0001| HOUSE JUDICIARY COMMITTEE SUBSTITUTE FOR | 0002| HOUSE BILL 717 | 0003| 43rd legislature - STATE OF NEW MEXICO - first session, 1997 | 0004| | 0005| | 0006| | 0007| | 0008| | 0009| | 0010| | 0011| AN ACT | 0012| RELATING TO CHILDREN; CHANGING PROCEDURES AND TIME FRAMES FOR | 0013| HEARINGS HELD PURSUANT TO THE ABUSE AND NEGLECT ACT; AMENDING | 0014| AND ENACTING SECTIONS OF THE ABUSE AND NEGLECT ACT. | 0015| | 0016| BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO: | 0017| Section 1. Section 32A-4-19 NMSA 1978 (being Laws 1993, | 0018| Chapter 77, Section 113) is amended to read: | 0019| "32A-4-19. ADJUDICATORY HEARINGS--TIME LIMITATIONS.-- | 0020| A. The adjudicatory hearing in a neglect or abuse | 0021| proceeding shall be commenced within [ninety] sixty days after | 0022| the latest of the following dates: | 0023| (1) the date that the petition is served on | 0024| the respondent; | 0025| (2) if the trial court orders a mistrial or a | 0001| new trial, the date that the order is filed; or | 0002| (3) in the event of an appeal, the date that | 0003| the mandate or order is filed in the district court disposing | 0004| of the appeal. | 0005| B. Prior to the adjudicatory hearing, all parties | 0006| to the hearing shall attend a mandatory meeting and attempt to | 0007| settle issues attendant to the adjudicatory hearing and develop | 0008| a proposed treatment plan that serves the child's best | 0009| interest. | 0010| [B.] C. The children's court attorney shall | 0011| represent the state at the adjudicatory hearing. | 0012| [C.] D. When the adjudicatory hearing on any | 0013| petition is not begun within the time period specified in | 0014| Subsection A of this section or within the period of any | 0015| extension granted, the petition shall be dismissed with | 0016| prejudice." | 0017| Section 2. Section 32A-4-20 NMSA 1978 (being Laws 1993, | 0018| Chapter 77, Section 114) is amended to read: | 0019| "32A-4-20. CONDUCT OF HEARINGS--FINDINGS--DISMISSAL-- | 0020| DISPOSITIONAL MATTERS--PENALTY.-- | 0021| A. The proceedings shall be recorded by | 0022| stenographic notes or by electronic, mechanical or other | 0023| appropriate means. | 0024| B. All abuse and neglect hearings shall be closed | 0025| to the general public. | 0001| C. Only the parties, their counsel, witnesses and | 0002| other persons approved by the court may be present at a closed | 0003| hearing. Those other persons the court finds to have a proper | 0004| interest in the case or in the work of the court may be admitted | 0005| by the court to closed hearings on the condition that they refrain | 0006| from divulging any information that would identify the child or | 0007| family involved in the proceedings. | 0008| D. Accredited representatives of the news media shall | 0009| be allowed to be present at closed hearings, subject to the | 0010| condition that they refrain from divulging information that would | 0011| identify any child involved in the proceedings or the parent, | 0012| guardian or custodian of that child and subject to enabling | 0013| regulations as the court finds necessary for the maintenance of | 0014| order and decorum and for the furtherance of the purposes of the | 0015| Children's Code. | 0016| E. If the court finds that it is in the best interest | 0017| of the child, the child may be excluded from a neglect or an abuse | 0018| hearing. Under the same conditions, a child may be excluded by | 0019| the court during a hearing on dispositional issues. | 0020| F. Those persons or parties granted admission to a | 0021| closed hearing who intentionally divulge information in violation | 0022| of this section are guilty of a petty misdemeanor. | 0023| G. The court shall determine if the allegations of the | 0024| petition are admitted or denied. If the allegations are denied, | 0025| the court shall proceed to hear evidence on the petition. The | 0001| court after hearing all of the evidence bearing on the allegations | 0002| of neglect or abuse shall make and record its findings on whether | 0003| the child is a neglected child, an abused child or both. | 0004| H. If the court finds on the basis of a valid | 0005| admission of the allegations of the petition or on the basis of | 0006| clear and convincing evidence, competent, material and relevant in | 0007| nature, that the child is neglected or abused, the court may | 0008| proceed immediately or at a postponed hearing to make disposition | 