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S1526................................................by JUDICIARY AND RULES
DISABLED PERSONS - PARENTAL RIGHTS - Amends existing law to clarify
prohibitions against discrimination in matters related to parental rights,
guardianship and adoption; and to specifically prohibit discrimination
based solely upon the disability of an individual and to consider the
potential for the individual to employ adaptive and supportive equipment
and services to address the disability.
02/24 Senate intro - 1st rdg - to printing
02/25 Rpt prt - to Health/Wel
03/08 Rpt out - rec d/p - to 2nd rdg
03/09 2nd rdg - to 3rd rdg
03/14 3rd rdg - PASSED - 29-0-6
AYES--Andreason, Boatright, Branch, Bunderson, Burtenshaw, Cameron,
Crow, Danielson, Darrington, Davis, Deide, Dunklin, Hawkins, Ingram,
Ipsen, Keough, King-Barrutia, Lee, Noh, Parry, Richardson, Riggs,
Risch, Sandy, Schroeder, Stegner, Thorne, Whitworth, Williams
NAYS--None
Absent and excused--Frasure, Geddes, McLaughlin, Sorensen, Stennett,
Wheeler
Floor Sponsor - King-Barrutia
Title apvd - to House
03/15 House intro - 1st rdg - to Health/Wel
S1526
|||| LEGISLATURE OF THE STATE OF IDAHO ||||
Fifty-fifth Legislature Second Regular Session - 2000
IN THE SENATE
SENATE BILL NO. 1526
BY JUDICIARY AND RULES COMMITTEE
1 AN ACT
2 RELATING TO PARENTAL RIGHTS OF PERSONS WITH DISABILITIES; AMENDING SECTION
3 15-1-201, IDAHO CODE, TO DEFINE "DISABILITY" AND TO MAKE TECHNICAL CORREC-
4 TIONS; AMENDING SECTION 15-5-202, IDAHO CODE, TO STRIKE REFERENCE TO INCA-
5 PACITY AND TO MAKE TECHNICAL CORRECTIONS; AMENDING SECTION 15-5-204, IDAHO
6 CODE, TO PROHIBIT DECISIONS OF GUARDIANSHIP BASED EXCLUSIVELY ON DISABIL-
7 ITY OF THE POTENTIAL GUARDIAN; AMENDING SECTION 16-1501, IDAHO CODE, TO
8 PROHIBIT DETERMINATION OF ADOPTION OUTCOME BASED EXCLUSIVELY ON DISABIL-
9 ITY; AMENDING SECTION 16-1504, IDAHO CODE, TO STRIKE REFERENCE TO DISABIL-
10 ITY; AMENDING SECTION 16-1506, IDAHO CODE, TO REQUIRE CONSIDERATION OF A
11 DISABLED INDIVIDUAL'S CAPACITY TO EMPLOY ADAPTIVE AND SUPPORTIVE EQUIPMENT
12 AND SERVICES; AMENDING SECTION 16-1601, IDAHO CODE, TO PROHIBIT DISCRIMI-
13 NATION AND TO REQUIRE CONSIDERATION OF A DISABLED INDIVIDUAL'S CAPACITY TO
14 EMPLOY ADAPTIVE AND SUPPORTIVE EQUIPMENT AND SERVICES AND TO MAKE A TECH-
15 NICAL CORRECTION; AMENDING SECTION 16-1602, IDAHO CODE, TO DEFINE
16 "DISABILITY," TO REQUIRE CONSIDERATION OF A DISABLED INDIVIDUAL'S CAPACITY
17 TO EMPLOY ADAPTIVE AND SUPPORTIVE EQUIPMENT AND SERVICES AND TO MAKE TECH-
18 NICAL CORRECTIONS; AMENDING SECTION 16-1603, IDAHO CODE, TO STRIKE REFER-
19 ENCE TO HOMELESSNESS OR POTENTIAL DISABILITY AS CRITERIA FOR GROUNDS FOR
20 DETERMINATION OF JURISDICTION OF THE COURTS; AMENDING SECTION 16-1605,
21 IDAHO CODE, TO REQUIRE CONSIDERATION OF A DISABLED INDIVIDUAL'S CAPACITY
22 TO EMPLOY ADAPTIVE AND SUPPORTIVE EQUIPMENT AND SERVICES; AMENDING SECTION
23 16-1609A, IDAHO CODE, TO ADDRESS MEMBERSHIP ON MULTIDISCIPLINARY INVESTI-
24 GATIVE TEAMS; AMENDING SECTION 16-2001, IDAHO CODE, TO PROHIBIT DISCRIMI-
25 NATION; AMENDING SECTION 16-2002, IDAHO CODE, TO DEFINE "DISABILITY" AND
26 TO MAKE TECHNICAL CORRECTIONS; AMENDING SECTION 16-2005, IDAHO CODE, TO
27 STRIKE REFERENCE TO MENTAL ILLNESS OR MENTAL DEFICIENCY AS CONDITIONS FOR
28 TERMINATION AND TO MAKE TECHNICAL CORRECTIONS; AMENDING SECTION 16-2007,
29 IDAHO CODE, TO FURTHER DESCRIBE CONDITIONS FOR APPOINTMENT OF GUARDIAN AD
30 LITEM; AMENDING SECTION 16-2008, IDAHO CODE, TO REQUIRE CONSIDERATION OF A
31 DISABLED INDIVIDUAL'S CAPACITY TO EMPLOY ADAPTIVE AND SUPPORTIVE EQUIPMENT
32 AND SERVICES; AMENDING SECTION 32-717, IDAHO CODE, TO REQUIRE CONSIDER-
33 ATION OF A DISABLED INDIVIDUAL'S CAPACITY TO EMPLOY ADAPTIVE AND SUPPOR-
34 TIVE EQUIPMENT AND SERVICES; AND AMENDING SECTION 32-1005, IDAHO CODE, TO
35 PROHIBIT DISCRIMINATION AND TO REQUIRE CONSIDERATION OF A DISABLED
36 INDIVIDUAL'S CAPACITY TO EMPLOY ADAPTIVE AND SUPPORTIVE EQUIPMENT AND SER-
37 VICES.
38 Be It Enacted by the Legislature of the State of Idaho:
39 SECTION 1. That Section 15-1-201, Idaho Code, be, and the same is hereby
40 amended to read as follows:
41 15-1-201. GENERAL DEFINITIONS. Subject to additional definitions con-
42 tained in the subsequent chapters which are applicable to specific chapters or
43 parts, and unless the context otherwise requires, in this code:
2
1 (1) "Application" means a written request to the registrar for an order
2 of informal probate or appointment under part 3 of chapter 3 of this code.
3 (2) "Augmented estate" means the estate described in section 15-2-202 of
4 this code.
5 (3) "Beneficiary," as it relates to trust beneficiaries, includes a per-
6 son who has any present or future interest, vested or contingent, and also
7 includes the owner of an interest by assignment or other transfer and as it
8 relates to a charitable trust, includes any person entitled to enforce the
9 trust.
10 (4) "Child" includes any individual entitled to take as a child under
11 this code by intestate succession from the parent whose relationship is
12 involved and excludes any person who is only a stepchild, a foster child, a
13 grandchild or any more remote descendant.
14 (5) "Claims," in respect to estates of decedents and protected persons,
15 includes liabilities of the decedent or protected person whether arising in
16 contract, in tort or otherwise, and liabilities of the estate which arise at
17 or after the death of the decedent or after the appointment of a conservator,
18 including funeral expenses and expenses of administration. The term does not
19 include estate or inheritance taxes, other tax obligations arising from activ-
20 ities or transactions of the estate, demands or disputes regarding title of a
21 decedent or protected person to specific assets alleged to be included in the
22 estate.
23 (6) "Court" means the court or branch having jurisdiction in matters
24 relating to the affairs of decedents, minors, incapacitated and disabled per-
25 sons. This court in this state is known as the district court.
