2015 -- S 0569

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LC001501

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     STATE OF RHODE ISLAND

IN GENERAL ASSEMBLY

JANUARY SESSION, A.D. 2015

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A N   A C T

RELATING TO DOMESTIC RELATIONS - ADOPTION OF CHILDREN

     Introduced By: Senator Louis P. DiPalma

     Date Introduced: March 03, 2015

     Referred To: Senate Judiciary

     (by request)

It is enacted by the General Assembly as follows:

     SECTION 1. Sections 15-5-24.1 and 15-5-24.3 of the General Laws in Chapter 15-5

entitled "Divorce and Separation" are hereby amended to read as follows:

     15-5-24.1. Visitation rights of grandparents. -- The court may, upon miscellaneous

petition of a grandparent whose child is deceased, grant reasonable visitation rights of the

grandchild or grandchildren to the grandparent, whether or not any divorce, or custody or

adoption proceedings were ever commenced, and may issue all necessary orders to enforce

visitation rights. Once a grandparent has been granted reasonable visitation rights, notice of any

petition and/or order providing for a change in custody or visitation shall be provided to the

grandparent.

     15-5-24.3. Visitation rights -- Grandparents and siblings. -- (a) (1) The family court,

upon miscellaneous petition of a grandparent for visitation rights with the petitioner's grandchild,

and upon notice to both parents of the child and notice to the child, and after a hearing on the

petition, may grant reasonable rights of visitation of the grandchild to the petitioner.

      (2) The court, in order to grant the petitioner reasonable rights of visitation, must find

and set forth in writing the following findings of fact:

      (i) That it is in the best interest of the grandchild that the petitioner is granted visitation

rights with the grandchild;

      (ii) That the petitioner is a fit and proper person to have visitation rights with the

grandchild;

      (iii) That the petitioner has repeatedly attempted to visit his or her grandchild during the

thirty (30) days immediately preceding the date the petition was filed and was not allowed to visit

the grandchild during the thirty (30) day period as a direct result of the actions of either, or both,

parents of the grandchild;

      (iv) That there is no other way the petitioner is able to visit his or her grandchild without

court intervention; and

      (v) That the petitioner, by clear and convincing evidence, has successfully rebutted the

presumption that the parent's decision to refuse the grandparent visitation with the grandchild was

reasonable.

      (b) (1) The family court, upon miscellaneous petition of, or on behalf of, a sibling(s) for

visitation rights with a minor brother(s), and/or step-brother(s), and/or sister(s), and/or step-

sister(s) of the sibling(s) and upon notice to both parents of the minor and notice to the minor, and

after a hearing on the petition, may grant reasonable rights of visitation of the minor to a

sibling(s).

      (2) The court, in order to grant a sibling reasonable rights of visitation, must find and set

forth in writing the following findings of fact:

      (i) That it is in the best interest of the minor that a sibling(s) be granted visitation rights

with the minor;

      (ii) That the sibling(s) is a fit and proper person to have visitation rights with the minor;

      (iii) That the sibling(s) was not allowed to visit the minor during the thirty (30) day

period immediately preceding the date the petition was filed as a direct result of the actions of

either, or both, parents or guardians of the minor;

      (iv) That there is no other way the sibling(s) is able to visit the minor without court

intervention; and

      (v) That the sibling(s), by clear and convincing evidence, has successfully rebutted the

presumption that the parental decision to refuse the visitation with the minor was reasonable.

      (c) The court may issue all necessary orders relative to the visitation rights it has granted.

Once a petition has been granted, notice of any petition seeking a change in custody or visitation

shall be served on the petitioner.

     (d) The adoption of a child pursuant to chapter 7 of title 15 shall not limit the ability of a

biological grandparent to seek visitation from the adoptive parent or parents pursuant to this

section. In the event that the identity of the adoptive parents is unknown, notice of the petition

for grandparental visitation shall be served upon the department of children, youth and families,

whom shall appear and provide the identity of the adoptive parents or show cause as to why the

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identity of the adoptive parents should be withheld.

     SECTION 2. Section 15-5-24.2 of the General Laws in Chapter 15-5 entitled "Divorce

and Separation" is hereby repealed.

     15-5-24.2. Visitation rights of grandparents whose child is denied or has failed to

exercise rights. -- In any divorce proceeding the family court may, upon petition of a grandparent

whose grandchild is a child of the marriage, grant reasonable visitation rights of the grandchild to

the grandparent. The court may issue all necessary orders to enforce visitation rights. Once a

grandparent has been granted reasonable visitation rights, notice of any petition and/or order

providing for a change in custody or visitation shall be provided to the grandparent.

