
having jurisdiction to take the action;

(G) A parent judicially declared mentally ill
or mentally retarded and who is found by the court to be incapacitated from
giving consent to the adoption of the child;

(H) Any legal guardian or legal custodian of
the child sought to be adopted, other than a parent, who has failed to respond
in writing to a request for consent for a period of sixty days or who, after
examination of the person's written reasons for withholding consent, is found
by the court to be withholding the person's consent unreasonably;

(I) A parent of a child who has been in the
custody of a petitioner under this chapter for a period of at least one year
and who entered the United States of America as a consequence of extraordinary
circumstances in the child's country of origin, by reason of which
extraordinary circumstances the existence, identity, or whereabouts of the
child's parents is not reasonably ascertainable or there is no reasonable means
of obtaining suitable evidence of the child's identity or availability for
adoption;

(J) Any parent of the individual to be
adopted, if the individual is an adult eligible for adoption under subsection
(b); and

(K) A parent whose parental and custodial
duties and rights have been divested by an award of permanent custody pursuant
to section 587-73.

(2) Persons whose consent may be dispensed with by
order of the court. The court may dispense with the consent of a parent who
comes within subsection (a)(3), (4), or (5) herein, upon finding that:

(A) The petitioner is the stepfather of the
child and the child has lived with the child's legal mother and the petitioning
stepfather for a period of at least one year;

(B) The father is a concerned father as
provided by subsection (a)(5), herein, and has not filed a petition to adopt
the child, or the petition to adopt the child filed by the father has been
denied; or

(C) The father is an adjudicated, presumed, or
concerned father as provided by subsections (a)(3), (4), or (5), herein, and is
not a fit and proper person or is not financially or otherwise able to give the
child a proper home and education.

(d) Presumption of paternity. A man is presumed
to be the natural father of a child if:

(1) He and the child's natural mother are or have
been married to each other and the child is born during the marriage, or within
three hundred days after the marriage is terminated by death, annulment,
declaration of invalidity, or divorce, or after a decree of separation is
entered by a court;

(2) Before the child's birth, he and the child's
natural mother have attempted to marry each other by a marriage solemnized in
apparent compliance with law, although the attempted marriage is or could be
declared invalid, and:

(A) If the attempted marriage could be
declared invalid only by a court, the child is born during the attempted
marriage, or within three hundred days after its termination by death,
annulment, declaration of invalidity, or divorce; or

(B) If the attempted marriage is invalid
without a court order, the child is born within three hundred days after the
termination of cohabitation;

(3) After the child's birth, he and the child's
natural mother have married, or attempted to marry, each other by a marriage
solemnized in apparent compliance with law, although the attempted marriage is
or could be declared invalid; and

(A) He has acknowledged his paternity of the
child in writing filed with the department of health;

(B) With his consent he is named as the
child's father on the child's birth certificate; or

(4) While the child is under the age of majority, he
receives the child into his home and openly holds out the child as his natural
child; or

(5) He acknowledges his paternity of the child in
writing filed with the department of health, which shall promptly inform the
mother of the filing of the acknowledgment, and she does not dispute the
acknowledgment within a reasonable time after being informed thereof, in a
writing filed with the department of health. If another man is presumed under
this section to be the child's father, acknowledgment may be effected only with
the written consent of the presumed father or after the presumption has been
rebutted. If the acknowledgment is filed and not disputed by the mother and if
another man is not presumed under this section to be the child's father, the department
of health shall prepare a new certificate of birth in accordance with chapter
338.

(e) Notice of hearing; minor parent; consent
authorizing selection of adoptive parents. No hearing of a petition for
adoption shall be had unless each of the living parents of the child who falls
within the provisions of subsection (a) and who has not consented to the
proposed adoption, but who is alleged to come within the provisions of
subsection (c)(1)(A), (B), (C) and (D) or (c)(2) of this section, and any man whose
name appears as father on the child's birth certificate, shall have had due
notice, actual or constructive, of the allegations of the petition and of the
time and place of the hearing thereof. Such notice need not be given to any
parent whose parental rights have been legally terminated as hereinabove
provided or whose consent has been filed with the court.

The minority of a child's parent shall not be a
bar to the right of such parent to execute a valid and binding consent to the
adoption of such child.

Any parental consent required hereunder shall
be valid and binding even though it does not designate any specific adoptive
parent or parents, if it clearly authorizes the department of human services,
or a child placing organization approved by the department under the provisions
of section 346-17 or some proper person not forbidden by law to place a child
for adoption, to select and approve an adoptive parent or parents for the
child.

(f) Withdrawal of consent. A consent to
adoption which has been filed or received in evidence in an adoption proceeding
or which has been given to the department of human services or to a child
placing organization approved by the department under section 346-17, or to any
other proper person not forbidden by law to place or receive an individual for
adoption, may not be withdrawn or repudiated after the individual has been
placed for adoption, without the express approval of the court based upon a
written finding that such action will be for the best interests of the individual
to be adopted.

(g) Maintenance of action based on medical or
surgical treatment of child barred when. A person who consents to adoption, or
on whose behalf a consent to adoption is signed, and a nonconsenting parent
whose consent is not required or is dispensed with hereunder shall be barred
from maintaining any action based upon medical or surgical care or treatment
given to the child with the permission of the petitioner or petitioners or the
person or agency authorized by the parental consent to select and approve an
adoptive parent or parents; provided that nothing herein contained shall be
construed to alienate or impair any cause of action accruing to the child for
personal injury which may be sustained as a result of such medical or surgical
care or treatment. [RL 1945, pt of §12271; am L 1951, c 42, §1 and c 330, §1;
am L 1953, c 115, pt of §1; am L 1955, c 132, §1; RL 1955, §331-2; am L Sp 1959
2d, c 1, §20; am L 1965, c 108, §1; HRS §578-2; am L 1969, c 183, §3; am L
1970, c 105, §5; am L 1973, c 211, §3(b); am L 1975, c 117, §1(1); am L 1976, c
16, §§1, 2 and c 194, §1(2); am L 1980, c 56, §1; am L 1986, c 166, §2 and c
201, §1; am L 1987, c 339, §4; am L 1992, c 190, §4; am L 1993, c 160, §1]

Rules of Court

Hearings, see Hawaii Family Court Rules, part C(II).

Case Notes

Mother who in divorce case consents to provision awarding
care, custody and control of child to husband and reserving visiting rights has
not thereby surrendered to another the care and custody of the child within the
meaning of this section. 32 H. 443. Voluntary surrender. 42 H. 250.

Appointment of guardian ad litem is within sound discretion
of judge. 42 H. 250; 45 H. 69, 361 P.2d 1054.

Nonsupport not synonymous with abandonment. 50 H. 255, 438
P.2d 398.

"Has failed to communicate", as used in subsection
(c), means failure, when able, to maintain contact which would show parental
love and concern; actual visit is communication. 56 H. 412, 539 P.2d 467.

"Placed for adoption" under subsection (f) discussed.
73 H. 314, 832 P.2d 265.

Consent to adoption must be acknowledged under Hawaii family court rule 103(F)(5). 1 H. App. 364, 619 P.2d 1092.

On issue of whether court's allowance of withdrawal of
consent to adoption under subsection (f) will be for the child's best interest,
§§571-46(1) and 587-1 do not apply. 85 H. 165 (App.), 938 P.2d 1184.