2023 Hawaii Revised Statutes › Title 31. Family › 578. Adoption › 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), a petition to adopt a child may be granted only if written consent to the proposed adoption has been executed by:
(1) The birthing parent of the child;
(2) A legal non-birthing parent to whom the child is a legitimate child;
(3) An adjudicated non-birthing parent whose relationship to the child has been determined by a court;
(4) A presumed non-birthing parent under subsection (d);
(5) A concerned natural non-birthing parent who is not the legal, adjudicated, or presumed non-birthing parent 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 the child's birth;
(B) Before the execution of a valid consent by the birthing parent of the child; or
(C) Before the placement of the child with adoptive parents;
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; and
(8) The child to be adopted if the child is 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.
(c) Persons as to whom consent not required or whose consent may be dispensed with by order of the court.
(1) Persons as to whom consent is 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 non-birthing parent who was not married to the child's birthing parent 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 who is judicially declared mentally ill or intellectually disabled and 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 587A-33;
(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), upon finding that:
(A) The petitioner is the child's birthing parent's spouse and the child has lived with the child's legal birthing parent and the petitioning birthing parent's spouse for a period of at least one year;
(B) The non-birthing parent is a concerned non-birthing parent as provided by subsection (a)(5) and has not filed a petition to adopt the child, or the petition to adopt the child filed by the non-birthing parent has been denied; or
(C) The non-birthing parent is an adjudicated, presumed, or concerned non-birthing parent as provided by subsection (a)(3), (4), or (5) 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 biological parentage. A person is presumed to be the natural non-birthing parent of a child if:
(1) The person and the child's birthing parent 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, the person and the child's birthing parent 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 if the attempted marriage:
(A) 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) 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, the person and the child's birthing parent 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) The person has acknowledged the person's biological parentage of the child in writing filed with the department of health;
(B) With the person's consent, the person is named as the child's non-birthing parent on the child's birth certificate; or
(C) The person is obligated to support the child under a written voluntary promise or by court order;
(4) While the child is under the age of majority, the person receives the child into the person's home and openly holds out the child as the person's natural child; or
(5) The person acknowledges the person's biological parentage of the child in writing filed with the department of health, which shall promptly inform the birthing parent of the filing of the acknowledgment, and the birthing parent does not dispute the acknowledgment within a reasonable time after being informed thereof, in a writing filed with the department of health. If another person is presumed under this section to be the child's non-birthing parent, acknowledgment may be effected only with the written consent of the presumed non-birthing parent or after the presumption has been rebutted. If the acknowledgment is filed and not disputed by the birthing parent and if another person is not presumed under this section to be the child's non-birthing parent, 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 fall within the provisions of [subsection] (c)(1)(A), (B), (C) and (D) or (c)(2), and any person whose name appears as non-birthing parent 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. The 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 the parent to execute a valid and binding consent to the adoption of the 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; am L 2010, c 135, §5; am L 2011, c 220, §17; am L 2023, c 160, §4]
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 (1932). Voluntary surrender. 42 H. 250 (1957).
Appointment of guardian ad litem is within sound discretion of judge. 42 H. 250 (1957); 45 H. 69, 361 P.2d 1054 (1961).
Nonsupport not synonymous with abandonment. 50 H. 255, 438 P.2d 398 (1968).
"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 (1975).
"Placed for adoption" under subsection (f) discussed. 73 H. 314, 832 P.2d 265 (1992).
Consent to adoption must be acknowledged under Hawaii family court rule 103(F)(5). 1 H. App. 364, 619 P.2d 1092 (1980).
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 (1997).