Current Through April 2016

Circumstances That Constitute Witnessing

Citation: Rev. Stat. § 13-702(D)(18)In criminal law: An act of domestic violence, as defined in § 13-3601(A), that was committed in the presence of a child will be considered an aggravating circumstance.

Consequences

Citation: Rev. Stat. § 13-702(D)(18)An act of domestic violence committed in the presence of a child is considered an aggravating circumstance when determining a sentence and may result in a longer period of incarceration.

Current Through February 2016

Physical Abuse

Citation: Rev. Stat. § 8-201 ‘Abuse’ means:

• Inflicting or allowing physical injury, impairment of bodily function, or disfigurement
• Physical injury that results from permitting a child to enter or remain in any structure or vehicle in which volatile, toxic, or flammable chemicals are found or equipment is possessed by any person for the purpose of manufacturing a dangerous drug
• Unreasonable confinement of a child

‘Serious physical injury’ means an injury that is diagnosed by a medical doctor and that does any one or a combination of the following:

• Creates a reasonable risk of death
• Causes serious or permanent disfigurement
• Causes significant physical pain
• Causes seriousimpairment of health
• Causes the loss or protracted impairment of an organ or limb
• Is the result of sexual abuse, sexual conduct with a minor, sexual assault, molestation of a child, child prostitution, commercial sexual exploitation of a minor, sexual exploitation, or incest

Neglect

Citation: Rev. Stat. § 8-201‘Neglect’ or ‘neglected’ means:

• The inability or unwillingness of a parent, guardian, or custodian of a child to provide that child with supervision, food, clothing, shelter, or medical care, if that inability or unwillingness causes unreasonable risk of harm to the child’s health or welfare
• Permitting a child to enter or remain in any structure or vehicle in which volatile, toxic, or flammable chemicals are found or equipment is possessed by any person for the purposes of manufacturing a dangerous drug
• A determination by a health professional that a newborn infant was exposed prenatally to a drug or substance listed in § 13-3401 and that this exposure was not the result of a medical treatment administered to the mother or the newborn infant by a health professional
• A diagnosis by a health professional of an infant under age 1 with clinical findings consistent with fetal alcohol syndrome or fetal alcohol effects

The determination by a health professional of prenatal exposure to a controlled substance shall be based on one or more of the following:

• Clinical indicators in the prenatal period, including maternal and newborn presentation
• History of substance use or abuse
• Medical history
• Results of a toxicology or other laboratory test on the mother or the newborn infant

Sexual Abuse/Exploitation

Citation: Rev. Stat. § 8-201 The term ‘abuse’ includes:

• Inflicting or allowing sexual abuse
• Sexual conduct with a minor
• Sexual assault
• Molestation of a child
• Commercial sexual exploitation of a minor
• Sexual exploitation of a minor
• Incest
• Child prostitution

The term ‘neglect’ includes:

• Deliberate exposure of a child by a parent, guardian, or custodian to sexual conduct, as defined in § 13-3551; sexual contact; oral sexual contact; sexual intercourse; bestiality; or explicit sexual materials
• Any of the following acts committed by the child’s parent, guardian, or custodian with reckless disregard as to whether the child is physically present:
  • Sexual contact
  • Oral sexual contact
  • Sexual intercourse
  • Bestiality

Emotional Abuse

Citation: Rev. Stat. § 8-201 The term ‘abuse’ includes inflicting or allowing another person to cause serious emotional damage to a child, as evidenced by severe anxiety, depression, withdrawal, or untoward aggressive behavior, and such emotional damage is diagnosed by a medical doctor or psychologist, and the damage has been caused by the acts or omissions of an individual having care, custody, and control of a child.

‘Serious emotional injury’ means an injury that is diagnosed by a medical doctor or a psychologist and that does any one or a combination of the following:

• Seriously impairs mental faculties
• Causes serious anxiety, depression, withdrawal, or social dysfunction behavior to the extent that the child suffers dysfunction that requires treatment
• Is the result of sexual abuse, sexual conduct with a minor, sexual assault, molestation of a child, child prostitution, commercial sexual exploitation of a minor, sexual exploitation of a minor, or incest

Abandonment

Citation: Rev. Stat. § 8-201
‘Abandoned’ means:

• The failure of the parent to provide reasonable support and to maintain regular contact with the child, including providing normal supervision
• That a parent has made only minimal efforts to support and communicate with the child

Failure to maintain a normal parental relationship with the child without just cause for a period of 6 months shall constitute prima facie evidence of abandonment.

Standards for Reporting

Citation: Rev. Stat. § 13-3620
A report is required when a mandatory reporter reasonably believes that a child is or has been the victim of physical injury, abuse or child abuse, a reportable offense (including child pornography, child prostitution, or incest), or neglect that appears to have been inflicted on the child by other than accidental means or that is not explained by the available medical history as being accidental in nature, or the person reasonably believes there has been a denial or deprivation of necessary medical treatment or surgical care or nourishment with the intent to cause or allow the death of an infant.

Persons Responsible for the Child

Citation: Rev. Stat. § 8-201 Responsible persons include:

• The parent
• A person having care, custody, and control of a child

Exceptions

Citation: Rev. Stat. § 8-201A dependent child does not include a child who, in good faith, is being furnished Christian Science treatment by a duly accredited practitioner.

A child is not considered neglected if a parent’s inability to meet the needs of the child is due solely to the unavailability of reasonable services.

