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H0579aa...............................................by HEALTH AND WELFARE
PARENTS - DISABLED - Amends and adds to existing law to define "disability"
as related to an individual; and to guarantee protections for a disabled
person to parent, to adopt and to participate in decisions regarding
his/her child, including the right to present information concerning
adaptive equipment and supportive services which aid the individual in
parenting.
02/07 House intro - 1st rdg - to printing
02/08 Rpt prt - to Health/Wel
02/21 Rpt out - to Gen Ord
02/25 Rpt out amen - to engros
02/26 Rpt engros - 1st rdg - to 2nd rdg as amen
02/27 2nd rdg - to 3rd rdg as amen
03/04 3rd rdg as amen - PASSED - 67-0-3
AYES -- Aikele, Barraclough, Barrett, Bedke, Bell, Bieter, Black,
Block, Boe, Bolz, Bradford, Bruneel, Callister, Campbell, Clark,
Collins, Crow, Cuddy, Deal, Denney, Ellis, Ellsworth, Eskridge,
Field(13), Field(20), Gould, Hadley, Hammond, Harwood, Henbest,
Higgins, Hornbeck, Jaquet, Jones, Kellogg(Duncan), Kendell, Kunz,
Lake, Langford, Loertscher, Mader, Martinez, McKague, Meyer,
Montgomery, Mortensen, Moyle, Pearce, Pischner, Pomeroy, Raybould,
Ridinger, Robison, Sali, Schaefer, Shepherd, Smith(33), Smith(23),
Smylie, Stevenson, Stone, Tilman, Trail, Wheeler, Wood, Young, Mr.
Speaker
NAYS -- None
Absent and excused -- Gagner, Roberts, Sellman
Floor Sponsor - Sali
Title apvd - to Senate
03/05 Senate intro - 1st rdg - to Health/Wel
03/11 Rpt out - rec d/p - to 2nd rdg
03/12 2nd rdg - to 3rd rdg
03/14 3rd rdg - PASSED - 35-0-0
AYES -- Andreason, Boatright, Branch(Bartlett), Brandt, Bunderson,
Burtenshaw, Cameron, Darrington, Davis, Deide, Dunklin, Frasure,
Geddes, Goedde, Hawkins, Hill, Ingram, Ipsen, Keough, King-Barrutia,
Little, Lodge, Marley, Noh, Richardson, Risch, Sandy, Schroeder,
Sims, Sorensen, Stegner, Stennett, Thorne, Wheeler, Williams
NAYS -- None
Absent and excused -- None
Floor Sponsor - King-Barrutia
Title apvd - to House
03/15 To enrol - rpt enrol - Sp signed
Pres signed
03/15 To Governor
03/22 Governor signed
Session Law Chapter 233
Effective: 07/01/02
|||| LEGISLATURE OF THE STATE OF IDAHO ||||
Fifty-sixth Legislature Second Regular Session - 2002
IN THE HOUSE OF REPRESENTATIVES
HOUSE BILL NO. 579
BY HEALTH AND WELFARE COMMITTEE
1 AN ACT
2 RELATING TO PARENTAL RIGHTS OF INDIVIDUALS WITH A DISABILITY; 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 A REFERENCE TO
5 INCAPACITY AND TO MAKE TECHNICAL CORRECTIONS; AMENDING SECTION 15-5-204,
6 IDAHO CODE, TO INCLUDE DISABILITY AS A FACTOR WHICH IS NOT TO BE A DIS-
7 QUALIFICATION AND TO MAKE TECHNICAL CORRECTIONS; AMENDING SECTION 16-1501,
8 IDAHO CODE, TO DEFINE TERMS; AMENDING CHAPTER 15, TITLE 16, IDAHO CODE, BY
9 THE ADDITION OF A NEW SECTION 16-1501B, IDAHO CODE, TO SPECIFY THE RIGHT
10 OF A PROSPECTIVE PARENT WITH A DISABILITY TO PRESENT EVIDENCE AND INFORMA-
11 TION; AMENDING SECTION 16-1504, IDAHO CODE, TO STRIKE A REFERENCE TO DIS-
12 ABILITY FROM CONDITIONS WHICH RELIEVE THE REQUIREMENT TO OBTAIN PERMISSION
13 FOR AN ADOPTION AND TO STRIKE AN INCORRECT CODE REFERENCE; AMENDING SEC-
14 TION 16-1506, IDAHO CODE, TO REQUIRE THE OPPORTUNITY TO PRESENT INFORMA-
15 TION REGARDING ADAPTIVE EQUIPMENT OR SUPPORTIVE SERVICES AND TO PROVIDE A
16 CORRECT CODE REFERENCE; AMENDING SECTION 16-2001, IDAHO CODE, TO PROHIBIT
17 DISCRIMINATION ON THE BASIS OF DISABILITY; AMENDING SECTION 16-2002, IDAHO
18 CODE, TO DEFINE ADDITIONAL TERMS AND TO PROVIDE A CORRECT CODE REFERENCE;
19 AMENDING SECTION 16-2005, IDAHO CODE, TO STRIKE DISABILITY AS A CONDITION
20 FOR TERMINATION, TO REQUIRE AN OPPORTUNITY TO PRESENT EVIDENCE AND TO PRO-
21 VIDE CORRECT CODE REFERENCES; AMENDING SECTION 16-2007, IDAHO CODE, TO
22 CLARIFY A REFERENCE TO COMPETENCY; AND AMENDING SECTION 16-2008, IDAHO
23 CODE, TO REQUIRE AN OPPORTUNITY TO PRESENT INFORMATION REGARDING ADAPTIVE
24 EQUIPMENT OR SUPPORTIVE SERVICES AND TO MAKE A TECHNICAL CORRECTION.
25 Be It Enacted by the Legislature of the State of Idaho:
26 SECTION 1. That Section 15-1-201, Idaho Code, be, and the same is hereby
27 amended to read as follows:
28 15-1-201. GENERAL DEFINITIONS. Subject to additional definitions con-
29 tained in the subsequent chapters which are applicable to specific chapters or
30 parts, and unless the context otherwise requires, in this code:
31 (1) "Application" means a written request to the registrar for an order
32 of informal probate or appointment under part 3 of chapter 3 of this code.
33 (2) "Augmented estate" means the estate described in section 15-2-202, of
34 this Idaho Ccode.
35 (3) "Beneficiary," as it relates to trust beneficiaries, includes a per-
36 son who has any present or future interest, vested or contingent, and also
37 includes the owner of an interest by assignment or other transfer and as it
38 relates to a charitable trust, includes any person entitled to enforce the
39 trust.
40 (4) "Child" includes any individual entitled to take as a child under
41 this code by intestate succession from the parent whose relationship is
42 involved and excludes any person who is only a stepchild, a foster child, a
43 grandchild or any more remote descendant.
2
1 (5) "Claims," in respect to estates of decedents and protected persons,
2 includes liabilities of the decedent or protected person whether arising in
3 contract, in tort or otherwise, and liabilities of the estate which arise at
4 or after the death of the decedent or after the appointment of a conservator,
5 including funeral expenses and expenses of administration. The term does not
6 include estate or inheritance taxes, other tax obligations arising from activ-
7 ities or transactions of the estate, demands or disputes regarding title of a
8 decedent or protected person to specific assets alleged to be included in the
9 estate.
10 (6) "Court" means the court or branch having jurisdiction in matters
11 relating to the affairs of decedents, minors, incapacitated and disabled per-
12 sons. This court in this state is known as the district court.
13 (7) "Conservator" means a person who is appointed by a court to manage
14 the estate of a protected person and includes limited conservators as
15 described by section 15-5-420, Idaho Code.
16 (8) "Determination of heirship of community property" shall mean that
17 determination required by the provisions of section 15-3-303, of this Idaho
18 Ccode, upon an application for informal probate not accompanied by presenta-
19 tion of a will.
20 (9) "Determination of heirship" shall mean that determination of heirship
21 required by section 15-3-409, of this Idaho Ccode, upon a finding of intes-
22 tacy.
23 (10) "Devise," when used as a noun, means a testamentary disposition of
24 real or personal property and when used as a verb, means to dispose of real or
25 personal property by will.
26 (11) "Devisee" means any person designated in a will to receive a devise.
27 In the case of a devise to an existing trust or trustee, or to a trustee or
28 trust described by will, the trust or trustee is the devisee and the benefi-
29 ciaries are not devisees.
30 (12) "Disability," means cause for a protective order as described by sub-
31 section (b)(1) of section 15-5-401 of this code with respect to an individual,
32 means any mental or physical impairment which substantially limits one (1) or
33 more major life activities of the individual including, but not limited to,
34 self-care, manual tasks, walking, seeing, hearing, speaking, learning, or
35 working, or a record of such an impairment, or being regarded as having such
36 an impairment. Disability shall not include transvestism, transsexualism,
37 pedophilia, exhibitionism, voyeurism, other sexual behavior disorders, or sub-
38 stance use disorders, compulsive gambling, kleptomania, or pyromania. Sexual
39 preference or orientation is not considered an impairment or disability.
40 Whether an impairment substantially limits a major life activity shall be
41 determined without consideration of the effect of corrective or mitigating
42 measures used to reduce the effects of the impairment.
43 (13) "Distributee" means any person who has received property of a dece-
44 dent from his personal representative other than as a creditor or purchaser. A
45 testamentary trustee is a distributee only to the extent of distributed assets
46 or increment thereto remaining in his hands. A beneficiary of a testamentary
47 trust to whom the trustee has distributed property received from a personal
48 representative is a distributee of the personal representative. For the pur-
49 pose of this provision "testamentary trustee" includes a trustee to whom
50 assets are transferred by will, to the extent of the devised assets.
51 (14) "Emancipated minor" shall mean any male or female who has been mar-
52 ried.
53 (15) "Estate" means all property of the decedent, including community
54 property of the surviving spouse subject to administration, property of
55 trusts, and property of any other person whose affairs are subject to this
3
1 code as it exists from time to time during administration.
2 (16) "Exempt property" means that property of a decedent's estate which is
3 described in section 15-2-403, of this Idaho Ccode.
4 (17) "Fiduciary" includes personal representative, guardian, conservator
5 and trustee.
6 (18) "Foreign personal representative" means a personal representative of
7 another jurisdiction.
8 (19) "Formal proceedings" means those conducted before a judge with notice
9 to interested persons.
10 (20) "Guardian" means a person who has qualified as a guardian of a minor
11 or incapacitated person pursuant to testamentary or court appointment and
12 includes limited guardians as described by section 15-5-304, Idaho Code, but
13 excludes one who is merely a guardian ad litem.
14 (21) "Heirs" means those persons, including the surviving spouse, who are
15 entitled under the statutes of intestate succession to the property of a dece-
16 dent.
17 (22) "Incapacitated person" is as defined in section 15-5-101, of this
18 Idaho Ccode.
19 (23) "Informal proceedings" means those conducted without notice to inter-
20 ested persons by an officer of the court acting as a registrar for probate of
21 a will or appointment of a personal representative.
22 (24) "Interested person" includes heirs, devisees, children, spouses,
23 creditors, beneficiaries and any others having a property right in or claim
24 against a trust estate or the estate of a decedent, ward or protected person
25 which may be affected by the proceeding. It also includes persons having pri-
26 ority for appointment as personal representative, and other fiduciaries repre-
27 senting interested persons. The meaning as it relates to particular persons
28 may vary from time to time and must be determined according to the particular
29 purposes of, and matter involved in, any proceeding.
30 (25) "Issue" of a person means all his lineal descendants of all genera-
31 tions, with the relationship of parent and child at each generation being
32 determined by the definitions of child and parent contained in this code.
33 (26) "Lease" includes an oil, gas, or other mineral lease.
34 (27) "Letters" includes letters testamentary, letters of guardianship,
35 letters of administration, and letters of conservatorship.
36 (28) "Minor" means a male under eighteen (18) years of age or a female
37 under eighteen (18) years of age.
38 (29) "Mortgage" means any conveyance, agreement or arrangement in which
39 property is used as security.
40 (30) "Nonresident decedent" means a decedent who was domiciled in another
41 jurisdiction at the time of his death.
42 (31) "Organization" includes a corporation, government or governmental
43 subdivision or agency, business trust, estate, trust, partnership or associa-
44 tion, two (2) or more persons having a joint or common interest, or any other
45 legal entity.
46 (32) "Parent" includes any person entitled to take, or who would be enti-
47 tled to take if the child died without a will, as a parent under this code by
48 intestate succession from the child whose relationship is in question and
49 excludes any person who is only a stepparent, foster parent, or grandparent.
50 (33) "Person" means an individual, a corporation, an organization, or
51 other legal entity.
52 (34) "Personal representative" includes executor, administrator, successor
53 personal representative, special administrator, and persons who perform sub-
54 stantially the same function under the law governing their status. "General
55 personal representative" excludes special administrator.
4
1 (35) "Petition" means a written request to the court for an order after
2 notice.
3 (36) "Proceeding" includes action at law and suit in equity.
4 (37) "Property" includes both real and personal property or any interest
5 therein and means anything that may be the subject of ownership.
6 (38) "Protected person" is as defined in section 15-5-101, of this Idaho
7 Ccode.
8 (39) "Protective proceeding" is as defined in section 15-5-101, of this
9 Idaho Ccode.
10 (39A40) "Quasi-community property" is the property defined by section
11 15-2-201, of this Idaho Ccode.
12 (401) "Registrar" refers to magistrates or judges of the district court
13 who shall perform the functions of registrar as provided in section 15-1-307,
14 of this Idaho Ccode.
15 (412) "Security" includes any note, stock, treasury stock, bond, deben-
16 ture, evidence of indebtedness, certificate of interest or participation in an
17 oil, gas or mining title or lease or in payments out of production under such
18 a title or lease, collateral trust certificate, transferable share, voting
19 trust certificate or, in general, any interest or instrument commonly known as
20 a security, or any certificate of interest or participation, any temporary or
21 interim certificate, receipt or certificate of deposit for, or any warrant or
22 right to subscribe to or purchase, any of the foregoing.
