Chapter 0005 - 552R - S Ver of SB1069

Be it enacted by the Legislature of the State of Arizona:

Section 1. Section 8-115, Arizona Revised Statutes, is amended to read:

START_STATUTE8-115. Hearing; procedure; record; evidence

A. The court shall hold a hearing on a petition filed pursuant to this article in as informal a manner as the requirements of due process and fairness permit. The prospective adoptive parent, the spouse of a prospective adoptive parent and the child to be adopted shall attend unless the court orders otherwise. The court shall only allow persons who have a direct interest in the case, including invited guests of the adoptive family, to attend the hearing. A person who attends a hearing shall not disclose any information about the hearing. The attendees shall not disclose the content of testimony provided at the hearing. Nothing in this subsection restricts the ability for the juvenile court or clerk of the court to communicate relevant case information with the family court or clerk of the court. The court may require the presence of such other witnesses as it deems necessary.

B. The court shall make its findings based on a preponderance of the evidence. The court may consider any and all reports required by this article or ordered by the court pursuant to this article. END_STATUTE

Sec. 2. Section 8-221, Arizona Revised Statutes, is amended to read:

START_STATUTE8-221. Counsel right of juvenile, parent or guardian; appointment; reimbursement; guardian ad litem

A. The court shall appoint an attorney for a child in all delinquency proceedings that commence with a petition or that may involve detention, dependency proceedings or termination of parental rights proceedings that are conducted pursuant to this title. The court shall appoint the attorney before the first hearing. The attorney shall represent the child at all stages of the proceedings and, in a dependency proceeding, through permanency dismissal.

B. If a juvenile, parent or guardian is found to be indigent and entitled to counsel, the juvenile court shall appoint an attorney to represent the person or persons unless the person knowingly, intelligently and voluntarily waives counsel.

C. Before any court appearance that may result in institutionalization or mental health hospitalization of a juvenile, the court shall appoint counsel for the juvenile if counsel has not been previously appointed or retained by or for the juvenile.

D. The county board of supervisors may fix a reasonable sum to be paid by the county for the services of an appointed attorney.

E. If the court finds that the parent or guardian of a juvenile has sufficient financial resources to reimburse, at least in part, the costs of the services of an attorney appointed pursuant to this section, the court shall order the parent or guardian to pay to the appointed attorney or the county, through the clerk of the court, an amount that the parent or guardian is able to pay without incurring substantial hardship to the family. Failure to obey an order under this subsection is not grounds for contempt or grounds for withdrawal by the appointed attorney. An order under this section may be enforced in the manner of a civil judgment.

F. In a county where there is a public defender, the public defender may act as attorney in either:

1. A delinquency or incorrigibility proceeding when requested by the juvenile court.

2. Any other juvenile proceeding that is conducted pursuant to this title if the board of supervisors authorizes the appointment of the public defender.

G. In all juvenile court proceedings in which the dependency petition includes an allegation that the juvenile is abused or neglected, the court may appoint a guardian ad litem to protect the juvenile's best interests. This guardian ad litem shall be an attorney. The guardian ad litem is not the child's attorney.

H. Any guardian ad litem or attorney appointed for a juvenile shall meet with the juvenile before the preliminary protective hearing, if possible, or within fourteen days after the preliminary protective hearing. The guardian ad litem or attorney appointed for the juvenile also shall meet with the juvenile before all substantive hearings. On a showing of extraordinary circumstances, the judge may modify this requirement for any substantive hearing. END_STATUTE

Sec. 3. Section 8-237, Arizona Revised Statutes, is amended to read:

START_STATUTE8-237. Statement or conduct of child; hearsay exception

The out of court out-of-court statements or nonverbal conduct of a minor regarding acts of abuse or neglect perpetrated on him the minor are admissible for all purposes in any adoption, dependency, or termination of parental rights or guardianship proceeding under this title if the time, content and circumstances of such a statement or nonverbal conduct provide sufficient indication of its reliability. END_STATUTE

Sec. 4. Section 8-525, Arizona Revised Statutes, is amended to read:

START_STATUTE8-525. Open court proceedings; closure; records

A. Except as otherwise provided pursuant to this section and section 8-537, court proceedings relating to dependent children, permanent guardianship and termination of parental rights are open to the public.

B. At the first hearing in any dependency, permanent guardianship or termination of parental rights proceeding, the court shall ask the parties if there are any reasons the proceeding should be closed. For good cause shown, the court may order any proceeding to be closed to the public except as provided in section 8-537. In considering whether to close the proceeding to the public, the court shall consider:

1. Whether doing so is in the child's best interests.

2. Whether an open proceeding would endanger the child's physical or emotional well-being or the safety of any other person.

