Amendment ASA1-AB521

LRBs0353/1

GMM:kjf:pg

2005 - 2006 LEGISLATURE

ASSEMBLY SUBSTITUTE AMENDMENT 1, TO 2005 ASSEMBLY BILL 521

November 30, 2005 - Offered by Joint Committee on Finance.

AB521-ASA1,2,2 An Act to renumber 48.025 (3); to renumber and amend 48.025 (2), 48.41 (2) (b), 48.42 (2m), 48.423 and 48.43 (6); to amend 46.03 (7) (bm), 48.025 (1), 48.27 (3) (b) 1. a., 48.27 (5), 48.295 (1), 48.368 (1), 48.415 (2) (a) 3., 48.415 (6) (a) and (b), 48.415 (10) (a), 48.415 (10) (b), 48.42 (1) (a), 48.42 (2) (b) (intro.), 48.42 (2) (b) 1., 48.42 (3) (a), 48.42 (4) (a), 48.422 (6) (a), 48.64 (4) (c), 48.72, 48.78 (2) (a), 48.825 (5), 48.833, 48.837 (1), 48.837 (4) (c), 48.837 (4) (e), 48.839 (2) (b), 48.839 (2) (c), 48.91 (2), 48.913 (1) (c), (i) and (m), 808.04 (7m), 808.04 (8), 809.82 (2) (b), 938.27 (3) (b) 1. a., 938.27 (5), 938.78 (2) (a) and 977.07 (1) (c); and to create 48.025 (2) (b), 48.025 (2) (d), 48.025 (3) (a), 48.025 (3) (c) and (d), 48.025 (5), 48.025 (6), 48.235 (1) (g), 48.235 (5m), 48.40 (1r), 48.41 (2) (b) 2., 48.42 (1g), 48.42 (2) (bm), 48.42 (2m) (b), 48.42 (4) (b) 1m., 48.42 (5), 48.423 (2), 48.43 (6) (b) and (c), 48.43 (6m), 48.48 (17) (bm), 48.57 (2m), 48.825 (3m), 48.837 (1m), 48.837 (2) (d), 48.837 (4) (cm), 48.84, 809.107 (5) (am) and 938.57 (2m) of the statutes; relating to: termination of parental rights and adoption, granting rule-making authority, and providing a penalty.

Analysis by the Legislative Reference Bureau

Introduction

This substitute amendment makes various changes relating to termination of parental rights (TPR) and adoption. Specifically, the substitute amendment modifies current law relating to declarations of paternal interest by persons who may be the father of a nonmarital child and notice to those persons of TPR proceedings, the grounds for TPR, procedures in TPR proceedings, and appeals in TPR proceedings. The substitute amendment also modifies current law relating to adoption of children, agency decisions concerning foster homes, and persons receiving child welfare services.

Declarations of paternal interest and notice to putative fathers

Declarations of paternal interest. Under current law, any person claiming to be the father of a nonmarital child whose paternity has not been established may file with the Department of Health and Family Services (DHFS) a declaration of paternal interest in matters affecting the child. The declaration may be filed at any time before a TPR and must be in writing and signed by the person filing the declaration. DHFS must send a copy of the declaration to the mother, who may file a written response to the declaration. Filing a declaration does not extend parental rights to the person filing the declaration, but it does entitle that person to notice of a child in need of protection or services (CHIPS), a juvenile in need of protection or services (JIPS), or a TPR proceeding. Current law requires DHFS to release a declaration of paternal interest to the Department of Workforce Development or a county child support agency upon request or to any other person with a direct and tangible interest in the declaration and permits DHFS to release a declaration to any other person only upon court order.

This substitute amendment makes various changes relating to declarations of paternal interest. Subject to certain exceptions, the substitute amendment requires a declaration to be filed before the child's birth or within 14 days after the child's birth and permits a declaration to be revoked at any time. The substitute amendment also requires a declaration or revocation to be verified upon oath or affirmation and, in the case of a minor, to also be signed by the parent or guardian of the minor. The substitute amendment requires DHFS to keep declarations confidential, except that DHFS must, on the request of a court assigned to exercise jurisdiction under the Children's Code and the Juvenile Justice Code (juvenile court) in a CHIPS, JIPS, TPR, or adoption proceeding or of a person authorized to file a CHIPS, JIPS, TPR, or adoption petition, search its files to determine whether a person who may be the father of the child who is the subject of the proceeding or action has filed a declaration. If DHFS has a declaration on file, it must issue to the requester a certified copy of the declaration. If DHFS does not have a declaration on file, it must issue to the requester a certified statement that no declaration could be located.

