Generally, no child will be adopted in Minnesota without the consent of the child’s parents and/or the child’s guardian – if a guardian has been appointed. It is highly recommended that you speak with a lawyer about the pertinent Minnesota adoption laws related to consent.
There are, however, some general exceptions to the rule:
- Consent is not required of a parent who is not entitled to notice of the adoption proceedings;
- Consent is not required of a parent who has abandoned the child, or of a parent who has lost legal custody of the child or children through a court order, judgment, or decree and that parent has received proper notice of the adoption hearing;
- Consent is not required of a parent whose parental rights have been terminated by a juvenile court, or a parent who has lost custody of a child through a final commitment of the juvenile court, or through a court decree made in a prior adoption;
- if there is no parent or guardian who is qualified to consent to the adoption, consent may be given by the commissioner of human services;
- the commissioner of human services or agency who has authority to place the child or children for adoption shall have the exclusive right to consent to the adoption.
The list above explains the only exceptions that Minnesota adoption laws allow for parental or guardian consent. Absent one of the above exceptions applying, consents are always required.
Minnesota Adoption Laws | Appointment of Legal Counsel
According to the case of Petition of Anderson (565 N.W.2d 461 (Minn. Ct. App. 1997), an attorney shall be appointed to a biological parent whose parental rights are to be terminated if that parent requests an attorney in the adoption proceedings.
Furthermore, legal counsel shall be made available to the biological parent at the expense of the prospective adoptive parents if it is a direct placement adoption. Therefore, adopting parties should be aware that they could be obligated to pay for the legal counsel of the biological parent whose rights they are asking the court to terminate.
The Petition of Anderson case also tells us that the prospective adoptive parents shall provide legal counsel to only one of the biological parents, unless the biological parents elect for joint-representation. Thus, the adopting parents would only have to pay for the counsel of one lawyer – whether that lawyer represents both biological parents or one of them.
It should be noted that a biological parent may waive the right to counsel if a written waiver is signed and filed with the court at the time the biological parent’s consent to the adoption is executed. Thus, you should speak with your Minnesota adoption lawyer about the waiver of counsel form when filing for adoption.
The right of the biological parent to an attorney will continue until all consents become irrevocable – but not longer than 70 days after placement. If the biological parent’s consent to adoption has not been executed within 60 days of placement, the right to counsel shall end at that time.
Finally, the prospective parents and the biological parents cannot be represented by the same attorney. Therefore, you should be aware that if you are petitioning the court to adopt a child, you cannot ask your private attorney to work with the biological parents as well. The attorney can send legal documents, such as a waiver and consent form, to the biological parent. However, the attorney cannot make any representation to the biological parent that the attorney is working on their behalf.
For further information on Minnesota Adoption Laws and the requirements of Consent for Parent or Guardians, contact Flanders Law Firm LLC at 612-360-4721.