SF 545 (LSB 2640SV (1) 88)

SENATE FILE 545

BY  COMMITTEE ON HUMAN RESOURCES

(SUCCESSOR TO SF 421)

A BILL FOR

An Act providing for the reinstatement of parental rights of a former parent under certain circumstances.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF IOWA:

    Section 1.  NEW SECTION.  232.121  Reinstatement of parental rights.
   1.  A child, the child’s guardian ad litem, the department, or an agency or person to whom guardianship and custody of the child has been transferred following termination of parental rights of a parent under section 232.117, may petition the juvenile court to reinstate the parental rights of the child’s former parent if all of the following circumstances exist, making the child an eligible child for purposes of this section:
   a.  The child was previously found to be a child in need of assistance under this chapter.
   b.  The child’s former parent’s parental rights were terminated in a proceeding under this chapter.
   c.  The child has not been adopted and the child has not achieved the goals of the child’s case permanency plan.
   d.  At least two years have passed since the final order of termination of parental rights was entered.
   e.  The child is at least twelve years old at the time the petition is filed. However, upon the child’s motion for good cause shown, or on the court’s own motion, the court may hear a petition filed on behalf of a child younger than twelve years old.
   2.  a.  If a child meets the criteria of an eligible child under subsection 1, the child’s guardian ad litem, the department, or an agency or person to whom guardianship and custody of the child has been transferred under section 232.117, shall notify the child of the child’s right to petition the court for the reinstatement.
   b.  If the former parent whose rights were previously terminated contacts the child’s guardian ad litem, the department, or the agency or other person to whom guardianship and custody of the child has been transferred under section 232.117, and the child is eligible pursuant to subsection 1, the guardian ad litem, department, agency, or other person shall notify the eligible child of the child’s right to petition the court for the reinstatement.
   3.  If a child seeking to petition for reinstatement of parental rights under this section does not have a guardian ad litem or attorney, the court shall appoint a guardian ad litem and counsel for the child at no cost to the child. If a guardian ad litem has previously been appointed for the child in a proceeding under this chapter, the same person may serve both as the child’s counsel and as guardian ad litem. However, the court may appoint a separate guardian ad litem if the same person cannot properly represent the legal interests of the child as legal counsel and also represent the best interest of the child as guardian ad litem.
   4.  The petition must be signed by the child unless good cause is shown as to why the child is unable to do so. The former parent for whom reinstatement of parental rights is sought must consent in writing to the petition.
   5.  If, after a threshold hearing to consider the parent’s apparent fitness and interest in the reinstatement of parental rights, the court finds by a preponderance of the evidence that the best interest of the child may be served by the reinstatement of parental rights, the court shall order that a hearing on the merits of the petition be held.
   6.  Before a hearing is held on the merits of the petition, notice shall be provided to the child’s guardian ad litem, the department, the agency or other person to whom guardianship and custody of the child has been transferred under section 232.117, the child’s attorney, the child, the child’s former parent whose parental rights are the subject of the petition, any parent whose rights have not been terminated, the child’s current foster parent, the child’s relative caregiver, and the child’s tribe, if applicable. Notice shall be provided in the same manner as in section 232.37. 
   7.  The court shall conditionally grant the petition if the court finds by clear and convincing evidence that the child has not been adopted, has not achieved the goals of the child’s case permanency plan, and is not imminently likely to achieve such goals, and that reinstatement of parental rights is in the child’s best interest. In determining whether reinstatement is in the child’s best interest the court shall consider, but is not limited to considering, all of the following:
   a.  Whether the former parent whose rights are to be reinstated is a fit parent and has remedied the parent’s deficits as provided in the record of the prior termination proceedings and prior termination order.
   b.  Whether the former parent whose rights are to be reinstated understands the legal obligations, rights, and consequences of the reinstatement of parental rights and is willing and able to accept such obligations, rights, and consequences.
   c.  The age and maturity of the child, and the ability of the child to express the child’s preference.
   d.  Whether the reinstatement of parental rights will present a risk to the child’s health, welfare, or safety.
   e.  Other material changes in circumstances, if any, that may have occurred which warrant the granting of the petition.
   8.  In determining whether the child has or has not achieved the goals of the child’s case permanency plan or whether the child is imminently likely to achieve the goals of the child’s case permanency plan, the department, or the agency or other person to whom guardianship and custody of the child has been transferred under section 232.117, shall provide the court, and the court shall review, information related to any efforts to achieve the goals of the case permanency plan including efforts to achieve adoption or a permanent placement.
   9.  a.  If the court conditionally grants the petition under subsection 7, the case shall be continued for six months and a temporary order of reinstatement entered. During this period, the child shall be placed in the custody of the former parent. The department or agency shall develop a case permanency plan for the child reflecting reunification and shall provide transition services to the family, as appropriate.
   b.  If the child must be removed from the former parent due to allegations of abuse or neglect prior to the expiration of the conditional six-month period, the court shall dismiss the petition for reinstatement of parental rights if the court finds the allegations have been proven by a preponderance of the evidence.
   10.  At the end of the six-month period, the court shall hold a hearing and order one of the following:
   a.  If the placement with the former parent has been successful, the court shall enter a final order of reinstatement of parental rights, which shall restore all rights, powers, privileges, immunities, duties, and obligations of the parent as to the child, including those relating to custody, control, and support of the child. The court shall vacate the dispositional order in the child in need of assistance proceeding and direct the clerk’s office to provide a certified copy of the final order of reinstatement of parental rights to the parent at no cost.
   b.  If the placement with the former parent has not been successful, the court shall dismiss the petition and the child’s case permanency plan shall remain in effect.
   11.  A proceeding to reinstate parental rights is a separate action from the termination of parental rights proceeding and does not vacate or otherwise affect the validity of the original termination of parental rights order. An order granted under this section reinstates the former parent’s rights to the child. The reinstatement is a recognition that the situation of the parent and child has changed since the time of the termination of parental rights and reunification is now appropriate.
