A social worker of a licensed agency is clearly authorized to take consents or relinquishments. Alabama Code section 26-10A-12 reads in pertinent part: “§ 26-10A-12. Persons who may take consent or relinquishments . . . A person appointed to take consents who is appointed by any agency which is authorized to conduct investigations or home studies . . .” This authority to take consents or relinquishments is also given to judges and notaries. The only time a social worker of a licensed agency cannot take consent or relinquishment is in the case of a pre-birth consent by a biological mother.
The harder question is whether a social worker of a licensed agency is allowed to take affidavits. Affidavits are sworn testimony and it is almost unheard of for anyone other than a judge, commissioner, or notary public to take sworn testimony. That being said, some related provisions say that a notary public or another authorized person could receive the sworn testimony. St. Clair County, Alabama has apparently been considering social workers of licensed agencies to be “another authorized person.”
I called and asked Jefferson County about this question. They basically said it has always been their “procedure” to have affidavits taken by notaries, but that their procedure may not be rooted in legal necessity. The clerk said he would look into the question and get back to me.
The problem is that the Alabama Adoption Code does not explicitly authorize a social worker to take affidavit-type sworn testimony. However, there is a strong argument that a social worker of a licensed agency should be considered “another authorized person.” The argument would flow something like this: 26-10A-12 gives a social worker of a licensed agency explicit authority to take a consent; an affidavit containing sworn testimony is of equally sensitive nature; as such, the social worker should be endowed with the implied authority of “another authorized person” to take the sworn testimony.
Even if this argument could fly in the social worker’s local probate court, it’s questionable if it would be upheld on appeal. There are cases where evidence has been excluded from consideration on motion for summary judgment because the affidavits were not properly authorized. The safest way to avoid the risk of future litigation is to have all social workers authorized as notaries – thus eliminating the risk.
Perhaps your agency has been operating under the assumption that social workers are allowed to receive affidavits. Take comfort … my research has indicated that this issue has never come up on appeal in Alabama. So, it’s reasonable to conclude that the risk is minimal.
However, ignorance is bliss … and now that you know, you have to decide whether the convenience is worth the risk.
If your agency decides to continue to let social workers take affidavits, then I recommend using this sample affidavit to help reduce the risk.
___________________________________________________________________________
AFFIDAVIT OF …
Comes now, ________________, having been first duly sworn and placed under oath to speak the truth, does hereby state that …
I further state that I make the forgoing under penalty of perjury and may suffer the legal punishment for the same.
________________________________ ________________________________
SIGNATURE OF SOCIALWORKER SIGNATURE OF AFFIANT/BIRTH MOTHER
I, _________________, sign my name to this instrument this ____day of ____________________, 20___, and being first duly sworn do hereby declare to the undersigned authority that I execute it as my free and voluntary act for the purposes therein expressed, and that I am 19 years or older, of age, of sound mind, and under no constraint or undue influence.
________________________________
SIGNATURE OF AFFIANT/BIRTH MOTHER
STATE OF ALABAMA )
COUNTY OF )
Subscribed, sworn to and acknowledged before me by __________________, this _____ day of _________________, 20___.
The execution of this document is taken before a person duly appointed to witness and receive this document in accordance with the authority implied by Section 26-10A-12, Code of Alabama.
__________________________________________________________________
LICENCSED SOCIAL WORKER/COUNSELOR NAME
_____(Agency Name)__________ REPRESENTATIVE SINCE: _________
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