0009| of the case. If the court does not find that the child is | 0010| neglected or abused, the court shall dismiss the petition and may | 0011| refer the family to the department for appropriate services. | 0012| I. In that part of the hearings held under the | 0013| Children's Code on dispositional issues, all relevant and material | 0014| evidence helpful in determining the questions presented, including | 0015| oral and written reports, may be received by the court and may be | 0016| relied upon to the extent of its probative value even though not | 0017| competent had it been offered during the part of the hearings on | 0018| adjudicatory issues. | 0019| J. On the court's motion or that of a party, the court | 0020| may continue the hearing on the petition for a [reasonable time] | 0021| period not to exceed thirty days to receive reports and other | 0022| evidence in connection with disposition. The court shall continue | 0023| the hearing pending the receipt of the predisposition study and | 0024| report if that document has not been prepared and received. | 0025| During any continuances under this subsection, the court shall | 0001| make an appropriate order for legal custody." | 0002| Section 3. Section 32A-4-22 NMSA 1978 (being Laws 1993, | 0003| Chapter 77, Section 116) is amended to read: | 0004| "32A-4-22. DISPOSITION OF ADJUDICATED ABUSED OR NEGLECTED | 0005| CHILD.-- | 0006| A. If not held in conjunction with the adjudicatory | 0007| hearing, the dispositional hearing shall be commenced within | 0008| thirty days after the conclusion of the adjudicatory hearing. At | 0009| the conclusion of the dispositional hearing, the court shall make | 0010| and include in the dispositional judgment its findings on the | 0011| following: | 0012| (1) the interaction and interrelationship of the | 0013| child with his parent, siblings and any other person who may | 0014| significantly affect the child's best interest; | 0015| (2) the child's adjustment to his home, school | 0016| and community; | 0017| (3) the mental and physical health of all | 0018| individuals involved; | 0019| (4) the wishes of the child as to his custodian; | 0020| (5) the wishes of the child's parent, guardian | 0021| or custodian as to the child's custody; | 0022| (6) whether there exists a relative of the child | 0023| or other individual who, after study by the department, is found | 0024| to be qualified to receive and care for the child; | 0025| (7) the availability of services recommended in | 0001| the treatment plan prepared as a part of the predisposition study | 0002| in accordance with the provisions of Section [32-4-19] 32A-4-21 | 0003| NMSA 1978; | 0004| (8) the ability of the parent to care for the | 0005| child in the home so that no harm will result to the child; | 0006| (9) whether reasonable efforts were [utilized] | 0007| used by the department to prevent removal of the child from the | 0008| home prior to placement in substitute care and whether reasonable | 0009| efforts were [utilized] used to attempt reunification of the child | 0010| with the natural parent; and | 0011| (10) if the child is an Indian child, whether | 0012| the placement preferences set forth in the federal Indian Child | 0013| Welfare Act of 1978 or the placement preferences of the child's | 0014| Indian tribe have been followed and whether the Indian child's | 0015| treatment plan provides for maintaining the Indian child's | 0016| cultural ties. When placement preferences have not been followed, | 0017| good cause for noncompliance shall be clearly stated and | 0018| supported. | 0019| B. If a child is found to be neglected or abused, the | 0020| court may enter its judgment making any of the following | 0021| dispositions to protect the welfare of the child: | 0022| (1) permit the child to remain with his parent, | 0023| guardian or custodian, subject to those conditions and limitations | 0024| the court may prescribe; | 0025| (2) place the child under protective supervision | 0001| of the department; or | 0002| (3) transfer legal custody of the child to any | 0003| of the following: | 0004| (a) [to] the noncustodial parent, if it is | 0005| found to be in the child's best interest; | 0006| (b) an agency responsible for the care of | 0007| neglected or abused children; or | 0008| (c) a child-placement agency willing and | 0009| able to assume responsibility for the education, care and | 0010| maintenance of the child and licensed