3. The privacy rights of the child, the child's siblings, parents, guardians and caregivers and any other person whose privacy rights the court determines need protection.

4. Whether all parties have agreed to allow the proceeding to be open.

5. If the child is at least twelve years of age and a party to the proceeding, the child's wishes.

6. Whether an open proceeding could cause specific material harm to a criminal investigation or prosecution.

C. Subject to the requirements of subsection B of this section and section 8-807.01, a court proceeding relating to child abuse, abandonment or neglect that has resulted in a fatality or near fatality is open to the public.

D. At the beginning of a hearing that is open to the public, the court shall do the following:

1. Admonish all attendees that they are prohibited from disclosing any information that may identify the child and the child's siblings, parents, guardians and caregivers, and any other person whose identity will be disclosed during the proceeding.

2. Explain contempt of court to all attendees and the possible consequences of violating an order of the court.

E. A person who remains in the court after the admonition pursuant to subsection D of this section must abide by the court's order prohibiting disclosure of that information. The court may find a person who fails to do so in contempt of court.

F. The court may close an open proceeding at any time for good cause shown and after considering the factors prescribed in subsection B of this section.

G. If the court closes a proceeding relating to child abuse, abandonment or neglect that has resulted in a fatality or near fatality has been closed by the court, any person may subsequently request that the court reopen a proceeding or a specific hearing to the public or request a transcript be made of any previously closed proceeding. In ruling on this request, the court shall consider the factors prescribed in subsection B of this section. The person who requested the transcript shall pay the cost of the transcript. If the court grants a request for a transcript of any closed proceeding, the court shall redact from a transcript any information that:

1. Protects the privacy, well-being or safety interests prescribed in subsection B of this section.

2. Protects the identity and safety of a person who reports child abuse or neglect and any other person if the court believes that disclosure of the DCS information would be likely to endanger the life or safety of any person.

3. The court has received that is confidential by law. The court shall maintain the confidentiality of the information as prescribed in the applicable law.

H. Any person may request to inspect court records of a proceeding involving the disclosure of DCS information regarding a case of child abuse, abandonment or neglect that has resulted in a fatality or near fatality. In ruling on this request, the court shall consider the factors prescribed in subsection B of this section. If the court grants the request, the court shall redact any information subject to the requirements of subsections B and G of this section and section 8-807.01. END_STATUTE

Sec. 5. Section 8-535, Arizona Revised Statutes, is amended to read:

START_STATUTE8-535. Notice of initial hearing; waiver; guardian ad litem

A. After the petition has been filed, the clerk of the superior court shall set a time and place for the initial hearing. Notice of the initial hearing and a copy of the petition shall be given to the parents of the child, the guardian of the person of the child, the person having legal custody of the child, any individual standing in loco parentis to the child, the tribe of any Indian child as defined by the federal Indian child welfare act of 1978 (25 United States Code section 1903) and the guardian ad litem of any party as provided for service of process in civil actions. In addition to the service of process requirements in civil actions, any parent, any Indian custodian and the tribe of an Indian child shall be notified of the initial hearing by certified or registered mail, return receipt requested, as required by the federal Indian child welfare act of 1978 (25 United States Code section 1912). The notice required by this subsection shall include the following statement:

You have a right to appear as a party in this proceeding. The failure of a parent to appear at the initial hearing, the pretrial conference, the status conference or the termination adjudication hearing may result in an adjudication terminating the parent-child relationship of that parent.

B. The initial hearing shall take place no not sooner than ten days after the completion of service of notice.

C. Notice and appearance may be waived by a parent before the court or in writing and attested to by two or more credible witnesses who are eighteen or more years of age subscribing their names thereto in the presence of the person executing the waiver or shall be duly acknowledged before an officer authorized to take acknowledgements by the person signing the waiver of notice and appearance. The face of the waiver shall contain language explaining the meaning and consequences of the waiver and the termination of parental rights. The parent who has executed such a waiver shall not be required to appear.

D. If a parent does not appear at the initial hearing, the court, after determining that the parent has been served with proper legal notice, may find that the parent has waived the parent's legal rights and is deemed to have admitted the allegations of the petition by the failure to appear. The court may terminate the parent-child relationship as to a parent who does not appear based on the record and evidence presented as provided in rules prescribed by the supreme court.

