T16CH20

Title 16 > T16CH20

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16-2001

TITLE 16 JUVENILE PROCEEDINGS CHAPTER 20 TERMINATION OF PARENT AND CHILD RELATIONSHIP 16-2001. Purpose. (1) The purpose of this chapter is to: (a) Provide for voluntary and involuntary severance of the parent and child relationship and for substitution of parental care and supervision by judicial process, thereby safeguarding the rights and interests of all parties concerned and promoting their welfare and that of the state of Idaho; and (b) Provide permanency for children who are under the jurisdiction of the court through the child protective act, chapter 16, title 16 , Idaho Code, where the court has found the existence of aggravated circumstances or that reasonable efforts to return the child to his or her home have failed. (2) Implicit in this chapter is the philosophy that wherever possible family life should be strengthened and preserved and that the issue of severing the parent and child relationship is of such vital importance as to require a judicial determination in place of attempts at severance by contractual arrangements, express or implied, for the surrender and relinquishment of children. Nothing in this chapter shall be construed to allow discrimination in favor of, or against, on the basis of disability. History: [16-2001, added 1963, ch. 145, sec. 1, p. 420; am. 2002, ch. 233, sec. 8, p. 677; am. 2005, ch. 391, sec. 46, p. 1295.]

16-2002

TITLE 16 JUVENILE PROCEEDINGS CHAPTER 20 TERMINATION OF PARENT AND CHILD RELATIONSHIP 16-2002. Definitions. When used in this chapter, unless the text otherwise requires: (1) Court means the district court or magistrate’s division thereof or, if the context requires, a judge or magistrate thereof. (2) Child or minor means any individual who is under the age of eighteen (18) years. (3) Neglected means: (a) Conduct as defined in section 16-1602 (31), Idaho Code; or (b) The parent(s) has failed to comply with the court’s orders or the case plan in a child protective act case and: (i) The department has had temporary or legal custody of the child for twelve (12) of the most recent twenty-two (22) months; and (ii) Reunification has not been accomplished by the last day of the fifteenth month in which the child has been in the temporary or legal custody of the department. (4) Abused means conduct as defined in section 16-1602 (1), Idaho Code. (5) Abandoned means the parent has willfully failed to maintain a normal parental relationship, including but not limited to reasonable support or regular personal contact. Failure of the parent to maintain this relationship without just cause for a period of one (1) year shall constitute prima facie evidence of abandonment under this section; provided however, where termination is sought by a grandparent seeking to adopt the child, the willful failure of the parent to maintain a normal parental relationship as provided herein without just cause for six (6) months shall constitute prima facie evidence of abandonment. (6) Legal custody means status created by court order that vests in a custodian the following rights and responsibilities: (a) To have physical custody and control of the child and to determine where and with whom the child shall live; (b) To supply the child with food, clothing, shelter and incidental necessities; (c) To provide the child with care, education and discipline; and (d) To authorize medical, dental, psychiatric, psychological and other remedial care and treatment for the child, including care and treatment in a facility with a program of services for children. However, such rights and responsibilities shall be exercised subject to the powers, rights, duties and responsibilities of the guardian of the person. (7) Guardianship of the person means those rights and duties imposed upon a person appointed as guardian of a minor under the laws of Idaho. It includes but is not necessarily limited either in number or kind to: (a) The authority to consent to marriage, to enlistment in the armed forces of the United States, and to major medical, psychiatric and surgical treatment; to represent the minor in legal actions; and to make other decisions concerning the child of substantial legal significance; (b) The authority and duty of reasonable visitation, except to the extent that such right of visitation has been limited by court order; (c) The rights and responsibilities of legal custody, except

16-2003

TITLE 16 JUVENILE PROCEEDINGS CHAPTER 20 TERMINATION OF PARENT AND CHILD RELATIONSHIP 16-2003. Jurisdiction. The court shall have exclusive original jurisdiction, other than as provided in title 32 , Idaho Code, to hear petitions to terminate the parent and child relationship when the child is present in the state. When a court has jurisdiction over the child under the child protective act, chapter 16, title 16 , Idaho Code, that court shall have exclusive jurisdiction of the action to terminate parental rights unless it consents to a different venue or jurisdiction in the best interests of the child. History: [16-2003, added 1963, ch. 145, sec. 3, p. 420; am. 2005, ch. 391, sec. 48, p. 1298.]