or otherwise authorized by | 0011| law to receive and provide care for the child. | 0012| C. If a child is found to be neglected or abused, in | 0013| its dispositional judgment the court shall also order the | 0014| department to implement and the child's parent, guardian or | 0015| custodian to cooperate with any treatment plan approved by the | 0016| court. | 0017| D. Any parent, guardian or custodian of a child who is | 0018| placed in the legal custody of the department or other person | 0019| pursuant to Subsection B of this section shall have reasonable | 0020| rights of visitation with the child as determined by the court, | 0021| unless the court finds that the best interests of the child | 0022| preclude any visitation. | 0023| E. The court may order reasonable visitation between a | 0024| child placed in the custody of the department and the child's | 0025| siblings or any other person who may significantly affect the | 0001| child's best interest, if the court finds the visitation to be in | 0002| the child's best interest. | 0003| F. Unless a child found to be neglected or abused is | 0004| also found to be delinquent, the child shall not be confined in an | 0005| institution established for the long-term care and rehabilitation | 0006| of delinquent children. | 0007| G. When the court vests legal custody in an agency, | 0008| institution or department, the court shall transmit with the | 0009| dispositional judgment copies of the clinical reports, the | 0010| predisposition study and report and any other information it has | 0011| pertinent to the care and treatment of the child. | 0012| H. Prior to any child being placed in the custody or | 0013| protective supervision of the department, the department shall be | 0014| provided with reasonable oral or written notification and an | 0015| opportunity to be heard. At any hearing held pursuant to this | 0016| subsection, the department may appear as a party. | 0017| I. When a child is placed in the custody of the | 0018| department, the department shall investigate whether the child is | 0019| eligible for enrollment as a member of an Indian tribe and, if so, | 0020| the department shall pursue the enrollment on the child's behalf." | 0021| Section 4. Section 32A-4-25 NMSA 1978 (being Laws 1993, | 0022| Chapter 77, Section 119, as amended) is amended to read: | 0023| "32A-4-25. PERIODIC REVIEW OF DISPOSITIONAL JUDGMENTS.-- | 0024| A. [Within six months of any original dispositional | 0025| order and within six months of any subsequent continuation of the | 0001| order, the department shall petition the court for a review of the | 0002| disposition of an adjudicated neglected or abused child.] The | 0003| initial judicial review shall be held within sixty days of the | 0004| disposition. At the initial review, the parties shall demonstrate | 0005| to the court efforts made to implement the treatment plan approved | 0006| by the court in its dispositional order. The court shall | 0007| determine the extent to which the treatment plan has been | 0008| implemented and make supplemental orders as necessary to assure | 0009| compliance with the treatment plan and the safety of the child. | 0010| Prior to the initial judicial review, the department shall submit | 0011| a copy of the adjudicatory order, the dispositional order and | 0012| notice of the initial judicial review to the local substitute care | 0013| review board for that judicial district created under the Citizen | 0014| Substitute Care Review Act. A representative of the local | 0015| substitute care review board shall be permitted to attend and | 0016| comment to the court. | 0017| B. Subsequent periodic reviews of dispositional orders | 0018| shall be held within six months of the conclusion of the | 0019| permanency hearing or, if a motion has been filed for termination | 0020| of parental rights or permanent guardianship, within six months of | 0021| the decision on that motion and every six months thereafter. | 0022| Prior to the review, the department shall submit a progress report | 0023| to the local substitute care review board for that judicial | 0024| district created under the Citizen Substitute Care Review Act. | 0025| Prior to any judicial review by the court pursuant to this | 0001| section, the local substitute care review board may review the | 0002| dispositional order or the continuation of the order and the | 0003| department's progress report and report its