23 (423) "Settlement," in reference to a decedent's estate, includes the full
24 process of administration, distribution and closing.
25 (434) "Special administrator" means a personal representative as described
26 by sections 15-3-614 through 15-3-618, of this Idaho Ccode.
27 (445) "State" includes any state of the United States, the District of
28 Columbia, the Commonwealth of Puerto Rico, and any territory or possession
29 subject to the legislative authority of the United States.
30 (456) "Successor personal representative" means a personal representative,
31 other than a special administrator, who is appointed to succeed a previously
32 appointed personal representative.
33 (467) "Successors" means those persons, other than creditors, who are
34 entitled to property of a decedent under his will or this code.
35 (478) "Supervised administration" refers to the proceedings described in
36 part 5, chapter 3, of this code.
37 (489) "Testacy proceeding" means a proceeding to establish a will or
38 determine intestacy.
39 (4950) "Trust" includes any express trust, private or charitable, with
40 additions thereto, wherever and however created. It also includes a trust cre-
41 ated or determined by judgment or decree under which the trust is to be admin-
42 istered in the manner of an express trust. "Trust" excludes other constructive
43 trusts, and it excludes resulting trusts, conservatorships, personal represen-
44 tatives, trust accounts as defined in chapter 6 of this code, custodial
45 arrangements pursuant to chapter 8, title 68, Idaho Code, business trusts pro-
46 viding for certificates to be issued to beneficiaries, common trust funds,
47 voting trusts, security arrangements, liquidation trusts, and trusts for the
48 primary purpose of paying debts, dividends, interest, salaries, wages, prof-
49 its, pensions, or employee benefits of any kind, and any arrangement under
50 which a person is nominee or escrowee for another.
51 (501) "Trustee" includes an original, additional, or successor trustee,
52 whether or not appointed or confirmed by court.
53 (512) "Ward" is as defined in section 15-5-101, of this Idaho Ccode.
54 (523) "Will" is a testamentary instrument and includes codicil and any
55 testamentary instrument which merely appoints an executor or revokes or
5
1 revises another will.
2 (534) "Separate property" includes all property of either the husband or
3 the wife owned by him or her before marriage, and that acquired afterward
4 either by gift, bequest, devise or descent, or that which either he or she
5 acquires with proceeds of his or her separate property, by way of moneys or
6 other property.
7 (545) "Community property" includes all other property acquired after
8 marriage by either husband or wife, including the rents and profits of the
9 separate property of the husband and wife, unless, by the instrument by which
10 any such property is acquired by the wife, it is provided that the rents and
11 profits thereof be applied to her sole and separate use. Real property con-
12 veyed by one (1) spouse to the other shall be presumed to be the sole and sep-
13 arate estate of the grantee.
14 SECTION 2. That Section 15-5-202, Idaho Code, be, and the same is hereby
15 amended to read as follows:
16 15-5-202. TESTAMENTARY APPOINTMENT OF GUARDIAN OF MINOR. The parent of a
17 minor may appoint by will a guardian or of an unmarried minor. Subject to the
18 right of the minor under section 15-5-203, of this Part Idaho Code, a testa-
19 mentary appointment becomes effective upon filing the guardian's acceptance in
20 the court in which the will is probated, if before acceptance, both parents
21 are dead. or the surviving parent is adjudged incapacitated. If both parents
22 are dead, an effective appointment by the parent who died later has priority.
23 This state recognizes a testamentary appointment effected by filing the
24 guardian's acceptance under a will probated in another state which is the
25 testator's domicile. Written notice of acceptance of the appointment must be
26 given by the guardian to the minor and to the person having his care or to his
27 nearest adult relation immediately upon acceptance of appointment.
28 SECTION 3. That Section 15-5-204, Idaho Code, be, and the same is hereby
29 amended to read as follows:
30 15-5-204. COURT APPOINTMENT OF GUARDIAN OF MINOR -- CONDITIONS FOR
31 APPOINTMENT. The court may appoint a guardian for an unmarried minor if all
32 parental rights of custody have been terminated by prior court order or upon a
33 finding that the child has been neglected, abused, abandoned, or whose parents
34 are unable to provide a stable home environment. "Abandoned" means the failure
35 of the parent to maintain a normal parental relationship with the child
36 including, but not limited to, reasonable support or regular contact. Failure
37 to maintain a normal parental relationship with the child without just cause
38 for a period of six (6) months shall constitute prima facie evidence of aban-
39 donment. In all cases, the court shall consider the best interests of the
40 child as the primary factor in the determination whether to appoint, and whom
41 to appoint, as a guardian for such child. In determining the choice of a
42 guardian for an unmarried minor, the advanced age or disability of a potential
43 guardian shall not, in and of itself, be used as a criterion of the suitabil-
44 ity of the potential guardian so long as the potential guardian is otherwise
45 suitable. A guardian appointed by will as provided in section 15-5-202, of
46 this part Idaho Code, whose appointment has not been prevented or nullified
47 under section 15-5-203, of this part Idaho Code, has priority over any guard-
48 ian who may be appointed by the court but the court may proceed with an
49 appointment nonetheless upon a finding that the testamentary guardian has
50 failed to accept the testamentary appointment within thirty (30) days after
51 notice of the guardianship proceeding.
6
1 SECTION 4. That Section 16-1501, Idaho Code, be, and the same is hereby
2 amended to read as follows:
3 16-1501. MINORS AND ADULTS MAY BE ADOPTED. Any minor child may be adopted
4 by any adult person residing in and having residence in Idaho, in the cases
5 and subject to the rules prescribed in this chapter.
6 (1) Persons not minors may be adopted by a resident adult in cases where
7 the person adopting has sustained the relation of parent to such adopted per-
8 son:
9 (ia) fFor a period in excess of one (1) year while the person was a
10 minor; or
11 (iib) fFor such period of time or in such manner that the court after
12 investigation finds a substantial family relationship has been created.
13 (2) Adoptions shall not be denied solely on the basis of the disability
14 of a prospective adoptive parent.
15 (a) "Adaptive equipment," for purposes of this chapter, means any piece
16 of equipment or any item that is used to increase, maintain, or improve
17 the parenting capabilities of a parent with a disability.
18 (b) "Disability," for purposes of this chapter, means, with respect to an
19 individual, any mental or physical impairment which substantially limits
20 one (1) or more major life activities of the individual including, but not
21 limited to, self-care, manual tasks, walking, seeing, hearing, speaking,
22 learning, or working, or a record of such an impairment, or being regarded
23 as having such an impairment. Disability shall not include transvestism,
24 transsexualism, pedophilia, exhibitionism, voyeurism, other sexual behav-
25 ior disorders, or substance use disorders, compulsive gambling, kleptoma-
26 nia, or pyromania. Sexual preference or orientation is not considered an
27 impairment or disability. Whether an impairment substantially limits a
28 major life activity shall be determined without consideration of the
29 effect of corrective or mitigating measures used to reduce the effects of
30 the impairment.
31 (c) "Supportive services," as used in this chapter, means services which
32 assist a parent with a disability to compensate for those aspects of their
33 disability which affect their ability to care for their child and which
34 will enable them to discharge their parental responsibilities. The term
35 includes specialized or adapted training, evaluations, or assistance with
36 effective use of adaptive equipment, and accommodations which allow a par-
37 ent with a disability to benefit from other services, such as Braille
38 texts or sign language interpreters.
39 SECTION 5. That Chapter 15, Title 16, Idaho Code, be, and the same is
40 hereby amended by the addition thereto of a NEW SECTION, to be known and des-
41 ignated as Section 16-1501B, Idaho Code, and to read as follows:
42 16-1501B. RIGHT OF PARENT WITH DISABILITY TO PRESENT EVIDENCE AND INFOR-
43 MATION. If the prospective adoptive parent has a disability as defined in this
44 chapter, the prospective adoptive parent shall have the right to provide evi-
45 dence to the court regarding the manner in which the use of adaptive equipment
46 or supportive services will enable the parent to carry out the responsibili-
47 ties of parenting the child. Nothing in this chapter shall be construed to
48 create any new or additional obligation on state or local governments to pur-
49 chase or provide adaptive equipment or supportive services for parents with
50 disabilities.
51 SECTION 6. That Section 16-1504, Idaho Code, be, and the same is hereby
7
1 amended to read as follows:
2 16-1504. NECESSARY CONSENT TO ADOPTION. (1) Consent to adoption is
3 required from:
4 (a) The adoptee, if he is more than twelve (12) years of age, unless he
5 does not have the mental capacity to consent;
6 (b) Both parents or the surviving parent of an adoptee who was conceived
7 or born within a marriage, unless the adoptee is eighteen (18) years of
8 age or older;
9 (c) The mother of an adoptee born outside of marriage;
10 (d) Any biological parent who has been adjudicated to be the child's bio-
11 logical father by a court of competent jurisdiction prior to the mother's
12 execution of consent;
13 (e) An unmarried biological father of an adoptee only if the requirements
14 and conditions of subsection (2)(a) or (b) of this section have been
15 proven;
16 (f) Any legally appointed custodian or guardian of the adoptee;
17 (g) The guardian or conservator of an disabled or incapacitated adult, if
18 one has been appointed;
19 (h) The adoptee's spouse, if any; and
20 (i) An unmarried biological father who has filed a voluntary acknowledg-
21 ment of paternity with the vital statistics unit of the department of
22 health and welfare pursuant to section 7-1106, Idaho Code; and
23 (j) The father of an illegitimate child who has adopted the child by
24 acknowledgment. pursuant to section 16-1510, Idaho Code.
25 (2) In accordance with subsection (1) of this section, the consent of an
26 unmarried biological father is necessary only if the father has strictly com-
27 plied with the requirements of this section.
28 (a) (i) With regard to a child who is placed with adoptive parents more
29 than six (6) months after birth, an unmarried biological father shall
30 have developed a substantial relationship with the child, taken some
31 measure of responsibility for the child and the child's future, and
32 demonstrated a full commitment to the responsibilities of parenthood
33 by financial support of the child, of a fair and reasonable sum and
34 in accordance with the father's ability, when not prevented from
35 doing so by the person or authorized agency having lawful custody of
36 the child, and either:
37 1. Visiting the child at least monthly when physically and
38 financially able to do so, and when not prevented from doing so
39 by the person or authorized agency having lawful custody of the
40 child; or
41 2. Have regular communication with the child or with the person
42 or agency having the care or custody of the child, when physi-
43 cally and financially unable to visit the child, and when not
44 prevented from doing so by the person or authorized agency hav-
45 ing lawful custody of the child.
46 (ii) The subjective intent of an unmarried biological father,
47 whether expressed or otherwise, unsupported by evidence of acts spec-
48 ified in this subsection shall not preclude a determination that the
49 father failed to meet the requirements of this subsection.
50 (iii) An unmarried biological father who openly lived with the child
51 for a period of six (6) months within the one (1) year period after
52 the birth of the child and immediately preceding placement of the
53 child with adoptive parents, and who openly held himself out to be
54 the father of the child during that period, shall be deemed to have
8
1 developed a substantial relationship with the child and to have
2 otherwise met the requirements of this subsection.
3 (b) With regard to a child who is under six (6) months of age at the time
4 he is placed with adoptive parents, an unmarried biological father shall
5 have manifested a full commitment to his parental responsibilities by per-
6 forming all of the acts described in this subsection prior to the place-
7 ment for adoption of the child in the home of prospective parents or prior
8 to the date of commencement of any proceeding to terminate the parental
9 rights of the birth mother, whichever event occurs first. The father
10 shall:
11 (i) Commence proceedings to establish paternity under section
12 7-1111, Idaho Code, and file with that court a sworn affidavit stat-
13 ing that he is fully able and willing to have full custody of the
14 child, setting forth his plans for the care of the child, and agree-
15 ing to a court order of child support and the payment of expenses
16 incurred in connection with the mother's pregnancy and the child's
17 birth;
18 (ii) File a notice of his commencement of proceedings to establish
19 his paternity of the child with the vital statistics unit of the
20 department of health and welfare pursuant to section 16-1513, Idaho
21 Code; and
22 (iii) If he had actual knowledge of the pregnancy, pay a fair and
23 reasonable amount of the expenses incurred in connection with the
24 mother's pregnancy and the child's birth, in accordance with his
25 means, and when not prevented from doing so by the person or autho-
26 rized agency having lawful custody of the child.
27 (3) An unmarried biological father whose consent is required under sub-
28 section (1) or (2) of this section may nevertheless lose his right to consent
29 if the court determines, in accordance with the requirements and procedures of
30 the termination of parent and child relationship act, sections 16-2001 through
31 16-2015, Idaho Code, that his rights should be terminated, based on the peti-
32 tion of any party as set forth in section 16-2004, Idaho Code.
33 (4) If there is no showing that an unmarried biological father has con-
34 sented to or waived his rights regarding a proposed adoption, the petitioner
35 shall file with the court a certificate from the vital statistics unit of the
36 department of health and welfare, signed by the state registrar of vital sta-
37 tistics, stating that a diligent search has been made of the registry of
38 notices from putative fathers, of a child born out of wedlock, and that the
39 putative father involved has not filed notice of his commencement of proceed-
40 ings to establish his paternity, or if a filing is found, stating the name of
41 the putative father and the time and date of filing. That certificate shall be
42 filed with the court prior to the entrance of the final decree of adoption.
43 (5) An unmarried biological father who does not fully and strictly comply
44 with each of the conditions provided in this section, is deemed to have waived
45 and surrendered any right in relation to the child, including the right to
46 notice of any judicial proceeding in connection with the adoption of the
47 child, and his consent to the adoption of the child is not required.
48 (6) A minor parent has the power to consent to the adoption of his or her
49 child. That consent is valid and has the same force and effect as a consent
50 executed by an adult parent. A minor parent, having executed a consent, cannot
51 revoke that consent upon reaching the age of majority or otherwise becoming
52 emancipated.
