Consent to Adoption - South Dakota

Date: October 2021

Who Must Consent to an Adoption

Citation: Codified Laws § 25-6-4

No child may be adopted without the consent of the child's parents.

Consent of Child Being Adopted

Citation: Codified Laws § 25-6-5

A child who is age 12 or older must consent to the adoption.

When Parental Consent is not Needed

Citation: Codified Laws § 25-6-4

If it is in the best interests of the child, the court may waive consent from a parent or putative father to whom any of the following applies:

  • Has been convicted of any crime punishable by imprisonment in the penitentiary for a period that, in the opinion of the court, will deprive the child of the parent's companionship for a critical period of time
  • Has, by clear and convincing evidence, abandoned the child for 6 months or more immediately prior to the filing of the petition
  • Has substantially and continuously or repeatedly neglected the child and refused to give the child necessary parental care and protection
  • Being financially able, has willfully neglected to provide the child with the necessary subsistence, education, or other care necessary for the child's health, morals, or welfare or has neglected to pay for such subsistence, education, or other care, if legal custody of the child is lodged with others and such payment has been ordered by the court
  • Is unfit by reason of habitual abuse of intoxicating liquor or narcotic drugs
  • Has been judicially deprived of the custody of the child if the adjudication is final on appeal to the court of last resort or the time for an appeal has expired
  • Has caused the child to be conceived as a result of rape or incest
  • Does not appear personally or by counsel at the hearing to terminate parental rights after notice was received at least 15 days prior to the hearing

When Consent Can Be Executed

Citation: Codified Laws § 25-5A-4

No petition to terminate rights or consent to adoption may be filed until 5 days after the child's birth.

How Consent Must Be Executed

Citation: Codified Laws §§ 25-6-12; 25-5A-16

Before the hearing on a petition for adoption, the person adopting a child, the child adopted, and the other persons whose consent is necessary shall execute their consent in writing, and the person adopting shall execute an agreement to the effect that the child adopted shall be treated in all respects as his or her own. The consent forms and the agreement of the person adopting shall be filed with the court.

At the time of the hearing on the petition, the person adopting the child and the child to be adopted shall appear in court. All persons whose consent is necessary, except the child and the person adopting the child, may be represented by a person who has power of attorney. A guardian may appear on behalf of the child, or a duly incorporated home or society for the care of dependent or neglected children may, by its authorized officer or agent, consent to the adoption of a child surrendered to such home or society by a court of competent jurisdiction. The Department of Social Services may appear in court and consent to the adoption of a child surrendered to it by any court of competent jurisdiction or, if the department has custody of a child by written agreement of a parent or parents with power of attorney to consent to adoption, by the officer of the department holding such power of attorney.

At the time of the hearing, the court, after full and complete inquiry, shall determine whether the petitioner or petitioners are fully aware of the purpose of the proceedings and the consequences of their act.

Revocation of Consent

Citation: Codified Laws § 25-6-21

Except in any case involving fraud or any case controlled by the Indian Child Welfare Act, (25 U.S.C. §§ 1901 to 1963, inclusive), any proceeding for the adoption of a child shall be in all things legalized, cured, and validated 1 year after the proceeding is finalized. If any person has a claim or right arising from any adoption proceeding, that person shall initiate any action to enforce such right or claim within 1 year of the date when the proceeding is finalized, unless a 2-year statute of limitations is imposed by the Indian Child Welfare Act.