16-2004

TITLE 16 JUVENILE PROCEEDINGS CHAPTER 20 TERMINATION OF PARENT AND CHILD RELATIONSHIP 16-2004. Petition — Who may file. A petition may be filed by: a. Either parent when termination is sought with respect to the other parent. b. The guardian of the person or the legal custodian of the child or person standing in loco parentis to the child. c. An authorized agency. d. Any other person possessing a legitimate interest in the matter. History: [16-2004, added 1963, ch. 145, sec. 4, p. 420.]

16-2005

TITLE 16 JUVENILE PROCEEDINGS CHAPTER 20 TERMINATION OF PARENT AND CHILD RELATIONSHIP 16-2005. Conditions under which termination may be granted. (1)(a) The court may grant an order terminating the relationship where it finds that termination of parental rights is in the best interests of the child and that one (1) or more of the following conditions exist: (i) The parent has abandoned the child; (ii) The parent has neglected or abused the child; (iii) The presumptive parent is not the biological parent of the child; (iv) The parent is unable to discharge parental responsibilities and such inability will continue for a prolonged indeterminate period and will be injurious to the health, morals or well-being of the child; or (v) The parent has been incarcerated and is likely to remain incarcerated for a substantial period of time during the child’s minority. (b) For terminations arising from a case filed pursuant to chapter 16, title 16 , Idaho Code, additional factors that inform what is in the best interest of the child, beyond those otherwise identified by the courts, include: (i) The parent’s efforts to improve the parent’s capacity to safely reunify with the child; (ii) The parent’s demonstrated ability to live a law-abiding life, excepting infraction violations; and (iii) When the child has formed a strong and positive bond with the child’s substitute caretaker, the strong and positive bond has existed for a substantial portion of the child’s life, the removal of the child from the substitute caretaker would likely cause serious psychological harm to the child, and the parent lacks the capacity to meet the needs of the child upon removal. (2) The court may grant an order terminating the relationship and may rebuttably presume that such termination of parental rights is in the best interests of the child where: (a) The parent caused the child to be conceived as a result of rape, incest, lewd conduct with a minor child under the age of sixteen (16) years, or sexual abuse of a child under the age of sixteen (16) years, as defined in sections 18-6101 , 18-1508 , 18-1506 , and 18-6601 , Idaho Code; (b) The following circumstances are present: (i) Abandonment, chronic abuse or chronic neglect of the child. Chronic neglect or chronic abuse of a child shall consist of abuse or neglect that is so extreme or repetitious as to indicate continuing the relationship would result in unacceptable risk to the health and welfare of the child; (ii) Sexual abuse against a child of the parent. Sexual abuse, for the purposes of this section, includes any conduct described in section 18-1506 , 18-1506A , 18-1507 , 18-1508 , 18-1508A , 18-6101 , or 18-6604 , Idaho Code; (iii) Torture of a child; any conduct described in the code sections listed in section 18-8303 (1), Idaho Code; battery or an injury to a child that results in serious or great bodily injury to a child; voluntary manslaughter of a child, or aiding or abetting such voluntary manslaughter, soliciting s

16-2006

TITLE 16 JUVENILE PROCEEDINGS CHAPTER 20 TERMINATION OF PARENT AND CHILD RELATIONSHIP 16-2006. Content of petition. The petition for the termination of the parent and child relationship shall include, to the best information and belief of the petitioner: a. The name and place of residence of the petitioner; b. The name, sex, date and place of birth, and residence of the child; c. The basis for the court’s jurisdiction; d. The relationship of the petitioner to the child, or the fact that no relationship exists; e. The names, addresses, and dates of birth of the parents; and where the child is illegitimate, the names, addresses and dates of birth of both parents, if known to the petitioner; f. Where the child’s parent is a minor, the names and addresses of said minor’s parents or guardian of the person; and where the child has no parent or guardian, the relatives of the child to and including the second degree of kindred; g. The name and address of the person having legal custody or guardianship of the person or acting in loco parentis to the child or authorized agency having legal custody or providing care for the child; h. The grounds on which termination of the parent and child relationship is sought; i. The names and addresses of the persons and authorized agency or officer thereof to whom or to which legal custody or guardianship of the person of the child might be transferred; j. A list of the assets of the child together with a statement of the value thereof. History: [16-2006, added 1963, ch. 145, sec. 6, p. 420.]