53 (7) No consent shall be required of, nor notice given to, any person
54 whose parental relationship to such child shall have been terminated in accor-
55 dance with the provisions of either chapter 16 or 20, title 16, Idaho Code, or
9
1 by a court of competent jurisdiction of a sister state under like proceedings;
2 or in any other manner authorized by the laws of a sister state. Where a vol-
3 untary child placement agency licensed by the state in which it does business
4 is authorized to place a child for adoption and to consent to such child's
5 adoption under the laws of such state, the consent of such agency to the adop-
6 tion of such child in a proceeding within the state of Idaho shall be valid
7 and no further consents or notices shall be required.
8 (8) The legislature finds that an unmarried biological father who resides
9 in another state may not, in every circumstance, be reasonably presumed to
10 know of, and strictly comply with, the requirements of this chapter. Therefore
11 when all of the following requirements have been met, that unmarried biologi-
12 cal father may contest an adoption, prior to finalization of the decree of
13 adoption, and assert his interest in the child:
14 (a) The unmarried biological father resides and has resided in another
15 state where the unmarried mother was also located or resided;
16 (b) The mother left that state without notifying or informing the unmar-
17 ried biological father that she could be located in the state of Idaho;
18 (c) The unmarried biological father has, through every reasonable means,
19 attempted to locate the mother but does not know or have reason to know
20 that the mother is residing in the state of Idaho; and
21 (d) The unmarried biological father has complied with the most stringent
22 and complete requirements of the state where the mother previously resided
23 or was located, in order to protect and preserve his parental interest and
24 rights in the child in cases of adoption.
25 (9) Notwithstanding section 7-1107, Idaho Code, a proceeding to establish
26 paternity filed pursuant to this section may be filed prior to the birth of
27 the child.
28 SECTION 7. That Section 16-1506, Idaho Code, be, and the same is hereby
29 amended to read as follows:
30 16-1506. PROCEEDINGS ON ADOPTION. (1) Proceedings to adopt a child shall
31 be commenced by the filing of a petition together with a copy thereof. Said
32 petition shall be initiated by the person or persons proposing to adopt the
33 child and shall be filed with the district court of the county in which said
34 person or persons reside. The petitioners shall have resided and maintained a
35 dwelling within the state of Idaho for at least six (6) consecutive months
36 prior to the filing of a petition. The petition shall set forth the name and
37 address of the petitioner or petitioners, the name of the child proposed to be
38 adopted and the name by which the person to be adopted shall be known if and
39 when adopted, the degree of relationship of the child, if any, to the peti-
40 tioner or petitioners and the names of any person or agency whose consent to
41 said adoption is necessary. At the time fixed for hearing such petition the
42 person adopting a child, and the child adopted, and the spouse of petitioner
43 if a natural parent of the child, must appear before the court of the county
44 wherein the petition was filed. Petitioner shall at such time execute an
45 agreement to the effect that the child shall be adopted and treated in all
46 respects as his own lawful child should be treated.
47 (2) Any person or persons whose consent is required shall execute such
48 consent in writing, in a form consistent with the provisions of subsection fe.
49 of section 16-2005, Idaho Code, which consent being filed in the court where
50 the application is made, shall be deemed a sufficient appearance on the part
51 of such person or persons. If any adoptive parent, or a person not a minor
52 being adopted by a resident adult under the provisions of section 16-1501,
53 Idaho Code, is a member of the armed services and is unable to attend the
10
1 hearing, his appearance and testimony shall be received by means of deposi-
2 tion, which shall be filed in the court at the time of the hearing.
3 (3) Prior to the placement for adoption of any child in the home of pro-
4 spective adoptive parents, it shall be required that a thorough social inves-
5 tigation of the prospective adoptive family and all of its members, consistent
6 with the rules regarding such investigations promulgated by the department of
7 health and welfare, shall be completed and that a positive recommendation for
8 adoptive placement shall have been made. The social investigation may be per-
9 formed by any individual who meets the requirements of the law. If the pro-
10 spective adoptive parent has a disability as defined in this chapter, the pro-
11 spective adoptive parent shall have the right, as a part of the social study,
12 to provide information regarding the manner in which the use of adaptive
13 equipment or supportive services will enable the parent to carry out the
14 responsibilities of parenting the child. The person performing the social
15 investigation shall advise the prospective adoptive parent of such right and
16 shall consider all such information in any findings or recommendations. The
17 social investigation shall advise the prospective adoptive parent of such
18 right and shall consider all such information in any findings or recommenda-
19 tions. The social investigation of any prospective adoptive parent with a dis-
20 ability shall be conducted by, or with the assistance of, an individual with
21 expertise in the use of such equipment and services. Nothing in this chapter
22 shall be construed to create any new or additional obligation on state or
23 local governments to purchase or provide adaptive equipment or supportive ser-
24 vices for parents with disabilities. A copy of the study must be submitted to
25 the department and the department may impose a reasonable fee, not to exceed
26 fifty dollars ($50.00), for oversight of such privately conducted studies. In
27 those instances where the prospective adoptive parent is married to the birth
28 parent or is the grandparent of the child to be adopted, such social investi-
29 gation shall be completed with regard to the prospective adoptive parent only
30 upon order of the court. In exigent circumstances where the prospective adop-
31 tive parents are determined by the court to have been unable to complete a
32 social investigation of the family with a positive recommendation prior to the
33 time the child is placed in the home, the child shall remain in the home
34 unless the court determines the best interests of the child are served by
35 other placement. If exigent circumstances exist, a social investigation shall
36 be initiated within five (5) days of placement. Once initiated, all studies
37 shall be completed within sixty (60) days. Upon the filing of a petition to
38 adopt a minor child by a person unrelated to the child or unmarried to a natu-
39 ral parent of the child and at the discretion of the court upon the filing of
40 any other petition for adoption, a copy of such petition, together with a
41 statement containing the full names and permanent addresses of the child and
42 the petitioners, shall be served by the court receiving the petition within
43 five (5) days on the director of the department of health and welfare by reg-
44 istered mail or personal service. If no private investigation is conducted, it
45 shall then be the duty of the said director, through the personnel of the
46 department or through such qualified child-placing children's adoption agency
47 incorporated under chapter 3, title 30, Idaho Code, as the director may desig-
48 nate, to verify the allegations of the petition, and as soon as possible not
49 exceeding thirty (30) days after service of the petition on the director to
50 make a thorough investigation of the matter to include in all cases informa-
51 tion as to the alleged date and place of birth and as to parentage of the
52 child to be adopted as well as the source of all such information and report
53 his findings in writing to the court. The investigative report shall include
54 reasonably known or available medical and genetic information regarding both
55 natural parents and sources of such information as well as reasonably known or
11
1 available providers of medical care and services to the natural parents. A
2 copy of all medical and genetic information compiled in the investigation
3 shall be made available to the adopting family by the department or other
4 investigating children's adoption agency prior to entry of the final order of
5 adoption. The petition, statement and all other papers, records or files
6 relating to the adoption, including the preplacement investigation and recom-
7 mendation, shall be returned to the court with the investigative report. The
8 department of health and welfare or other children's adoption agency may
9 require the petitioner to pay all or any part of the costs of the investiga-
10 tion. If the report disapproves of the adoption of the child, motion may be
11 made to the court to dismiss the petition.
12 (4) Proceedings for termination of parent-child relationship in accor-
13 dance with chapter 20, title 16, Idaho Code, and proceedings for adoption may
14 be consolidated and determined at one (1) hearing provided that all of the
15 requirements of this chapter as well as chapter 20, title 16, Idaho Code, be
16 fully complied with. Nothing in either chapter shall be construed as limiting
17 the initiation of any petition for approval of a verified financial plan for
18 adoption expenses pursuant to section 18-1511, Idaho Code, prior to the birth
19 of the child which is the subject of any adoption proceeding. In all disputed
20 matters under this chapter or chapter 20, title 16, Idaho Code, the paramount
21 criterion for consideration and determination by the court shall be the best
22 interests of the child.
23 (5) Proceedings for the adoption of an adult shall be as provided in sub-
24 section (1) of this section and any consents required shall be executed as
25 provided in subsection (2) of this section. Upon a finding by the court that
26 the consent of all persons for whom consent is required has been given and
27 that the requirements of section 16-1501, Idaho Code, have been proven to the
28 satisfaction of the court, the court shall enter an order granting the adop-
29 tion. In cases where the adult proposed to be adopted is incapacitated or dis-
30 abled, the court may require that an investigation be performed. The form and
31 extent of the investigation to be undertaken may be as provided in subsection
32 (3) of this section, or as otherwise ordered by the court. If an investigation
33 is performed, the court must review and approve the findings of the investiga-
34 tion before issuing an order approving the adoption.
35 SECTION 8. That Section 16-2001, Idaho Code, be, and the same is hereby
36 amended to read as follows:
37 16-2001. PURPOSE. The purpose of this act is to provide for voluntary and
38 involuntary severance of the parent and child relationship and for substitu-
39 tion of parental care and supervision by judicial process, thereby safeguard-
40 ing the rights and interests of all parties concerned and promoting their wel-
41 fare and that of the state of Idaho. Implicit in this act is the philosophy
42 that wherever possible family life should be strengthened and preserved and
43 that the issue of severing the parent and child relationship is of such vital
44 importance as to require a judicial determination in place of attempts at sev-
45 erance by contractual arrangements, express or implied, for the surrender and
46 relinquishment of children. Nothing in this chapter shall be construed to
47 allow discrimination on the basis of disability.
48 SECTION 9. That Section 16-2002, Idaho Code, be, and the same is hereby
49 amended to read as follows:
50 16-2002. DEFINITIONS. When used in this act, unless the text otherwise
51 requires:
12
1 a. "Court" means the district court.
2 b. "Child" or "minor" means a person less than eighteen (18) years of
3 age.
4 c. The singular includes the plural, the plural the singular, and the
5 masculine the feminine, when consistent with the intent of the act.
6 d. "Neglected" used with respect to a child refers to those situations in
7 which the child lacks proper support or parental care necessary for his
8 health, morals, and well-being.
9 e. "Abuse" used with respect to a child refers to those situations in
10 which physical cruelty in excess of that required for reasonable disciplinary
11 purposes has been inflicted by a parent or other person in whom legal custody
12 of the child has been vested.
13 f. "Legal custody" means status created by court order embodying the fol-
14 lowing rights and responsibilities:
15 (1) The right to physical possession of the child;
16 (2) The right and duty to protect, train and discipline the child; and
17 (3) The responsibility to provide the child with food, shelter, education
18 and medical care;
19 provided that such rights and responsibilities shall be exercised subject to
20 the powers, rights, duties and responsibilities of the guardian of the person.
21 g. "Guardianship of the person" means those rights and duties imposed
22 upon a person appointed as guardian of a minor under the laws of Idaho. It
23 includes but is not necessarily limited either in number or kind to:
24 (1) The authority to consent to marriage, to enlistment in the armed
25 forces of the United States, and to major medical, psychiatric and surgi-
26 cal treatment; to represent the minor in legal actions; and to make other
27 decisions concerning the child of substantial legal significance;
28 (2) The authority and duty of reasonable visitation, except to the extent
29 that such right of visitation has been limited by court order;
30 (3) The rights and responsibilities of legal custody except where legal
31 custody has been vested in another individual or in an authorized child
32 placement agency;
33 (4) When the parent and child relationship has been terminated by judi-
34 cial decree with respect to the parents, or only living parent, or when
35 there is no living parent, the authority to consent to the adoption of the
36 child and to make any other decision concerning the child which the
37 child's parents could make.
38 h. "Guardian ad litem" means a person appointed as such pursuant to law,
39 by the court to protect the interest of a minor or an incompetent in a case
40 before the court.
41 i. "Authorized agency" means the state department of health and welfare
42 or a voluntary child placement agency licensed to care for and place children
43 by the state department of health and welfare.
44 j. "Parent" means:
45 (1) The birth mother or the adoptive mother;
46 (2) The adoptive father;
47 (3) The biological father of a child conceived or born during the
48 father's marriage to the birth mother;
49 (4) The unmarried biological father whose consent to an adoption of the
50 child is required pursuant to section 15-1504 16-1504, Idaho Code;
51 (5) A man whose paternity is established by court decree; and
52 (6) An unmarried biological father who has filed a voluntary acknowledg-
53 ment of paternity with the vital statistics unit of the department of
54 health and welfare pursuant to section 7-1106, Idaho Code; and
55 (7) The father of an illegitimate child who has adopted the child by
13
1 acknowledgment pursuant to section 16-1510, Idaho Code.
2 k. "Presumptive father" means a man who is or was married to the birth
3 mother and the child is born during the marriage or within three hundred (300)
4 days after the marriage is terminated.
5 l. "Parent and child relationship" includes all rights, privileges,
6 duties and obligations existing between parent and child, including inheri-
7 tance rights, and shall be construed to include adoptive parents.
8 m. "Protective supervision" means a legal status created by court order
9 in proceedings not involving violations of the law but where the legal custody
10 of the child is subject to change, whereby the child is permitted to remain in
11 his home under the supervision of an authorized agency designated by the court
12 and is subject to return to the court during the period of protective supervi-
13 sion.
14 n. "Parties" includes the child and the petitioners.
15 o. "Rape," (18-6101, Idaho Code); "lewd conduct with a minor child under
16 sixteen," (18-1508, Idaho Code); "sexual abuse of a child under the age of
17 sixteen years," (18-1506, Idaho Code); and "incest" (18-6602, Idaho Code)
18 shall be defined as provided in the applicable provisions of title 18, Idaho
19 Code, but for purposes of this chapter shall not include any circumstance
20 where the parents of the child in question were married at the time of concep-
21 tion.