E. At the initial hearing, the court shall:

1. Schedule a pretrial conference or status conference.

2. Schedule the termination adjudication hearing.

3. Instruct the parent that the failure to appear at the pretrial conference, status conference or termination adjudication hearing may result in an adjudication terminating the parent-child relationship as to a parent who does not appear.

F. On the motion of any party or on its own motion, the court shall appoint a guardian ad litem if it determines that there are reasonable grounds to believe that a party to the proceeding is mentally incompetent or is otherwise in need of a guardian ad litem.

G. The county attorney, on the request of the court or a governmental agency or on the county attorney's own motion, may intervene in any proceedings under this article to represent the interest of the child.

H. A potential father who fails to file a paternity action within thirty days after completion of service of the notice prescribed in section 8-106, subsection G waives his right to be notified regarding the termination of parental rights and his consent to the termination of parental rights is not required. END_STATUTE

Sec. 6. Section 8-871, Arizona Revised Statutes, is amended to read:

START_STATUTE8-871. Permanent guardianship of a child

A. The court may establish a permanent guardianship between a child and the guardian if the prospective guardianship is in the child's best interests and all of the following apply:

1. The child has been adjudicated a dependent child or is the subject of a pending dependency petition filed by the department. If the child has not been adjudicated dependent, all parties must consent to the have been served pursuant to section 8-872, subsection b and no party objects, the court may grant a permanent guardianship. If the child has not been adjudicated dependent and any party objects to a motion for permanent guardianship, the court may schedule a settlement conference or mediation or may strike the motion and proceed with the dependency petition.

2. The child has been in the custody of the prospective permanent guardian for at least nine months. The court may waive this requirement for good cause.

3. If the child is in the custody of the department or agency, the department or agency has made reasonable efforts to reunite the parent and child and further efforts would be unproductive. The court may waive this requirement if it finds one or more of the following:

(a) Reunification efforts are not required by law.

(b) Reunification of the parent and child is not in the child's best interests because the parent is unwilling or unable to properly care for the child.

4. The likelihood that the child would be adopted is remote or termination of parental rights would not be in the child's best interests.

b. if the child is the subject of a pending dependency petition not filed by the department, the court shall notify the department of the motion for permanent guardianship not later than fourteen court days after the motion is filed, and the department may conduct an investigation into the allegations contained in the dependency petition. The department shall have ten court days from the court's notification to inform the court and parties of its position on the guardianship. If the department objects to the motion, the department may take action necessary to protect the health and safety of the child who is the subject of the guardianship motion, including moving to intervene in the dependency action or filing a separate dependency petition. the department, the agency or a person designated as an officer of the court shall provide a guardianship report pursuant to section 8-872, subsection e to the court not later than ten days following the court's order to provide the report.

B. c. The court may consider any adult, including a relative or foster parent, as a permanent guardian. An agency or institution may not be a permanent guardian. The court may appoint a person nominated by the child if the child is at least twelve years of age, unless the court finds that the appointment would not be in the child's best interests. The court shall consider the child's objection to the appointment of the person nominated as permanent guardian.

C. d. In proceedings for permanent guardianship, the court shall give primary consideration to the physical, mental and emotional needs and safety of the child.

D. e. Unless otherwise set forth in the final order of permanent guardianship, a permanent guardian is vested with all of the rights and responsibilities set forth in section 14-5209 relating to the powers and duties of a guardian of a minor, other than those rights and responsibilities of the birth or adoptive parent, if any, that are set forth in the decree of permanent guardianship.

E. f. At the guardianship hearing, or by notice filed after the appointment of a permanent guardian or a successor permanent guardian pursuant to section 8-874, the guardian may advise the court as to the identity and contact information of potential successor permanent guardians.

F. g. The department or agency shall not be responsible for the requirements pursuant to subsection A, paragraph 3 of this section for a petition concerning a child who is not in the care, custody and control of the department or agency. END_STATUTE

Sec. 7. Section 8-872, Arizona Revised Statutes, is amended to read:

START_STATUTE8-872. Permanent guardianship; procedure

A. Any party to a dependency proceeding or a pending dependency proceeding may file a motion for permanent guardianship. The motion shall be verified by the person who files the motion and shall include the following:

1. The name, sex, residence and date and place of birth of the child.

2. The facts and circumstances supporting the grounds for permanent guardianship.

3. The name and address of the prospective guardian and a statement that the prospective guardian agrees to accept the duties and responsibilities of guardianship.

4. The basis for the court's jurisdiction.

5. The relationship of the child to the prospective guardian.

6. Whether the child is subject to the Indian child welfare act of 1978 (P.L. 95-608; 92 Stat. 3069; 25 United States Code sections 1901 through 1963) and if so:

(a) The tribal affiliations of the child's parents.