16-2007

TITLE 16 JUVENILE PROCEEDINGS CHAPTER 20 TERMINATION OF PARENT AND CHILD RELATIONSHIP 16-2007. Notice — Waiver — Guardian ad litem. (1) After a petition has been filed, the court shall set the time and place for hearing. The petitioner shall give notice to any person entitled to notice under section 16-1505 , Idaho Code, the authorized agency having legal custody of the child and the guardian ad litem of the child and of a parent. The petitioner shall give notice to the Idaho department of health and welfare if the petition for termination was not filed in conjunction with a petition for adoption or by an adoption agency licensed by the state of Idaho. (2) Notice shall be given by personal service on the parents or guardian. Where reasonable efforts to effect personal service have been unsuccessful or are impossible because the whereabouts of parties entitled to notice are not known or reasonably ascertainable, the court shall order service by registered or certified mail to the last known address of the person to be notified and by publication once a week for three (3) successive weeks in a newspaper or newspapers to be designated by the court as most likely to give notice to the person to be served. The hearing shall take place no sooner than ten (10) days after service of notice, or where service is by registered or certified mail and publication, the hearing shall take place no sooner than ten (10) days after the date of last publication. (3) Notice and appearance may be waived by a parent in writing and witnessed by a district judge or magistrate of a district court, or equivalent judicial officer of the state, where a person waiving notice and appearance resides or is present, whether within or without the county, and shall be substantially in the following form: IN THE DISTRICT COURT OF THE …. JUDICIAL DISTRICT OF THE STATE OF IDAHO, IN AND FOR THE COUNTY OF …. In the Matter of the termination ) of the parental rights to ) ………………. ) ………………. ) (a) minor child(ren) I (we), the undersigned, being the…. of…., do hereby waive my (our) right to notice and my (our) right to appear in any action seeking termination of my (our) parental rights. I (we) understand that by waiving notice and appearance my (our) parental right(s), to the said…., who was born….,…., unto…., may be completely and forever terminated, including all legal rights, privileges, duties and obligations, including all rights of inheritance to and from the said…., and I (we) do hereby expressly waive my (our) right(s) to notice of or appearance in any such action. STATE OF IDAHO ) )ss. COUNTY OF…. ) On this…. day of…., 20.., before me, the undersigned….,…. (Judge or Magistrate) of the District Court of the…. Judicial District of the state of Idaho, in and for the county of…., personally appeared…., known to me (or proved to me on the oath of….) to be the person(s) whose name(s) is (are) subscribed to the within instrument, and acknowledged to me that he (she, they) executed the sam

16-2008

TITLE 16 JUVENILE PROCEEDINGS CHAPTER 20 TERMINATION OF PARENT AND CHILD RELATIONSHIP 16-2008. Investigation prior to disposition. (1) If a petition for adoption is not filed in conjunction with a petition for termination, or the petition for termination was not filed by a children’s adoption agency licensed by the state of Idaho upon the filing of a petition for termination, the court shall direct the department of health and welfare, bureau of child support services, to submit a written financial analysis report within thirty (30) days from date of notification, detailing the amount of any unreimbursed public assistance moneys paid by the state of Idaho on behalf of the child. The financial analysis shall include recommendations regarding repayment of unreimbursed public assistance and provisions for future support for the child and the reasons therefor. (2) Upon the filing of a petition, the court may direct, in all cases where written consent to termination has not been given as provided in this chapter, that an investigation be made by the department of health and welfare, division of family and community services, or a licensed children’s adoption agency, and that a report in writing of such study be submitted to the court prior to the hearing, except that where the department of health and welfare or a licensed children’s adoption agency is a petitioner, either in its own right or on behalf of a parent, a report in writing of the investigation made by such agency shall accompany the petition. The department of health and welfare or the licensed children’s adoption agency shall have thirty (30) days from notification by the court during which it shall complete and submit its investigation unless an extension of time is granted by the court upon application by the agency. The court may order additional investigation as it deems necessary. The social study shall include the circumstances of the petition, the investigation, the present condition of the child and parents, proposed plans for the child, and such other facts as may be pertinent to the parent and child relationship, and the report submitted shall include a recommendation and the reasons therefor as to whether or not the parent and child relationship should be terminated. If the parent has a disability as defined in this chapter, the parent shall have the right, as a part of the social study, to provide 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. The person performing the social investigation shall advise the parent of such right and shall consider all such information in any findings or recommendations. The social study shall be conducted by, or with the assistance of, an individual with expertise in the use of such equipment and services. Nothing in this section shall be construed to create any new or additional obligations on state or local governmen

