|
Senate Engrossed |
|
State of Arizona Senate Fifty-third Legislature First Regular Session 2017
|
|
SENATE BILL 1360 |
|
|
|
|
AN ACT
amending sections 8‑846 and 8-873, Arizona Revised Statutes; amending Title 8, chapter 4, article 12, Arizona Revised Statutes, by adding section 8-873.01; amending section 8‑874, Arizona Revised Statutes; relating to permanent guardianship.
(TEXT OF BILL BEGINS ON NEXT PAGE)
Be it enacted by the Legislature of the State of Arizona:
Section 1. Section 8-846, Arizona Revised Statutes, is amended to read:
8-846. Services provided to the child and family
A. Except as provided in subsections D, E and F of this section, if the child has been removed from the home, the court shall order the department to make reasonable efforts to provide services to the child and the child's parent.
B. If the court determines that services supplemental to those provided through the department are available from another source at no cost to this state, the court may order the services on agreement of the provider.
C. The court may employ an individual or individuals to facilitate collaboration between the parties and to ensure the delivery of court‑ordered services. An employee acting in that capacity has access to all documents and information necessary to ensure service delivery regarding the child and the child's family without obtaining prior approval from the child, the child's family or the court. The employee may disclose documents and information the employee acquires, reviews or produces only as prescribed pursuant to section 41‑1959 8‑807.
D. The court shall consider the following factors in determining whether reunification services are required to be provided. Reunification services are not required to be provided if the court finds by clear and convincing evidence that:
1. One or more of the following aggravating circumstances exist:
(a) A party to the action provides a verified affidavit that states that a reasonably diligent search has failed to identify and locate the parent within three months after the filing of the dependency petition or the parent has expressed no interest in reunification with the child for at least three months after the filing of the dependency petition.
(b) The parent or guardian is suffering from a mental illness or mental deficiency of such magnitude that it renders the parent or guardian incapable of benefitting from the reunification services. This finding shall be based on competent evidence from a psychologist or physician that establishes that, even with the provision of reunification services, the parent or guardian is unlikely to be capable of adequately caring for the child within twelve months after the date of the child's removal from the home.
(c) The child previously has been removed and adjudicated dependent due to physical or sexual abuse. After the adjudication the child was returned to the custody of the parent or guardian and then subsequently removed within eighteen months due to additional physical or sexual abuse.
(d) The parent or guardian committed an act that constitutes a dangerous crime against children as defined in section 13‑705 or caused a child to suffer serious physical injury or emotional injury or the parent or guardian knew or reasonably should have known that another person committed an act that constitutes a dangerous crime against children as defined in section 13‑705 or caused a child to suffer serious physical injury or emotional injury.
(e) The parent's rights to another child have been terminated, the parent has not successfully addressed the issues that led to the termination and the parent is unable to discharge parental responsibilities.
(f) After a finding that a child is dependent, all of the following are true:
(i) A child has been removed from the parent or guardian on at least two previous occasions.
(ii) Reunification services were offered or provided to the parent or guardian after the removal.
(iii) The parent or guardian is unable to discharge parental responsibilities.
2. The parent or guardian of a child has been convicted of a dangerous crime against children as defined in section 13‑705, murder or manslaughter of a child, or of sexual abuse of a child, sexual assault of a child, sexual conduct with a minor, molestation of a child, commercial sexual exploitation of a minor, sexual exploitation of a minor or luring a minor for sexual exploitation.
3. The parent or guardian of a child has been convicted of aiding or abetting or attempting, conspiring or soliciting to commit any of the crimes listed in paragraph 2 of this subsection.
E. The court shall consider any criminal prosecution relating to the offenses that led to the child's removal from the home and shall abide by any orders of the criminal court. Information may be provided by law enforcement or the county attorney.
F. If a dependency petition was filed pursuant to section 8‑873.01 or 8‑874, subsection J, the court may direct the division not to provide reunification services to the child's parents unless the court finds by clear and convincing evidence that these services would be in the child's best interests.
Sec. 2. Section 8-873, Arizona Revised Statutes, is amended to read:
8-873. Revocation of permanent guardianship
A. The child, a parent of the child or any party to the dependency proceeding may file a petition for the revocation of an order granting permanent guardianship if there is a significant change of circumstances, including:
1. The child's parent is able and willing to properly care for the child.
2. The child's permanent guardian is unable to properly care for the child.
B. The court shall appoint a guardian ad litem for the child in any proceeding for the revocation of permanent guardianship.
C. The court may revoke the order granting permanent guardianship if the party petitioning for revocation proves a change of circumstances by clear and convincing evidence and the revocation is in the child's best interest.
D. The child's case plan of guardianship may remain in place after revocation of a permanent guardianship even though no successor guardian has been identified if the court has ordered that no reunification services be provided to the child's parent.
Sec. 3. Title 8, chapter 4, article 12, Arizona Revised Statutes, is amended by adding section 8-873.01, to read:
8-873.01. Permanent guardianship dependency proceedings; reunification services
A. If a dependency petition is filed on a permanent guardian, the court shall order reunification services in the pending dependency proceeding for the parent whose child was previously adjudicated dependent resulting in the appointment of the permanent guardian if, after receiving notice, the parent meets all of the following:
1. Is willing to care for the child.
2. Makes a written or oral request to the court to participate in reunification services at the parent's initial appearance.