26 (7) "Conservator" means a person who is appointed by a court to manage
27 the estate of a protected person and includes limited conservators as
28 described by section 15-5-420, Idaho Code.
29 (8) "Determination of heirship of community property" shall mean that
30 determination required by the provisions of section 15-3-303 of this code upon
31 an application for informal probate not accompanied by presentation of a will.
32 (9) "Determination of heirship" shall mean that determination of heirship
33 required by section 15-3-409 of this code upon a finding of intestacy.
34 (10) "Devise," when used as a noun, means a testamentary disposition of
35 real or personal property and when used as a verb, means to dispose of real or
36 personal property by will.
37 (11) "Devisee" means any person designated in a will to receive a devise.
38 In the case of a devise to an existing trust or trustee, or to a trustee or
39 trust described by will, the trust or trustee is the devisee and the benefi-
40 ciaries are not devisees.
41 (12) "Disability" means cause for a protective order as described by sub-
42 section (b)(1) of section 15-5-401 of this code with respect to an individual,
43 any mental or physical impairment which substantially limits one (1) or more
44 major life activities of the individual including, but not limited to, self-
45 care, manual tasks, walking, seeing, hearing, speaking, learning, or working,
46 or a record of such an impairment, or being regarded as having such an impair-
47 ment. Disability shall not include transvestism, transsexualism, pedophilia,
48 exhibitionism, voyeurism, other sexual behavior disorders, or psychoactive
49 substance use disorders, compulsive gambling, kleptomania, or pyromania. Sex-
50 ual preference or orientation is not considered an impairment or disability.
51 Whether an impairment substantially limits a major life activity shall be
52 determined without consideration of the effect of corrective or mitigating
53 measures used to reduce the effects of the impairment.
54 (13) "Distributee" means any person who has received property of a dece-
55 dent from his personal representative other than as a creditor or purchaser. A
3
1 testamentary trustee is a distributee only to the extent of distributed assets
2 or increment thereto remaining in his hands. A beneficiary of a testamentary
3 trust to whom the trustee has distributed property received from a personal
4 representative is a distributee of the personal representative. For the pur-
5 pose of this provision "testamentary trustee" includes a trustee to whom
6 assets are transferred by will, to the extent of the devised assets.
7 (14) "Emancipated minor" shall mean any male or female who has been mar-
8 ried.
9 (15) "Estate" means all property of the decedent, including community
10 property of the surviving spouse subject to administration, property of
11 trusts, and property of any other person whose affairs are subject to this
12 code as it exists from time to time during administration.
13 (16) "Exempt property" means that property of a decedent's estate which is
14 described in section 15-2-402 of this code.
15 (17) "Fiduciary" includes personal representative, guardian, conservator
16 and trustee.
17 (18) "Foreign personal representative" means a personal representative of
18 another jurisdiction.
19 (19) "Formal proceedings" means those conducted before a judge with notice
20 to interested persons.
21 (20) "Guardian" means a person who has qualified as a guardian of a minor
22 or incapacitated person pursuant to testamentary or court appointment and
23 includes limited guardians as described by section 15-5-304, Idaho Code, but
24 excludes one who is merely a guardian ad litem.
25 (21) "Heirs" means those persons, including the surviving spouse, who are
26 entitled under the statutes of intestate succession to the property of a dece-
27 dent.
28 (22) "Incapacitated person" is as defined in section 15-5-101 of this
29 code.
30 (23) "Informal proceedings" means those conducted without notice to inter-
31 ested persons by an officer of the court acting as a registrar for probate of
32 a will or appointment of a personal representative.
33 (24) "Interested person" includes heirs, devisees, children, spouses,
34 creditors, beneficiaries and any others having a property right in or claim
35 against a trust estate or the estate of a decedent, ward or protected person
36 which may be affected by the proceeding. It also includes persons having pri-
37 ority for appointment as personal representative, and other fiduciaries repre-
38 senting interested persons. The meaning as it relates to particular persons
39 may vary from time to time and must be determined according to the particular
40 purposes of, and matter involved in, any proceeding.
41 (25) "Issue" of a person means all his lineal descendants of all genera-
42 tions, with the relationship of parent and child at each generation being
43 determined by the definitions of child and parent contained in this code.
44 (26) "Lease" includes an oil, gas, or other mineral lease.
45 (27) "Letters" includes letters testamentary, letters of guardianship,
46 letters of administration, and letters of conservatorship.
47 (28) "Minor" means a male under eighteen (18) years of age or a female
48 under eighteen (18) years of age.
49 (29) "Mortgage" means any conveyance, agreement or arrangement in which
50 property is used as security.
51 (30) "Nonresident decedent" means a decedent who was domiciled in another
52 jurisdiction at the time of his death.
53 (31) "Organization" includes a corporation, government or governmental
54 subdivision or agency, business trust, estate, trust, partnership or associa-
55 tion, two (2) or more persons having a joint or common interest, or any other
4
1 legal entity.
2 (32) "Parent" includes any person entitled to take, or who would be enti-
3 tled to take if the child died without a will, as a parent under this code by
4 intestate succession from the child whose relationship is in question and
5 excludes any person who is only a stepparent, foster parent, or grandparent.
6 (33) "Person" means an individual, a corporation, an organization, or
7 other legal entity.
8 (34) "Personal representative" includes executor, administrator, successor
9 personal representative, special administrator, and persons who perform sub-
10 stantially the same function under the law governing their status. "General
11 personal representative" excludes special administrator.
12 (35) "Petition" means a written request to the court for an order after
13 notice.
14 (36) "Proceeding" includes action at law and suit in equity.
15 (37) "Property" includes both real and personal property or any interest
16 therein and means anything that may be the subject of ownership.
17 (38) "Protected person" is as defined in section 15-5-101 of this code.
18 (39) "Protective proceeding" is as defined in section 15-5-101 of this
19 code.
20 (39A40)"Quasi-community property" is the property defined by section
21 15-2-201 of this code.
22 (401) "Registrar" refers to magistrates or judges of the district court
23 who shall perform the functions of registrar as provided in section 15-1-307
24 of this code.
25 (412) "Security" includes any note, stock, treasury stock, bond, deben-
26 ture, evidence of indebtedness, certificate of interest or participation in an
27 oil, gas or mining title or lease or in payments out of production under such
28 a title or lease, collateral trust certificate, transferable share, voting
29 trust certificate or, in general, any interest or instrument commonly known as
30 a security, or any certificate of interest or participation, any temporary or
31 interim certificate, receipt or certificate of deposit for, or any warrant or
32 right to subscribe to or purchase, any of the foregoing.
33 (423) "Settlement," in reference to a decedent's estate, includes the full
34 process of administration, distribution and closing.
35 (434) "Special administrator" means a personal representative as described
36 by sections 15-3-614 through 15-3-618 of this code.
37 (445) "State" includes any state of the United States, the District of
38 Columbia, the Commonwealth of Puerto Rico, and any territory or possession
39 subject to the legislative authority of the United States.
40 (456) "Successor personal representative" means a personal representative,
41 other than a special administrator, who is appointed to succeed a previously
42 appointed personal representative.
43 (467) "Successors" means those persons, other than creditors, who are
44 entitled to property of a decedent under his will or this code.
45 (478) "Supervised administration" refers to the proceedings described in
46 part 5, chapter 3, of this code.
47 (489) "Testacy proceeding" means a proceeding to establish a will or
48 determine intestacy.
49 (4950) "Trust" includes any express trust, private or charitable, with
50 additions thereto, wherever and however created. It also includes a trust cre-
51 ated or determined by judgment or decree under which the trust is to be admin-
52 istered in the manner of an express trust. "Trust" excludes other constructive
53 trusts, and it excludes resulting trusts, conservatorships, personal represen-
54 tatives, trust accounts as defined in chapter 6 of this code, custodial
55 arrangements pursuant to chapter 8, title 68, Idaho Code, business trusts pro-
5
1 viding for certificates to be issued to beneficiaries, common trust funds,
2 voting trusts, security arrangements, liquidation trusts, and trusts for the
3 primary purpose of paying debts, dividends, interest, salaries, wages, prof-
4 its, pensions, or employee benefits of any kind, and any arrangement under
5 which a person is nominee or escrowee for another.