     SECTION 3. Sections 15-7-7, 15-7-8 and 15-7-9 of the General Laws in Chapter 15-7

entitled "Adoption of Children" are hereby amended to read as follows:

     15-7-7. Termination of parental rights. -- (a) The court shall, upon a petition duly filed

by a governmental child placement agency or licensed child placement agency after notice to the

parent and a hearing on the petition, terminate any and all legal rights of the parent to the child,

including the right to notice of any subsequent adoption proceedings involving the child, if the

court finds as a fact by clear and convincing evidence that:

      (1) The parent has willfully neglected to provide proper care and maintenance for the

child for a period of at least one year where financially able to do so. In determining whether the

parent has willfully neglected to provide proper care and maintenance for the child, the court may

disregard contributions to support which are of an infrequent and insubstantial nature; or

      (2) The parent is unfit by reason of conduct or conditions seriously detrimental to the

child; such as, but not limited to, the following:

      (i) Institutionalization of the parent, including imprisonment, for a duration as to render

it improbable for the parent to care for the child for an extended period of time;

      (ii) Conduct toward any child of a cruel or abusive nature;

      (iii) The child has been placed in the legal custody or care of the department for children,

youth, and families and the parent has a chronic substance abuse problem and the parent's

prognosis indicates that the child will not be able to return to the custody of the parent within a

reasonable period of time, considering the child's age and the need for a permanent home. The

fact that a parent has been unable to provide care for a child for a period of twelve (12) months

due to substance abuse shall constitute prima facie evidence of a chronic substance abuse

problem;

      (iv) The child has been placed with the department for children, youth, and families and

the court has previously involuntarily terminated parental rights to another child of the parent and

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the parent continues to lack the ability or willingness to respond to services which would

rehabilitate the parent and provided further that the court finds it is improbable that an additional

period of services would result in reunification within a reasonable period of time considering the

child's age and the need for a permanent home;

      (v) The parent has subjected the child to aggravated circumstances, which circumstances

shall be abandonment, torture, chronic abuse and sexual abuse;

      (vi) The parent has committed murder or voluntary manslaughter on another of his or her

children or has committed a felony assault resulting in serious bodily injury on that child or

another of his or her children or has aided or abetted, attempted, conspired or solicited to commit

such a murder or voluntary manslaughter; or

      (vii) The parent has exhibited behavior or conduct that is seriously detrimental to the

child, for a duration as to render it improbable for the parent to care for the child for an extended

period of time;

      (3) The child has been placed in the legal custody or care of the department for children,

youth, and families for at least twelve (12) months, and the parents were offered or received

services to correct the situation which led to the child being placed; provided, that there is not a

substantial probability that the child will be able to return safely to the parents' care within a

reasonable period of time considering the child's age and the need for a permanent home; or

      (4) The parent has abandoned or deserted the child. A lack of communication or contact

with the child for at least a six (6) month period shall constitute prima facie evidence of

abandonment or desertion. In the event that parents of an infant have had no contact or

communication with the infant for a period of six (6) months the department shall file a petition

pursuant to this section and the family court shall conduct expedited hearings on the petition.

      (b) (1) In the event that the petition is filed pursuant to subdivisions (a)(1), (a)(2)(i),

(a)(2)(iii), or (a)(2)(vii) of this section, the court shall find as a fact that, prior to the granting of

the petition, such parental conduct or conditions must have occurred or existed notwithstanding

the reasonable efforts which shall be made by the agency prior to the filing of the petition to

encourage and strengthen the parental relationship so that the child can safely return to the family.

In the event that a petition is filed pursuant to subdivisions (a)(2)(ii), (a)(2)(iv), (a)(2)(v),

(a)(2)(vi) or (a)(4) of this section, the department has no obligation to engage in reasonable

efforts to preserve and reunify a family.

      (2) Any duty or obligation on the part of a licensed or governmental child placing agency

to make reasonable efforts to strengthen the parental relationship shall cease upon the filing of a

petition under this section. This provision shall not be construed and is not intended to limit or

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affect in any way the parents' right to see or visit with the child during the pendency of a petition

under this section.

      (3) Upon the filing of a termination of parental rights petition, the agency has an

affirmative duty to notify the maternal and paternal grandparents, and to identify, recruit, process

and approve a qualified family for adoption or other permanent living arrangement for the child.

      (c) (1) In considering the termination of rights as pursuant to subsection (a), the court

shall give primary consideration to the physical, psychological, mental, and intellectual needs of

the child insofar as that consideration is not inconsistent with other provisions of this chapter.

      (2) The consideration shall include the following: If a child has been placed in foster

family care, voluntarily or involuntarily, the court shall determine whether the child has been

integrated into the foster family to the extent that the child's familial identity is with the foster

family and whether the foster family is able and willing to permanently integrate the child into the

foster family; provided, that in considering integrating into a foster family, the court should

consider:

      (i) The length of time child has lived in a stable, satisfactory environment and the

desirability of maintaining that environment and continuity for the child; and

      (ii) The reasonable preference of the child, if the court determines that the child has

sufficient capacity to express a reasonable preference.