Notice of TPR proceedings to putative fathers. Under current law, certain persons who may be the father of a nonmarital child whose paternity has not been established must be served with a summons and petition notifying the person of a TPR proceeding involving the child. Those persons include, in addition to a person who files a declaration of paternal interest, a person who is alleged to be the father of the child or who, based on statements made by the mother or other information, may be the father of the child, and a person who has lived in a familial relationship with the child and who may be the father of the child. A person who receives a summons and petition in a TPR proceeding has standing to appear and contest the TPR petition and, if grounds for TPR are found, may present evidence relevant to the disposition of the case and make alternative dispositional recommendations.

This substitute amendment makes certain changes relating to notice to a person who may be the father of a nonmarital child under one year of age whose paternity has not been established of a TPR proceeding concerning the child. Specifically, the substitute amendment permits the petitioner in a proceeding to terminate the parental rights of such a person to file with the TPR petition an affidavit signed by the child's mother that identifies or describes the father. If an affidavit is filed, the petitioner is required to notify any man alleged to be the father in the affidavit that he may file a declaration of paternal interest within 21 days after the date on which the notification was mailed. Also, under the substitute amendment, if an affidavit is filed, notice of the TPR proceeding need not be provided to a person who is alleged to be the father of the child or who, based on statements made by the mother or other information, may be the father of the child and instead is only required to be provided to all of the following:

1. A person who has filed an unrevoked declaration of paternal interest, within 14 days after the birth of the child or within 21 days after the notice of his right to file a declaration is mailed, whichever is later.

2. A person who has lived in a familial relationship with the child and who may be the father of the child.

The substitute amendment also specifies that a person who may be the father of a nonmarital child whose paternity has not been established, by virtue of the fact that the person had sexual intercourse with the mother of the child, is considered to be on notice that a pregnancy and a TPR proceeding might result, has the duty to protect his own rights and interests, and, therefore, is entitled to actual notice of the TPR proceeding only as provided in current law, as affected by the substitute amendment. In addition, the substitute amendment specifies that a person who is not entitled to actual notice of a TPR proceeding does not have standing to appear and contest the petition, present evidence relevant to the issue of disposition, or make alternative dispositional recommendations unless the person appears at the hearing, establishes paternity, and proves all of the following:

1. That the person resides and has resided in another state where the mother of the child resided or was located at the time of or after the conception of the child.

2. That the mother left that state without notifying or informing that person that she could be located in this state.

3. That the person attempted to locate the mother through every reasonable means, but did not know or have reason to know that the mother was residing or located in this state.

4. That the person has complied with the requirements of the state where the mother previously resided or was located to protect and preserve his paternal interests in matters affecting the child.

Finally, the substitute amendment prohibits a mother who has completed an affidavit relating to the identity of the child's father from attacking a TPR judgment on the basis that the father was not identified correctly.

Grounds for involuntary TPR

Applicability. Under current law, the parental rights of a parent to his or her child may be terminated involuntarily under various grounds. Currently, those grounds apply only to a parent of a child. The substitute amendment provides that the grounds for involuntary TPR apply as well to a person who may be the parent of a child.

Failure to assume parental responsibility. Under current law, the ground of failure to assume parental responsibility is established by proving that the parent has never had a substantial parental relationship with the child. "Substantial parental relationship" is defined as the acceptance and exercise of significant responsibility for the daily supervision, education, protection, and care of the child. This substitute amendment permits this ground to be established by proving that the parent has not had a substantial parental relationship with the child.

Prior involuntary TPR to another child. Under current law, the ground of prior involuntary TPR to another child may be established by proving that the child who is the subject of the petition has been adjudged to be CHIPS because he or she has been abandoned or has been the victim of abuse or because his or her parent has neglected, refused, or been unable for reasons other than poverty to provide the necessary care, clothing, medical or dental care, or shelter so as to seriously endanger the physical health of the child (neglect) and that, within three years of the CHIPS adjudication, a juvenile court has ordered an involuntary TPR with respect to another child of the person.

This substitute amendment extends this ground to a child who is found to be CHIPS because he or she is at risk of being abused or neglected and whose parent has failed to remedy the conditions responsible for court intervention, if there is a substantial likelihood that the parent will not remedy those conditions within the nine-month period following the TPR fact-finding hearing, and to a child who is born after the filing of a TPR petition on this ground with respect to a sibling of the child.

Continuing need of protection or services. Under current law, the ground of continuing CHIPS may be established by proving: 1) that the child has been adjudged to be CHIPS and placed outside of his or her home by the juvenile court; 2) that the agency responsible for the care of the child and the family has made a reasonable effort to provide the services ordered by the juvenile court; 3) that the child has been outside the home for a cumulative period of six months or longer pursuant to juvenile court orders; and 4) that the parent has failed to meet the conditions established for the safe return of the child to the home and there is a substantial likelihood that the parent will not meet those conditions within the 12-month period following the TPR fact-finding hearing.