6 (501) "Trustee" includes an original, additional, or successor trustee,
7 whether or not appointed or confirmed by court.
8 (512) "Ward" is as defined in section 15-5-101 of this code.
9 (523) "Will" is a testamentary instrument and includes codicil and any
10 testamentary instrument which merely appoints an executor or revokes or
11 revises another will.
12 (534) "Separate property" includes all property of either the husband or
13 the wife owned by him or her before marriage, and that acquired afterward
14 either by gift, bequest, devise or descent, or that which either he or she
15 acquires with proceeds of his or her separate property, by way of moneys or
16 other property.
17 (545) "Community property" includes all other property acquired after mar-
18 riage by either husband or wife, including the rents and profits of the sepa-
19 rate property of the husband and wife, unless, by the instrument by which any
20 such property is acquired by the wife, it is provided that the rents and prof-
21 its thereof be applied to her sole and separate use. Real property conveyed by
22 one (1) spouse to the other shall be presumed to be the sole and separate
23 estate of the grantee.
24 SECTION 2. That Section 15-5-202, Idaho Code, be, and the same is hereby
25 amended to read as follows:
26 15-5-202. TESTAMENTARY APPOINTMENT OF GUARDIAN OF MINOR. The parent of a
27 minor may appoint by will a guardian or of an unmarried minor. Subject to the
28 right of the minor under section 15-5-203 of this Ppart, a testamentary
29 appointment becomes effective upon filing the guardian's acceptance in the
30 court in which the will is probated, if before acceptance, both parents are
31 dead. or the surviving parent is adjudged incapacitated. If both parents are
32 dead, an effective appointment by the parent who died later has priority. This
33 state recognizes a testamentary appointment effected by filing the guardian's
34 acceptance under a will probated in another state which is the testator's
35 domicile. Written notice of acceptance of the appointment must be given by the
36 guardian to the minor and to the person having his care or to his nearest
37 adult relation immediately upon acceptance of appointment.
38 SECTION 3. That Section 15-5-204, Idaho Code, be, and the same is hereby
39 amended to read as follows:
40 15-5-204. COURT APPOINTMENT OF GUARDIAN OF MINOR -- CONDITIONS FOR
41 APPOINTMENT. The court may appoint a guardian for an unmarried minor if all
42 parental rights of custody have been terminated by prior court order or upon a
43 finding that the child has been neglected, abused, abandoned, or whose parents
44 are unable to provide a stable home environment. "Abandoned" means the failure
45 of the parent to maintain a normal parental relationship with the child
46 including, but not limited to, reasonable support or regular contact. Failure
47 to maintain a normal parental relationship with the child without just cause
48 for a period of six (6) months shall constitute prima facie evidence of aban-
49 donment. In all cases, the court shall consider the best interests of the
50 child as the primary factor in the determination whether to appoint, and whom
51 to appoint, as a guardian for such child. In determining the choice of a
6
1 guardian for an unmarried minor, the advanced age or disability of a potential
2 guardian shall not, in and of itself, be used as a criterion of the suitabil-
3 ity of the potential guardian so long as the potential guardian is otherwise
4 suitable. A guardian appointed by will as provided in section 15-5-202 of this
5 part whose appointment has not been prevented or nullified under section
6 15-5-203 of this part has priority over any guardian who may be appointed by
7 the court but the court may proceed with an appointment nonetheless upon a
8 finding that the testamentary guardian has failed to accept the testamentary
9 appointment within thirty (30) days after notice of the guardianship proceed-
10 ing.
11 SECTION 4. That Section 16-1501, Idaho Code, be, and the same is hereby
12 amended to read as follows:
13 16-1501. MINORS AND ADULTS MAY BE ADOPTED. Any minor child may be adopted
14 by any adult person residing in and having residence in Idaho, in the cases
15 and subject to the rules prescribed in this chapter.
16 (1) Persons not minors may be adopted by a resident adult in cases where
17 the person adopting has sustained the relation of parent to such adopted per-
18 son: (i) for a period in excess of one (1) year while the person was a minor;
19 or (ii) for such period of time or in such manner that the court after inves-
20 tigation finds a substantial family relationship has been created.
21 (2) Nothing in this chapter shall be construed to allow discrimination on
22 the basis of race, religion, gender, national origin, age or disability,
23 except that race may be considered to the extent necessary to comply with the
24 Indian child welfare act.
25 (a) Evaluations of parental fitness shall be free of bias and shall take
26 into account the use of adaptive equipment and supportive services for
27 parents with disabilities, the availability of such equipment or services
28 and any obligation of any person or agency to provide such equipment or
29 services.
30 (b) "Disability" for purposes of this chapter, means, with respect to an
31 individual, any mental or physical impairment which substantially limits
32 one (1) or more major life activities of the individual including, but not
33 limited to, self-care, manual tasks, walking, seeing, hearing, speaking,
34 learning, or working, or a record of such an impairment, or being regarded
35 as having such an impairment. Disability shall not include transvestism,
36 transsexualism, pedophilia, exhibitionism, voyeurism, other sexual behav-
37 ior disorders, or psychoactive substance use disorders, compulsive gam-
38 bling, kleptomania, or pyromania. Sexual preference or orientation is not
39 considered an impairment or disability. Whether an impairment substan-
40 tially limits a major life activity shall be determined without consider-
41 ation of the effect of corrective or mitigating measures used to reduce
42 the effects of the impairment.
43 SECTION 5. That Section 16-1504, Idaho Code, be, and the same is hereby
44 amended to read as follows:
45 16-1504. CONSENT OF PARENTS, GUARDIAN, NEAREST RELATIVE, OR NEXT FRIEND
46 OF CHILD -- EXCEPTIONS. (1) A child cannot be adopted without the consent of
47 its parents, if living, except that the consent of a putative father whose
48 paternity has not been legally established by order of a court of competent
49 jurisdiction shall be implied as provided in section 16-1513, Idaho Code, nor
50 without the consent of its guardian if one has been legally appointed or, if
51 no living parents or guardian, then of its nearest relative; if no relative,
7
1 then by the consent of some person appointed by the judge to act in the pro-
2 ceedings as the next friend to such child. The consent of a parent who is a
3 minor shall not be voidable because of that minority. No consent shall be
4 required of, nor notice given to, any person whose parental relationship to
5 such child shall have been terminated in accordance with the provisions of
6 either chapter 16 or 20, title 16, Idaho Code, or by a court of competent
7 jurisdiction of a sister state under like proceedings; or in any other manner
8 authorized by the laws of a sister state. Where a voluntary child placement
9 agency licensed by the state in which it does business is authorized to place
10 a child for adoption and to consent to such child's adoption under the laws of
11 such state, the consent of such agency to the adoption of such child in a pro-
12 ceeding within the state of Idaho shall be valid and no further consents or
13 notices shall be required.
14 (2) A petition to adopt an adult may be granted only if written consent
15 to adoption has been executed by the adult being adopted and the adult's
16 spouse, if any, and by the guardian or conservator of an disabled or incapaci-
17 tated adult, if one has been appointed.
18 SECTION 6. That Section 16-1506, Idaho Code, be, and the same is hereby
19 amended to read as follows:
20 16-1506. PROCEEDINGS ON ADOPTION. (1) Proceedings to adopt a child shall
21 be commenced by the filing of a petition together with a copy thereof. Said
22 petition shall be initiated by the person or persons proposing to adopt the
23 child and shall be filed with the district court of the county in which said
24 person or persons reside. The petitioners shall have resided and maintained a
25 dwelling within the state of Idaho for at least six (6) consecutive months
26 prior to the filing of a petition. The petition shall set forth the name and
27 address of the petitioner or petitioners, the name of the child proposed to be
28 adopted and the name by which the person to be adopted shall be known if and
29 when adopted, the degree of relationship of the child, if any, to the peti-
30 tioner or petitioners and the names of any person or agency whose consent to
31 said adoption is necessary. At the time fixed for hearing such petition the
32 person adopting a child, and the child adopted, and the spouse of petitioner
33 if a natural parent of the child, must appear before the court of the county
34 wherein the petition was filed. Petitioner shall at such time execute an
35 agreement to the effect that the child shall be adopted and treated in all
36 respects as his own lawful child should be treated.