      (d) If the court finds that the parental rights of the parent should be terminated as

specified in subsection (a), it shall by decree duly entered, appoint some suitable person to give or

withhold consent in any subsequent adoption proceedings. In the case of petitions filed by

licensed or governmental child placement agencies, the court shall appoint the agency to be the

sole party to give or withhold consent to the adoption of the child and further vest the agency with

all rights of guardianship over the child.

      (e) Nothing in this section shall be construed to prohibit the introduction of expert

testimony with respect to any illness, medical or psychological condition, trauma, incompetency,

addiction to drugs, or alcoholism of any parent who has exhibited behavior or conduct that is

seriously detrimental to a child, to assist the court in evaluating the reason for the conduct or its

probable duration.

      (f) The record of the testimony of the parties adduced in any proceeding terminating

parental rights to a child shall be entitled to the confidentiality provided for in § 8-10-21 and

more specifically shall not be admissible in any civil, criminal, or other proceeding in any court

against a person named a defendant or respondent for any purpose, except in subsequent

proceedings involving the same child or proceedings involving the same respondent.

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      (g) In the event any child, the parental rights to whom have been finally terminated, has

not been placed by the agency in the home of a person or persons with the intention of adopting

the child within thirty (30) days from the date of the final termination decree, the family court

shall review the status of the child and the agency shall file a report that documents the steps the

agency is taking to find an adoptive family or other permanent living arrangement for the child, to

place the child with an adoptive family, a fit and willing relative, a legal guardian, or in another

planned permanent living arrangement, and to finalize the adoption or legal guardianship. At a

minimum, this documentation shall include child specific recruitment efforts, such as the use of

state, regional and national adoption exchanges, including electronic exchange system.

     15-7-8. Notice to parents - Notice when no parent living or when parent in mental

institution. --Notice to parents and grandparents - Notice when no parent living or when

parent in mental institution. -- (a) The notice required in § 15-7-7 shall be as follows: If a

parent does not consent in writing to the adoption of his or her child, the court shall order the

necessary number of copies a copy of the petition and order that a copy to be served on the parent

him or her, personally, if found in the state, and order that copies be sent to both the maternal and

paternal grandparents by first class mail, return receipt requested; and if the parent is not located

in the state, notice of the petition for adoption shall be published once in any newspaper that the

court directs. Like notice shall also be published whenever a child has no parent living.

      (b) Whenever a parent is confined in any asylum, hospital, or institution for mental

illness, whether the asylum, hospital, or institution is situated within or out of the state, the court

shall order a copy of the petition and order that copy, subsequently referred to as the notice, to be

served on him or her personally, which notice, if to be served within the state, shall be served by

an officer authorized by law to serve citations; but if the notice is to be served out of the state, it

may be served by any disinterested person, who shall make return, upon oath, that he or she has

made service of the notice, the manner in which, the time when, and the place where the service

was made; provided, that before any officer or disinterested person makes service of the notice,

he or she shall apply to the physician in charge of the asylum, hospital, or institution where the

person upon whom the notice to be served is confined, and if the physician shall return, upon

oath, on the back of the notice, that in his or her opinion service of the notice upon the person will

be injurious to his or her mental health, the officer or person charged with the service shall leave

a copy of the notice, with the physician's return, with the keeper of the asylum, hospital, or

institution and shall return the notice, with a statement of his or her actions regarding the notice,

to the court without further service; and upon return being made in either case, the court, having

first appointed a guardian ad litem for the parent, may proceed to act upon the petition and order.

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     15-7-9. Notice to parent whose whereabouts unknown. -- Notice to parent or

grandparent whose whereabouts unknown. -- (a) When a petition concerning the adoption or

termination of parental rights is filed which sets forth that the whereabouts of the parent or

parents of the child are unknown or the whereabouts of the maternal or paternal grandparents are

unknown, that fact shall be sworn to by the petitioners by affidavit which shall set forth the last

contacts with the absent parent and any other information considered pertinent in determining the

absent parent's whereabouts.

      (b) The court shall review the affidavit and, if it is determined that personal service

cannot be effectuated, an order of notice shall be entered directing that notice be given to the

parent by publication in any newspaper of general circulation that the court directs; which notice

shall be published once and this notice may be combined and placed with other names that the

court is attempting to notify.

     SECTION 4. This act shall take effect upon passage.

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EXPLANATION

BY THE LEGISLATIVE COUNCIL

OF

A N   A C T

RELATING TO DOMESTIC RELATIONS - ADOPTION OF CHILDREN

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     This act would require the notification of grandparents upon the filing of a petition to

terminate parental rights, and for notice to grandparents regarding the custody of the child.

     This act would take effect upon passage.

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