Family and Juvenile Law

January 29, 2010 | Category: Family/Juvenile

The Senate Judiciary Committee heard SB 140 on adoption matters authored by Sens. Zakas and Broden.  This bill is proposed in response to several recent appellate decisions.  The bill’s first section provides that a man who is given notice of an adoption and is barred from filing a paternity action may not file as next friend of the child or request a prosecutor to file on his behalf.  (Adoption of E.L., 913 N.E.2d 1276 (Ind. Ct. App. 2009)).  Three of the bill’s provisions clarify that if a man receives notice of adoption, he must file a notice to contest the adoption.  Current law permits the man to contest the adoption or to file a paternity action.  (B.W. v. D.B., 908 N.E.2d 586 (Ind. 2009)).  The next provision clarifies that a man is only required to register with the putative father registry if the mother has not disclosed the name or address of the putative father to the attorney or an agency arranging the adoption of the child.  Another section provides that once a person executes a consent to adoption of a child, the same person may not execute a second or subsequent consent to adopt to another person unless the steps in this section are taken to withdraw the consent.  (In re Adoption of A.S., 912 N.E.2d 840 (Ind. Ct. App. 2009)).  The next section of the bill provides that the court may not grant the petition for adoption under IC 31-19-11-1(c), if a person adopting a child is convicted of one of the listed crimes in this section or, in new language, an attempt to commit any one of the crimes listed.  (In re Adoption of J.L.S., 908 N.E.2d 1245 (Ind. Ct. App. 2009)).  The remaining sections of the bill specify that only an attorney licensed to practice in Indiana or a child placing agency licensed in Indiana may engage in adoption facilitation in Indiana. 

SB 149 authored by Sen. C. Lawson concerning the Department of Child Services was heard by the Senate Judiciary Committee.  This legislation provides (1) the DCS will no longer be charged a fee for fingerprinting when investigating the prospective placement for a child; (2) the Clerk will no longer be required to send copies of all adoption petitions to DCS; (3) clarifies language to provide whether the applicant for a foster home license has been charged with a felony or misdemeanor pertaining to the health and safety of children; (4) provides if a court issues orders in a CHINS, delinquency or paternity case in the areas of custody, support or visitation, for example, and there is already a dissolution proceeding pending involving the child, the court in the original action shall reassume primary jurisdiction and conduct any additional proceeding after the order in the CHINS, delinquency or paternity case was transmitted to the court in which the original action was filed; (5) repeals language requiring the Child Protection Team to provide diagnostic and prognostic services; (6) adds language to permit DCS to petition a court to seek authority to interview a child without the parent, guardian or custodian, when refused the authority to do so by a parent, guardian, or custodian under IC 31-33-8-7; (7)  clarifies information and data which must be disclosed in a child fatality and near fatality case; and (8) adds authority for a juvenile or probate court to create a guardianship over a minor which allows the court to set the terms and conditions a parent must meet before the parent can seek termination of the guardianship. The bill also requires DCS to be notified if a guardianship is created during an Informal Adjustment or CHINS case.  Requires the court to consider the position of DCS and allow DCS to present evidence on whether the guardianship should be modified or terminated, the fitness of the parent and the best interests of the child.  The Indianapolis Children’s Bureau and the Indiana Association of Child Care Agencies spoke in favor of this enhanced guardianship statute. The bill was amended to require DCS to investigate reports of abuse and neglect in child caring institutions and to report the results of that investigation.  Another amendment reduces the time when DCS or the prosecutor must give notice of the use of child testimony from 20 to 7 days and makes the bill effective on passage.  The Committee discussed at length whether DCS should have the authority to petition the court to interview a child without parental consent.  DCS indicated the need to petition the court for this authority in order to resolve reports of abuse or neglect, often before the filing of a CHINS case.  Committee members expressed concern about a false accusation or a misunderstood question by a child without a parent during the interview.  The committee amended this provision, by a rare hand vote, to provide that if DCS petitions the court to interview the child without a parent; the parent must be given notice of the hearing at which the petition will be heard.  The bill passed as amended, 8-3

The Senate Health and Provider Services Committee heard SB 295 authored by Sen. Miller on Family and Social Services.  An amendment was proposed that allows, among other things, certain individuals who were convicted of a drug offense but have not been convicted of another drug offense in the previous 5 years to receive food stamps.  The bill passed as amended, 9-0.

The Senate Corrections, Criminal, and Civil Matters Committee heard SB 417, Sen. Head’s bill on family law and foreign jurisdiction.  The bill prohibits the enforcement of contractual provisions calling for the application of the law of a foreign jurisdiction which “does not grant the parties the same fundamental liberties, rights, and privileges” conferred by the Constitutions of the United States and Indiana.  The bill also prohibits the enforcement of ADR or arbitration decisions based on the laws of such a foreign jurisdiction.  The bill was amended making it applicable only to a “court order concerning family law,” and to limit the required “fundamental liberties, rights, and privileges” to those conferred by the U.S. Constitution.  The bill passed as amended 8-0. 

The House Courts and Criminal Code Committee voted on HB 1085, disposition of certain children in need of services (CHINS), authored by Rep. Avery which provides that reasonable efforts to reunify a child with his or her parent are not required in certain circumstances.  The bill was amended to specify that those circumstances include a reasonable probability that continuation of the parent-child relationship poses a threat to the well-being of the child or that the child has twice been adjudicated a child in need of services.  The bill passed as amended 10-0.

The House Judiciary Committee heard HB 1167 authored by Rep. Moses concerning the placement of children outside Indiana.  The bill removes a provision that DCS is not responsible for the costs of an out-of-state juvenile placement in CHINS and delinquency cases unless recommended or approved by DCS.  An amendment was adopted providing that DCS is not required to pay for the placement of delinquents outside Indiana if the placement is more expensive than similar services provided in Indiana.  A representative from Gibault and DCS Director James Payne spoke against the legislation.  Director Payne said keeping children in the home and in Indiana is the best practice.  He reported the average occupancy rate of Indiana’s residential providers is 64%, and argued that treatment alternatives should be developed for this unused capacity.  Rep. Avery inquired how DCS is in a better position to make a placement decision than a judge who sits in the courtroom and hears testimony from the child, witnesses, GAL/CASA, etc.  Rep. Foley stated that DCS is in a better position to synthesize all the available resources for children in Indiana.  Judge Peter Nemeth, St. Joseph Probate Court, spoke in favor of the legislation describing the court’s statutory duty to do what is in the best interests of the child.  Two representatives from Rite of Passage testified in support of the legislation describing the services offered by their out-of-state facilities, including parental visitation.  The bill passed as amended, 9-2.