37 (2) Any person or persons whose consent is required shall execute such
38 consent in writing, in a form consistent with the provisions of subsection f.
39 of section 16-2005, Idaho Code, which consent being filed in the court where
40 the application is made, shall be deemed a sufficient appearance on the part
41 of such person or persons. If any adoptive parent, or a person not a minor
42 being adopted by a resident adult under the provisions of section 16-1501,
43 Idaho Code, is a member of the armed services and is unable to attend the
44 hearing, his appearance and testimony shall be received by means of deposi-
45 tion, which shall be filed in the court at the time of the hearing.
46 (3) Prior to the placement for adoption of any child in the home of pro-
47 spective adoptive parents, it shall be required that a thorough social inves-
48 tigation of the prospective adoptive family and all of its members, consistent
49 with the rules regarding such investigations promulgated by the department of
50 health and welfare, shall be completed and that a positive recommendation for
51 adoptive placement shall have been made. The social investigation may be per-
52 formed by any individual who meets the requirements of the law. The investiga-
53 tion of any prospective adoptive parent with a disability shall take into
8
1 account the use of adaptive equipment and supportive services, and shall be
2 conducted by, or with the assistance of, an individual with expertise in the
3 use of such equipment and services. A copy of the study must be submitted to
4 the department and the department may impose a reasonable fee, not to exceed
5 fifty dollars ($50.00), for oversight of such privately conducted studies. In
6 those instances where the prospective adoptive parent is married to the birth
7 parent or is the grandparent of the child to be adopted, such social investi-
8 gation shall be completed with regard to the prospective adoptive parent only
9 upon order of the court. In exigent circumstances where the prospective adop-
10 tive parents are determined by the court to have been unable to complete a
11 social investigation of the family with a positive recommendation prior to the
12 time the child is placed in the home, the child shall remain in the home
13 unless the court determines the best interests of the child are served by
14 other placement. If exigent circumstances exist, a social investigation shall
15 be initiated within five (5) days of placement. Once initiated, all studies
16 shall be completed within sixty (60) days. Upon the filing of a petition to
17 adopt a minor child by a person unrelated to the child or unmarried to a natu-
18 ral parent of the child and at the discretion of the court upon the filing of
19 any other petition for adoption, a copy of such petition, together with a
20 statement containing the full names and permanent addresses of the child and
21 the petitioners, shall be served by the court receiving the petition within
22 five (5) days on the director of the department of health and welfare by reg-
23 istered mail or personal service. If no private investigation is conducted, it
24 shall then be the duty of the said director, through the personnel of the
25 department or through such qualified child-placing children's adoption agency
26 incorporated under chapter 3, title 30, Idaho Code, as the director may desig-
27 nate, to verify the allegations of the petition, and as soon as possible not
28 exceeding thirty (30) days after service of the petition on the director to
29 make a thorough investigation of the matter to include in all cases informa-
30 tion as to the alleged date and place of birth and as to parentage of the
31 child to be adopted as well as the source of all such information and report
32 his findings in writing to the court. The investigative report shall include
33 reasonably known or available medical and genetic information regarding both
34 natural parents and sources of such information as well as reasonably known or
35 available providers of medical care and services to the natural parents. A
36 copy of all medical and genetic information compiled in the investigation
37 shall be made available to the adopting family by the department or other
38 investigating children's adoption agency prior to entry of the final order of
39 adoption. The petition, statement and all other papers, records or files
40 relating to the adoption, including the preplacement investigation and recom-
41 mendation, shall be returned to the court with the investigative report. The
42 department of health and welfare or other children's adoption agency may
43 require the petitioner to pay all or any part of the costs of the investiga-
44 tion. If the report disapproves of the adoption of the child, motion may be
45 made to the court to dismiss the petition.
46 (4) Proceedings for termination of parent-child relationship in accor-
47 dance with chapter 20, title 16, Idaho Code, and proceedings for adoption may
48 be consolidated and determined at one (1) hearing provided that all of the
49 requirements of this chapter as well as chapter 20, title 16, Idaho Code, be
50 fully complied with. In all disputed matters under this chapter or chapter 20,
51 title 16, Idaho Code, the paramount criterion for consideration and determina-
52 tion by the court shall be the best interests of the child.
53 (5) Proceedings for the adoption of an adult shall be as provided in sub-
54 section (1) of this section and any consents required shall be executed as
55 provided in subsection (2) of this section. Upon a finding by the court that
9
1 the consent of all persons for whom consent is required has been given and
2 that the requirements of section 16-1501, Idaho Code, have been proven to the
3 satisfaction of the court, the court shall enter an order granting the adop-
4 tion. In cases where the adult proposed to be adopted is incapacitated or dis-
5 abled, the court may require that an investigation be performed. The form and
6 extent of the investigation to be undertaken may be as provided in subsection
7 (3) of this section, or as otherwise ordered by the court. If an investigation
8 is performed, the court must review and approve the findings of the investiga-
9 tion before issuing an order approving the adoption.
10 SECTION 7. That Section 16-1601, Idaho Code, be, and the same is hereby
11 amended to read as follows:
12 16-1601. POLICY. The policy of the state of Idaho is hereby declared to
13 be the establishment of a legal framework conducive to the judicial processing
14 of child abuse, abandonment and neglect cases, and the protection of children
15 whose life lives, health or welfare is endangered. At all times the health and
16 safety of the child shall be the primary concern. Each child coming within the
17 purview of this chapter shall receive, preferably in his own home, the care,
18 guidance and control that will promote his welfare and the best interest of
19 the state of Idaho, and if he is removed from the control of one (1) or more
20 of his parents, guardian or other custodian, the state shall secure adequate
21 care for him; provided, however, that the state of Idaho shall, to the fullest
22 extent possible, seek to preserve, protect, enhance and reunite the family
23 relationship.
24 Nothing in this chapter shall be construed to allow discrimination on the
25 basis of race, religion, gender, national origin, age or disability, except
26 that race may be considered as necessary to comply with the Indian child wel-
27 fare act. Evaluations of parental fitness shall be free of bias and shall take
28 into account the use of adaptive equipment and supportive services for parents
29 with disabilities.
30 This chapter seeks to coordinate efforts by state and local public agen-
31 cies, in cooperation with private agencies and organizations, citizens'
32 groups, and concerned individuals, to:
33 (1) preserve the privacy and unity of the family whenever possible;
34 (2) take such actions as may be necessary and feasible to prevent the
35 abuse, neglect or abandonment of children;
36 (3) clarify for the purposes of this act the rights and responsibilities
37 of parents with joint legal or joint physical custody of children at risk.
38 SECTION 8. That Section 16-1602, Idaho Code, be, and the same is hereby
39 amended to read as follows:
40 16-1602. DEFINITIONS. For purposes of this chapter:
41 (a) "Abused" means any case in which a child has been the victim of:
42 (1) Conduct or omission resulting in skin bruising, bleeding, malnutri-
43 tion, burns, fracture of any bone, subdural hematoma, soft tissue swell-
44 ing, failure to thrive or death, and such condition or death is not justi-
45 fiably explained, or where the history given concerning such condition or
46 death is at variance with the degree or type of such condition or death,
47 or the circumstances indicate that such condition or death may not be the
48 product of an accidental occurrence; or
49 (2) Sexual conduct, including rape, molestation, incest, prostitution,
50 obscene or pornographic photographing, filming or depiction for commercial
51 purposes, or other similar forms of sexual exploitation harming or threat-
10
1 ening the child's health or welfare or mental injury to the child.