22 p. "Unmarried biological father," as used in this chapter and chapter 15,
23 title 16, Idaho Code, means the biological father of a child, which biological
24 father was not married to the child's mother at the time the child was con-
25 ceived or born.
26 q. "Unmarried biological mother," as used in this chapter, means the bio-
27 logical mother of a child, which biological mother was not married to the
28 child's biological father at the time the child was conceived or born.
29 r. "Disability" means, with respect to an individual, any mental or phys-
30 ical impairment which substantially limits one (1) or more major life activi-
31 ties of the individual including, but not limited to, self-care, manual tasks,
32 walking, seeing, hearing, speaking, learning, or working, or a record of such
33 an impairment, or being regarded as having such an impairment. Disability
34 shall not include transvestism, transsexualism, pedophilia, exhibitionism,
35 voyeurism, other sexual behavior disorders, or substance use disorders, com-
36 pulsive gambling, kleptomania, or pyromania. Sexual preference or orientation
37 is not considered an impairment or disability. Whether an impairment substan-
38 tially limits a major life activity shall be determined without consideration
39 of the effect of corrective or mitigating measures used to reduce the effects
40 of the impairment.
41 s. "Adaptive equipment" means any piece of equipment or any item that is
42 used to increase, maintain, or improve the parenting abilities of a parent
43 with a disability.
44 t. "Supportive services" means services which assist a parent with a dis-
45 ability to compensate for those aspects of their disability which affect their
46 ability to care for their child and which will enable them to discharge their
47 parental responsibilities. The term includes specialized or adapted training,
48 evaluations, or assistance with effective use of adaptive equipment, and
49 accommodations which allow a parent with a disability to benefit from other
50 services, such as Braille texts or sign language interpreters.
51 SECTION 10. That Section 16-2005, Idaho Code, be, and the same is hereby
52 amended to read as follows:
53 16-2005. CONDITIONS UNDER WHICH TERMINATION MAY BE GRANTED. The court may
14
1 grant an order terminating the relationship where it finds one (1) or more of
2 the following conditions exist:
3 a. The parent has abandoned the child by having willfully failed to main-
4 tain a normal parental relationship including, but not limited to, reasonable
5 support or regular personal contact; failure of the parent to maintain this
6 relationship without just cause for a period of one (1) year shall constitute
7 prima facie evidence of abandonment under this section. Provided further, that
8 where termination is sought by a grandparent seeking to adopt the child, will-
9 ful failure of the parent to maintain a normal parental relationship as pro-
10 vided herein, without just cause, for six (6) months shall constitute prima
11 facie evidence of abandonment.
12 b. The parent has neglected or abused the child. Neglect as used herein
13 shall mean a situation in which the child lacks parental care necessary for
14 his health, morals and well-being.
15 c. The presumptive parent is not the natural parent of the child.
16 d. The parent is unable to discharge parental responsibilities because of
17 mental illness or mental deficiency, and there are reasonable grounds to
18 believe the condition will continue for a prolonged indeterminate period and
19 will be injurious to the health, morals or well-being of the child.
20 e. If termination is found to be in the best interest of the parent and
21 child, where the petition has been filed by a parent or through an authorized
22 agency, or interested party.
23 fe. Where a consent to termination in the manner and form prescribed by
24 this act has been filed by the parent(s) of the child in conjunction with a
25 petition for adoption initiated by the person or persons proposing to adopt
26 the child, or where the consent to termination has been filed by a licensed
27 adoption agency, no subsequent hearing on the merits of the petition shall be
28 held. Consents required by this act must be witnessed by a district judge or
29 magistrate of a district court, or equivalent judicial officer of the state,
30 where a person consenting resides or is present, whether within or without the
31 county, and shall be substantially in the following form:
32 IN THE DISTRICT COURT OF THE .... JUDICIAL DISTRICT OF THE STATE OF IDAHO, IN
33 AND FOR THE COUNTY OF ....
34 In the Matter of the termination )
35 of the parental rights of )
36 ................... )
37 ................... )
38 I (we), the undersigned, being the .... of ...., do hereby give my (our)
39 full and free consent to the complete and absolute termination of my (our)
40 parental right(s), to the said ...., who was born ...., ...., unto ....,
41 hereby relinquishing completely and forever, all legal rights, privileges,
42 duties and obligations, including all rights of inheritance to and from the
43 said ...., and I (we) do hereby expressly waive my (our) right(s) to hearing
44 on the petition to terminate my (our) parental relationship with the said
45 ...., and respectfully request the petition be granted.
46 DATED: ...., 20...
47 ...................
48 STATE OF IDAHO )
49 ) ss.
50 COUNTY OF .... )
51 On this .... day of ...., 20.., before me, the undersigned ...., ....
52 (Judge or Magistrate) of the District Court of the .... Judicial District of
53 the state of Idaho, in and for the county of ...., personally appeared ....,
54 known to me (or proved to me on the oath of ....) to be the person(s) whose
55 name(s) is (are) subscribed to the within instrument, and acknowledged to me
15
1 that he (she, they) executed the same.
2 IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
3 seal the day and year in this certificate first above written.
4 ...................... (District Judge or Magistrate)
5 The court shall accept a consent or a surrender and release executed in
6 another state if:
7 (1) It is witnessed by a magistrate or district judge of the state where
8 signed; or
9 (2) The court receives an affidavit or a certificate from a court of com-
10 parable jurisdiction stating that the consent or the surrender and release
11 was executed in accordance with the laws of the state in which it was exe-
12 cuted, or the court is satisfied by other showing that the consent or sur-
13 render and release was executed in accordance with the laws of the state
14 in which it was executed; or
15 (3) The court shall accept a termination or relinquishment from a sister
16 state that has been ordered by a court of competent jurisdiction under
17 like proceedings; or in any other manner authorized by the laws of a sis-
18 ter state. In a state where the father has failed to file notice of claim
19 to paternity and willingness to assume responsibility as provided for pur-
20 suant to the laws of such state, and where such failure constitutes an
21 abandonment of such child and constitutes a termination or relinquishment
22 of the rights of the putative father, the court shall accept such failure
23 as a termination in this state without further hearing on the merits, if
24 the court is satisfied that such failure constitutes a termination or
25 relinquishment of parental rights pursuant to the laws of that state.
26 gf. Unless a consent to termination signed by the parent(s) of the child
27 has been filed by an adoption agency licensed in the state of Idaho, or unless
28 the consent to termination was filed in conjunction with a petition for adop-
29 tion of the child, the court shall hold a hearing.
30 hg. The court may grant termination as to a parent:
31 (1) Who caused the child to be conceived as a result of rape, incest,
32 lewd conduct with a minor child under sixteen (16) years, or sexual abuse
33 of a child under the age of sixteen (16) years, as defined in section
34 16-2002 no., Idaho Code; or
35 (2) Who murdered or intentionally killed the other parent of the child;
36 or if the court determines the parent has been convicted of murder or vol-
37 untary manslaughter of another sibling of the child or has aided, abetted,
38 conspired or solicited to commit such murder or voluntary manslaughter
39 and/or if the court determines the parent has been convicted of a felony
40 assault or battery which resulted in serious bodily injury to the child or
41 a sibling; or
42 (3) Who has been incarcerated and has no possibility of parole; or
43 (4) If a court determines the child to be an abandoned infant.
44 There is a rebuttable presumption that termination of the parent-child rela-
45 tionship in any of the circumstances provided in subsection hg. of this sec-
46 tion is in the best interest of the child.
47 h. If the parent has a disability, as defined in this chapter, the parent
48 shall have the right to provide evidence to the court regarding the manner in
49 which the use of adaptive equipment or supportive services will enable the
50 parent to carry out the responsibilities of parenting the child. Nothing in
51 this section shall be construed to create any new or additional obligation on
52 state or local governments to purchase or provide adaptive equipment or sup-
53 portive services for parents with disabilities.
54 SECTION 11. That Section 16-2007, Idaho Code, be, and the same is hereby
16
1 amended to read as follows:
2 16-2007. NOTICE -- WAIVER -- GUARDIAN AD LITEM. After a petition has been
3 filed, the court shall set the time and place for hearing, and shall cause
4 notice thereof to be given to the petitioner, the parents of the child if mar-
5 ried, the mother of the child if unmarried, those persons entitled to notice
6 pursuant to section 16-1513, Idaho Code, the guardian of the person of the
7 child, the person having legal custody of the child, any individual standing
8 in loco parentis to the child, and the guardian ad litem of any party, or if
9 service cannot be had on the parent or guardian, then upon the nearest blood
10 relative named in the petition. The division of welfare of the Idaho depart-
11 ment of health and welfare shall be given notice of the hearing if the peti-
12 tion for termination was not filed in conjunction with a petition for adoption
13 or by an adoption agency licensed by the state of Idaho. Notice shall be given
14 by personal service on the parents or guardian. Where reasonable efforts to
15 effect personal service have been unsuccessful, the court shall order service
16 by registered or certified mail to the last known address of the person to be
17 notified and by publication once a week for three (3) successive weeks in a
18 newspaper or newspapers to be designated by the court as most likely to give
19 notice to the person to be served. The hearing shall take place no sooner than
20 ten (10) days after service of notice, or where service is by registered or
21 certified mail and publication, the hearing shall take place no sooner than
22 ten (10) days after the date of last publication. Notice and appearance may be
23 waived by a parent in writing before the court or in the presence of, and wit-
24 nessed by, a clerk of court or a representative of an authorized agency, pro-
25 vided that such parent has been apprised by the court or by such person of the
26 meaning and consequences of the termination action. Where the parent resides
27 outside the state, the waiver shall be acknowledged before a notary of the
28 state and shall contain the current address of the parent. The parent who has
29 executed such a waiver shall not be required to appear. When the termination
30 of the parent and child relationship is sought under section 16-2005 d., Idaho
31 Code and the parent is determined to be incompetent to participate in the pro-
32 ceeding, the court shall appoint a guardian ad litem for the alleged incompe-
33 tent parent. The court may in any other case appoint a guardian ad litem, as
34 may be deemed necessary or desirable, for any party. Where the putative father
35 has failed to timely commence proceedings to establish paternity under section
36 7-1111, Idaho Code, and by filing with the vital statistics unit of the
37 department of health and welfare, notice of his commencement of proceedings to
38 establish his paternity of the child born out of wedlock, notice under this
39 section is not required unless such putative father is one of those persons
40 specifically set forth in section 16-1505(1), Idaho Code. If a parent fails to
41 file a claim of parental rights pursuant to the provisions of chapter 81,
42 title 39, Idaho Code, for a child left with a safe haven pursuant thereto,
43 prior to entry of an order terminating their parental rights, that parent is
44 deemed to have abandoned the child and waived and surrendered any right in
45 relation to the child, including the right to notice of any judicial proceed-
46 ing in connection with the termination of parental rights.
47 SECTION 12. That Section 16-2008, Idaho Code, be, and the same is hereby
48 amended to read as follows:
49 16-2008. INVESTIGATION PRIOR TO DISPOSITION. a. If a petition for adop-
50 tion is not filed in conjunction with a petition for termination, or the peti-
51 tion for termination was not filed by a children's adoption agency licensed by
52 the state of Idaho upon the filing of a petition for termination, the court
17
1 shall direct the department of health and welfare, bureau of child support
2 enforcement to submit a written financial analysis report within thirty (30)
3 days from date of notification, detailing the amount of any unreimbursed pub-
4 lic assistance moneys paid by the state of Idaho on behalf of the child. The
5 financial analysis shall include recommendations regarding repayment of
6 unreimbursed public assistance and provisions for future support for the
7 child, and the reasons therefor.
8 b. Upon the filing of a petition, the court may direct, in all cases
9 where written consent to termination has not been given as provided in this
10 act, that an investigation be made by the department of health and welfare,
11 division of family and children's services, or a licensed children's adoption
12 agency, and that a report in writing of such study be submitted to the court
13 prior to the hearing, except that where the department of health and welfare
14 or a licensed children's adoption agency is a petitioner, either in its own
15 right or on behalf of a parent, a report in writing of the investigation made
16 by such agency shall accompany the petition. The department of health and wel-
17 fare or the licensed children's adoption agency shall have thirty (30) days
18 from notification by the court during which it shall complete and submit its
19 investigation unless an extension of time is granted by the court upon appli-
20 cation by the agency. The court may order additional investigation as it deems
21 necessary. The social study shall include the circumstances of the petition,
22 the investigation, the present condition of the child and parents, proposed
23 plans for the child, and such other facts as may be pertinent to the parent
24 and child relationship, and the report submitted shall include a recommenda-
25 tion and the reasons therefor as to whether or not the parent and child rela-
26 tionship should be terminated. If the parent has a disability as defined in
27 this chapter, the parent shall have the right, as a part of the social study,
28 to provide information regarding the manner in which the use of adaptive
29 equipment or supportive services will enable the parent to carry out the
30 responsibilities of parenting the child. The person performing the social
31 investigation shall advise the prospective adoptive parent of such right and
32 shall consider all such information in any findings or recommendations. The
33 social study shall be conducted by, or with the assistance of, an individual
34 with expertise in the use of such equipment and services. Nothing in this sec-
35 tion shall be construed to create any new or additional obligations on state
36 or local governments to purchase or provide adaptive equipment or supportive
37 services for parents with disabilities. Where the parent is a minor, if the
38 report does not include a statement of contact with the parents of said minor,
39 the reasons therefor shall be set forth. The purpose of the investigation is
40 to aid the court in making disposition of the petition and shall be considered
41 by the court prior thereto.