(b) The specific actions the person who files the motion has taken to notify the parents' tribes and the results of those contacts, including the names, addresses, titles and telephone numbers of the persons contacted. The person shall attach to the motion as exhibits any correspondence with the tribes.

(c) The specific efforts that were made to comply with the placement preferences under the Indian child welfare act of 1978 or the placement preferences of the appropriate Indian tribes.

7. The name, address, marital status and date of birth of the birth parents, if known.

B. The person who files the motion shall serve notice of the hearing and a copy of the motion on all parties as prescribed in rule 5(c) of the Arizona rules of civil procedure, including any person who has filed a petition to adopt or who has physical custody pursuant to a court order in a foster-adoptive placement. In addition to the requirements of rule 5(c) of the Arizona rules of civil procedure, the notice shall be sent by certified or registered mail, return receipt requested, to any parent, Indian custodian and tribe of an Indian child as defined by in the federal Indian child welfare act of 1978 (25 United States Code section 1903).

C. The person who files the motion shall provide a copy of the notice of hearing to the following persons if the person has not been served pursuant to subsection B of this section:

1. The child's current physical custodian.

2. Any foster parent with whom the child has resided within six months before the date of the hearing.

3. The prospective guardian if the guardian is not the current physical custodian.

4. Any other person the court orders to be provided notice.

D. In a proceeding for permanent guardianship, on the request of a parent, the court shall appoint counsel for any parent found to be indigent if the parent is not already represented by counsel. The court may also appoint one for the child if a guardian ad litem has not already been appointed.

E. Before a final hearing, the department, the agency or a person designated as an officer of the court shall conduct an investigation addressing the factors set forth in section 8-871, whether the prospective permanent guardian or guardians are fit and proper persons to become permanent guardians and whether the best interests of the child would be served by granting the permanent guardianship. The findings of this investigation shall be set forth in a written report provided to the court and all parties before the hearing. The court may require additional investigation if it finds that the welfare of the child will be served or if additional information is necessary to make an appropriate decision regarding the permanent guardianship. The court may charge a reasonable fee for this investigation pursuant to section 8-133, if performed by an officer of the court. The court may waive the requirements of this subsection for good cause.

F. Before the court may appoint a guardian, the court shall require the prospective guardian to furnish either a valid fingerprint clearance card or a full set of fingerprints to enable the court to determine the applicant's suitability as guardian. If the prospective guardian does not submit a valid fingerprint clearance card, the prospective guardian shall submit a full set of fingerprints to the court for the purpose of obtaining a state and federal criminal records check pursuant to section 41-1750 and Public Law 92-544. The department of public safety may exchange this fingerprint data with the federal bureau of investigation.

G. The person who files the motion has the burden of proof by clear and convincing evidence. In any proceeding involving a child who is subject to the Indian child welfare act of 1978, the person who files the motion has the burden of proof by beyond a reasonable doubt.

H. A court order vesting permanent guardianship with an individual divests the birth or adoptive parent of legal custody of or guardianship for the child but does not terminate the parent's rights. A court order for permanent guardianship does not affect the child's inheritance rights from and through the child's birth or adoptive parents.

I. On finding that grounds exist for a permanent guardianship, the court may incorporate into the final order provisions for visitation with the natural parents, siblings or other relatives of the child if this order would be in the child's best interests and any other provision that is necessary to rehabilitate the child or to provide for the child's continuing safety and well-being. The court may order a parent to contribute to the support of the child to the extent it finds the parent is able.

J. On the entry of the order establishing a permanent guardianship, the dependency action shall be dismissed. If the child was in the legal custody of the department during the dependency, the court may order the department to conduct the investigation and prepare the report for the first report and review hearing. If the child was not in the legal custody of the department, the court may order the child's attorney or guardian ad litem to file a report for the report and review hearing. The court shall retain jurisdiction to enforce its final order of permanent guardianship. The court may order a report and shall set a review to be held within one year following the entry of the final order and may set such other and further proceedings as may be in the best interests of the child. Before a report and review hearing, the court may cause an investigation to be conducted of the facts and circumstances surrounding the welfare and best interests of the child and a written report to be filed with the court. The court may charge a reasonable fee for this investigation pursuant to section 8-133, if performed by an officer of the court.

K. The department or agency shall not be responsible for the requirements pursuant to subsections E, I and J of this section for a motion concerning a child not in the care, custody and control of the department or agency.

L. The court shall provide the guardian with written notice of the sibling information exchange program established pursuant to section 8-543. END_STATUTE