   12.  A parent whose rights are reinstated under this section shall not be liable for any child support owed to the department or costs of other services provided to a child for the time period from the date of termination of parental rights to the date parental rights are reinstated.
   13.  This section shall apply to any eligible child who is under the jurisdiction of the juvenile court at the time of the hearing regardless of the date parental rights were terminated.
   14.  The state, the department, or an agency or other person or an employee of such entities is not liable for civil damages resulting from any act or omission in the provision of services under this section unless the act or omission constitutes gross negligence. This section does not create any duty and shall not be construed to create a duty where none exists. This section does not create a cause of action against the state, the department, an agency, another person, or the employees of such entities concerning the original termination.
EXPLANATION
The inclusion of this explanation does not constitute agreement with
the explanation’s substance by the members of the general assembly.
   This bill provides for the reinstatement of parental rights following the granting of a termination of parental rights order, under certain circumstances. The bill provides that a child, the child’s guardian ad litem (GAL), the department of human services (DHS), or an agency or person to whom guardianship and custody of the child has been transferred following termination of the parental rights of a parent, may petition the juvenile court (court) to reinstate the previously terminated parental rights of the child’s former parent if certain circumstances exist, making the child eligible to petition the court. The circumstances that must exist are: the child was previously found to be a child in need of assistance; the child’s former parent’s parental rights were terminated in a proceeding under the juvenile justice chapter (Code chapter 232); the child has not been adopted and the child has not achieved the goals of the child’s case permanency plan; two years have passed since the final order of termination of parental rights was entered; and the child is at least 12 years old at the time the petition is filed. However, upon the child’s motion for good cause shown, or on the court’s own motion, the court may hear a petition filed by a child younger than 12 years of age.
   If a child meets the criteria of an eligible child, the child’s GAL, DHS, or an agency or person to whom guardianship and custody of the child has been transferred, is required to notify the child of the child’s right to petition the court for the reinstatement. Additionally, if the former parent whose rights have been previously terminated contacts the child’s GAL, DHS, or the agency or other person, and the child meets the criteria of an eligible child, the GAL, DHS, or the agency or other person is required to notify the eligible child of the child’s right to petition the court for the reinstatement.
   The bill provides for the appointment of a GAL and attorney for the child if the child does not already have a GAL and attorney, at no cost to the child.
   The petition must be signed by the child, unless good cause is shown as to why the child is unable to do so. The former parent for whom reinstatement of parental rights is sought must consent in writing to the petition.
   After a threshold hearing to consider the former parent’s apparent fitness and interest in reinstatement of parental rights, if the court finds by a preponderance of the evidence that the best interest of the child may be served by the reinstatement of parental rights, the court shall order that a hearing on the merits of the petition be held. The bill provides for notice to certain parties prior to the hearing on the merits of the petition. Following the hearing on the merits of the petition, the court shall conditionally grant the petition if the court finds by clear and convincing evidence that the child has not been adopted, has not achieved the goals of the child’s case permanency plan, and is not imminently likely to achieve such goals, and that the reinstatement of parental rights is in the child’s best interest. The bill specifies considerations for the court in determining whether reinstatement is in the child’s best interest and in determining whether the child has or has not achieved the goals of the child’s case permanency plan or is imminently likely to achieve such goals. If the court conditionally grants the petition, the case is continued for six months and a temporary order of reinstatement is entered. During the six-month period, the child is placed in the custody of the former parent and DHS or an agency shall develop a case permanency plan for the child reflecting reunification and provide transition services to the family, as appropriate. If, during the six-month period, the child must be removed from the former parent due to allegations of abuse or neglect, the court shall dismiss the petition for reinstatement of parental rights if the allegations are proven by a preponderance of the evidence. 
   At the end of the six-month period, the court is required to hold a hearing and make certain determinations and dispositions. If the placement with the former parent has been successful, the court shall enter a final order of reinstatement of parental rights, which shall restore all rights, powers, privileges, immunities, duties, and obligations of the parent as to the child, including those relating to custody, control, and support of the child. Additionally, the court shall vacate the dispositional order in the child in need of assistance proceeding and direct the clerk’s office to provide a certified copy of the final order of reinstatement of parental rights to the parent at no cost. If the placement with the former parent has not been successful, the court shall dismiss the petition and the child’s case permanency plan shall remain in effect.
   The bill provides that a proceeding to reinstate parental rights is a separate action from the termination of parental rights proceeding and does not vacate or otherwise affect the validity of the original termination of parental rights order. A reinstatement order reinstates the former parent’s parental rights to the child. The reinstatement is a recognition that the situation of the parent and child has changed since the time of the termination of parental rights and reunification is now appropriate. A parent whose rights are reinstated is not liable for any child support owed to the department or costs of other services provided to a child during the time period from the date of termination of parental rights to the date parental rights are reinstated. The bill applies to any eligible child who is under the jurisdiction of the juvenile court at the time of the hearing regardless of the date parental rights were terminated. The bill provides that the state, the department, an agency, or other person or an employee of such entities is not liable for civil damages resulting from any act or omission in the provision of services under the bill, unless the act or omission constitutes gross negligence. The bill does not create any duty and shall not be construed to create a duty where none exists, and does not create a cause of action against the state, the department, an agency, another person, or the employees of such entities concerning the original termination.