findings and | 0004| recommendations to the court. The review may be carried out by | 0005| either of the following: | 0006| (1) a judicial review hearing conducted by the | 0007| court; or | 0008| (2) a judicial review hearing conducted by a | 0009| special master appointed by the court; provided, however, that the | 0010| court approve any findings made by the special master. | 0011| [B.] C. The children's court attorney shall give | 0012| notice to all parties, the child's guardian ad litem, the child's | 0013| CASA, a contractor administering the local substitute care review | 0014| board and the child's foster parent or substitute care provider of | 0015| the time, place and purpose of any judicial review hearing held | 0016| pursuant to Subsection [A] B of this section. | 0017| [C.] D. At any judicial review hearing held pursuant | 0018| to Subsection [A] B of this section, the department, the child's | 0019| guardian ad litem and all parties given notice under Subsection | 0020| [B] C of this section shall have the opportunity to present | 0021| evidence and to cross-examine witnesses. At the hearing, the | 0022| department shall show that it has made reasonable effort to | 0023| implement any treatment plan approved by the court in its | 0024| dispositional order and shall present a treatment plan consistent | 0025| with the purposes of the Children's Code for any period of | 0001| extension of the dispositional order. The respondent shall | 0002| demonstrate to the court that efforts to comply with the treatment | 0003| plan approved by the court in its dispositional order and efforts | 0004| to maintain contact with the child were diligent and made in good | 0005| faith. The court shall determine the extent of compliance with | 0006| the treatment plan and whether progress is being made toward | 0007| establishing a stable and permanent placement for the child. | 0008| [D.] E. The Rules of Evidence shall not apply to | 0009| hearings held pursuant to this section. The court may admit | 0010| testimony by any person given notice of the hearing who has | 0011| information about the status of the child or the status of the | 0012| treatment plan. | 0013| [E.] F. At the conclusion of any hearing held pursuant | 0014| to this section, the court shall make findings of fact and | 0015| conclusions of law. | 0016| [F.] G. When the child is an Indian child, the court | 0017| shall determine during review of a dispositional order whether the | 0018| placement preferences set forth in the federal Indian Child | 0019| Welfare Act of 1978 or the placement preferences of the child's | 0020| Indian tribe were followed and whether the child's treatment plan | 0021| provides for maintaining the child's cultural ties. When | 0022| placement preferences have not been followed, good cause for | 0023| noncompliance shall be clearly stated and supported. | 0024| [G.] H. Based on its findings at a judicial review | 0025| hearing held pursuant to Subsection B of this section, the court | 0001| shall order one of the following dispositions: | 0002| (1) dismiss the action and return the child to | 0003| his parent without supervision if the court finds that conditions | 0004| in the home that led to abuse have been corrected and it is now | 0005| safe for the return of the abused child; | 0006| (2) permit the child to remain with his parent, | 0007| guardian or custodian subject to those conditions and limitations | 0008| the court may prescribe, including protective supervision of the | 0009| child by the department; | 0010| (3) return the child to his parent and place the | 0011| child under the protective supervision of the department; | 0012| (4) transfer or continue legal custody of the | 0013| child to: | 0014| (a) the noncustodial parent, if that is | 0015| found to be in the child's best interests; | 0016| (b) a relative or other individual who, | 0017| after study by the department or other agency designated by the | 0018| court, is found by the court to be qualified to receive and care | 0019| for the child and is appointed as a permanent guardian of the | 0020| child; or | 0021| (c) the department, subject to the | 0022| provisions of Paragraph (6) of this subsection; | 0023| (5) continue the child in the legal custody of | 0024| the department with or without any required parental involvement | 0025| in a treatment plan; | 0001| (6) make additional orders regarding the | 0002| treatment plan or