3. Proves by clear and convincing evidence that there has been a significant change of circumstances that indicates that the parent may be able to care for the child and that reunification services are in the child's best interests.
B. If the parent is willing to care for the child and requests to participate in reunification services, the court shall set a hearing to determine if there has been a significant change of circumstances that indicates that the parent may be able to care for the child and if reunification services are in the child's best interests.
C. If the court finds by clear and convincing evidence that there has been a significant change of circumstances that indicates that the parent may be able to care for the child and that reunification services are in the child's best interests, the court shall order the department to provide reunification services to the parent.
Sec. 4. Section 8-874, Arizona Revised Statutes, is amended to read:
8-874. Appointment of successor permanent guardian
A. If a permanent guardian appointed pursuant to section 8‑872 is unable or unwilling to continue to serve as permanent guardian, the permanent guardian, the division or an interested party may file a motion for appointment of a successor permanent guardian. The motion shall be verified by the person filing the motion and shall include the following:
1. The name, sex, address and date and place of birth of each child who is the subject of the motion.
2. The name and address of the permanent guardian.
3. The reason why the permanent guardian is no longer able or willing to serve as permanent guardian of the child.
4. The name and address of the proposed successor permanent guardian, if any.
B. If the motion identifies a proposed successor permanent guardian, the motion shall be accompanied by an affidavit by the proposed successor permanent guardian that states:
1. The relationship between the proposed successor permanent guardian and the child.
2. The proposed successor guardian's agreement to assume the duties and responsibilities of permanent guardian, including compliance with all court orders.
C. On the filing of a motion pursuant to subsection A of this section, the court shall:
1. Set a date for an initial guardianship review hearing within thirty days after the motion is filed.
2. Appoint an attorney for the child and appoint an attorney for the proposed successor guardian, if necessary. The court is not required to appoint an attorney for the parent of the child.
3. Enter temporary orders, which may include:
(a) Placing the child in the temporary custody of an individual or agency or the division and directing the division to provide necessary services as may be necessary for the safety and well-being of the child.
(b) Directing the division to complete a criminal records check and home study to determine the suitability of the proposed successor permanent guardian to serve as the permanent guardian of the child.
(c) Directing the division to conduct an investigation to determine whether dependency proceedings should be initiated.
D. The court shall order the person filing the motion to give notice of the hearing and to provide a copy of the motion together with the court's temporary orders to the permanent guardian, the division, the child's attorney, the child's parents and any other interested person as ordered by the court. The person filing the motion shall provide notice by first class mail unless the court orders that notice be given by other means. If the child is subject to the Indian child welfare act of 1978, the person filing the motion shall provide notice, pursuant to 25 United States Code section 1912, to the Indian parent, the Indian custodian and the child's tribe. If the identity or location of the Indian child's parent cannot be determined, the person filing the motion shall provide notice to the United States secretary of the interior pursuant to 25 United States Code section 1912.
E. If the child is at least twelve years of age, the court shall consider the child's objection to the proposed successor permanent guardian.
F. At the hearing, if the court finds that the proposed successor permanent guardian is suitable to assume the responsibilities of permanent guardian and that appointment would be in the child's best interests, the court shall grant the motion, terminate the appointment of the current permanent guardian and enter any other orders as may be necessary for the safety and well-being of the child, including:
1. Appointing the proposed successor permanent guardian as a provisional permanent guardian of the child for a period not to exceed nine months and setting a hearing to determine whether the appointment should be made permanent.
2. Appointing the proposed successor permanent guardian as permanent guardian of the child if the court finds by clear and convincing evidence that the proposed successor permanent guardian is suitable to serve as the child's permanent guardian and that the appointment would be in the child's best interests.
3. Directing the division to monitor the placement during the period of provisional appointment and to provide necessary services to support the provisional placement, including assisting the provisional permanent guardian to make an application for guardianship subsidy and other available benefits.
G. If the court enters an order appointing a successor permanent guardian, the court shall set a review hearing within one year after the appointment and may order the division or an agency to conduct an investigation and submit a written report before the hearing.
H. A successor permanent guardian is vested with all of the rights and responsibilities prescribed in section 14-5209 relating to the powers and duties of a guardian of a minor, other than those rights and responsibilities of a birth or adoptive parent prescribed in the order appointing the successor permanent guardian.
I. The order appointing the successor permanent guardian may provide for contact between the child and the natural or adoptive parents, siblings and other relatives or kin if contact is in the child's best interests. The court may order the parent to contribute to the support of the child and to pay any costs for visitation to the extent it finds the parent able to contribute.
J. If the motion to appoint a successor permanent guardian does not comply with this section, or if the court does not appoint a provisional or permanent successor permanent guardian, the court may order the division department or the child's attorney to file a dependency petition regarding the child and may enter temporary orders that are necessary for the safety and well-being of the child. In these cases, the court may direct the division department not to provide reunification services to the child's parents parent unless the court finds by clear and convincing evidence that there has been a significant change of circumstances that indicates that the parent may be able to care for the child and that it reunification services for the parent would be in the child's best interests. The court shall set a hearing to make this determination if, after receiving notice, the parent meets both of the following:
1. Is willing to care for the child.
2. Makes a written or oral request to the court to participate in reunification services at the parent's initial appearance.
K. The court may order that the case plan of guardianship remain in place even though no successor guardian has been identified if the court has ordered that no reunification services be provided to the child's parent.