16-2009

TITLE 16 JUVENILE PROCEEDINGS CHAPTER 20 TERMINATION OF PARENT AND CHILD RELATIONSHIP 16-2009. Hearing. (1) Cases under this act shall be heard by the court without a jury. The hearing may be conducted in an informal manner and may be adjourned from time to time. Stenographic notes or mechanical recording of the hearing shall be required. The general public shall be excluded and only such persons admitted whose presence is requested by any person entitled to notice under the provisions of section 16-2007 , Idaho Code, or as the judge shall find to have a direct interest in the case or in the work of the court; provided that persons so admitted shall not disclose any information secured at the hearing which would identify an individual child or parent. The court may require the presence of witnesses deemed necessary to the disposition of the petition, except that a parent who has executed a waiver pursuant to section 16-2007 , Idaho Code, shall not be required to appear at the hearing. (2) The parent or guardian ad litem shall be notified as soon as practicable after the filing of a petition and prior to the start of a hearing of his right to have counsel and, if counsel is requested and the parent or guardian is financially unable to employ counsel, counsel shall be provided only if such representation is constitutionally required. The prosecuting attorneys of the several counties shall represent the department at all stages of the hearing. (3) The court’s finding with respect to grounds for termination shall be based upon clear and convincing evidence under rules applicable to the trial of civil causes, provided that relevant and material information of any nature, including that contained in reports, studies or examinations, may be admitted and relied upon to the extent of its probative value. When information contained in a report, study or examination is admitted in evidence, the person making such report, study or examination shall be subject to both direct and cross-examination. History: [16-2009, added 1963, ch. 145, sec. 9, p. 420; am. 1983, ch. 128, sec. 1, p. 324; am. 1987, ch. 207, sec. 4, p. 439; am. 1993, ch. 88, sec. 1, p. 217; am. 2025, ch. 329, sec. 3, p. 1355.]

16-2010

TITLE 16 JUVENILE PROCEEDINGS CHAPTER 20 TERMINATION OF PARENT AND CHILD RELATIONSHIP 16-2010. Decree. (1) Every order of the court terminating the parent and child relationship or transferring legal custody or guardianship of the person of the child shall be in writing and shall recite the findings upon which such order is based, including findings pertaining to the court’s jurisdiction. (2) (a) If the court finds sufficient grounds exist for the termination of the parent and child relationship, it shall so decree and: (i) Appoint an individual as guardian of the child’s person, or (ii) Appoint an individual as guardian of the child’s person and vest legal custody in another individual or in an authorized agency, or (iii) Appoint an authorized agency as guardian of the child’s person and vest legal custody in such agency. (b) The court shall also make an order fixing responsibility for the child’s support. The parent and child relationship may be terminated with respect to one (1) parent without affecting the relationship between the child and the other parent. (3) Where the court does not order termination of the parent and child relationship, it shall dismiss the petition; provided however, that where the court finds that the best interest of the child requires substitution or supplementation of parental care and supervision, it shall make an order placing the child under protective supervision, or vesting temporary legal custody in an authorized agency, fixing responsibility for temporary child support, and designating the period of time during which the order shall remain in effect. (4) If termination of parental rights is granted and the child is placed in the guardianship or legal custody of the department of health and welfare, the court, upon petition, shall conduct a hearing as to the future status of the child within twelve (12) months of the order of termination of parental rights, and every twelve (12) months subsequently until the child is adopted or is in a placement sanctioned by the court. History: [16-2010, added 1963, ch. 145, sec. 10, p. 420; am. 1989, ch. 216, sec. 1, p. 525; am. 1989, ch. 218, sec. 5, p. 530; am. 1992, ch. 341, sec. 4, p. 1036; am. 1998, ch. 257, sec. 6, p. 857; am. 2000, ch. 171, sec. 12, p. 439; am. 2005, ch. 391, sec. 51, p. 1303.]