placement of the child to protect the child's | 0003| best interests if the court determines the department has failed | 0004| in implementing any material provision of the treatment plan or | 0005| abused its discretion in the placement or proposed placement of | 0006| the child; or | 0007| (7) if during a judicial review the court finds | 0008| that the child's parent, guardian or custodian has not complied | 0009| with the court-ordered treatment plan, the court may order: | 0010| (a) the child's parent, guardian or | 0011| custodian to show cause why he should not be held in contempt of | 0012| court; or | 0013| (b) a hearing on the merits of terminating | 0014| parental rights. | 0015| [H.] I. Dispositional orders entered pursuant to this | 0016| section shall remain in force for a period of six months, except | 0017| for orders that provide for transfer of the child to the child's | 0018| noncustodial parent or to a permanent guardian. | 0019| [I.] J. The report of the local substitute care review | 0020| board submitted to the court pursuant to Subsection [A] B of this | 0021| section shall become a part of the child's permanent court | 0022| record." | 0023| Section 5. A new section of the Abuse and Neglect Act is | 0024| enacted to read as follows: | 0025| "[NEW MATERIAL] PERMANENCY HEARINGS--REBUTTABLE | 0001| PRESUMPTIONS.-- | 0002| A. A permanency hearing shall be commenced within six | 0003| months of the initial judicial review of the child's dispositional | 0004| order. Prior to the initial permanency hearing, all parties to | 0005| the hearing shall attend a mandatory meeting and attempt to settle | 0006| issues attendant to the permanency hearing and develop a proposed | 0007| treatment plan that serves the child's best interest. Prior to | 0008| the initial permanency hearing, the department shall submit a | 0009| progress report regarding the child to the local substitute care | 0010| review board for that judicial district. The local substitute | 0011| care review board may review the child's dispositional order, any | 0012| continuation of that order and the department's progress report | 0013| and report its findings and recommendations to the court. | 0014| B. During a permanency hearing, there shall be a | 0015| rebuttable presumption that the child's best interest will be | 0016| served by returning the child to his parent, guardian or | 0017| custodian. At the hearing, all parties shall have the opportunity | 0018| to present evidence and to cross-examine witnesses. At the | 0019| conclusion of the permanency hearing, the court shall determine if | 0020| sufficient evidence was presented to rebut the presumption. | 0021| C. If insufficient evidence is presented to rebut, by | 0022| a preponderance of the evidence, the presumption set forth in | 0023| Subsection B of this section, the court shall order one of the | 0024| following dispositions: | 0025| (1) dismiss the case and return the child to his | 0001| parent, guardian or custodian; or | 0002| (2) return the child to his parent, guardian or | 0003| custodian, subject to those conditions and limitations the court | 0004| may prescribe, including protective supervision of the child by | 0005| the department and continuation of the treatment plan for not more | 0006| than six months. | 0007| D. If sufficient evidence is presented to rebut, by a | 0008| preponderance of the evidence, the presumption set forth in | 0009| Subsection B of this section, the court shall order that the child | 0010| remain in the legal custody of the department and make additional | 0011| orders regarding the treatment plan. Within three months of a | 0012| permanency hearing order issued pursuant to this subsection, if a | 0013| motion to terminate parental rights or appoint a permanent | 0014| guardian has not been filed or if the child's permanency plan has | 0015| not been formally changed to provide for emancipation of the | 0016| child, a subsequent permanency hearing shall be commenced. | 0017| E. During a subsequent permanency hearing, there shall | 0018| be a rebuttable presumption that the child's best interest will be | 0019| served by changing the child's permanency plan to provide for | 0020| adoption of the child, emancipation of the child, permanent | 0021| guardianship for the child or long-term foster care for the child. | 0022| At the hearing, all parties shall have the opportunity to present | 0023| evidence and cross-examine