42 c. No social study or investigation as provided for in paragraph subsec-
43 tion b. of this section shall be directed by the court with respect to the
44 putative father who has failed to timely commence proceedings to establish
45 paternity under section 7-1111, Idaho Code, and by filing with the vital sta-
46 tistics unit of the department of health and welfare, notice of his commence-
47 ment of proceedings to establish his paternity of the child, unless such
48 putative father is one of those persons specifically set forth in section
49 16-1505(1), Idaho Code.
|||| LEGISLATURE OF THE STATE OF IDAHO ||||
Fifty-sixth Legislature Second Regular Session - 2002
Moved by Sali
Seconded by Loertscher
IN THE HOUSE OF REPRESENTATIVES
HOUSE AMENDMENTS TO H.B. NO. 579
1 AMENDMENTS TO SECTION 7
2 On page 9 of the printed bill, in line 48, delete "fe" and insert: "e"; on
3 page 10, in line 16, delete "The"; delete lines 17 and 18; and in line 19,
4 delete "tions.".
5 AMENDMENT TO SECTION 8
6 On page 11, delete line 47, and insert: "allow discrimination in favor of,
7 or against, on the basis of disability.".
8 AMENDMENTS TO SECTION 10
9 On page 14, delete lines 16, 17, 18 and 19, and insert:
10 "d. The parent is unable to discharge parental responsibilities because
11 of mental illness or mental deficiency, and there are reasonable grounds to
12 believe the condition will continue for a prolonged indeterminate period and
13 will be injurious to the health, morals or well-being of the child.";
14 in line 20, delete "e." and insert: "e."; in line 23, delete "fe" and insert:
15 "f"; on page 15, in line 26, delete "gf" and insert: "g"; in line 30, delete
16 "hg" and insert: "h"; and in line 47, delete "h." and insert: "i.".
17 AMENDMENT TO SECTION 12
18 On page 17, in line 31, delete "prospective adoptive".
19 CORRECTIONS TO TITLE
20 On page 1, in line 15, delete "AND TO PROVIDE A"; in line 16, delete
21 "CORRECT CODE REFERENCE"; in line 17, following "DISCRIMINATION" insert: "IN
22 FAVOR OF, OR AGAINST,"; and in line 19, delete "TO STRIKE DISABILITY AS A CON-
23 DITION" and in line 20, delete "FOR TERMINATION,".
|||| LEGISLATURE OF THE STATE OF IDAHO ||||
Fifty-sixth Legislature Second Regular Session - 2002
IN THE HOUSE OF REPRESENTATIVES
HOUSE BILL NO. 579, As Amended
BY HEALTH AND WELFARE COMMITTEE
1 AN ACT
2 RELATING TO PARENTAL RIGHTS OF INDIVIDUALS WITH A DISABILITY; 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 A REFERENCE TO
5 INCAPACITY AND TO MAKE TECHNICAL CORRECTIONS; AMENDING SECTION 15-5-204,
6 IDAHO CODE, TO INCLUDE DISABILITY AS A FACTOR WHICH IS NOT TO BE A DIS-
7 QUALIFICATION AND TO MAKE TECHNICAL CORRECTIONS; AMENDING SECTION 16-1501,
8 IDAHO CODE, TO DEFINE TERMS; AMENDING CHAPTER 15, TITLE 16, IDAHO CODE, BY
9 THE ADDITION OF A NEW SECTION 16-1501B, IDAHO CODE, TO SPECIFY THE RIGHT
10 OF A PROSPECTIVE PARENT WITH A DISABILITY TO PRESENT EVIDENCE AND INFORMA-
11 TION; AMENDING SECTION 16-1504, IDAHO CODE, TO STRIKE A REFERENCE TO DIS-
12 ABILITY FROM CONDITIONS WHICH RELIEVE THE REQUIREMENT TO OBTAIN PERMISSION
13 FOR AN ADOPTION AND TO STRIKE AN INCORRECT CODE REFERENCE; AMENDING SEC-
14 TION 16-1506, IDAHO CODE, TO REQUIRE THE OPPORTUNITY TO PRESENT INFORMA-
15 TION REGARDING ADAPTIVE EQUIPMENT OR SUPPORTIVE SERVICES; AMENDING SECTION
16 16-2001, IDAHO CODE, TO PROHIBIT DISCRIMINATION IN FAVOR OF, OR AGAINST,
17 ON THE BASIS OF DISABILITY; AMENDING SECTION 16-2002, IDAHO CODE, TO
18 DEFINE ADDITIONAL TERMS AND TO PROVIDE A CORRECT CODE REFERENCE; AMENDING
19 SECTION 16-2005, IDAHO CODE, TO REQUIRE AN OPPORTUNITY TO PRESENT EVIDENCE
20 AND TO PROVIDE CORRECT CODE REFERENCES; AMENDING SECTION 16-2007, IDAHO
21 CODE, TO CLARIFY A REFERENCE TO COMPETENCY; AND AMENDING SECTION 16-2008,
22 IDAHO CODE, TO REQUIRE AN OPPORTUNITY TO PRESENT INFORMATION REGARDING
23 ADAPTIVE EQUIPMENT OR SUPPORTIVE SERVICES AND TO MAKE A TECHNICAL CORREC-
24 TION.
25 Be It Enacted by the Legislature of the State of Idaho:
26 SECTION 1. That Section 15-1-201, Idaho Code, be, and the same is hereby
27 amended to read as follows:
28 15-1-201. GENERAL DEFINITIONS. Subject to additional definitions con-
29 tained in the subsequent chapters which are applicable to specific chapters or
30 parts, and unless the context otherwise requires, in this code:
31 (1) "Application" means a written request to the registrar for an order
32 of informal probate or appointment under part 3 of chapter 3 of this code.
33 (2) "Augmented estate" means the estate described in section 15-2-202, of
34 this Idaho Ccode.
35 (3) "Beneficiary," as it relates to trust beneficiaries, includes a per-
36 son who has any present or future interest, vested or contingent, and also
37 includes the owner of an interest by assignment or other transfer and as it
38 relates to a charitable trust, includes any person entitled to enforce the
39 trust.
40 (4) "Child" includes any individual entitled to take as a child under
41 this code by intestate succession from the parent whose relationship is
42 involved and excludes any person who is only a stepchild, a foster child, a
43 grandchild or any more remote descendant.
2
1 (5) "Claims," in respect to estates of decedents and protected persons,
2 includes liabilities of the decedent or protected person whether arising in
3 contract, in tort or otherwise, and liabilities of the estate which arise at
4 or after the death of the decedent or after the appointment of a conservator,
5 including funeral expenses and expenses of administration. The term does not
6 include estate or inheritance taxes, other tax obligations arising from activ-
7 ities or transactions of the estate, demands or disputes regarding title of a
8 decedent or protected person to specific assets alleged to be included in the
9 estate.
10 (6) "Court" means the court or branch having jurisdiction in matters
11 relating to the affairs of decedents, minors, incapacitated and disabled per-
12 sons. This court in this state is known as the district court.
13 (7) "Conservator" means a person who is appointed by a court to manage
14 the estate of a protected person and includes limited conservators as
15 described by section 15-5-420, Idaho Code.
16 (8) "Determination of heirship of community property" shall mean that
17 determination required by the provisions of section 15-3-303, of this Idaho
18 Ccode, upon an application for informal probate not accompanied by presenta-
19 tion of a will.
20 (9) "Determination of heirship" shall mean that determination of heirship
21 required by section 15-3-409, of this Idaho Ccode, upon a finding of intes-
22 tacy.
23 (10) "Devise," when used as a noun, means a testamentary disposition of
24 real or personal property and when used as a verb, means to dispose of real or
25 personal property by will.
26 (11) "Devisee" means any person designated in a will to receive a devise.
27 In the case of a devise to an existing trust or trustee, or to a trustee or
28 trust described by will, the trust or trustee is the devisee and the benefi-
29 ciaries are not devisees.
30 (12) "Disability," means cause for a protective order as described by sub-
31 section (b)(1) of section 15-5-401 of this code with respect to an individual,
32 means any mental or physical impairment which substantially limits one (1) or
33 more major life activities of the individual including, but not limited to,
34 self-care, manual tasks, walking, seeing, hearing, speaking, learning, or
35 working, or a record of such an impairment, or being regarded as having such
36 an impairment. Disability shall not include transvestism, transsexualism,
37 pedophilia, exhibitionism, voyeurism, other sexual behavior disorders, or sub-
38 stance use disorders, compulsive gambling, kleptomania, or pyromania. Sexual
39 preference or orientation is not considered an impairment or disability.
40 Whether an impairment substantially limits a major life activity shall be
41 determined without consideration of the effect of corrective or mitigating
42 measures used to reduce the effects of the impairment.
43 (13) "Distributee" means any person who has received property of a dece-
44 dent from his personal representative other than as a creditor or purchaser. A
45 testamentary trustee is a distributee only to the extent of distributed assets
46 or increment thereto remaining in his hands. A beneficiary of a testamentary
47 trust to whom the trustee has distributed property received from a personal
48 representative is a distributee of the personal representative. For the pur-
49 pose of this provision "testamentary trustee" includes a trustee to whom
50 assets are transferred by will, to the extent of the devised assets.
51 (14) "Emancipated minor" shall mean any male or female who has been mar-
52 ried.
53 (15) "Estate" means all property of the decedent, including community
54 property of the surviving spouse subject to administration, property of
55 trusts, and property of any other person whose affairs are subject to this
3
1 code as it exists from time to time during administration.
2 (16) "Exempt property" means that property of a decedent's estate which is
3 described in section 15-2-403, of this Idaho Ccode.
4 (17) "Fiduciary" includes personal representative, guardian, conservator
5 and trustee.
6 (18) "Foreign personal representative" means a personal representative of
7 another jurisdiction.
8 (19) "Formal proceedings" means those conducted before a judge with notice
9 to interested persons.
10 (20) "Guardian" means a person who has qualified as a guardian of a minor
11 or incapacitated person pursuant to testamentary or court appointment and
12 includes limited guardians as described by section 15-5-304, Idaho Code, but
13 excludes one who is merely a guardian ad litem.
14 (21) "Heirs" means those persons, including the surviving spouse, who are
15 entitled under the statutes of intestate succession to the property of a dece-
16 dent.
17 (22) "Incapacitated person" is as defined in section 15-5-101, of this
18 Idaho Ccode.
19 (23) "Informal proceedings" means those conducted without notice to inter-
20 ested persons by an officer of the court acting as a registrar for probate of
21 a will or appointment of a personal representative.
22 (24) "Interested person" includes heirs, devisees, children, spouses,
23 creditors, beneficiaries and any others having a property right in or claim
24 against a trust estate or the estate of a decedent, ward or protected person
25 which may be affected by the proceeding. It also includes persons having pri-
26 ority for appointment as personal representative, and other fiduciaries repre-
27 senting interested persons. The meaning as it relates to particular persons
28 may vary from time to time and must be determined according to the particular
29 purposes of, and matter involved in, any proceeding.
30 (25) "Issue" of a person means all his lineal descendants of all genera-
31 tions, with the relationship of parent and child at each generation being
32 determined by the definitions of child and parent contained in this code.
33 (26) "Lease" includes an oil, gas, or other mineral lease.
34 (27) "Letters" includes letters testamentary, letters of guardianship,
35 letters of administration, and letters of conservatorship.
36 (28) "Minor" means a male under eighteen (18) years of age or a female
37 under eighteen (18) years of age.
38 (29) "Mortgage" means any conveyance, agreement or arrangement in which
39 property is used as security.
40 (30) "Nonresident decedent" means a decedent who was domiciled in another
41 jurisdiction at the time of his death.
42 (31) "Organization" includes a corporation, government or governmental
43 subdivision or agency, business trust, estate, trust, partnership or associa-
44 tion, two (2) or more persons having a joint or common interest, or any other
45 legal entity.
46 (32) "Parent" includes any person entitled to take, or who would be enti-
47 tled to take if the child died without a will, as a parent under this code by
48 intestate succession from the child whose relationship is in question and
49 excludes any person who is only a stepparent, foster parent, or grandparent.
50 (33) "Person" means an individual, a corporation, an organization, or
51 other legal entity.
52 (34) "Personal representative" includes executor, administrator, successor
53 personal representative, special administrator, and persons who perform sub-
54 stantially the same function under the law governing their status. "General
55 personal representative" excludes special administrator.
4
1 (35) "Petition" means a written request to the court for an order after
2 notice.
3 (36) "Proceeding" includes action at law and suit in equity.
4 (37) "Property" includes both real and personal property or any interest
5 therein and means anything that may be the subject of ownership.
6 (38) "Protected person" is as defined in section 15-5-101, of this Idaho
7 Ccode.
8 (39) "Protective proceeding" is as defined in section 15-5-101, of this
9 Idaho Ccode.
10 (39A40) "Quasi-community property" is the property defined by section
11 15-2-201, of this Idaho Ccode.
12 (401) "Registrar" refers to magistrates or judges of the district court
13 who shall perform the functions of registrar as provided in section 15-1-307,
14 of this Idaho Ccode.
15 (412) "Security" includes any note, stock, treasury stock, bond, deben-
16 ture, evidence of indebtedness, certificate of interest or participation in an
17 oil, gas or mining title or lease or in payments out of production under such
18 a title or lease, collateral trust certificate, transferable share, voting
19 trust certificate or, in general, any interest or instrument commonly known as
20 a security, or any certificate of interest or participation, any temporary or
21 interim certificate, receipt or certificate of deposit for, or any warrant or
22 right to subscribe to or purchase, any of the foregoing.
23 (423) "Settlement," in reference to a decedent's estate, includes the full
24 process of administration, distribution and closing.
25 (434) "Special administrator" means a personal representative as described
26 by sections 15-3-614 through 15-3-618, of this Idaho Ccode.
27 (445) "State" includes any state of the United States, the District of
28 Columbia, the Commonwealth of Puerto Rico, and any territory or possession
29 subject to the legislative authority of the United States.
30 (456) "Successor personal representative" means a personal representative,
31 other than a special administrator, who is appointed to succeed a previously
32 appointed personal representative.
33 (467) "Successors" means those persons, other than creditors, who are
34 entitled to property of a decedent under his will or this code.
35 (478) "Supervised administration" refers to the proceedings described in
36 part 5, chapter 3, of this code.