This substitute amendment permits a TPR on the ground of continuing CHIPS if there is a substantial likelihood that the parent will not meet the conditions established for the safe return of the child to the home within nine months, rather than 12 months, following the TPR fact-finding hearing.

Procedures in TPR proceedings

Penalty for false statement in TPR proceeding. Under current law, a person may be convicted of perjury for orally making a false statement under oath or affirmation or of false swearing for making or subscribing to a false statement under oath or affirmation. There is no general penalty, however, for making a false statement if it is not made under oath or affirmation.

This substitute amendment creates a penalty for making a false statement or representation of material fact in the course of a TPR proceeding with the intent of preventing a person who is entitled to receive notice of the TPR proceeding from receiving notice. Under the substitute amendment, making such a false statement or representation is punishable by a fine not to exceed $10,000 or imprisonment not to exceed nine months, or both. The substitute amendment, however, permits a person to refuse to make a statement or representation of material fact in the course of a TPR proceeding for the purpose of preventing a person who is entitled to receive notice of the TPR proceeding from receiving notice if the person fears that making such a statement or representation would place the person or another person at risk of domestic abuse and if the refusal is because of a recent overt act, attempt, or threat that caused him or her reasonably to believe that the refusal was the only means of preventing that abuse.

Voluntary consent to TPR by telephone or audiovisual means. Under current law, a parent may give voluntary consent to the termination of his or her parental rights. If the juvenile court finds that it would be difficult or impossible for the parent to appear in person at the hearing, the juvenile court may accept the written consent of the parent given before an embassy or consul official, a military judge, or a judge of any court of record in another county or state or a foreign jurisdiction. This substitute amendment permits a parent who is unable to appear in person at the hearing to provide testimony by telephone or through live audiovisual means, upon request of the parent, unless good cause is shown.

Notice when child is relinquished as a newborn. Under current law, subject to certain exceptions, a copy of the summons and petition in a TPR proceeding must be personally served on the parties to the proceeding. This substitute amendment permits the parents of a child whose custody was relinquished when he or she was less than 72 hours old to be served with the summons and petition in a TPR proceeding by publication in a newspaper instead of by personal service.

Guardian ad litem (GAL) for parent in TPR proceeding. Current law permits the juvenile court to appoint a GAL in any appropriate matter under the Children's Code. This substitute amendment requires a juvenile court to appoint a GAL for a parent who is not competent to participate in a TPR proceeding or to assist counsel or the juvenile court in protecting the parent's rights in a TPR proceeding. The substitute amendment also directs a GAL of such a parent, in a proceeding that involves a child who has been found to be in need of protection or services in which the parent is contesting the termination of his or her parental rights, to provide information to the juvenile court relating to the parent's competency to participate in the proceeding and to provide assistance to the juvenile court and to the parent's adversary counsel in protecting the parent's rights.

Appeals in TPR proceedings

Time for filing of notice of appeal. Under current law, if a judgment or order that is being appealed was entered after the notice of appeal was filed, the notice of appeal is treated as if it were filed after the judgment or order was entered. An appeal of a TPR judgment, however, is initiated not by the filing of a notice of appeal but rather by the filing of a notice of intent to appeal. This substitute amendment provides that if the judgment or order appealed from was entered after the notice of appeal or the notice of intent to appeal was filed, the notice shall be treated as filed after the entry and on the day of the entry.

Notification of abandonment of appeal. Under current law, in a TPR proceeding, a person has 30 days from the date of entry of judgment to file a notice of intent to appeal. Within 15 days after filing this notice, the person must request the transcript and juvenile court record. The clerk of circuit court must serve a copy of the case record on the person filing the notice of intent to appeal within 30 days after the juvenile court record is requested. Within 30 days after service of the transcript, the person filing a notice of intent to appeal must file a notice of appeal and serve a copy of the notice on the required persons. Current law places no obligation on a person who files a notice of intent to appeal, but who decides not to file a notice of appeal, to notify the parties that a notice of appeal will not be filed. This substitute amendment requires a person who decides not to file a notice of appeal to notify the persons who would have been required to be served with the notice of appeal that the appeal will not be pursued.

State Public Defender (SPD) indigency determinations in TPR appeals. Under current law, subject to certain exceptions, a representative of the SPD must determine indigency for a person referred to the SPD who is seeking postdispositional relief in a proceeding under the Children's Code, other than a TPR proceeding. For these referrals, the SPD representative may rely upon a determination of indigency made for purposes of trial representation, unless a request for redetermination of indigency has been filed or the defendant's request for representation states that his or her financial circumstances have materially improved. This substitute amendment permits the SPD representative to rely upon a determination of indigency made for purposes of trial representation for a person referred to the SPD for an appeal in a TPR proceeding, unless a request for a redetermination is filed or the person's request for representation states that his or her financial circumstances have materially improved.