witnesses. At the conclusion of the | 0024| hearing, the court shall determine if sufficient evidence was | 0025| presented to rebut the presumption. | 0001| F. If insufficient evidence is presented to rebut, by | 0002| a preponderance of the evidence, the presumption set forth in | 0003| Subsection E of this section, the court shall order: | 0004| (1) the department to change the child's | 0005| permanency plan to provide for adoption of the child, emancipation | 0006| of the child, permanent guardianship for the child or long-term | 0007| foster care for the child; and | 0008| (2) that additional efforts to reunite the child | 0009| and his parent shall not be attempted. | 0010| G. If sufficient evidence is presented to rebut, by a | 0011| preponderance of the evidence, the presumption set forth in | 0012| Subsection E of this section, the court shall order one of the | 0013| following dispositions: | 0014| (1) dismiss the case and return the child to his | 0015| parent, guardian or custodian; or | 0016| (2) return the child to his parent, guardian or | 0017| custodian, subject to those conditions and limitations the court | 0018| may prescribe, including protective supervision of the child by | 0019| the department and continuation of the treatment plan for not more | 0020| than six months. | 0021| H. The children's court attorney shall give notice to | 0022| all parties, the child's guardian ad litem, the child's CASA, a | 0023| contractor administering the local substitute care review board | 0024| and the child's foster parent or substitute care provider of the | 0025| time, place and purpose of any permanency hearing held pursuant to | 0001| this section. | 0002| I. The Rules of Evidence shall not apply to permanency | 0003| hearings. The court may admit testimony by any person given | 0004| notice of the permanency hearing who has information about the | 0005| status of the child or the status of the treatment plan. All | 0006| testimony shall be subject to cross-examination." | 0007| Section 6. Section 32A-4-28 NMSA 1978 (being Laws 1993, | 0008| Chapter 77, Section 122, as amended) is amended to read: | 0009| "32A-4-28. TERMINATION OF PARENTAL RIGHTS--ADOPTION | 0010| DECREE.-- | 0011| A. In proceedings to terminate parental rights, the | 0012| court shall give primary consideration to the physical, mental and | 0013| emotional welfare and needs of the child, including the likelihood | 0014| of the child being adopted if parental rights are terminated. | 0015| B. The court shall terminate parental rights with | 0016| respect to a child when: | 0017| (1) there has been an abandonment of the child | 0018| by his parents; | 0019| (2) the child has been a neglected or abused | 0020| child as defined in the Abuse and Neglect Act and the court finds | 0021| that the conditions and causes of the neglect and abuse are | 0022| unlikely to change in the foreseeable future despite reasonable | 0023| efforts by the department or other appropriate agency to assist | 0024| the parent in adjusting the conditions that render the parent | 0025| unable to properly care for the child. [provided] The court may | 0001| find in some cases that efforts by the department or another | 0002| agency [would be] are unnecessary, when there is a clear showing | 0003| that the efforts would be futile or when a parent has caused great | 0004| bodily harm or death to the child or the child's sibling; or | 0005| (3) the child has been placed in the care of | 0006| others, including care by other relatives, either by a court order | 0007| or otherwise and the following conditions exist: | 0008| (a) the child has lived in the home of | 0009| others for an extended period of time; | 0010| (b) the parent-child relationship has | 0011| disintegrated; | 0012| (c) a psychological parent-child | 0013| relationship has developed between the substitute family and the | 0014| child; | 0015| (d) if the court deems the child of | 0016| sufficient capacity to express a preference, the child no longer | 0017| prefers to live with the natural parent; | 0018| (e) the substitute family desires to adopt | 0019| the child; and | 0020| (f) a presumption of abandonment created by | 0021| the conditions described in Subparagraphs (a) through (e) of this | 0022| paragraph has not been rebutted. | 0023| C. A finding by the court that all of the conditions | 0024| set forth in Subparagraphs (a) through [(e)] (f) of Paragraph (3) | 0025| of