37 (489) "Testacy proceeding" means a proceeding to establish a will or
38 determine intestacy.
39 (4950) "Trust" includes any express trust, private or charitable, with
40 additions thereto, wherever and however created. It also includes a trust cre-
41 ated or determined by judgment or decree under which the trust is to be admin-
42 istered in the manner of an express trust. "Trust" excludes other constructive
43 trusts, and it excludes resulting trusts, conservatorships, personal represen-
44 tatives, trust accounts as defined in chapter 6 of this code, custodial
45 arrangements pursuant to chapter 8, title 68, Idaho Code, business trusts pro-
46 viding for certificates to be issued to beneficiaries, common trust funds,
47 voting trusts, security arrangements, liquidation trusts, and trusts for the
48 primary purpose of paying debts, dividends, interest, salaries, wages, prof-
49 its, pensions, or employee benefits of any kind, and any arrangement under
50 which a person is nominee or escrowee for another.
51 (501) "Trustee" includes an original, additional, or successor trustee,
52 whether or not appointed or confirmed by court.
53 (512) "Ward" is as defined in section 15-5-101, of this Idaho Ccode.
54 (523) "Will" is a testamentary instrument and includes codicil and any
55 testamentary instrument which merely appoints an executor or revokes or
5
1 revises another will.
2 (534) "Separate property" includes all property of either the husband or
3 the wife owned by him or her before marriage, and that acquired afterward
4 either by gift, bequest, devise or descent, or that which either he or she
5 acquires with proceeds of his or her separate property, by way of moneys or
6 other property.
7 (545) "Community property" includes all other property acquired after
8 marriage by either husband or wife, including the rents and profits of the
9 separate property of the husband and wife, unless, by the instrument by which
10 any such property is acquired by the wife, it is provided that the rents and
11 profits thereof be applied to her sole and separate use. Real property con-
12 veyed by one (1) spouse to the other shall be presumed to be the sole and sep-
13 arate estate of the grantee.
14 SECTION 2. That Section 15-5-202, Idaho Code, be, and the same is hereby
15 amended to read as follows:
16 15-5-202. TESTAMENTARY APPOINTMENT OF GUARDIAN OF MINOR. The parent of a
17 minor may appoint by will a guardian or of an unmarried minor. Subject to the
18 right of the minor under section 15-5-203, of this Part Idaho Code, a testa-
19 mentary appointment becomes effective upon filing the guardian's acceptance in
20 the court in which the will is probated, if before acceptance, both parents
21 are dead. or the surviving parent is adjudged incapacitated. If both parents
22 are dead, an effective appointment by the parent who died later has priority.
23 This state recognizes a testamentary appointment effected by filing the
24 guardian's acceptance under a will probated in another state which is the
25 testator's domicile. Written notice of acceptance of the appointment must be
26 given by the guardian to the minor and to the person having his care or to his
27 nearest adult relation immediately upon acceptance of appointment.
28 SECTION 3. That Section 15-5-204, Idaho Code, be, and the same is hereby
29 amended to read as follows:
30 15-5-204. COURT APPOINTMENT OF GUARDIAN OF MINOR -- CONDITIONS FOR
31 APPOINTMENT. The court may appoint a guardian for an unmarried minor if all
32 parental rights of custody have been terminated by prior court order or upon a
33 finding that the child has been neglected, abused, abandoned, or whose parents
34 are unable to provide a stable home environment. "Abandoned" means the failure
35 of the parent to maintain a normal parental relationship with the child
36 including, but not limited to, reasonable support or regular contact. Failure
37 to maintain a normal parental relationship with the child without just cause
38 for a period of six (6) months shall constitute prima facie evidence of aban-
39 donment. In all cases, the court shall consider the best interests of the
40 child as the primary factor in the determination whether to appoint, and whom
41 to appoint, as a guardian for such child. In determining the choice of a
42 guardian for an unmarried minor, the advanced age or disability of a potential
43 guardian shall not, in and of itself, be used as a criterion of the suitabil-
44 ity of the potential guardian so long as the potential guardian is otherwise
45 suitable. A guardian appointed by will as provided in section 15-5-202, of
46 this part Idaho Code, whose appointment has not been prevented or nullified
47 under section 15-5-203, of this part Idaho Code, has priority over any guard-
48 ian who may be appointed by the court but the court may proceed with an
49 appointment nonetheless upon a finding that the testamentary guardian has
50 failed to accept the testamentary appointment within thirty (30) days after
51 notice of the guardianship proceeding.
6
1 SECTION 4. That Section 16-1501, Idaho Code, be, and the same is hereby
2 amended to read as follows:
3 16-1501. MINORS AND ADULTS MAY BE ADOPTED. Any minor child may be adopted
4 by any adult person residing in and having residence in Idaho, in the cases
5 and subject to the rules prescribed in this chapter.
6 (1) Persons not minors may be adopted by a resident adult in cases where
7 the person adopting has sustained the relation of parent to such adopted per-
8 son:
9 (ia) fFor a period in excess of one (1) year while the person was a
10 minor; or
11 (iib) fFor such period of time or in such manner that the court after
12 investigation finds a substantial family relationship has been created.
13 (2) Adoptions shall not be denied solely on the basis of the disability
14 of a prospective adoptive parent.
15 (a) "Adaptive equipment," for purposes of this chapter, means any piece
16 of equipment or any item that is used to increase, maintain, or improve
17 the parenting capabilities of a parent with a disability.
18 (b) "Disability," for purposes of this chapter, means, with respect to an
19 individual, any mental or physical impairment which substantially limits
20 one (1) or more major life activities of the individual including, but not
21 limited to, self-care, manual tasks, walking, seeing, hearing, speaking,
22 learning, or working, or a record of such an impairment, or being regarded
23 as having such an impairment. Disability shall not include transvestism,
24 transsexualism, pedophilia, exhibitionism, voyeurism, other sexual behav-
25 ior disorders, or substance use disorders, compulsive gambling, kleptoma-
26 nia, or pyromania. Sexual preference or orientation is not considered an
27 impairment or disability. Whether an impairment substantially limits a
28 major life activity shall be determined without consideration of the
29 effect of corrective or mitigating measures used to reduce the effects of
30 the impairment.
31 (c) "Supportive services," as used in this chapter, means services which
32 assist a parent with a disability to compensate for those aspects of their
33 disability which affect their ability to care for their child and which
34 will enable them to discharge their parental responsibilities. The term
35 includes specialized or adapted training, evaluations, or assistance with
36 effective use of adaptive equipment, and accommodations which allow a par-
37 ent with a disability to benefit from other services, such as Braille
38 texts or sign language interpreters.
39 SECTION 5. That Chapter 15, Title 16, Idaho Code, be, and the same is
40 hereby amended by the addition thereto of a NEW SECTION, to be known and des-
41 ignated as Section 16-1501B, Idaho Code, and to read as follows:
42 16-1501B. RIGHT OF PARENT WITH DISABILITY TO PRESENT EVIDENCE AND INFOR-
43 MATION. If the prospective adoptive parent has a disability as defined in this
44 chapter, the prospective adoptive parent shall have the right to provide evi-
45 dence to the court regarding the manner in which the use of adaptive equipment
46 or supportive services will enable the parent to carry out the responsibili-
47 ties of parenting the child. Nothing in this chapter shall be construed to
48 create any new or additional obligation on state or local governments to pur-
49 chase or provide adaptive equipment or supportive services for parents with
50 disabilities.
51 SECTION 6. That Section 16-1504, Idaho Code, be, and the same is hereby
7
1 amended to read as follows:
2 16-1504. NECESSARY CONSENT TO ADOPTION. (1) Consent to adoption is
3 required from:
4 (a) The adoptee, if he is more than twelve (12) years of age, unless he
5 does not have the mental capacity to consent;
6 (b) Both parents or the surviving parent of an adoptee who was conceived
7 or born within a marriage, unless the adoptee is eighteen (18) years of
8 age or older;
9 (c) The mother of an adoptee born outside of marriage;
10 (d) Any biological parent who has been adjudicated to be the child's bio-
11 logical father by a court of competent jurisdiction prior to the mother's
12 execution of consent;
13 (e) An unmarried biological father of an adoptee only if the requirements
14 and conditions of subsection (2)(a) or (b) of this section have been
15 proven;
16 (f) Any legally appointed custodian or guardian of the adoptee;
17 (g) The guardian or conservator of an disabled or incapacitated adult, if
18 one has been appointed;
19 (h) The adoptee's spouse, if any; and
20 (i) An unmarried biological father who has filed a voluntary acknowledg-
21 ment of paternity with the vital statistics unit of the department of
22 health and welfare pursuant to section 7-1106, Idaho Code; and
23 (j) The father of an illegitimate child who has adopted the child by
24 acknowledgment. pursuant to section 16-1510, Idaho Code.
25 (2) In accordance with subsection (1) of this section, the consent of an
26 unmarried biological father is necessary only if the father has strictly com-
27 plied with the requirements of this section.
28 (a) (i) With regard to a child who is placed with adoptive parents more
29 than six (6) months after birth, an unmarried biological father shall
30 have developed a substantial relationship with the child, taken some
31 measure of responsibility for the child and the child's future, and
32 demonstrated a full commitment to the responsibilities of parenthood
33 by financial support of the child, of a fair and reasonable sum and
34 in accordance with the father's ability, when not prevented from
35 doing so by the person or authorized agency having lawful custody of
36 the child, and either:
37 1. Visiting the child at least monthly when physically and
38 financially able to do so, and when not prevented from doing so
39 by the person or authorized agency having lawful custody of the
40 child; or
41 2. Have regular communication with the child or with the person
42 or agency having the care or custody of the child, when physi-
43 cally and financially unable to visit the child, and when not
44 prevented from doing so by the person or authorized agency hav-
45 ing lawful custody of the child.
46 (ii) The subjective intent of an unmarried biological father,
47 whether expressed or otherwise, unsupported by evidence of acts spec-
48 ified in this subsection shall not preclude a determination that the
49 father failed to meet the requirements of this subsection.
50 (iii) An unmarried biological father who openly lived with the child
51 for a period of six (6) months within the one (1) year period after
52 the birth of the child and immediately preceding placement of the
53 child with adoptive parents, and who openly held himself out to be
54 the father of the child during that period, shall be deemed to have
8
1 developed a substantial relationship with the child and to have
2 otherwise met the requirements of this subsection.
3 (b) With regard to a child who is under six (6) months of age at the time
4 he is placed with adoptive parents, an unmarried biological father shall
5 have manifested a full commitment to his parental responsibilities by per-
6 forming all of the acts described in this subsection prior to the place-
7 ment for adoption of the child in the home of prospective parents or prior
8 to the date of commencement of any proceeding to terminate the parental
9 rights of the birth mother, whichever event occurs first. The father
10 shall:
11 (i) Commence proceedings to establish paternity under section
12 7-1111, Idaho Code, and file with that court a sworn affidavit stat-
13 ing that he is fully able and willing to have full custody of the
14 child, setting forth his plans for the care of the child, and agree-
15 ing to a court order of child support and the payment of expenses
16 incurred in connection with the mother's pregnancy and the child's
17 birth;
18 (ii) File a notice of his commencement of proceedings to establish
19 his paternity of the child with the vital statistics unit of the
20 department of health and welfare pursuant to section 16-1513, Idaho
21 Code; and
22 (iii) If he had actual knowledge of the pregnancy, pay a fair and
23 reasonable amount of the expenses incurred in connection with the
24 mother's pregnancy and the child's birth, in accordance with his
25 means, and when not prevented from doing so by the person or autho-
26 rized agency having lawful custody of the child.
27 (3) An unmarried biological father whose consent is required under sub-
28 section (1) or (2) of this section may nevertheless lose his right to consent
29 if the court determines, in accordance with the requirements and procedures of
30 the termination of parent and child relationship act, sections 16-2001 through
31 16-2015, Idaho Code, that his rights should be terminated, based on the peti-
32 tion of any party as set forth in section 16-2004, Idaho Code.
33 (4) If there is no showing that an unmarried biological father has con-
34 sented to or waived his rights regarding a proposed adoption, the petitioner
35 shall file with the court a certificate from the vital statistics unit of the
36 department of health and welfare, signed by the state registrar of vital sta-
37 tistics, stating that a diligent search has been made of the registry of
38 notices from putative fathers, of a child born out of wedlock, and that the
39 putative father involved has not filed notice of his commencement of proceed-
40 ings to establish his paternity, or if a filing is found, stating the name of
41 the putative father and the time and date of filing. That certificate shall be
42 filed with the court prior to the entrance of the final decree of adoption.
43 (5) An unmarried biological father who does not fully and strictly comply
44 with each of the conditions provided in this section, is deemed to have waived
45 and surrendered any right in relation to the child, including the right to
46 notice of any judicial proceeding in connection with the adoption of the
47 child, and his consent to the adoption of the child is not required.
48 (6) A minor parent has the power to consent to the adoption of his or her
49 child. That consent is valid and has the same force and effect as a consent
50 executed by an adult parent. A minor parent, having executed a consent, cannot
51 revoke that consent upon reaching the age of majority or otherwise becoming
52 emancipated.
53 (7) No consent shall be required of, nor notice given to, any person
54 whose parental relationship to such child shall have been terminated in accor-
55 dance with the provisions of either chapter 16 or 20, title 16, Idaho Code, or
9
1 by a court of competent jurisdiction of a sister state under like proceedings;
2 or in any other manner authorized by the laws of a sister state. Where a vol-
3 untary child placement agency licensed by the state in which it does business
4 is authorized to place a child for adoption and to consent to such child's
5 adoption under the laws of such state, the consent of such agency to the adop-
6 tion of such child in a proceeding within the state of Idaho shall be valid
7 and no further consents or notices shall be required.