Current Through August 2013

Defined in Domestic Violence Civil Laws

Citation: Rev. Stat. § 36-3001‘Domestic violence’ means attempting to cause or causing bodily injury to a family or household member or placing a family or household member by threat of force in fear of imminent physical harm.

Defined in Child Abuse Reporting and Child Protection Laws

Citation: Rev. Stat. §§ 8-801; 13-705 In civil law: In this chapter, unless the context otherwise requires, ‘criminal conduct allegation’ means an allegation of conduct by a parent, guardian, or custodian of a child that, if true, would constitute any of the following:

• A violation of § 13-3623 involving child abuse
• A felony offense that constitutes domestic violence, as defined in § 13-3601
• Sexual abuse or assault of a minor
• Sexual conduct with a minor or molestation of a child
• Any other act of abuse that is classified as a felony
• An offense that constitutes domestic violence as defined in § 13-3601 and that involves a minor who is a victim of or was in imminent danger during the domestic violence

In criminal law: ‘Dangerous crime against children’ means any of the following that is committed against a minor who is under age 15:

• Second-degree murder
• Aggravated assault resulting in serious physical injury or involving the discharge, use, or threatening exhibition of a deadly weapon or dangerous instrument
• Sexual assault
• Molestation of a child
• Sexual conduct with a minor
• Sexual exploitation or commercial sexual exploitation of a minor
• Child abuse, as described in § 13-3623(A)(1)
• Kidnapping
• Sexual abuse
• Taking or luring a child for the purpose of prostitution or child prostitution
• Involving or using minors in drug offenses
• Continuous sexual abuse of a child
• Attempted first-degree murder
• Sex trafficking
• Manufacturing methamphetamine under circumstances that cause physical injury to a minor
• Bestiality
• Luring a minor for sexual exploitation
• Aggravated luring a minor for sexual exploitation
• Unlawful age misrepresentation

Defined in Criminal Laws

Citation: Rev. Stat. § 13-3601‘Domestic violence’ means any act that constitutes one of the following offenses:

• A dangerous crime against children
• Homicide, murder, or manslaughter
• Endangerment
• A threatening or intimidating act
• Assault
• Custodial interference
• Unlawful imprisonment or kidnapping
• Sexual assault
• Criminal trespass
• Criminal damage
• Interfering with judicial proceedings
• Disorderly conduct
• Cruelty to animals
• Intentionally preventing the use of a telephone by another person during an emergency
• Use of an electronic communication to terrify, intimidate, threaten, harass, annoy, or offend
• Harassment
• Aggravated harassment
• Stalking
• Aggravated domestic violence
• Surreptitious photographing, videotaping, or filming
• Child or vulnerable adult abuse
• Emotional abuse

Persons Included in the Definition

Citation: Rev. Stat. §§ 13-3601; 36-3001 In criminal law: An act listed above is considered domestic violence if any of the following applies:

• The relationship between the victim and the defendant is one of marriage or former marriage or of persons residing or having resided in the same household.
• The victim and the defendant have a child in common.
• The victim or the defendant is pregnant by the other party.
• The victim is related to the defendant or the defendant’s spouse by blood or court order as a parent, grandparent, child, grandchild, brother, or sister, or by marriage as a parent-in-law, grandparent-in-law, stepparent, stepgrandparent, stepchild, stepgrandchild, brother-in-law, or sister-in-law.
• The victim is a child who resides or has resided in the same household as the defendant and is related by blood to a former spouse of the defendant or to a person who resides or who has resided in the same household as the defendant.
• The relationship between the victim and the defendant is currently or was previously a romantic or sexual relationship. The following factors may be considered in determining whether the relationship between the victim and the defendant is currently or was previously a romantic or sexual relationship:
  • The type of relationship
  • The length of the relationship
  • The frequency of the interaction between the victim and the defendant
  • If the relationship has terminated, the length of time since the termination

In civil law: ‘Family or household member’ means a spouse, a former spouse, a parent, a child, or other adult person related by consanguinity or affinity who is residing or has resided in the household, or has a child or children in common with the person committing the domestic violence, and dependents of such persons.

Current Through March 2015

Citation: Rev. Stat. § 13-3620(J)

A person who furnishes a report, information, or records required or authorized under this section, or a person who participates in a judicial or administrative proceeding or investigation resulting from a report, information, or records required or authorized under this section, is immune from any civil or criminal liability by reason of that action, unless the person acted with malice or unless the person has been charged with or is suspected of abusing or neglecting the child or children in question.

Citation: Rev. Stat. § 8-805(A)

Any person making a complaint, providing information, or otherwise participating in the program authorized by this article shall be immune from any civil or criminal liability by reason of such action, unless such person acted with malice or unless such person has been charged with or is suspected of abusing, abandoning, or neglecting the child or children in question.

Current Through February 2013

Individual Responsibility to Report

Citation: Rev. Stat. § 13-3620 Any mandated reporter who reasonably believes that a minor is the victim of abuse or neglect shall report immediately to a peace officer or child protective services (CPS) in the Department of Economic Security. The report may be made by telephone or in person and must be followed by a written report within 72 hours.

Content of Reports

Citation: Rev. Stat. § 13-3620 The reports shall contain:

• The names and addresses of the minor and the minor’s parents or the person having custody
• The minor’s age
• The nature and extent of any injuries or neglect, including any evidence of previous injuries or neglect
• Any other information that might be helpful

Reporting Suspicious Deaths

Citation:This issue is not addressed in the statutes reviewed.