Subsection B of this section exist shall create a rebuttable | 0001| presumption of abandonment. | 0002| D. The termination of parental rights involving a | 0003| child subject to the federal Indian Child Welfare Act of 1978 | 0004| shall comply with the requirements of that act. | 0005| E. [When] If the court finds that parental rights | 0006| should be terminated; that the requirements for the adoption of a | 0007| child have been satisfied; that the prospective adoptive parent is | 0008| a party to the action; and that [the] good cause exists to waive | 0009| the filing of a separate petition for adoption, the court may | 0010| proceed to grant adoption of the child, absent an appeal of the | 0011| termination of parental rights. The court shall not waive any | 0012| time requirements set forth in the Adoption Act, unless the | 0013| termination of parental rights occurred pursuant to the provisions | 0014| of Paragraph (3) of Subsection B of this section. The court may | 0015| enter a decree of adoption only after finding that the party | 0016| seeking to adopt the child has satisfied all of the requirements | 0017| set forth in the Adoption Act. Unless otherwise stipulated by all | 0018| parties, an adoption decree shall take effect sixty days after the | 0019| termination of parental rights, to allow the department sufficient | 0020| time to provide counseling for the child and otherwise prepare the | 0021| child for the adoption. The adoption decree shall conform to the | 0022| requirements of the Adoption Act and shall have the same force and | 0023| effect as other adoption decrees entered pursuant to that act. | 0024| The court clerk shall assign an adoption case number to the | 0025| adoption decree." | 0001| Section 7. Section 32A-4-29 NMSA 1978 (being Laws 1993, | 0002| Chapter 77, Section 123) is amended to read: | 0003| "32A-4-29. TERMINATION PROCEDURE.-- | 0004| A. A motion to terminate parental rights may be filed | 0005| at any stage of the abuse or neglect proceeding. The proceeding | 0006| may be initiated by any of the following: | 0007| (1) the department; | 0008| (2) a licensed child placement agency; or | 0009| (3) any other person having a legitimate | 0010| interest in the matter, including the child's guardian ad litem, a | 0011| petitioner for adoption, a foster parent or a relative of the | 0012| child. | 0013| B. The motion for termination of parental rights shall | 0014| be signed, verified by the moving party and filed with the court. | 0015| The motion shall set forth: | 0016| (1) the date, place of birth and marital status | 0017| of the child, if known; | 0018| (2) the grounds for termination and the facts | 0019| and circumstances supporting the grounds for termination; | 0020| (3) the names and addresses of the persons or | 0021| authorized agency or agency officer to whom custody might be | 0022| transferred; | 0023| (4) whether the child resides or has resided | 0024| with a foster parent who desires to adopt this child; | 0025| (5) whether the motion is in contemplation of | 0001| adoption; | 0002| (6) the relationship or legitimate interest of | 0003| the moving party to the child; and | 0004| (7) whether the child is subject to the federal | 0005| Indian Child Welfare Act of 1978 and, if so: | 0006| (a) the tribal affiliations of the child's | 0007| parents; | 0008| (b) the specific actions taken by the | 0009| moving party to notify the parents' [tribe] tribes and the results | 0010| of the contacts, including the names, addresses, titles and | 0011| telephone numbers of the persons contacted. Copies of any | 0012| correspondence with the tribes shall be attached as exhibits to | 0013| the petition; and | 0014| (c) what specific efforts were made to | 0015| comply with the placement preferences set forth in the federal | 0016| Indian Child Welfare Act of 1978 or the placement preferences of | 0017| the appropriate Indian tribes. | 0018| C. A parent who has not previously been a party to the | 0019| proceeding shall be named in the motion and shall become a party | 0020| to the proceeding. | 0021| D. Notice of the filing of the motion, accompanied by | 0022| a copy of the motion, shall be served by the moving party on the | 0023| parents of the child, any parent who has not previously been made | 0024| a party to the proceeding, foster parents with whom the child is | 0025| residing, foster parents with whom the child has resided for six | 0001| months