8 (8) The legislature finds that an unmarried biological father who resides
9 in another state may not, in every circumstance, be reasonably presumed to
10 know of, and strictly comply with, the requirements of this chapter. Therefore
11 when all of the following requirements have been met, that unmarried biologi-
12 cal father may contest an adoption, prior to finalization of the decree of
13 adoption, and assert his interest in the child:
14 (a) The unmarried biological father resides and has resided in another
15 state where the unmarried mother was also located or resided;
16 (b) The mother left that state without notifying or informing the unmar-
17 ried biological father that she could be located in the state of Idaho;
18 (c) The unmarried biological father has, through every reasonable means,
19 attempted to locate the mother but does not know or have reason to know
20 that the mother is residing in the state of Idaho; and
21 (d) The unmarried biological father has complied with the most stringent
22 and complete requirements of the state where the mother previously resided
23 or was located, in order to protect and preserve his parental interest and
24 rights in the child in cases of adoption.
25 (9) Notwithstanding section 7-1107, Idaho Code, a proceeding to establish
26 paternity filed pursuant to this section may be filed prior to the birth of
27 the child.
28 SECTION 7. That Section 16-1506, Idaho Code, be, and the same is hereby
29 amended to read as follows:
30 16-1506. PROCEEDINGS ON ADOPTION. (1) Proceedings to adopt a child shall
31 be commenced by the filing of a petition together with a copy thereof. Said
32 petition shall be initiated by the person or persons proposing to adopt the
33 child and shall be filed with the district court of the county in which said
34 person or persons reside. The petitioners shall have resided and maintained a
35 dwelling within the state of Idaho for at least six (6) consecutive months
36 prior to the filing of a petition. The petition shall set forth the name and
37 address of the petitioner or petitioners, the name of the child proposed to be
38 adopted and the name by which the person to be adopted shall be known if and
39 when adopted, the degree of relationship of the child, if any, to the peti-
40 tioner or petitioners and the names of any person or agency whose consent to
41 said adoption is necessary. At the time fixed for hearing such petition the
42 person adopting a child, and the child adopted, and the spouse of petitioner
43 if a natural parent of the child, must appear before the court of the county
44 wherein the petition was filed. Petitioner shall at such time execute an
45 agreement to the effect that the child shall be adopted and treated in all
46 respects as his own lawful child should be treated.
47 (2) Any person or persons whose consent is required shall execute such
48 consent in writing, in a form consistent with the provisions of subsection e.
49 of section 16-2005, Idaho Code, which consent being filed in the court where
50 the application is made, shall be deemed a sufficient appearance on the part
51 of such person or persons. If any adoptive parent, or a person not a minor
52 being adopted by a resident adult under the provisions of section 16-1501,
53 Idaho Code, is a member of the armed services and is unable to attend the
10
1 hearing, his appearance and testimony shall be received by means of deposi-
2 tion, which shall be filed in the court at the time of the hearing.
3 (3) Prior to the placement for adoption of any child in the home of pro-
4 spective adoptive parents, it shall be required that a thorough social inves-
5 tigation of the prospective adoptive family and all of its members, consistent
6 with the rules regarding such investigations promulgated by the department of
7 health and welfare, shall be completed and that a positive recommendation for
8 adoptive placement shall have been made. The social investigation may be per-
9 formed by any individual who meets the requirements of the law. If the pro-
10 spective adoptive parent has a disability as defined in this chapter, the pro-
11 spective adoptive parent shall have the right, as a part of the social study,
12 to provide information regarding the manner in which the use of adaptive
13 equipment or supportive services will enable the parent to carry out the
14 responsibilities of parenting the child. The person performing the social
15 investigation shall advise the prospective adoptive parent of such right and
16 shall consider all such information in any findings or recommendations. The
17 social investigation of any prospective adoptive parent with a disability
18 shall be conducted by, or with the assistance of, an individual with expertise
19 in the use of such equipment and services. Nothing in this chapter shall be
20 construed to create any new or additional obligation on state or local govern-
21 ments to purchase or provide adaptive equipment or supportive services for
22 parents with disabilities. A copy of the study must be submitted to the
23 department and the department may impose a reasonable fee, not to exceed fifty
24 dollars ($50.00), for oversight of such privately conducted studies. In those
25 instances where the prospective adoptive parent is married to the birth parent
26 or is the grandparent of the child to be adopted, such social investigation
27 shall be completed with regard to the prospective adoptive parent only upon
28 order of the court. In exigent circumstances where the prospective adoptive
29 parents are determined by the court to have been unable to complete a social
30 investigation of the family with a positive recommendation prior to the time
31 the child is placed in the home, the child shall remain in the home unless the
32 court determines the best interests of the child are served by other place-
33 ment. If exigent circumstances exist, a social investigation shall be initi-
34 ated within five (5) days of placement. Once initiated, all studies shall be
35 completed within sixty (60) days. Upon the filing of a petition to adopt a
36 minor child by a person unrelated to the child or unmarried to a natural par-
37 ent of the child and at the discretion of the court upon the filing of any
38 other petition for adoption, a copy of such petition, together with a state-
39 ment containing the full names and permanent addresses of the child and the
40 petitioners, shall be served by the court receiving the petition within five
41 (5) days on the director of the department of health and welfare by registered
42 mail or personal service. If no private investigation is conducted, it shall
43 then be the duty of the said director, through the personnel of the department
44 or through such qualified child-placing children's adoption agency incorpo-
45 rated under chapter 3, title 30, Idaho Code, as the director may designate, to
46 verify the allegations of the petition, and as soon as possible not exceeding
47 thirty (30) days after service of the petition on the director to make a thor-
48 ough investigation of the matter to include in all cases information as to the
49 alleged date and place of birth and as to parentage of the child to be adopted
50 as well as the source of all such information and report his findings in writ-
51 ing to the court. The investigative report shall include reasonably known or
52 available medical and genetic information regarding both natural parents and
53 sources of such information as well as reasonably known or available providers
54 of medical care and services to the natural parents. A copy of all medical and
55 genetic information compiled in the investigation shall be made available to
11
1 the adopting family by the department or other investigating children's adop-
2 tion agency prior to entry of the final order of adoption. The petition,
3 statement and all other papers, records or files relating to the adoption,
4 including the preplacement investigation and recommendation, shall be returned
5 to the court with the investigative report. The department of health and wel-
6 fare or other children's adoption agency may require the petitioner to pay all
7 or any part of the costs of the investigation. If the report disapproves of
8 the adoption of the child, motion may be made to the court to dismiss the
9 petition.
10 (4) Proceedings for termination of parent-child relationship in accor-
11 dance with chapter 20, title 16, Idaho Code, and proceedings for adoption may
12 be consolidated and determined at one (1) hearing provided that all of the
13 requirements of this chapter as well as chapter 20, title 16, Idaho Code, be
14 fully complied with. Nothing in either chapter shall be construed as limiting
15 the initiation of any petition for approval of a verified financial plan for
16 adoption expenses pursuant to section 18-1511, Idaho Code, prior to the birth
17 of the child which is the subject of any adoption proceeding. In all disputed
18 matters under this chapter or chapter 20, title 16, Idaho Code, the paramount
19 criterion for consideration and determination by the court shall be the best
20 interests of the child.
21 (5) Proceedings for the adoption of an adult shall be as provided in sub-
22 section (1) of this section and any consents required shall be executed as
23 provided in subsection (2) of this section. Upon a finding by the court that
24 the consent of all persons for whom consent is required has been given and
25 that the requirements of section 16-1501, Idaho Code, have been proven to the
26 satisfaction of the court, the court shall enter an order granting the adop-
27 tion. In cases where the adult proposed to be adopted is incapacitated or dis-
28 abled, the court may require that an investigation be performed. The form and
29 extent of the investigation to be undertaken may be as provided in subsection
30 (3) of this section, or as otherwise ordered by the court. If an investigation
31 is performed, the court must review and approve the findings of the investiga-
32 tion before issuing an order approving the adoption.
33 SECTION 8. That Section 16-2001, Idaho Code, be, and the same is hereby
34 amended to read as follows:
35 16-2001. PURPOSE. The purpose of this act is to provide for voluntary and
36 involuntary severance of the parent and child relationship and for substitu-
37 tion of parental care and supervision by judicial process, thereby safeguard-
38 ing the rights and interests of all parties concerned and promoting their wel-
39 fare and that of the state of Idaho. Implicit in this act is the philosophy
40 that wherever possible family life should be strengthened and preserved and
41 that the issue of severing the parent and child relationship is of such vital
42 importance as to require a judicial determination in place of attempts at sev-
43 erance by contractual arrangements, express or implied, for the surrender and
44 relinquishment of children. Nothing in this chapter shall be construed to
45 allow discrimination in favor of, or against, on the basis of disability.
46 SECTION 9. That Section 16-2002, Idaho Code, be, and the same is hereby
47 amended to read as follows:
48 16-2002. DEFINITIONS. When used in this act, unless the text otherwise
49 requires:
50 a. "Court" means the district court.
51 b. "Child" or "minor" means a person less than eighteen (18) years of
12
1 age.
2 c. The singular includes the plural, the plural the singular, and the
3 masculine the feminine, when consistent with the intent of the act.
4 d. "Neglected" used with respect to a child refers to those situations in
5 which the child lacks proper support or parental care necessary for his
6 health, morals, and well-being.
7 e. "Abuse" used with respect to a child refers to those situations in
8 which physical cruelty in excess of that required for reasonable disciplinary
9 purposes has been inflicted by a parent or other person in whom legal custody
10 of the child has been vested.
11 f. "Legal custody" means status created by court order embodying the fol-
12 lowing rights and responsibilities:
13 (1) The right to physical possession of the child;
14 (2) The right and duty to protect, train and discipline the child; and
15 (3) The responsibility to provide the child with food, shelter, education
16 and medical care;
17 provided that such rights and responsibilities shall be exercised subject to
18 the powers, rights, duties and responsibilities of the guardian of the person.
19 g. "Guardianship of the person" means those rights and duties imposed
20 upon a person appointed as guardian of a minor under the laws of Idaho. It
21 includes but is not necessarily limited either in number or kind to:
22 (1) The authority to consent to marriage, to enlistment in the armed
23 forces of the United States, and to major medical, psychiatric and surgi-
24 cal treatment; to represent the minor in legal actions; and to make other
25 decisions concerning the child of substantial legal significance;
26 (2) The authority and duty of reasonable visitation, except to the extent
27 that such right of visitation has been limited by court order;
28 (3) The rights and responsibilities of legal custody except where legal
29 custody has been vested in another individual or in an authorized child
30 placement agency;
31 (4) When the parent and child relationship has been terminated by judi-
32 cial decree with respect to the parents, or only living parent, or when
33 there is no living parent, the authority to consent to the adoption of the
34 child and to make any other decision concerning the child which the
35 child's parents could make.
36 h. "Guardian ad litem" means a person appointed as such pursuant to law,
37 by the court to protect the interest of a minor or an incompetent in a case
38 before the court.
39 i. "Authorized agency" means the state department of health and welfare
40 or a voluntary child placement agency licensed to care for and place children
41 by the state department of health and welfare.
42 j. "Parent" means:
43 (1) The birth mother or the adoptive mother;
44 (2) The adoptive father;
45 (3) The biological father of a child conceived or born during the
46 father's marriage to the birth mother;
47 (4) The unmarried biological father whose consent to an adoption of the
48 child is required pursuant to section 15-1504 16-1504, Idaho Code;
49 (5) A man whose paternity is established by court decree; and
50 (6) An unmarried biological father who has filed a voluntary acknowledg-
51 ment of paternity with the vital statistics unit of the department of
52 health and welfare pursuant to section 7-1106, Idaho Code; and
53 (7) The father of an illegitimate child who has adopted the child by
54 acknowledgment pursuant to section 16-1510, Idaho Code.
55 k. "Presumptive father" means a man who is or was married to the birth
13
1 mother and the child is born during the marriage or within three hundred (300)
2 days after the marriage is terminated.
3 l. "Parent and child relationship" includes all rights, privileges,
4 duties and obligations existing between parent and child, including inheri-
5 tance rights, and shall be construed to include adoptive parents.
6 m. "Protective supervision" means a legal status created by court order
7 in proceedings not involving violations of the law but where the legal custody
8 of the child is subject to change, whereby the child is permitted to remain in
9 his home under the supervision of an authorized agency designated by the court
10 and is subject to return to the court during the period of protective supervi-
11 sion.
12 n. "Parties" includes the child and the petitioners.
13 o. "Rape," (18-6101, Idaho Code); "lewd conduct with a minor child under
14 sixteen," (18-1508, Idaho Code); "sexual abuse of a child under the age of
15 sixteen years," (18-1506, Idaho Code); and "incest" (18-6602, Idaho Code)
16 shall be defined as provided in the applicable provisions of title 18, Idaho
17 Code, but for purposes of this chapter shall not include any circumstance
18 where the parents of the child in question were married at the time of concep-
19 tion.
20 p. "Unmarried biological father," as used in this chapter and chapter 15,
21 title 16, Idaho Code, means the biological father of a child, which biological
22 father was not married to the child's mother at the time the child was con-
23 ceived or born.
24 q. "Unmarried biological mother," as used in this chapter, means the bio-
25 logical mother of a child, which biological mother was not married to the
26 child's biological father at the time the child was conceived or born.
27 r. "Disability" means, with respect to an individual, any mental or phys-
28 ical impairment which substantially limits one (1) or more major life activi-
29 ties of the individual including, but not limited to, self-care, manual tasks,
30 walking, seeing, hearing, speaking, learning, or working, or a record of such
31 an impairment, or being regarded as having such an impairment. Disability
32 shall not include transvestism, transsexualism, pedophilia, exhibitionism,
33 voyeurism, other sexual behavior disorders, or substance use disorders, com-
34 pulsive gambling, kleptomania, or pyromania. Sexual preference or orientation
35 is not considered an impairment or disability. Whether an impairment substan-
36 tially limits a major life activity shall be determined without consideration
37 of the effect of corrective or mitigating measures used to reduce the effects
38 of the impairment.