Reporting Substance-Exposed Infants

Citation: Rev. Stat. § 13-3620 A health-care professional who, after a routine newborn physical assessment, believes that a newborn infant may be affected by the presence of alcohol or drugs shall immediately make a report to CPS.

Agency Receiving the Reports

Citation: Rev. Stat. § 13-3620(H); Admin. Code § R6-5-5502 When reports are received by a peace officer, the officer shall immediately notify CPS. When CPS receives a report, it shall immediately notify a peace officer in the appropriate jurisdiction.

In regulation: The department operates a Child Abuse Hotline to receive and screen incoming communications. If a person calls, visits, or writes a department office other than the Child Abuse Hotline to report child maltreatment, the department shall refer the person or written communication to the hotline.

Initial Screening Decisions

Citation: Admin. Code §§ R6-5-5502; 5504; 5506 When the hotline receives a call, staff shall determine the type of alleged maltreatment, whether to classify the call as a report for investigation, and check the central registry for prior reports on the same persons.

If a call is screened in as a report, the hotline staff shall gather additional information using standardized questions, determine whether there are aggravating or mitigating factors, and assign each report a priority code. Staff shall enter the report into the central registry and immediately transmit the report to a local office.

Upon receipt of a report, a CPS unit supervisor shall assign the case for a field investigation, alternative investigation, or alternative response, such as referral to Family Builders.

Agency Conducting the Assessment/Investigation

Citation: Admin. Code § R6-5-5505 To comply with the priority response time, entities other than CPS, such as law enforcement or emergency personnel, may initially respond to a report.

Assessment/Investigation Procedures

Citation: Admin. Code §§ R6-5-5507; 5508 An alternative investigation consists of contact with a mandatory reporter who is currently involved with the family. The information will determine if the child and other children residing in the home are current victims of maltreatment or at risk of imminent harm. If results indicate that an alleged victim is at risk of harm, the case shall be immediately assigned for field investigation.

When conducting a field investigation, a CPS specialist shall determine:

• The name, age, location, and current physical and mental condition of all children in the home of the alleged victim
• Whether any child in the home has suffered maltreatment
• Whether any child in the home is at risk of maltreatment in the future

A CPS specialist shall interview the alleged victim; the alleged victim’s caregiver who allegedly committed the abuse; other adults and children residing in the home; and other persons who may have relevant information, including the reporting source, medical personnel, relatives, neighbors, and school personnel. The CPS specialist also shall review available documentation including medical and psychiatric reports, police reports, school records, and prior CPS files or consult with law enforcement.

A CPS specialist may interview a child without prior parental consent under § 8-802(C)(2). A CPS specialist may exclude the alleged abuser from participating in an interview with the alleged victim, the alleged victim’s siblings, or other children residing in the alleged victim’s household.

Before interviewing a caregiver, a CPS specialist shall:

• Orally inform the caregiver of the rights and duties under § 8-803(B)
• Give the caregiver a written statement summarizing the same information
• Ask the caregiver to sign a written acknowledgment of receipt of the information

Timeframes for Completing Investigations

Citation: Admin. Code § 56-5-5505Priority codes and initial response times are:

• Priority 1 High Risk:
  • Standard Response: 2 hours
  • Mitigated Response: 24 hours
• Priority 2 Moderate Risk:
  • Standard Response: 48 hours
  • Aggravated Response: 24 hours
  • Mitigated Response: 72 hours
• Priority 3 Low Risk:
  • Standard Response: 72 hours
  • Aggravated Response: 48 hours
  • Mitigated Response: 72 hours excluding weekends and Arizona State holidays
• Priority 4 Potential Risk:
  • Standard Response: 7 days
  • Aggravated Response: 72 hours excluding weekends and Arizona State holidays

Classification of Reports

Citation: Admin. Code. § R6-5-5510After completing an investigation and considering the information listed in R6-5-5509, a CPS specialist shall unsubstantiate the allegations or make a proposed finding that the allegation is substantiated based on whether the CPS specialist finds probable cause to believe maltreatment occurred.

Current Through April 2015

Citation: Rev. Stat. § 13-3623(C)For the purposes of subsections A and B of this section, the terms ‘endangered’ and ‘abuse’ include, but are not limited to, circumstances in which a child or vulnerable adult is permitted to enter or remain in any structure or vehicle in which volatile, toxic, or flammable chemicals are found or equipment is possessed by any person for the purpose of manufacturing a dangerous drug in violation of § 13-3407(A)(3) or (4).

Notwithstanding any other provision of this section, a violation committed under circumstances described in this subsection does not require that a person have care or custody of the child or vulnerable adult.

Citation: Rev. Stat. § 8-201(2), (24)The term ‘abuse’ includes physical injury that results from permitting a child to enter or remain in any structure or vehicle in which volatile, toxic, or flammable chemicals are found or equipment is possessed by any person for the purpose of manufacturing a dangerous drug as defined in § 13-3401.