2 (b) "Abandoned" means the failure of the parent to maintain a normal
3 parental relationship with his child, including, but not limited to, reason-
4 able support or regular personal contact. Failure to maintain this relation-
5 ship without just cause for a period of one (1) year shall constitute prima
6 facie evidence of abandonment.
7 (c) "Adjudicatory hearing" means a hearing to determine the truth of the
8 allegations in the petition filed under this chapter.
9 (d) "Authorized agency" means the department, a local agency, a person,
10 an organization, corporation, benevolent society or association licensed or
11 approved by the department or the court to receive children for control, care,
12 maintenance or placement.
13 (e) "Child" means an individual who is under the age of eighteen (18)
14 years.
15 (f) "Child advocate coordinator" means a person or entity receiving
16 moneys from the grant administrator for the purpose of carrying out any of the
17 duties as set forth in section 16-1630, Idaho Code.
18 (g) "Circumstances of the child" includes, but is not limited to, the
19 joint legal custody or joint physical custody of the child.
20 (h) "Commit" means to transfer legal and physical custody.
21 (i) "Court" means district court or magistrate's division thereof, or if
22 the context requires, a magistrate or judge thereof.
23 (j) "Custodian" means a person, other than a parent or legal guardian, to
24 whom legal or joint legal custody of the child has been given by court order
25 or who is acting in loco parentis.
26 (k) "Department" means the department of health and welfare and its
27 authorized representatives.
28 (l) "Disability" means, with respect to an individual, any mental or
29 physical impairment which substantially limits one (1) or more major life
30 activities of the individual including, but not limited to, self-care, manual
31 tasks, walking, seeing, hearing, speaking, learning, or working, or a record
32 of such an impairment, or being regarded as having such an impairment. Dis-
33 ability shall not include transvestism, transsexualism, pedophilia,
34 exhibitionism, voyeurism, other sexual behavior disorders, or psychoactive
35 substance use disorders, compulsive gambling, kleptomania, or pyromania. Sex-
36 ual preference or orientation is not considered an impairment or disability.
37 Whether an impairment substantially limits a major life activity shall be
38 determined without consideration of the effect of corrective or mitigating
39 measures used to reduce the effects of the impairment.
40 (m) "Disposition hearing" means a hearing to determine whether the best
41 interests of the child require protective supervision or vesting legal custody
42 of the child in an authorized agency.
43 (mn) "Family or household member" shall have the same meaning as in sec-
44 tion 39-6303(2), Idaho Code.
45 (no) "Grant administrator" means any such organization or agency as may
46 be designated by the supreme court from time to time to administer funds from
47 the guardian ad litem account in accordance with the provisions of this chap-
48 ter.
49 (op) "Guardian ad litem" means a person appointed by the court pursuant
50 to a guardian ad litem volunteer program to act as special advocate for a
51 child under this chapter.
52 (pq) "Guardian ad litem program" means the program to recruit, train and
53 coordinate volunteer persons to serve as guardians ad litem for abused,
54 neglected or abandoned children.
55 (qr) "Law enforcement agency" means a city police department, the prose-
11
1 cuting attorney of any county, state law enforcement officers, or the office
2 of a sheriff of any county.
3 (rs) "Legal custody" means a relationship created by order of the court,
4 which vests in a custodian the following duties and rights:
5 (1) To have physical custody and control of the child, and to determine
6 where and with whom the child shall live.
7 (2) To supply the child with food, clothing, shelter and incidental
8 necessities.
9 (3) To provide the child with care, education and discipline.
10 (4) To authorize ordinary medical, dental, psychiatric, psychological, or
11 other remedial care and treatment for the child, including care and treat-
12 ment in a facility with a program of services for children; and to autho-
13 rize surgery if the surgery is deemed by two (2) physicians licensed to
14 practice in this state to be necessary for the child.
15 (5) Where the parents share legal custody, the custodian may be vested
16 with the custody previously held by either or both parents.
17 (st) "Mental injury" means a substantial impairment in the intellectual
18 or psychological ability of a child to function within a normal range of per-
19 formance and/or behavior, for short or long terms.
20 (tu) "Neglected" means a child:
21 (1) Who is without proper parental care and control, or subsistence, edu-
22 cation, medical or other care or control necessary for his well-being
23 because of the conduct or omission of his parents, guardian or other cus-
24 todian or their neglect or refusal to provide them; provided, however, no
25 child whose parent or guardian chooses for such child treatment by prayers
26 through spiritual means alone in lieu of medical treatment, shall be
27 deemed for that reason alone to be neglected or lack parental care neces-
28 sary for his health and well-being, but further provided this subsection
29 shall not prevent the court from acting pursuant to section 16-1616, Idaho
30 Code; or
31 (2) Whose parents, guardian or other custodian are unable to discharge
32 their responsibilities to and for the child because of incarceration, hos-
33 pitalization, or other physical or mental incapacity or for any reason,
34 except that when a parent has a disability, the determination of whether
35 the parent is unable to discharge the parent's responsibilities to or for
36 the child shall take into account whether the parent would do so with
37 appropriate adaptive equipment or supportive services; or
38 (3) Who has been placed for care or adoption in violation of law.
39 (uv) "Protective order" means an order created by the court granting
40 relief as delineated in section 39-6306, Idaho Code, and shall be for a period
41 not to exceed three (3) months unless otherwise stated herein. Failure to com-
42 ply with the order shall be a misdemeanor.
43 (vw) "Protective supervision" means a legal status created by court order
44 in neglect and abuse cases whereby the child is permitted to remain in his
45 home under supervision by the department.
46 (wx) "Residual parental rights and responsibilities" means those rights
47 and responsibilities remaining with the parents after the transfer of legal
48 custody, including, but not necessarily limited to, the right of visitation,
49 consent to adoption, the right to determine religious affiliation, the right
50 to family counseling when beneficial, and the responsibility for support.
51 (xy) "Shelter care" means places designated by the department for tempo-
52 rary care of children pending court disposition or placement.
53 SECTION 9. That Section 16-1603, Idaho Code, be, and the same is hereby
54 amended to read as follows:
12
1 16-1603. JURISDICTION OF THE COURTS. Except as otherwise provided herein,
2 the court shall have exclusive original jurisdiction in all proceedings under
3 this chapter concerning any child living or found within the state:
4 (a) who is neglected, abused or abandoned by his parents, guardian or
5 other legal custodian, or who is homeless; or
6 (b) whose parents or other legal custodian fails or is unable to provide
7 a stable home environment.
8 SECTION 10. That Section 16-1605, Idaho Code, be, and the same is hereby
9 amended to read as follows:
10 16-1605. PETITION. (a) A petition invoking the jurisdiction of the court
11 under this chapter shall be filed in the manner provided in this section:
12 (1) A petition must be signed by the prosecutor or deputy attorney gen-
13 eral before being filed with the court.
14 (2) Any person or governmental body of this state having evidence of
15 abuse, abandonment, or neglect of a child may request the attorney general
16 or prosecuting attorney to file a petition. The prosecuting attorney of
17 the county where the child resides may file a petition on behalf of any
18 child whose parent, guardian, or custodian has been accused in a criminal
19 complaint of the crime of cruel treatment or neglect as defined in section
20 18-1501, Idaho Code.
21 (b) Petitions shall be entitled "In the Matter of .............., a child
22 under the age of eighteen (18) years" and shall be verified and set forth with
23 specificity:
24 (1) The facts which bring the child within the provisions of this chap-
25 ter, with the actions of each parent described therein;
26 (2) The name, birthdate, sex, and residence address of the child;
27 (3) The name, birthdate, sex, and residence address of all other children
28 living at or having custodial visitation at the home where the injury to
29 the subject child occurred;
30 (4) The names and residence addresses of both the mother and father,
31 guardian or other custodian. If neither of his parents, guardian or other
32 custodian resides or can be found within the state, or if their residence
33 addresses are unknown, the name of any known adult relative residing
34 within the state.