39 s. "Adaptive equipment" means any piece of equipment or any item that is
40 used to increase, maintain, or improve the parenting abilities of a parent
41 with a disability.
42 t. "Supportive services" means services which assist a parent with a dis-
43 ability to compensate for those aspects of their disability which affect their
44 ability to care for their child and which will enable them to discharge their
45 parental responsibilities. The term includes specialized or adapted training,
46 evaluations, or assistance with effective use of adaptive equipment, and
47 accommodations which allow a parent with a disability to benefit from other
48 services, such as Braille texts or sign language interpreters.
49 SECTION 10. That Section 16-2005, Idaho Code, be, and the same is hereby
50 amended to read as follows:
51 16-2005. CONDITIONS UNDER WHICH TERMINATION MAY BE GRANTED. The court may
52 grant an order terminating the relationship where it finds one (1) or more of
53 the following conditions exist:
14
1 a. The parent has abandoned the child by having willfully failed to main-
2 tain a normal parental relationship including, but not limited to, reasonable
3 support or regular personal contact; failure of the parent to maintain this
4 relationship without just cause for a period of one (1) year shall constitute
5 prima facie evidence of abandonment under this section. Provided further, that
6 where termination is sought by a grandparent seeking to adopt the child, will-
7 ful failure of the parent to maintain a normal parental relationship as pro-
8 vided herein, without just cause, for six (6) months shall constitute prima
9 facie evidence of abandonment.
10 b. The parent has neglected or abused the child. Neglect as used herein
11 shall mean a situation in which the child lacks parental care necessary for
12 his health, morals and well-being.
13 c. The presumptive parent is not the natural parent of the child.
14 d. The parent is unable to discharge parental responsibilities because of
15 mental illness or mental deficiency, and there are reasonable grounds to
16 believe the condition will continue for a prolonged indeterminate period and
17 will be injurious to the health, morals or well-being of the child.
18 e. If termination is found to be in the best interest of the parent and
19 child, where the petition has been filed by a parent or through an authorized
20 agency, or interested party.
21 f. Where a consent to termination in the manner and form prescribed by
22 this act has been filed by the parent(s) of the child in conjunction with a
23 petition for adoption initiated by the person or persons proposing to adopt
24 the child, or where the consent to termination has been filed by a licensed
25 adoption agency, no subsequent hearing on the merits of the petition shall be
26 held. Consents required by this act must be witnessed by a district judge or
27 magistrate of a district court, or equivalent judicial officer of the state,
28 where a person consenting resides or is present, whether within or without the
29 county, and shall be substantially in the following form:
30 IN THE DISTRICT COURT OF THE .... JUDICIAL DISTRICT OF THE STATE OF IDAHO, IN
31 AND FOR THE COUNTY OF ....
32 In the Matter of the termination )
33 of the parental rights of )
34 ................... )
35 ................... )
36 I (we), the undersigned, being the .... of ...., do hereby give my (our)
37 full and free consent to the complete and absolute termination of my (our)
38 parental right(s), to the said ...., who was born ...., ...., unto ....,
39 hereby relinquishing completely and forever, all legal rights, privileges,
40 duties and obligations, including all rights of inheritance to and from the
41 said ...., and I (we) do hereby expressly waive my (our) right(s) to hearing
42 on the petition to terminate my (our) parental relationship with the said
43 ...., and respectfully request the petition be granted.
44 DATED: ...., 20...
45 ...................
46 STATE OF IDAHO )
47 ) ss.
48 COUNTY OF .... )
49 On this .... day of ...., 20.., before me, the undersigned ...., ....
50 (Judge or Magistrate) of the District Court of the .... Judicial District of
51 the state of Idaho, in and for the county of ...., personally appeared ....,
52 known to me (or proved to me on the oath of ....) to be the person(s) whose
53 name(s) is (are) subscribed to the within instrument, and acknowledged to me
54 that he (she, they) executed the same.
55 IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
15
1 seal the day and year in this certificate first above written.
2 ...................... (District Judge or Magistrate)
3 The court shall accept a consent or a surrender and release executed in
4 another state if:
5 (1) It is witnessed by a magistrate or district judge of the state where
6 signed; or
7 (2) The court receives an affidavit or a certificate from a court of com-
8 parable jurisdiction stating that the consent or the surrender and release
9 was executed in accordance with the laws of the state in which it was exe-
10 cuted, or the court is satisfied by other showing that the consent or sur-
11 render and release was executed in accordance with the laws of the state
12 in which it was executed; or
13 (3) The court shall accept a termination or relinquishment from a sister
14 state that has been ordered by a court of competent jurisdiction under
15 like proceedings; or in any other manner authorized by the laws of a sis-
16 ter state. In a state where the father has failed to file notice of claim
17 to paternity and willingness to assume responsibility as provided for pur-
18 suant to the laws of such state, and where such failure constitutes an
19 abandonment of such child and constitutes a termination or relinquishment
20 of the rights of the putative father, the court shall accept such failure
21 as a termination in this state without further hearing on the merits, if
22 the court is satisfied that such failure constitutes a termination or
23 relinquishment of parental rights pursuant to the laws of that state.
24 g. Unless a consent to termination signed by the parent(s) of the child
25 has been filed by an adoption agency licensed in the state of Idaho, or unless
26 the consent to termination was filed in conjunction with a petition for adop-
27 tion of the child, the court shall hold a hearing.
28 h. The court may grant termination as to a parent:
29 (1) Who caused the child to be conceived as a result of rape, incest,
30 lewd conduct with a minor child under sixteen (16) years, or sexual abuse
31 of a child under the age of sixteen (16) years, as defined in section
32 16-2002 no., Idaho Code; or
33 (2) Who murdered or intentionally killed the other parent of the child;
34 or if the court determines the parent has been convicted of murder or vol-
35 untary manslaughter of another sibling of the child or has aided, abetted,
36 conspired or solicited to commit such murder or voluntary manslaughter
37 and/or if the court determines the parent has been convicted of a felony
38 assault or battery which resulted in serious bodily injury to the child or
39 a sibling; or
40 (3) Who has been incarcerated and has no possibility of parole; or
41 (4) If a court determines the child to be an abandoned infant.
42 There is a rebuttable presumption that termination of the parent-child rela-
43 tionship in any of the circumstances provided in subsection hg. of this sec-
44 tion is in the best interest of the child.
45 i. If the parent has a disability, as defined in this chapter, the parent
46 shall have the right to provide evidence to the court regarding the manner in
47 which the use of adaptive equipment or supportive services will enable the
48 parent to carry out the responsibilities of parenting the child. Nothing in
49 this section shall be construed to create any new or additional obligation on
50 state or local governments to purchase or provide adaptive equipment or sup-
51 portive services for parents with disabilities.
52 SECTION 11. That Section 16-2007, Idaho Code, be, and the same is hereby
53 amended to read as follows:
16
1 16-2007. NOTICE -- WAIVER -- GUARDIAN AD LITEM. After a petition has been
2 filed, the court shall set the time and place for hearing, and shall cause
3 notice thereof to be given to the petitioner, the parents of the child if mar-
4 ried, the mother of the child if unmarried, those persons entitled to notice
5 pursuant to section 16-1513, Idaho Code, the guardian of the person of the
6 child, the person having legal custody of the child, any individual standing
7 in loco parentis to the child, and the guardian ad litem of any party, or if
8 service cannot be had on the parent or guardian, then upon the nearest blood
9 relative named in the petition. The division of welfare of the Idaho depart-
10 ment of health and welfare shall be given notice of the hearing if the peti-
11 tion for termination was not filed in conjunction with a petition for adoption
12 or by an adoption agency licensed by the state of Idaho. Notice shall be given
13 by personal service on the parents or guardian. Where reasonable efforts to
14 effect personal service have been unsuccessful, the court shall order service
15 by registered or certified mail to the last known address of the person to be
16 notified and by publication once a week for three (3) successive weeks in a
17 newspaper or newspapers to be designated by the court as most likely to give
18 notice to the person to be served. The hearing shall take place no sooner than
19 ten (10) days after service of notice, or where service is by registered or
20 certified mail and publication, the hearing shall take place no sooner than
21 ten (10) days after the date of last publication. Notice and appearance may be
22 waived by a parent in writing before the court or in the presence of, and wit-
23 nessed by, a clerk of court or a representative of an authorized agency, pro-
24 vided that such parent has been apprised by the court or by such person of the
25 meaning and consequences of the termination action. Where the parent resides
26 outside the state, the waiver shall be acknowledged before a notary of the
27 state and shall contain the current address of the parent. The parent who has
28 executed such a waiver shall not be required to appear. When the termination
29 of the parent and child relationship is sought under section 16-2005 d., Idaho
30 Code and the parent is determined to be incompetent to participate in the pro-
31 ceeding, the court shall appoint a guardian ad litem for the alleged incompe-
32 tent parent. The court may in any other case appoint a guardian ad litem, as
33 may be deemed necessary or desirable, for any party. Where the putative father
34 has failed to timely commence proceedings to establish paternity under section
35 7-1111, Idaho Code, and by filing with the vital statistics unit of the
36 department of health and welfare, notice of his commencement of proceedings to
37 establish his paternity of the child born out of wedlock, notice under this
38 section is not required unless such putative father is one of those persons
39 specifically set forth in section 16-1505(1), Idaho Code. If a parent fails to
40 file a claim of parental rights pursuant to the provisions of chapter 81,
41 title 39, Idaho Code, for a child left with a safe haven pursuant thereto,
42 prior to entry of an order terminating their parental rights, that parent is
43 deemed to have abandoned the child and waived and surrendered any right in
44 relation to the child, including the right to notice of any judicial proceed-
45 ing in connection with the termination of parental rights.
46 SECTION 12. That Section 16-2008, Idaho Code, be, and the same is hereby
47 amended to read as follows:
48 16-2008. INVESTIGATION PRIOR TO DISPOSITION. a. If a petition for adop-
49 tion is not filed in conjunction with a petition for termination, or the peti-
50 tion for termination was not filed by a children's adoption agency licensed by
51 the state of Idaho upon the filing of a petition for termination, the court
52 shall direct the department of health and welfare, bureau of child support
53 enforcement to submit a written financial analysis report within thirty (30)
17
1 days from date of notification, detailing the amount of any unreimbursed pub-
2 lic assistance moneys paid by the state of Idaho on behalf of the child. The
3 financial analysis shall include recommendations regarding repayment of
4 unreimbursed public assistance and provisions for future support for the
5 child, and the reasons therefor.
6 b. Upon the filing of a petition, the court may direct, in all cases
7 where written consent to termination has not been given as provided in this
8 act, that an investigation be made by the department of health and welfare,
9 division of family and children's services, or a licensed children's adoption
10 agency, and that a report in writing of such study be submitted to the court
11 prior to the hearing, except that where the department of health and welfare
12 or a licensed children's adoption agency is a petitioner, either in its own
13 right or on behalf of a parent, a report in writing of the investigation made
14 by such agency shall accompany the petition. The department of health and wel-
15 fare or the licensed children's adoption agency shall have thirty (30) days
16 from notification by the court during which it shall complete and submit its
17 investigation unless an extension of time is granted by the court upon appli-
18 cation by the agency. The court may order additional investigation as it deems
19 necessary. The social study shall include the circumstances of the petition,
20 the investigation, the present condition of the child and parents, proposed
21 plans for the child, and such other facts as may be pertinent to the parent
22 and child relationship, and the report submitted shall include a recommenda-
23 tion and the reasons therefor as to whether or not the parent and child rela-
24 tionship should be terminated. If the parent has a disability as defined in
25 this chapter, the parent shall have the right, as a part of the social study,
26 to provide information regarding the manner in which the use of adaptive
27 equipment or supportive services will enable the parent to carry out the
28 responsibilities of parenting the child. The person performing the social
29 investigation shall advise the parent of such right and shall consider all
30 such information in any findings or recommendations. The social study shall be
31 conducted by, or with the assistance of, an individual with expertise in the
32 use of such equipment and services. Nothing in this section shall be construed
33 to create any new or additional obligations on state or local governments to
34 purchase or provide adaptive equipment or supportive services for parents with
35 disabilities. Where the parent is a minor, if the report does not include a
36 statement of contact with the parents of said minor, the reasons therefor
37 shall be set forth. The purpose of the investigation is to aid the court in
38 making disposition of the petition and shall be considered by the court prior
39 thereto.
40 c. No social study or investigation as provided for in paragraph subsec-
41 tion b. of this section shall be directed by the court with respect to the
42 putative father who has failed to timely commence proceedings to establish
43 paternity under section 7-1111, Idaho Code, and by filing with the vital sta-
44 tistics unit of the department of health and welfare, notice of his commence-
45 ment of proceedings to establish his paternity of the child, unless such
46 putative father is one of those persons specifically set forth in section
47 16-1505(1), Idaho Code.
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STATEMENT OF PURPOSE
RS 11956
Idaho child custody laws, as currently written, reflect the
historical bias against parents with disabilities and present an
unrealistic view of parents with disabilities by their 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. Many parents with
significant disabilities provide excellent care and stable homes for
their children. With the assistance of a family, friends, and
neighbors.
The legislation removes from adoption, termination of parental rights
and guardianship law inappropriate disability language and builds in
language that grants the parent with a disability the right to
present evidence and information regarding the manner in which the
use of adaptive equipment or supportive services will enable the
parent to carry out the responsibilities of parenting the child.
This legislation also prohibits discrimination based on disability
and creates an evaluation system that takes into consideration the
use of adaptive equipment and supportive services.
FISCAL IMPACT
The legislation clearly states that it does not create any new or
additional obligations on state or local governments to purchase
evaluations or provide adaptive equipment or supportive services for
parents with disabilities. Therefore, there is no fiscal impact.
Contact:
Name: Kelly Buckland
Idaho State Independent Living Council
Phone: 334-3800
STATEMENT OF PURPOSE/FISCAL NOTE H 579