‘Neglect’ or ‘neglected’ means:

• Permitting a child to enter or remain in any structure or vehicle in which volatile, toxic or flammable chemicals are found or equipment is possessed by any person for the purposes of manufacturing a dangerous drug as defined in § 13-3401
• A determination by a health professional that a newborn infant was exposed prenatally to a drug or substance listed in § 13-3401, and that this exposure was not the result of a medical treatment administered to the mother or the newborn infant by a health professional. This subdivision does not expand a health professional’s duty to report neglect based on prenatal exposure to a drug or substance listed in § 13-3401 beyond the requirements prescribed pursuant to § 13-3620(E). The determination by the health professional shall be based on one or more of the following:
  • Clinical indicators in the prenatal period including maternal and newborn presentation
  • History of substance use or abuse
  • Medical history
  • The results of a toxicology or other laboratory test on the mother or the newborn infant
  • A diagnosis by a health professional of an infant under age 1 with clinical findings consistent with fetal alcohol syndrome or fetal alcohol effects

Citation: Rev. Stat. § 13-3620(E)A health-care professional who, after a routine newborn physical assessment of a newborn infant’s health status or following notification of positive toxicology screens of a newborn infant, reasonably believes that the newborn infant may be affected by the presence of alcohol or a drug listed in § 13-3401 shall immediately report this information, or cause a report to be made, to the Department of Child Safety. For the purposes of this subsection, ‘newborn infant’ means a newborn infant who is under 30 days of age.

Current Through August 2014

Making The Appointment

Citation: Rev. Stat. § 8-221In all juvenile court proceedings in which the dependency petition includes an allegation that the juvenile is abused or neglected, the court shall appoint a guardian ad litem (GAL) to protect the juvenile’s best interests. This guardian may be an attorney or a court-appointed special advocate (CASA).

The Use of Court-Appointed Special Advocates (CASAs)

Citation: Rev. Stat. §§ 8-523; 8-524The CASA program is established in the Administrative Office of the Supreme Court. The program shall establish local special advocate programs in each county.

The Supreme Court shall adopt rules prescribing the establishment of local programs and the minimum performance standards of these programs.

The CASA fund consists of moneys received pursuant to § 5-568 [from unclaimed prizes from the State lottery]. The fund is subject to annual legislative appropriation. Moneys appropriated by the legislature from the CASA fund for the CASA program shall be used by the Supreme Court to operate, improve, maintain, and enhance the program.

Qualifications/Training

Citation:This issue is not addressed in the statutes reviewed.

Specific Duties

Citation: Rev. Stat. § 8-221The GAL or attorney for a juvenile shall meet with the juvenile before the preliminary protective hearing, if possible, or within 14 days after the preliminary protective hearing. The GAL or attorney for the juvenile also shall meet with the juvenile before all substantive hearings. Upon a showing of extraordinary circumstances, the judge may modify this requirement for any substantive hearing.

How the Representative Is Compensated

Citation: This issue is not addressed in the statutes reviewed.

Current Through April 2014

When Case Plans Are Required

Citation: Children’s Services Manual, Ch. 2, § 9Every child and family receiving ongoing services from the Department of Children, Youth, and Families shall have an individualized family-centered case plan, consistent with the requirements of Federal and State law. The department shall conduct a case plan staffing within 60 days of case opening for all cases open for more than 60 days or within 10 working days of a child’s placement into voluntary foster care.

Who May Participate in the Case Planning Process

Citation: Children’s Services Manual, Ch. 2 § 9The department shall encourage the participation of parents, children, out-of-home care providers, and when appropriate, extended family members in the case planning process.

All members of the service team shall be invited to participate in the case plan staffing. Parents, children age 12 or older, and out-of-home care providers shall be members of the service team. To every extent possible, and when appropriate, extended family members may also participate as members of the service team.

Contents of a Case Plan

Children’s Services Manual, Ch. 2, §§ 9; 9.1The family-centered case plan shall be a discrete document that includes the following components:

• The child’s safety plan, specifying ongoing actions that will be taken to ensure the child’s continued safety at home and demonstrating that the child’s health and safety are of paramount concern
• The permanency goal for the child and expected date of achievement
• The family intervention plan, specifying for all parents (whose parental rights have not been terminated) and guardians the kinds of services and supports that will be offered to the family in order to achieve the case plan permanency goal
• The out-of-home care plan, specifying for every child in out-of-home care the most recent information available regarding:
  • The child’s special needs
  • The name and address of the child’s school
  • The child’s educational status
  • How the placement type meets those needs
  • Services provided to the child
  • Services provided to the caregiver to help meet the child’s needs
  • Actions the CPS Specialist will take to ensure safety in the out-of-home setting
  • When applicable, tasks and services to achieve a concurrent permanency goal or a permanency goal other than family reunification
  • For any child placed substantially distant from the parent’s home or out-of-State, the reason the placement is in the best interests of the child
• The health-care plan, specifying for each child the most recent information available regarding the child’s health status
• The contact and visitation plan, specifying for every child in out-of-home care the plan for frequent and consistent visitation between the child and the child’s parents, siblings, family members, other relatives, friends, and any former (family) resource family, especially those with whom the child has developed a strong attachment
• Specific documentation of how the family and other team members actively participated in the development of the plan

Permanency goal options include reunification, adoption, legal guardianship, and another planned living arrangement. A concurrent permanency plan is included for children who have been assessed as unlikely to reunite with their parent within 12 months of the child’s initial removal.

Current Through January 2016

Schedule of Hearings

Citation: Rev. Stat. §§ 8-847; 8-862After the disposition hearing, the court shall hold periodic review hearings at least once every 6 months as required by Federal law.