35 (5) The names and residence addresses of each person having sole or joint
36 legal custody of the children described in this section.
37 (6) Whether or not there exists a legal document including, but not lim-
38 ited to, a divorce decree, stipulation or parenting agreement controlling
39 the custodial status of the children described in this section.
40 (7) Whether the child is in shelter care, and, if so, the type and nature
41 of the shelter care, the circumstances necessitating such care and the
42 date and time he was placed in such care.
43 (8) When any of the facts required by this section cannot be determined,
44 the petition shall so state. The petition may be based on information and
45 belief but in such case the petition shall state the basis of such infor-
46 mation and belief.
47 (9) The petition shall state that reasonable efforts have been made prior
48 to the placement of the child in care to prevent the removal of the child
49 from his home or, if such efforts were not provided, that placement was
50 due to immediate danger to the child, or that reasonable efforts to pre-
51 vent placement were not required as the parent subjected the child to
52 aggravated circumstances. In the case of a parent with a disability, rea-
53 sonable efforts include provision of adaptive equipment or supportive ser-
13
1 vices needed by the parent to care for the child.
2 (10) The petition shall state with specificity whether a parent with joint
3 legal custody or a noncustodial parent has been notified of placement.
4 (11) The petition shall state whether a court has adjudicated the custo-
5 dial rights of the parents and shall set forth the custodial status of the
6 child.
7 SECTION 11. That Section 16-1609A, Idaho Code, be, and the same is hereby
8 amended to read as follows:
9 16-1609A. INVESTIGATION BY MULTIDISCIPLINARY TEAMS. (1) By January 1,
10 1997, the prosecuting attorney in each county shall be responsible for the
11 development of an interagency multidisciplinary team or teams for investiga-
12 tion of child abuse and neglect referrals within each county. The teams shall
13 consist of, but not be limited to, law enforcement personnel, department of
14 health and welfare child protection risk assessment staff, a representative of
15 the prosecuting attorney's office, and any other person deemed to be necessary
16 due to their special training in child abuse investigation. Other persons may
17 participate in investigation of particular cases at the invitation of the team
18 and as determined necessary, such as medical personnel, school officials, men-
19 tal health workers, personnel from domestic violence programs, persons
20 knowledgeable about adaptive equipment and supportive services for parents
21 with disabilities or the guardian ad litem program.
22 (2) The teams shall develop a written protocol for investigation of child
23 abuse cases and for interviewing alleged victims of such abuse or neglect,
24 including protocols for investigations involving family members with a dis-
25 ability. Each team shall develop written agreements signed by member agencies,
26 specifying the role of each agency, procedures to be followed to assess risks
27 to the child and criteria and procedures to be followed to ensure the child
28 victim's safety including removal of the alleged offender.
29 (3) Each team member shall be trained in risk assessment, dynamics of
30 child abuse and interviewing and investigatory techniques.
31 (4) Each team shall classify, assess and review all cases referred to
32 either the department or to law enforcement entities for investigation of
33 child abuse or neglect.
34 (5) Each multidisciplinary team shall develop policies that provide for
35 an independent review of investigation procedures utilized in cases upon com-
36 pletion of any court actions on those cases. The procedures shall include
37 independent citizen input. Nonoffending parents of child abuse victims shall
38 be notified of the review procedure.
39 (6) Prosecuting attorneys of the various counties may determine that
40 multidisciplinary teams may be most effectively established through the use of
41 joint exercise of powers agreements among more than one (1) county and such
42 agreements are hereby authorized.
43 SECTION 12. That Section 16-2001, Idaho Code, be, and the same is hereby
44 amended to read as follows:
45 16-2001. PURPOSE. The purpose of this act is to provide for voluntary and
46 involuntary severance of the parent and child relationship and for substitu-
47 tion of parental care and supervision by judicial process, thereby safeguard-
48 ing the rights and interests of all parties concerned and promoting their wel-
49 fare and that of the state of Idaho.
50 Nothing in this chapter shall be construed to allow discrimination on the
51 basis of race, religion, gender, national origin, age or disability, except
14
1 that race may be considered to the extent necessary to comply with the Indian
2 child welfare act.
3 Implicit in this act is the philosophy that wherever possible family life
4 should be strengthened and preserved and that the issue of severing the parent
5 and child relationship is of such vital importance as to require a judicial
6 determination in place of attempts at severance by contractual arrangements,
7 express or implied, for the surrender and relinquishment of children.
8 SECTION 13. That Section 16-2002, Idaho Code, be, and the same is hereby
9 amended to read as follows:
10 16-2002. DEFINITIONS. When used in this act, unless the text otherwise
11 requires:
12 a. "Court" means the district court.
13 b. "Child" or "minor" means a person less than eighteen (18) years of
14 age.
15 c. The singular includes the plural, the plural the singular, and the
16 masculine the feminine, when consistent with the intent of the act.
17 d. "Neglected" used with respect to a child refers to those situations in
18 which the child lacks proper support or parental care necessary for his
19 health, morals, and well-being.
20 e. "Abuse" used with respect to a child refers to those situations in
21 which physical cruelty in excess of that required for reasonable disciplinary
22 purposes has been inflicted by a parent or other person in whom legal custody
23 of the child has been vested.
24 f. "Legal custody" means status created by court order embodying the fol-
25 lowing rights and responsibilities:
26 (1) tThe right to physical possession of the child,;
27 (2) tThe right and duty to protect, train and discipline the child,; and
28 (3) tThe responsibility to provide the child with food, shelter, educa-
29 tion and medical care,;
30 provided that such rights and responsibilities shall be exercised subject to
31 the powers, rights, duties and responsibilities of the guardian of the person.
32 g. "Guardianship of the person" means those rights and duties imposed
33 upon a person appointed as guardian of a minor under the laws of Idaho. It
34 includes but is not necessarily limited either in number or kind to:
35 (1) tThe authority to consent to marriage, to enlistment in the armed
36 forces of the United States, and to major medical, psychiatric and surgi-
37 cal treatment; to represent the minor in legal actions; and to make other
38 decisions concerning the child of substantial legal significance;
39 (2) tThe authority and duty of reasonable visitation, except to the
40 extent that such right of visitation has been limited by court order;
41 (3) tThe rights and responsibilities of legal custody except where legal
42 custody has been vested in another individual or in an authorized child
43 placement agency;
44 (4) wWhen the parent and child relationship has been terminated by judi-
45 cial decree with respect to the parents, or only living parent, or when
46 there is no living parent, the authority to consent to the adoption of the
47 child and to make any other decision concerning the child which the
48 child's parents could make.
49 h. "Guardian ad litem" means a person appointed as such pursuant to law,
50 by the court to protect the interest of a minor or an incompetent in a case
51 before the court.
52 i. "Authorized agency" means the state department of health and welfare
53 or a voluntary child placement agency licensed to care for and place children
15
1 by the state department of health and welfare.
2 j. "Parent" means the birth or adoptive mother or the birth, adoptive, or
3 legal father, whose parental rights have not been terminated.
4 k. "Parent and child relationship" includes all rights, privileges,
5 duties and obligations existing between parent and child, including inheri-
6 tance rights, and shall be construed to include adoptive parents.
7 l. "Protective supervision" means a legal status created by court order
8 in proceedings not involving violations of the law but where the legal custody
9 of the child is subject to change, whereby the child is permitted to remain in
10 his home under the supervision of an authorized agency designated by the court
11 and is subject to return to the court during the period of protective supervi-
12 sion.
13 m. "Parties" includes the child and the petitioners.
14 n. "Rape," (18-6101, Idaho Code); "lewd conduct with a minor child under
15 sixteen," (18-1508, Idaho Code); "sexual abuse of a child under the age of
16 sixteen years," (18-1506, Idaho Code); and "incest" (18-6602, Idaho Code)
17 shall be defined as provided in the applicable provisions of title 18, Idaho
18 Code, but for purposes of this chapter shall not include any circumstance
19 where the parents of the child in question were married at the time of concep-
20 tion.
