SSB 3141 (LSB 5758XC (2) 83)

SENATE FILE _____

BY  (PROPOSED COMMITTEE ON JUDICIARY BILL BY CHAIRPERSON KREIMAN)

A BILL FOR

An Act relating to transfer of guardianship for a child in need of assistance to the probate court.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF IOWA:

    Section 1.  Section 232.104, subsection 7, Code 2009, is amended to read as follows:
   7.  a.  Following an initial permanency hearing and the entry of a permanency order which places a child in the custody or guardianship of another person or agency, the court shall retain jurisdiction and annually review the order to ascertain whether the best interest of the child is being served. When the order places the child in the custody of the department for the purpose of long-term foster care placement in a facility, the review shall be in a hearing that shall not be waived or continued beyond twelve months after the initial permanency hearing or the last permanency review hearing. Any modification shall be accomplished through a hearing procedure following reasonable notice. During the hearing, all relevant and material evidence shall be admitted and procedural due process shall be provided to all parties.
   b.  In lieu of the procedures specified in paragraph “a”, the court may close the child in need of assistance case by transferring jurisdiction over the child’s guardianship to the probate court. Before transferring jurisdiction, the court shall direct the probate clerk to issue letters of appointment for guardianship and docket the case in probate.
    Sec. 2.  Section 633.559, Code 2009, is amended to read as follows:
   633.559  Preference as to appointment of guardian.

   The Except for a minor child for whom the court’s jurisdiction over the child’s guardianship was established pursuant to transfer of the child’s case in accordance with section 232.104, the parents of a minor child, or either of them, if qualified and suitable, shall be preferred over all others for appointment as guardian. Preference shall then be given to any person, if qualified and suitable, nominated as guardian for a minor child by a will executed by the parent having custody of a minor child, and any qualified and suitable person requested by a minor fourteen years of age or older, or by standby petition executed by a person having physical and legal custody of a minor. Subject to these preferences, the court shall appoint as guardian a qualified and suitable person who is willing to serve in that capacity.
    Sec. 3.  NEW SECTION.  633.563  Child in need of assistance cases —— closing guardianship.

   If the court appointed a guardian for a minor child for whom the court’s jurisdiction over the child’s guardianship was established pursuant to transfer of the child’s case in accordance with section 232.104, the court shall not enter an order closing the guardianship before the child becomes age eighteen unless the court finds by clear and convincing evidence that the best interests of the child warrant a return of custody to the child’s parent.
EXPLANATION
   This bill relates to transfer of guardianship for a child in need of assistance to the probate court.
   Code section 232.104, relating to permanency hearings for children in need of assistance who are subject to an out-of-home placement order entered by the juvenile court, is amended. Under current law, once there has been an initial permanency hearing which places a child in the custody or guardianship of another person or agency, the juvenile court retains jurisdiction and annually reviews the order to ascertain whether the best interest of the child is being served. The bill allows the juvenile court instead to close the case by transferring jurisdiction over the guardianship of the child to the probate court.
   Before transferring jurisdiction, the court is required to direct the probate clerk to issue letters of appointment for guardianship and docket the case in probate.
   The bill applies an exception to current probate law in Code section 633.559 which otherwise establishes an overall preference for child guardianships to be with the child’s parent. Under the bill, the preference does not apply to transferred child in need of assistance cases.
   New Code section 633.563 prohibits the probate court from entering an order closing a transferred child in need of assistance guardianship before the child becomes age 18 unless the court finds by clear and convincing evidence that the best interests of the child warrant a return of custody to the child’s parent.