The court shall hold a permanency hearing to determine the future permanent legal status of the child:

• Within 30 days after the disposition hearing if the court does not order reunification services
• Within 6 months after a child who is under age 3 is removed from the child’s home
• In all other cases, within 12 months after the child is removed from the child’s home

If the court determines that the child should remain in out-of-home placement longer than 18 months from the date of the permanency order, the court shall conduct a review of the order at least once each year. After reviewing the order, the court may reaffirm the order or direct other disposition of the child.

Persons Entitled to Attend Hearings

Citation: Rev. Stat. § 8-847The following persons shall be provided notice of the review and the right to participate in the proceeding:

• The agency charged with the child’s care and custody
• Any foster parents in whose home the child resided within the last 6 months
• A shelter care facility or receiving foster home where the child resides or has resided within the last 6 months for more than 30 days
• The child’s parent or guardian, unless the parental rights of that parent or guardian have been terminated
• The child, if age 12 or older
• The child’s relative, if the relative files a written notice of right of participation with the court
• A person permitted by the court to intervene as a party in the dependency proceeding
• A physical custodian of the child within the preceding 6 months
• Any person who has filed a petition to adopt or who has physical custody pursuant to a foster-adoptive placement
• Any other person as the court may direct

Determinations Made at Hearings

Citation: Rev. Stat. §§ 8-845; 8-862In reviewing the status of the child, the court shall consider the health and safety of the child as a paramount concern and the following criteria:

• The goals of the placement and the appropriateness of the case plan
• The services that have been offered to reunite the family
• If returning the child home is not likely, the efforts that have been or should be made to evaluate or plan for other permanent placement plans
• The efforts that have been made or should be made to place the child with the child’s siblings or to provide frequent visitation or contact when placement with siblings has not been possible

The court shall review the permanent plan that has been established for the child. In reviewing the status of the child, the court, insofar as possible, shall seek to reunite the family. If the court does not order reunification of the family, the court shall order a plan of adoption or another permanent plan that is in the child’s best interests and that takes into consideration the placement of the child with siblings or that provides for frequent visitation or contact among siblings, unless the court determines that either the placement with the siblings or the visitation or contact would be contrary to the child’s or a sibling’s safety or well-being.

At the permanency hearing, the court shall determine:

• Whether termination of parental rights, adoption, permanent guardianship, or some other permanent legal status is the most appropriate plan for the child
• Whether reasonable efforts have been made to finalize the permanency plan in effect
• What efforts have been made in the permanency plan to place the child with the child’s siblings or to provide frequent visitation or contact, unless the court had already determined that placement with all or any siblings or visitation or contact is not possible or would be contrary to the child’s or a sibling’s safety or well-being

Permanency Options

Citation: Rev. Stat. §§ 8-845; 8-862The court may order any of the following:

• Return to the child’s parent
• Placement with a grandparent or other member of the child’s extended family, including a person who has a significant relationship with the child, unless the court determines that such placement is not in the child’s best interests
• Adoption
• Placement with a suitable institution, association, or school
• Independent living
• Placement with any adult as a permanent guardian

For the purposes of this subsection, a prospective permanent placement includes:

• A grandparent or another member of the child’s extended family including a person who has a significant relationship with the child
• A person or persons with an expressed interest in being the permanent placement for the child in a certified adoptive home where the child resides, a home that is a permanent placement for a sibling of the child, or a licensed family foster home where the child resides

Current Through March 2016

Citation: Rev. Stat. § 8-845(B)In reviewing the status of the child and in determining its order of disposition, the court shall consider the health and safety of the child as a paramount concern.

Citation: Rev. Stat. § 8-847(D)At any periodic review hearing, the court shall consider the health and safety of the child as a paramount concern.

Current Through January 2013

Circumstances That Are Grounds for Termination of Parental Rights

Citation: Rev. Stat. § 8-533Grounds to terminate the parent-child relationship shall include any of the following, with due consideration for the best interests of the child:

• The parent has abandoned the child.
• The parent has neglected or willfully abused a child.
• The parent is unable to discharge parental responsibilities because of mental illness, mental deficiency, or a history of chronic abuse of dangerous drugs or alcohol, and there are reasonable grounds to believe that the condition will continue for a prolonged period.
• The parent has been convicted of a felony of such nature as to prove the unfitness of that parent, including murder or manslaughter of another child of the parent, or if the sentence of that parent is of such length that the child will be deprived of a normal home for a period of years.
• The potential father failed to file a paternity action within 30 days of completion of service of notice as prescribed in § 8-106(G).
• The putative father failed to file a notice of claim of paternity.
• The parents have relinquished their rights to a child to an agency or have consented to the adoption.
• The identity of the parent is unknown and continues to be unknown following 3 months of diligent efforts to identify and locate the parent.
• The parent has had parental rights to another child terminated within the preceding 2 years for the same cause and is currently unable to discharge parental responsibilities due to the same cause.