21 o. "Disability" means, with respect to an individual, any mental or phys-
22 ical impairment which substantially limits one (1) or more major life activi-
23 ties of the individual including, but not limited to, self-care, manual tasks,
24 walking, seeing, hearing, speaking, learning, or working, or a record of such
25 an impairment, or being regarded as having such an impairment. Disability
26 shall not include transvestism, transsexualism, pedophilia, exhibitionism,
27 voyeurism, other sexual behavior disorders, or psychoactive substance use dis-
28 orders, compulsive gambling, kleptomania, or pyromania. Sexual preference or
29 orientation is not considered an impairment or disability. Whether an impair-
30 ment substantially limits a major life activity shall be determined without
31 consideration of the effect of corrective or mitigating measures used to
32 reduce the effects of the impairment.
33 SECTION 14. That Section 16-2005, Idaho Code, be, and the same is hereby
34 amended to read as follows:
35 16-2005. CONDITIONS UNDER WHICH TERMINATION MAY BE GRANTED. The court may
36 grant an order terminating the relationship where it finds one (1) or more of
37 the following conditions exist:
38 a. The parent has abandoned the child by having willfully failed to main-
39 tain a normal parental relationship including, but not limited to, reasonable
40 support or regular personal contact; failure of the parent to maintain this
41 relationship without just cause for a period of one (1) year shall constitute
42 prima facie evidence of abandonment under this section. Provided further, that
43 where termination is sought by a grandparent seeking to adopt the child, will-
44 ful failure of the parent to maintain a normal parental relationship as pro-
45 vided herein, without just cause, for six (6) months shall constitute prima
46 facie evidence of abandonment.
47 b. The parent has neglected or abused the child. Neglect as used herein
48 shall mean a situation in which the child lacks parental care necessary for
49 his health, morals and well-being.
50 c. The presumptive parent is not the natural parent of the child.
51 d. The parent is unable to discharge parental responsibilities because of
52 mental illness or mental deficiency, and there are reasonable grounds to
53 believe the condition inability will continue for a prolonged indeterminate
16
1 period and will be injurious to the health, morals or well-being of the child.
2 e. If termination is found to be in the best interest of the parent and
3 child, where the petition has been filed by a parent or through an authorized
4 agency, or interested party.
5 f. Where a consent to termination in the manner and form prescribed by
6 this act has been filed by the parent(s) of the child in conjunction with a
7 petition for adoption initiated by the person or persons proposing to adopt
8 the child, or where the consent to termination has been filed by a licensed
9 adoption agency, no subsequent hearing on the merits of the petition shall be
10 held. Consents required by this act must be witnessed by a district judge or
11 magistrate of a district court, or equivalent judicial officer of the state,
12 where a person consenting resides or is present, whether within or without the
13 county, and shall be substantially in the following form:
14 IN THE DISTRICT COURT OF THE .... JUDICIAL DISTRICT OF THE STATE OF IDAHO, IN
15 AND FOR THE COUNTY OF ....
16 In the Matter of the termination )
17 of the parental rights of )
18 ................... )
19 ................... )
20 I (we), the undersigned, being the .... of ...., do hereby give my (our)
21 full and free consent to the complete and absolute termination of my (our)
22 parental right(s), to the said ...., who was born ...., 19...., unto ....,
23 hereby relinquishing completely and forever, all legal rights, privileges,
24 duties and obligations, including all rights of inheritance to and from the
25 said ...., and I (we) do hereby expressly waive my (our) right(s) to hearing
26 on the petition to terminate my (our) parental relationship with the said
27 ...., and respectfully request the petition be granted.
28 DATED: ...., 1920...
29 ...................
30 STATE OF IDAHO )
31 ) ss.
32 COUNTY OF .... )
33 On this .... day of ...., 1920.., before me, the undersigned ...., ....
34 (Judge or Magistrate) of the District Court of the .... Judicial District of
35 the state of Idaho, in and for the county of ...., personally appeared ....,
36 known to me (or proved to me on the oath of ....) to be the person(s) whose
37 name(s) is (are) subscribed to the within instrument, and acknowledged to me
38 that he (she, they) executed the same.
39 IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
40 seal the day and year in this certificate first above written.
41 ...................... (District Judge or Magistrate)
42 The court shall accept a consent or a surrender and release executed in
43 another state if:
44 (1) It is witnessed by a magistrate or district judge of the state where
45 signed; or
46 (2) The court receives an affidavit or a certificate from a court of com-
47 parable jurisdiction stating that the consent or the surrender and release
48 was executed in accordance with the laws of the state in which it was exe-
49 cuted, or the court is satisfied by other showing that the consent or sur-
50 render and release was executed in accordance with the laws of the state
51 in which it was executed; or
52 (3) The court shall accept a termination or relinquishment from a sister
53 state that has been ordered by a court of competent jurisdiction under
54 like proceedings; or in any other manner authorized by the laws of a sis-
55 ter state. In a state where the father has failed to file notice of claim
17
1 to paternity and willingness to assume responsibility as provided for pur-
2 suant to the laws of such state, and where such failure constitutes an
3 abandonment of such child and constitutes a termination or relinquishment
4 of the rights of the putative father, the court shall accept such failure
5 as a termination in this state without further hearing on the merits, if
6 the court is satisfied that such failure constitutes a termination or
7 relinquishment of parental rights pursuant to the laws of that state.
8 g. Where consent to termination of parental rights is implied by reason
9 of the failure of a putative father to establish paternity in the manner pre-
10 scribed in section 16-1513, Idaho Code.
11 h. Unless a consent to termination signed by the parent(s) of the child
12 has been filed by an adoption agency licensed in the state of Idaho, or unless
13 the consent to termination was filed in conjunction with a petition for adop-
14 tion of the child, the court shall hold a hearing.
15 i. In the case of a father's parental relationship, where the father has
16 failed to file notice of claim to paternity and willingness to assume respon-
17 sibility as provided in section 16-1513(3), Idaho Code.
18 j. The court may grant termination as to a parent:
19 (1) Who caused the child to be conceived as a result of rape, incest,
20 lewd conduct with a minor child under sixteen (16) years, or sexual abuse
21 of a child under the age of sixteen (16) years, as defined in section
22 16-2002 n., Idaho Code;
23 (2) Who murdered or intentionally killed the other parent of the child;
24 or
25 (3) Who has been incarcerated and has no possibility of parole.
26 There is a rebuttable presumption that termination of the parent-child rela-
27 tionship in any of the circumstances provided in subsection j. of this section
28 is in the best interest of the child.
29 SECTION 15. That Section 16-2007, Idaho Code, be, and the same is hereby
30 amended to read as follows:
31 16-2007. NOTICE -- WAIVER -- GUARDIAN AD LITEM. After a petition has been
32 filed, the court shall set the time and place for hearing, and shall cause
33 notice thereof to be given to the petitioner, the parents of the child, the
34 guardian of the person of the child, the person having legal custody of the
35 child, any individual standing in loco parentis to the child, and the guard-
36 ian ad litem of any party, or if service cannot be had on the parent or guard-
37 ian, then upon the nearest blood relative named in the petition. The division
38 of welfare of the Idaho department of health and welfare shall be given notice
39 of the hearing if the petition for termination was not filed in conjunction
40 with a petition for adoption or by an adoption agency licensed by the state of
41 Idaho. Notice shall be given by personal service on the parents or guardian.
42 Where reasonable efforts to effect personal service have been unsuccessful,
43 the court shall order service by registered or certified mail to the last
44 known address of the person to be notified and by publication once a week for
45 three (3) successive weeks in a newspaper or newspapers to be designated by
46 the court as most likely to give notice to the person to be served. The hear-
47 ing shall take place no sooner than ten (10) days after service of notice, or
48 where service is by registered or certified mail and publication, the hearing
49 shall take place no sooner than ten (10) days after the date of last publica-
50 tion. Notice and appearance may be waived by a parent in writing before the
51 court or in the presence of, and witnessed by, a clerk of court or a represen-
52 tative of an authorized agency, provided that such parent has been apprised by
53 the court or by such person of the meaning and consequences of the termination
18
1 action. Where the parent resides outside the state, the waiver shall be
2 acknowledged before a notary of the state and shall contain the current
3 address of the parent. The parent who has executed such a waiver shall not be
4 required to appear. Where the parent is a minor, the waiver shall be effective
5 only upon approval by the court. When the termination of the parent and child
6 relationship is sought under section 16-2005(d), Idaho Code and the parent is
7 determined to be incompetent to participate in the proceeding, the court shall
8 appoint a guardian ad litem for the alleged incompetent parent. The court may
9 in any other case appoint a guardian ad litem, as may be deemed necessary or
10 desirable, for any party.