16-2011

TITLE 16 JUVENILE PROCEEDINGS CHAPTER 20 TERMINATION OF PARENT AND CHILD RELATIONSHIP 16-2011. Effect of decree. An order terminating the parent and child relationship shall divest the parent and the child of all legal rights, privileges, duties, and obligations, including rights of inheritance, with respect to each other. History: [16-2011, added 1963, ch. 145, sec. 11, p. 420.]

16-2012

TITLE 16 JUVENILE PROCEEDINGS CHAPTER 20 TERMINATION OF PARENT AND CHILD RELATIONSHIP 16-2012. Court costs. All court costs of giving notice and advertising shall be paid by the petitioners, except when the petitioner is an authorized agency. The court, however, may suspend such costs where payment would work a hardship on the petitioner or would be otherwise inappropriate. History: [16-2012, added 1963, ch. 145, sec. 12, p. 420.]

16-2013

TITLE 16 JUVENILE PROCEEDINGS CHAPTER 20 TERMINATION OF PARENT AND CHILD RELATIONSHIP 16-2013. Records. The files and records of the court in any proceedings had under this act shall be kept in a separate locked file and shall be withheld from public inspection, but shall be open to inspection on special order of the court by persons having a legitimate interest in the case and their attorneys, and by an authorized agency to which legal custody of the child has been transferred. As used in this section, the words files and records include the court docket and entries therein, the petitions and other papers filed in any case, transcripts of testimony taken by the court, and findings, orders, and decrees, and other writings filed in proceedings before the court, other than social records. Social records shall be withheld from public inspection except that information from such records may be furnished to persons and agencies having a legitimate interest in the protection, welfare and treatment of the child, in such manner as the court determines. As used in this section, the words social records include the social service records of the court, the investigation and reports referred to in Section 16-2008 , and related papers and correspondence, including medical, psychological and psychiatric studies and reports, either in the possession of the court or authorized agency. No person shall be entitled to make copies of such files and records or social records or parts thereof unless the court so orders. It shall be unlawful, except for purposes for which files and records or social records or parts thereof or information therefrom have been released pursuant to this section, or except for purposes permitted by special order of the court, for any person to disclose, receive, or make use of, or authorize, knowingly permit, participate in, or acquiesce in the use of any information concerning any person before the court directly or indirectly derived from the files and records or communications of the court, or social records, or acquired in the course of the performance of official duties. Any person who shall disclose information in violation of the provisions of this section shall be guilty of a misdemeanor. History: [16-2013, added 1963, ch. 145, sec. 13, p. 420.]

16-2014

TITLE 16 JUVENILE PROCEEDINGS CHAPTER 20 TERMINATION OF PARENT AND CHILD RELATIONSHIP 16-2014. Appeals. Any appeal from an order or decree of the court granting or refusing to grant a termination shall be taken to the supreme court, provided however, pendency of an appeal or application therefor shall not suspend the order of the court relative to termination of the parent-child relationship. History: [16-2014, added 1963, ch. 145, sec. 14, p. 420; am. 1971, ch. 170, sec. 4, p. 805; am. 2010, ch. 26, sec. 3, p. 46.]

16-2015

TITLE 16 JUVENILE PROCEEDINGS CHAPTER 20 TERMINATION OF PARENT AND CHILD RELATIONSHIP 16-2015. Construction. This act shall be liberally construed to accomplish the purposes herein set forth. History: [16-2015, added 1963, ch. 145, sec. 16, p. 420.]