The following may also be grounds for termination of parental rights:

• The child is being cared for in an out-of-home placement, the agency responsible for the child’s care has made a diligent effort to provide appropriate reunification services, and one of the following circumstances exists:
  • The child has been in an out-of-home placement for a cumulative total period of 9 months or longer, and the parent has substantially neglected or willfully refused to remedy the circumstances that cause the child to be in an out-of-home placement.
  • The child who is under age 3 has been in an out-of-home placement for a cumulative total period of 6 months or longer, and the parent has substantially neglected or willfully refused to remedy the circumstances that cause the child to be in an out-of-home placement, including refusal to participate in reunification services offered by the department.
  • The child has been in an out-of-home placement for a cumulative total period of 15 months, the parent has been unable to remedy the circumstances that cause the child to be in an out-of-home placement, and there is a substantial likelihood that the parent will not be capable of exercising proper and effective parental care and control in the near future.
• All of the following are true:
  • The child was cared for in an out-of-home placement pursuant to court order.
  • The agency responsible for the care of the child made diligent efforts to provide appropriate reunification services.
  • The child was returned to the legal custody of the parent from whom the child had been removed.
  • Within 18 months after the child was returned, the child was removed from that parent’s legal custody, the child is being cared for in an out-of-home placement, and the parent is currently unable to discharge parental responsibilities.

The failure of an alleged parent who is not the child’s legal parent to take a test requested by the department or ordered by the court to determine if the person is the child’s natural parent is prima facie evidence of abandonment unless good cause is shown by the alleged parent for that failure.

Circumstances That Are Exceptions to Termination of Parental Rights

This issue is not addressed in the statutes reviewed.

Circumstances Allowing Reinstatement of Parental Rights

This issue is not addressed in the statutes reviewed.

Current Through February 2013

Infant’s Age

Citation: Rev. Stat. § 13-3623.01

A newborn infant may be relinquished. The term ‘newborn infant’ means an infant who is 72 hours old or younger.

Who May Relinquish the Infant

Citation: Rev. Stat. § 13-3623.01

The child may be relinquished by the parent or an agent of the parent.

Who May Receive the Infant

Citation: Rev. Stat. § 13-3623.01

The child may be left with a designated safe haven provider. A safe haven provider includes any of the following:

• A firefighter who is on duty
• An emergency medical technician who is on duty
• A medical staff member at a general hospital or a rural general hospital
• A staff member or volunteer at any of the following organizations that posts a public notice that it is willing to accept a newborn infant:
  • A licensed private child welfare agency
  • A licensed adoption agency
  • A church

Responsibilities of the Safe Haven Provider

Citation: Rev. Stat. §§ 13-3623.01; 8-528

If a parent or an agent of a parent voluntarily delivers the parent’s newborn infant to a safe haven provider, the safe haven provider shall take custody of the newborn infant if both of the following are true:

• The parent did not express an intent to return for the newborn infant.
• The safe haven provider reasonably believes that the child is a newborn infant.

The safe haven provider shall immediately transport the infant to a hospital for a physical examination.

If the infant is left with a private child welfare or adoption agency and the agency has the ability to place the infant for adoption, the agency shall inform child protective services that it will take custody of the infant within 24 hours. If the agency cannot place the infant for adoption, it shall inform child protective services that it will not take custody of the infant.

If an infant is left with a church and the church is affiliated with a private adoption agency, the provider must immediately inform child protective services that an infant has been left at the church, the location of the hospital where the church transported the infant, and whether a private adoption agency will take custody of the infant.

If the church is not affiliated with a private adoption agency or the agency cannot place the infant for adoption, child protective services shall contact the next private adoption agency on its rotating list of agencies until it contacts an agency that agrees to take custody of the infant. The adoption agency must take custody of the infant from the hospital within 24 hours.

If an infant is left with a firefighter, emergency medical technician, or a hospital staff member, the safe haven provider shall immediately contact child protective services to inform it that an infant has been left and of the location of the hospital where the safe haven provider transported the infant.

Immunity for the Provider

Citation: Rev. Stat. § 13-3623.01

A safe haven provider who receives a newborn infant is not liable for any civil or other damages for any act or omission by the safe haven provider in maintaining custody of the newborn infant if the safe haven provider acts in good faith without gross negligence.

Protection for Relinquishing Parent

Citation: Rev. Stat. § 13-3623.01

A person is not guilty of abuse of a child solely for leaving an unharmed newborn infant with a safe haven provider.

A parent or agent of a parent who leaves a newborn infant with a safe haven provider may remain anonymous, and the safe haven provider shall not require the parent or agent to answer any questions.

Effect on Parental Rights

This issue is not addressed in the statutes reviewed.

Current Through December 2014

Definitions

Citation: Rev. Stat. § 8-501 The term ‘relative’ means a grandparent, great-grandparent, brother or sister of whole or half blood, aunt, uncle, or first cousin.

Purpose of Guardianship

Citation: Rev. Stat. § 8-871 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:

• The child has been adjudicated a dependent child.
• The child has been in the custody of the prospective permanent guardian for at least 9 months as a dependent child. The court may waive this requirement for good cause.
• If the child is in the custody of the Department of Child Safety 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 that reunification efforts are not required by law or if 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.
• The likelihood that the child would be adopted is remote, or termination of parental rights would not be in the child’s best interests.

A Guardian’s Rights and Responsibilities

Citation: Rev. Stat. §§ 8-871; 14-5209(A), (C)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 § 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.

A guardian of a minor has the powers and responsibilities of a custodial parent regarding the ward’s support, care, and education. A guardian is not personally liable for the ward’s expenses and is not liable to third persons by reason of the relationship for acts of the ward.