11 SECTION 16. That Section 16-2008, Idaho Code, be, and the same is hereby
12 amended to read as follows:
13 16-2008. INVESTIGATION PRIOR TO DISPOSITION. a. If a petition for adop-
14 tion is not filed in conjunction with a petition for termination, or the peti-
15 tion for termination was not filed by a children's adoption agency licensed by
16 the state of Idaho upon the filing of a petition for termination, the court
17 shall direct the department of health and welfare, bureau of child support
18 enforcement to submit a written financial analysis report within thirty (30)
19 days from date of notification, detailing the amount of any unreimbursed pub-
20 lic assistance moneys paid by the state of Idaho on behalf of the child. The
21 financial analysis shall include recommendations regarding repayment of
22 unreimbursed public assistance and provisions for future support for the
23 child, and the reasons therefor.
24 b. Upon the filing of a petition, the court may direct, in all cases
25 where written consent to termination has not been given as provided in this
26 act, that an investigation be made by the department of health and welfare,
27 division of family and children's services, or a licensed children's adoption
28 agency, and that a report in writing of such study be submitted to the court
29 prior to the hearing, except that where the department of health and welfare
30 or a licensed children's adoption agency is a petitioner, either in its own
31 right or on behalf of a parent, a report in writing of the investigation made
32 by such agency shall accompany the petition. The department of health and wel-
33 fare or the licensed children's adoption agency shall have thirty (30) days
34 from notification by the court during which it shall complete and submit its
35 investigation unless an extension of time is granted by the court upon appli-
36 cation by the agency. The court may order additional investigation as it deems
37 necessary. The social study shall include the circumstances of the petition,
38 the investigation, the present condition of the child and parents, proposed
39 plans for the child, and such other facts as may be pertinent to the parent
40 and child relationship, and the report submitted shall include a recommenda-
41 tion and the reasons therefor as to whether or not the parent and child rela-
42 tionship should be terminated. Evaluations shall be free of bias and shall
43 take into account the use of adaptive equipment and supportive services for
44 parents with disabilities, the availability of such supports and any obliga-
45 tion of any person or agency to provide such equipment or services. Where the
46 parent is a minor, if the report does not include a statement of contact with
47 the parents of said minor, the reasons therefor shall be set forth. The pur-
48 pose of the investigation is to aid the court in making disposition of the
49 petition and shall be considered by the court prior thereto.
50 SECTION 17. That Section 32-717, Idaho Code, be, and the same is hereby
51 amended to read as follows:
19
1 32-717. CUSTODY OF CHILDREN -- BEST INTEREST. A. In an action for divorce
2 the court may, before and after judgment, give such direction for the custody,
3 care and education of the children of the marriage as may seem necessary or
4 proper in the best interests of the children. The court shall consider all
5 relevant factors which may include:
6 1. The wishes of the child's parent or parents as to his or her custody;
7 2. The wishes of the child as to his or her custodian;
8 3. The interaction and interrelationship of the child with his or her
9 parent or parents, and his or her siblings;
10 4. The child's adjustment to his or her home, school, and community;
11 5. The mental and physical health and integrity of all individuals
12 involved ability of each parent to care for and meet the needs of the
13 child; if a parent has a disability as defined in section 16-1501(2)(b),
14 Idaho Code, the court will consider the ability of such parent to care for
15 the child using adaptive equipment and supportive services;
16 6. The need to promote continuity and stability in the life of the child;
17 and
18 7. Domestic violence as defined in section 39-6303, Idaho Code, whether
19 or not in the presence of the child.
20 B. In any case where the child is actually residing with a grandparent in
21 a stable relationship, the court may recognize the grandparent as having the
22 same standing as a parent for evaluating what custody arrangements are in the
23 best interests of the child.
24 SECTION 18. That Section 32-1005, Idaho Code, be, and the same is hereby
25 amended to read as follows:
26 32-1005. CUSTODY OF CHILDREN AFTER SEPARATION OF PARENTS. When a husband
27 and wife live in a state of separation, without being divorced, any court of
28 competent jurisdiction, upon application of either, if an inhabitant of this
29 state, may inquire into the custody of any unmarried minor child of the mar-
30 riage, and may award the custody of such child to either, for such time and
31 under such regulations as the case may require. The decision of the court must
32 be guided by the welfare of the child, and be free of bias on the basis of
33 race, religion, gender, national origin, age or disability. Evaluations of
34 parental fitness shall be free of bias and shall take into account the use of
35 adaptive equipment and supportive services for parents with disabilities, the
36 availability of such equipment or services, and the obligation of any person
37 or agency to provide such equipment or services. Such evaluations shall be
38 conducted by, or with the assistance of, a person who has expertise concerning
39 such equipment and services. For purposes of this section, disability shall be
40 as defined in section 16-1501(2)(b), Idaho Code.
STATEMENT OF PURPOSE
RS 10105
Families in which one or both parents have a disability face significant barriers as they attempt
to raise their children. These barriers include: 1) attitudinal barriers, 2) lack of information about
parenting adaptations, 3) lack of funding for adaptive technology, 4) exclusion from public policy
considerations, and 5) lack of disability expertise in service systems.
Idaho child custody laws, as currently written, reflect the historical bias against parents with
disabilities and present an unrealistic view of the disability community by their constant referral to
having a disability as a factor in a parent's ability to raise their children. Such references imply that
parents with disabilities are incapable of properly caring for their children. It is not a person's disability
that inhibits a person's capacity to provide a stable and loving home for children, rather it is a lack of
disability related supports for a parent with a disability that results in an unstable home environment.
Many parents with significant disabilities provide excellent care and stable homes for their children with
the assistance of family, friends and neighbors. Factors that should be considered in child custody cases
include abuse, neglect, abandonment, etc., regardless of whether the parent has a disability.
This legislation: 1) removes from current law any inappropriate disability language, 2) builds
into current law protections against discriminatory actions because of a parent's disability in child custody
legal proceedings and, 3) creates an evaluation system that is consistent and takes into consideration the
use of adaptive equipment and supportive services.
Based on information provided by Through the Looking Glass, a National Resource Center for
Parents with Disabilities, there are over 8.1 million U.S. families, or 10.9 percent of families with
children, in which one or both parents have a disability. Based on these figures, the proposed legislation
will have a positive impact on an estimated 14,750 Idaho families.
FISCAL IMPACT
According to the Idaho Department of Health & Welfare (IDHW), the cost of training staff
would be $100,000. IDHW also estimated that approximately 30 families would need supportive and
adaptive services at an average cost of $4,000 for each family, per year, for a total of
$120,000 in expenditures. The average cost per month, per child of foster care is $300, with an average
of two children per family and the average length of stay is 11I months, or $6,600 per year. Using these
figures the state could potentially save $198,000 in foster care costs. Therefore, the total fiscal impact of
this bill would be $22,000.
Contact: Kelly Buckland
Idaho State Independent Living Council
Telephone: 334-3800
STATEMENT OF PURPOSE/FISCAL IMPACT Bill No 1526
REVISED REVISED REVISED