within the previous twelve months, the custodian of the | 0002| child, the department, any person appointed to represent any | 0003| party, including the child's guardian ad litem, and any other | 0004| person the court orders. Service shall be in accordance with the | 0005| Rules of Civil Procedure for the District Courts for the service | 0006| of process in a civil action in this state, except that foster | 0007| parents and attorneys of record in this proceeding may be served | 0008| by certified mail. The notice shall state specifically that the | 0009| person served [must] shall file a written response to the motion | 0010| within twenty days if the person intends to contest the | 0011| termination. In any case involving a child subject to the federal | 0012| Indian Child Welfare Act of 1978, notice shall also be served upon | 0013| the tribes of the child's parents and upon any "Indian custodian" | 0014| as that term is defined in 25 U.S.C. Section 1903(6). | 0015| E. If the identity or whereabouts of a person entitled | 0016| to service are unknown, the moving party shall file a motion for | 0017| an order granting service by publication supported by the | 0018| affidavit of the moving party or his agent or attorney detailing | 0019| the efforts made to locate the person entitled to service. Upon | 0020| being satisfied that reasonable efforts to locate the person | 0021| entitled to service have been made and that information as to the | 0022| identity or whereabouts of the person is still insufficient to | 0023| effect service in accordance with the Rules of Civil Procedure for | 0024| the District Courts, the court shall order service by publication | 0025| pursuant to the Rules of Civil Procedure for the District Courts. | 0001| F. After a motion for the termination of parental | 0002| rights is filed, the parent shall be advised of the right to | 0003| counsel, unless the parent is already represented by counsel. | 0004| Counsel shall be appointed, upon request, for any parent who is | 0005| unable to obtain counsel due to financial reasons or, if in the | 0006| court's discretion, the interests of justice require appointment | 0007| of counsel. | 0008| G. The court shall assure that a guardian ad litem | 0009| represents the child in all proceedings for the termination of | 0010| parental rights. | 0011| H. When a motion to terminate parental rights is | 0012| filed, the moving party shall request a hearing on the motion. | 0013| The hearing date shall be at least thirty days, but no more than | 0014| sixty days, after service is effected upon the parties entitled to | 0015| service under this section. | 0016| I. In any action for the termination of parental | 0017| rights brought by a party other than the department and involving | 0018| a child in the custody of the department, the department may: | 0019| (1) litigate a motion for the termination of | 0020| parental rights that was initially filed by another party; or | 0021| (2) move that the motion for the termination of | 0022| parental rights be found premature and denied. | 0023| J. The grounds for any attempted termination shall be | 0024| proved by clear and convincing evidence. In any proceeding | 0025| involving a child subject to the federal Indian Child Welfare Act | 0001| of 1978, the grounds for any attempted termination shall be proved | 0002| beyond a reasonable doubt and shall meet the requirements set | 0003| forth in 25 U.S.C. Section 1912(f). | 0004| K. When the court terminates parental rights, it shall | 0005| appoint a custodian for the child and fix responsibility for the | 0006| child's support. | 0007| L. In any termination proceeding involving a child | 0008| subject to the federal Indian Child Welfare Act of 1978, the court | 0009| shall in any termination order make specific findings that the | 0010| requirements of that act have been met. | 0011| M. A judgment of the court terminating parental rights | 0012| divests the parent of all legal rights and privileges and | 0013| dispenses with both the necessity for the consent to or receipt of | 0014| notice of any subsequent adoption proceeding concerning the child. | 0015| A judgment of the court terminating parental rights shall not | 0016| affect the child's rights of inheritance from and through the | 0017| child's biological parents." | 0018| Section 8. EFFECTIVE DATE.--The effective date of the | 0019| provisions of this act is July 1, 1997. | 0020|  |