Adoption of A.M.: To Be or Not to Be… a Family?

Written by: A. Johnson

As the idea of family—and the means to achieve that family—continues to evolve, adoption finds itself among the ranks of various methods used by couples and individuals to expand their families.  However, issues in the context of adoption may arise when a family believes it has complied with the requirements of adoption only to find out that, due to a change in procedural requirements, the very child they had accepted into their home might be taken away.  For one family, a seemingly unchallengeable document, the Surrender of Parental Rights and Consent to Adoption, no longer afforded them certainty in adding to their family because of one word: accept. 

Prior to 2021, in Mississippi, Surrender of Parental Rights and Consent to Adoption documents effected immediate and irrevocable termination of the signing parent’s rights.  (In re Adoption of P.B.H., 787 So. 2d 1268, 1272 (Miss. 2001)).  The Mississippi Supreme Court upheld this practice for decades.  Then, in 2016 and again in 2018, the legislature amended the statute governing voluntary release of parental rights (Miss. Code Ann. § 93-17-7).  Presently, voluntary relinquishments of parental rights are governed by Miss. Code Ann. § 93-15-111. 

The current statute requires the court to accept the voluntary release prior to any other person pursuing a termination of parental rights.  (Miss. Code Ann. § 93-15-111(2)).  The requirement of acceptance upset decades of procedure relied upon by family law attorneys in Mississippi.  A recent case, Adoption of A.M., brought this amended provision and the importance of the chancery court’s acceptance of a parent’s Surrender of Parental Rights and Consent to Adoption to the forefront of Mississippi family law.  (Adoption of A.M., 323 So. 3d 509 (Miss. 2021)).

Adoption of A.M.

In Adoption of A.M., the biological mother of “Amy”—the minor child at the center of the adoption—decided to surrender her parental rights and consent to an adoption when Amy was seven months old.  The biological mother used a private adoption agency and through them selected “Amanda” as the adoptive mother.  Amanda and her attorney met with the biological mother and Amy in Hattiesburg, Mississippi, where the biological mother signed a standard Surrender of Parental Rights and Consent to Adoption.  Amanda left the meeting with Amy in her custody.  The attorney representing Amanda then filed a Petition for Adoption and the Surrender of Parental Rights and Consent to Adoption.  The chancellor granted temporary custody of Amy to Amanda and determined that the Surrender of Parental Rights and Consent to Adoption were executed properly under Miss. Code Ann. § 93-15-111.  Around one month later, however, Amy’s biological mother filed a Withdrawal of Consent to Voluntary Surrender of Parental Rights.  Multiple filings ensued, and the chancery court ultimately determined that the Surrender of Parental Rights and Consent to Adoption were executed under economic and personal duress and that the voluntary release had not been accepted by the court as required by Miss. Code Ann. § 93-15-111(2). 

Issues arose because this finding by the chancellor contradicted years of precedent under the statute prior to the 2016 and 2018 amendments.  The Mississippi Supreme Court, in reviewing the issue, focused much of its opinion on the plain meaning of the statutory amendment.  In the existing case law, the statute did not require the Surrender of Parental Rights and Consent to Adoption to be accepted by a court prior to the termination of rights being effectuated and, thus, irrevocable.  Now, until the document is accepted by the court, the biological parent has standing and the ability to withdraw the document and have his or her parental rights reinstated.  (Adoption of A.M., 323 So. 3d 509 (Miss. 2021)).

Future Implications

Prior to the requirement that a court accept the voluntary release, adoptive parents were protected from the possibility of a biological parent rescinding his or her voluntary surrender and termination.  Now, children and families are subjected to a longer adoption process.  This poses interesting questions of temporary custody.  Is it best for the biological parent(s) to maintain custody of a child whom they may not be able to support, or should the court grant temporary custody to the potential adoptive family? 

As most issues of child custody and adoption are centered around the best interest of the child, how can one determine which temporary custody arrangement best serves the child, especially infants and children in their formative years?  On one hand, allowing for the revocation of Surrender of Parental Rights and Consent to Adoption documents helps to preserve natural families.  While making the decision to terminate one’s parental rights and consent to the adoption of one’s child is not a decision taken lightly, maintaining custody until the court has accepted a surrender does allow for biological parents to have some protection in cases where circumstances may change or where one’s decision may be re-evaluated.  The biological parent may have time to bond with the child after birth and determine that their concerns over parenting the child are not enough to discontinue the parental relationship. 

On the other hand, some critics argue that a biological parent maintaining custody devalues the importance and finality of making the decision to terminate his or her parental rights.  Under the prior statute, once a parent’s signature was executed on the document, the parent ceased to have parental rights and was unable to contest it for reasons other than duress, fraud, or coercion.  Now, parents are not left with the same consequences when they sign a Surrender and Consent.  The action of signing the document can be undone if the court’s acceptance has not occurred.  But, most importantly, the child is ultimately the party that is left unprotected by this statutory amendment.  Should the biological parent maintain temporary custody until the court accepts the Surrender of Parental Rights, the child may begin to form attachments to the biological parent, siblings, or other family members.  If the adoption then proceeds, the child will be removed from the now-familiar environment and placed in a new home with a new family.  Alternatively, if temporary custody is given to the potential adoptive parent and the biological parent successfully withdraws his or her surrender, the child will be similarly uprooted. 

Notably, as the statutory interpretation stands today, there is no limit on how long a court may take to accept a Surrender of Parental Rights and Consent to Adoption.  This means that a child may remain in a home with an adoptive family for weeks or even months while a cloud of uncertainty regarding his or her permanence as a member of that particular family lingers.  This seems even stranger when one looks to the Albright factors, which are used to aid in the determination of child custody in Mississippi.  Within these factors, a presumption exists for the primary caretaker of the child, as well as keeping children with siblings.  The uncertainty surrounding the period of temporary custody between the petition for adoption and the acceptance of the Surrender now creates discord with the purpose behind these factors: evaluating what option is in the best interest of the child. 

The chancery courts of Mississippi are now faced with difficult decisions, all while their hands are essentially tied.  Although family, and preservation of family, are at the core of many Mississippi laws, allowing revocation of a parent’s execution of a voluntary surrender of parental rights creates complexity and uncertainty in the adoption process.  The ramifications will be felt most deeply by the child forced to endure the period where his or her biological parent’s indecision could result in removal from a home. 


Today, the process for voluntary surrender and consent adoptions is uncertain and much lengthier.  Those who will most feel the brunt of this are the children who, no matter their age, will be subjected to the anxieties of waiting for the court’s acceptance of a biological parent’s Surrender of Parental Rights to know where home may truly be.  Under the current interpretation of Miss. Code Ann. § 93-15-111, some of the greatest tension in family law has been created; what is best for the natural family may no longer be what is best for the child.