A guardian may:

• Receive monies payable for the support of the ward under the terms of any statutory benefit, insurance system, private contract, devise, trust, conservatorship, or custodianship
• Take custody of the ward and establish the ward’s place of residence in or outside this State, if consistent with the terms of an order of a court of competent jurisdiction relating to the detention or commitment of the ward
• Facilitate the ward’s education, social, or other activities, and consent to medical or other professional care, treatment, or advice for the ward
• Consent to the marriage or adoption of the ward
• If reasonable, delegate to the ward certain responsibilities for decisions affecting the ward’s well-being

Qualifying the Guardian

Citation: Rev. Stat. §§ 8-871; 8-872; Pol. & Proc. Man. Ch. 5, § 29 The court may consider any adult, including a relative or foster parent, as a permanent guardian. The court shall appoint a person nominated by the child if the child is at least age 12, 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. In proceedings for permanent guardianship, the court shall give primary consideration to the physical, mental, and emotional needs of the child.

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 § 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 § 8-133, if performed by an officer of the court.

In policy: The department shall consider recommending a permanency plan of guardianship when the prospective permanent guardian has made a commitment to provide care and support to the child, and guardianship is in the child’s best interests.

The department must complete a home study of the prospective guardians, including fingerprinting, State and Federal criminal history records clearances, and a Department of Child Safety (DCS) records search.

Procedures for Establishing Guardianship

Citation: Rev. Stat. § 8-872 Any party to a dependency proceeding may file a motion for permanent guardianship. The person who files the motion shall serve notice of the hearing and a copy of the motion on all parties, 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. The person who files the motion shall provide a copy of the notice of hearing to the following persons:

• The child’s current physical custodian
• Any foster parent with whom the child has resided within the 6 months before the date of the hearing
• The prospective guardian if the guardian is not the current physical custodian
• Any other person the court orders to be provided notice

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 Federal Indian Child Welfare Act, the person who files the motion has the burden of proof by beyond a reasonable doubt.

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. The court shall retain jurisdiction to enforce its final order of permanent guardianship. The court shall require a report and review hearing to be held within 1 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 require 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.

Contents of a Guardianship Order

Citation: Rev. Stat. § 8-872 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.

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. The order also may include 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.

Modification/Revocation of Guardianship

Citation: Rev. Stat. §§ 8-873; 14-5209 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:

• The child’s parent is able and willing to properly care for the child.
• The child’s permanent guardian is unable to properly care for the child.

The court shall appoint a guardian ad litem for the child in any proceeding for the revocation of permanent guardianship.

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 interests.

In the interest of developing self-reliance on the part of a ward or for other good cause, the court, at the time of appointment or later, on its own motion or on appropriate petition or motion of the minor or other interested person, may create a limited guardianship by limiting the powers of a guardian otherwise conferred by this section. Any limitation on the statutory power of a guardian of a minor must be endorsed on the guardian’s letters.

Eligibility for Guardianship Subsidy

Citation: Rev. Stat. § 8-814; Pol. & Proc. Man. Ch. 5, § 31 The department may provide a subsidy to guardian on behalf of a child subject to the requirements of this section. A guardian is not eligible for a subsidy until he or she demonstrates that the child or a responsible person on behalf of the child has applied for all benefits to which the child is entitled from other State or Federal programs.

The department shall discontinue a subsidy if any of the following occurs:

• The permanent guardianship terminates.
• The child dies or does not reside with the permanent guardian.
• The child reaches age 18, except that the department may continue the subsidy until the child’s 22nd birthday if the child is enrolled in and regularly attending school and has not received a high school diploma or certificate of equivalency.
• The guardian fails to comply with any requirement in this section.

In policy: The guardianship subsidy program shall support permanent placements for children who cannot return home and for whom adoption is not an option. Guardianship subsidy is intended to be only a partial reimbursement for expenses involved in the care of the child.

A permanent guardian is eligible for guardianship subsidy if he or she has a permanent guardianship granted pursuant to § 8-871, on or after August 6, 1999, and has applied for other State and Federal benefits on behalf of the child.

Links to Agency Policies

Division of Child Safety and Family Services, Policy & Procedure Manual, see Ch 5, § 28, et seq., Permanent Guardianship

Current Through July 2013

Relative Placement for Foster Care and Guardianship

Citation: Rev. Stat. §§ 8-501; 8-514.02; 8-514.03The Department of Economic Security may place a child with a parent or relative. The term ‘relative’ means a grandparent, great-grandparent, brother or sister of whole-blood or half-blood, aunt, uncle, or first cousin.

The department shall establish kinship foster care services for a child who has been removed from the child’s home and is in the custody of the department. The program shall promote the placement of the child with the child’s relative for kinship foster care.

Requirements for Placement with Relatives

Citation: Rev. Stat. § 8-514.03A kinship foster care parent applicant who is not a licensed foster care parent shall be at least age 18. The applicant and each member of the applicant’s household who is at least age 18 shall submit a full set of fingerprints to the department for the purpose of obtaining a State and Federal criminal records check pursuant to § 41-1750 and Public Law 92-544. The Department of Public Safety may exchange this fingerprint data with the Federal Bureau of Investigation.

The Department of Economic Security shall determine if the applicant is able to meet the child’s health and safety needs by conducting one or more home visits and interviewing the applicant.

The department may interview other household members, review the applicant’s personal and professional references, and conduct Child Protective Services central registry checks.