Continuing representation in TPR appeals. Currently, an attorney who represents a person in a TPR proceeding does not automatically continue to represent the person during the appeal process. Under this substitute amendment, an attorney who represents a person in a TPR proceeding continues representation of that person during the appeal process by filing a notice of intent to appeal, unless the attorney has been previously discharged during the proceeding by the person or by the juvenile court.

Written notification of time limits for TPR appeals. Current law does not require that notice of the time limits within which to appeal a TPR judgment be given to a person whose parental rights are terminated. This substitute amendment requires the juvenile court that orders a TPR to provide written notification of the time limits within which to appeal the TPR order to the person whose parental rights are terminated if the person is present in juvenile court when the order is granted. The person must sign the written notification, indicating that he or she has been notified of those time limits. The person's counsel must file a copy of the signed, written notification with the juvenile court on the date on which the order is granted.

Enlargement of time for filing notice of appeal. Under current law, the time for filing a notice of appeal of a final judgment or order in a TPR proceeding may not be enlarged. This substitute amendment permits the time within which to file a notice of appeal in a TPR case to be enlarged if the judgment or order was entered as a result of a petition for an involuntary TPR that was filed by a district attorney, corporation counsel, or other representative of the public.

Time limit for collateral attack of TPR judgment. Under current law, a person whose parental rights have been terminated may petition for a rehearing on the grounds that new evidence has been discovered affecting the advisability of the juvenile court's adjudication no later than one year after the date on which the TPR judgment was entered. However, a parent who has consented to the TPR or who did not contest the TPR petition may move for relief from the judgment no later than 30 days after entry of the TPR judgment.

This substitute amendment prohibits any person, for any reason, from collaterally attacking a TPR judgment more than one year after the date on which the time limit for filing an appeal from the judgment has expired, or more than one year after the date on which all appeals from the judgment, if any were filed, have been decided, whichever is later.

Adoption of children

Adoption expenses. Under current law, a proposed adoptive parent of a child may make certain payments to the birth parents of the child, including: 1) payment for the actual cost of maternity clothes for the child's birth mother, not to exceed a reasonable amount; 2) living expenses of the child's birth mother, in an amount not to exceed $1,000, if payment of the expenses by the proposed adoptive parent is necessary to protect the health and welfare of the birth mother or fetus; and 3) a gift to the child's birth mother, of no greater than $50 in value. This substitute amendment places a $300 cap on the amount that a proposed adoptive parent may pay for the cost of maternity clothes for the birth mother and increases the amount that a proposed adoptive parent may pay for living expenses for the birth mother from $1,000 to $5,000 and the amount that a proposed adoptive parent may pay for a gift to the birth mother from $50 to $100.

Preadoptive placement with out-of-state petitioners. Under current law, a parent having custody of a child and a proposed adoptive parent of the child who is not a relative of the child may petition the juvenile court for placement of the child for adoption in the home of the proposed adoptive parent if the home is licensed as a foster home or treatment foster home. This substitute amendment permits a parent having custody of a child and a proposed adoptive parent who resides out-of-state to petition the juvenile court for the preadoptive placement of the child in the home of the proposed adoptive parent, if the home meets the criteria established by the laws of the state of residence for a preadoptive placement of a child in the home of a nonrelative.

Adoption advertising. Under current law, no person may advertise for the purpose of finding a child to adopt or advertise that the person will find an adoptive home for a child or arrange for or assist in the adoption of a child or will place a child for adoption. This prohibition does not apply to DHFS, a county department of human services or social services (county department), or a child welfare agency licensed by DHFS to place children for adoption (collectively "agency"). This substitute amendment prohibits publishing by a public medium of an adoption advertisement that violates current law relating to adoption advertising.

Preadoption preparation for first-time adoptive parents. Under current law, preadoption preparation is not required of a proposed adoptive parent. This substitute amendment requires a proposed adoptive parent who has not previously adopted a child to obtain preadoption preparation on issues that may confront adoptive parents. The preparation may be provided by a licensed child welfare agency, a licensed private adoption agency, or a state-funded postadoption resource center. The substitute amendment requires DHFS to promulgate rules on the number of hours of preadoption preparation that is required, as well as on the topics to be covered in the training. The proposed adoptive parents must pay for the training, except that DHFS must pay for the training if the child is placed for adoption by an agency.

Continuation of dispositional orders. Under current law, if a petition for TPR is filed or an appeal from a judgment granting or denying TPR is filed during the year in which a CHIPS dispositional order or an extension order is in effect, the dispositional or extension order remains in effect until all proceedings relating to the petition or appeal are concluded. This substitute amendment provides that a voluntary agreement for the placement of a child, or a guardianship order for a child, also remain in effect until all proceedings relating to a TPR petition or appeal are concluded, as is allowed under current law with respect to CHIPS dispositional or extension orders.