A kinship foster care parent may be eligible to receive the following financial services for the child:

• Full foster care benefits, including payment if the kinship foster care parent becomes a licensed foster care home
• Temporary Assistance for Needy Families cash assistance payments for a child only for case and supplemental financial support

The department shall provide nonfinancial services for a kinship foster care parent through existing means or referral. Nonfinancial services may include:

• Family assessment and case management
• Child care
• Housing search and relocation
• Parenting skills training
• Supportive intervention and guidance counseling
• Transportation and emergency services
• Parent aid and respite services
• Additional services that the department determines are necessary to meet the needs of the child and family

Requirements for Placement of Siblings

Citation: Rev. Stat. § 8-513(D)If a child has been removed from the child’s home and placed in out-of-home placement, guardianship, or adoptive placement, the department shall make reasonable efforts to place that child with the child’s siblings or, if that is not possible, to maintain frequent visits or other ongoing contact between the child and the child’s siblings, unless a court determines that either the placement or the visits or contact would be contrary to the child’s or a sibling’s safety or well-being.

Relatives Who May Adopt

Citation: Rev. Stat. §§ 8-105; 8-108A relative who may adopt the child includes an uncle, aunt, adult sibling, grandparent, or great-grandparent of the child by whole-blood or half-blood or by marriage.

Requirements for Adoption by Relatives

Citation: Rev. Stat. §§ 8-105; 8-108Before any prospective adoptive parent may petition to adopt a child the person shall be certified by the court as acceptable to adopt children. A certificate shall be issued only after an investigation conducted by an officer of the court, by an agency, or by the division. This section does not apply if the prospective adoptive parent is the spouse of the birth or legal parent of the child to be adopted or is an uncle, aunt, adult sibling, grandparent, or great-grandparent of the child by whole-blood or half-blood or by marriage or adoption.

A person who is not currently certified as acceptable to adopt but who has custody of a child who the person intends to adopt shall petition the court for an order permitting that person to keep custody of the child pending certification. If the court permits the person to continue to have custody of the child, the court shall order the investigation to continue for preadoption certification and report as required by § 8-105.

A custody petition or hearing is not required if the person who intends to adopt the child is:

• The spouse of a birth or legal parent of the child
• An uncle, aunt, adult sibling, grandparent, or great-grandparent of the child by whole-blood or half-blood or by marriage

Current Through March 2016

What Are Reasonable Efforts

Citation: Rev. Stat. §§ 8-801; 8-891‘In-home intervention’ means a program of services provided pursuant to § 8-891 while the child is still in the custody of the parent, guardian, or custodian.

After a dependency petition is filed, the court may order in-home intervention if all of the following are true:

• The child has not been removed from the home.
• In-home intervention appears likely to resolve the risk issues described below.
• The parent, guardian, or custodian agrees to a case plan and participation in services.
• One of the following conditions exists:
  • The child is at risk of harm due to the inability or unwillingness of the parent, guardian, or custodian to provide food, clothing, shelter, or medical care.
  • The parent, guardian, or custodian is unable to provide proper care, control, and supervision of the child.

The in-home intervention order may include a training or treatment plan for the parent, guardian, or custodian and the child. The in-home intervention shall include a specific time for completion that shall not exceed 1 year without review and approval by the court.

The term ‘protective services’ is defined as a specialized child welfare program that is administered by the department to investigate allegations and seek to prevent, intervene in, and treat abuse and neglect to promote the well-being of the child in a permanent home and to coordinate services to strengthen the family.

When Reasonable Efforts Are Required

Citation: Rev. Stat. § 8-846If the child has been removed from the home, the court shall order the Department of Child Safety to make reasonable efforts to provide services to the child and the child’s family.

When Reasonable Efforts Are NOT Required

Citation: Rev. Stat. § 8-846Reunification services are not required when one or more of the following aggravating circumstances exist:

• A diligent search has failed to locate the parent, or the parent has expressed no interest in reunifying the child, for at least 3 months.
• The parent is suffering from a mental illness or deficiency of such magnitude that the parent is incapable of benefitting from reunification services, or that, even with the provision of services, the parent is unlikely to be capable of adequately caring for the child within 12 months.
• The child previously has been removed from the home due to physical or sexual abuse, and, after the child was returned to the parent, the child was removed again within 18 months due to additional abuse.
• The parent committed a dangerous crime against a child, caused a child to suffer serious physical or emotional injury, or knew or reasonably should have known that another person committed a dangerous crime against children or caused a child to suffer serious physical or emotional injury.
• 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 fulfill parental responsibilities.
• After a finding that a child is dependent, all of the following are true:
  • A child has been removed from the parent on at least two previous occasions.
  • Reunification services were offered or provided to the parent.
  • The parent is unable to fulfill parental responsibilities.
• The parent has been convicted of a dangerous crime against a child; murder or manslaughter of a child; sexual abuse, sexual assault, or molestation of a child; sexual conduct with a minor; commercial sexual exploitation of a minor; or luring a minor for sexual exploitation.
• The parent of a child has been convicted of aiding or abetting, attempting, conspiring, or soliciting to commit any of the crimes listed above.

Current Through February 2015

Who Can Nominate a Standby Guardian

Citation:This issue is not addressed in the statutes reviewed.

How to Establish a Standby Guardian

Citation:This issue is not addressed in the statutes reviewed.

How Standby Authority is Activated

Citation:This issue is not addressed in the statutes reviewed.

Involvement of the Noncustodial Parent

Citation:
This issue is not addressed in the statutes reviewed.

Authority Relationship of the Parent and the Standby

Citation:This issue is not addressed in the statutes reviewed.

Withdrawing Guardianship

Citation:This issue is not addressed in the statutes reviewed.