Assembly Bill No. 273–Committee on Judiciary

 

(On Behalf of Legislative Committee on Children,
Youth and Families (NRS 218.53723))

 

March 11, 2003

____________

 

Referred to Committee on Judiciary

 

SUMMARY—Establishes procedures for permanently placing an abused or neglected child with a guardian. (BDR 38‑688)

 

FISCAL NOTE:  Effect on Local Government: Yes.

                           Effect on the State: Yes.

 

~

 

EXPLANATION – Matter in bolded italics is new; matter between brackets [omitted material] is material to be omitted.

 

AN ACT relating to the protection of children; establishing procedures for permanently placing an abused or neglected child with a guardian; and providing other matters properly relating thereto.

 

THE PEOPLE OF THE STATE OF NEVADA, REPRESENTED IN

SENATE AND ASSEMBLY, DO ENACT AS FOLLOWS:

 

1-1  Section 1. NRS 432.039 is hereby amended to read as follows:

1-2  432.039  1.  When in the judgment of the court it is in the best

1-3  interests of a child in the lawful custody of an agency which

1-4  provides child welfare services, such an agency may petition for

1-5  appointment as guardian of the person and estate of the child in the

1-6  manner provided by chapter 159 or 432B of NRS.

1-7  2.  The clerk of the district court, county clerk, county recorder

1-8  or other county officer shall not require the payment of any fees or

1-9  charges by the agency which provides child welfare services for

1-10  appointment as guardian pursuant to this section, and the district

1-11  court shall waive the furnishing of a bond by the agency which

1-12  provides child welfare services if it is appointed guardian.

2-1  3.  Except as otherwise provided in this section, the agency

2-2  which provides child welfare services shall comply with all

2-3  applicable provisions of chapter 159 or 432B of NRS.

2-4  Sec. 2.  Chapter 432B of NRS is hereby amended by adding

2-5  thereto the provisions set forth as sections 3 to 7, inclusive, of this

2-6  act.

2-7  Sec. 3.  1.  If the plan for the permanent placement of a

2-8  child adopted pursuant to NRS 432B.553 includes a request for

2-9  the appointment of a guardian for the child pursuant to sections 4

2-10  to 7, inclusive, of this act, the agency that adopted the plan may

2-11  petition the court for the appointment of a guardian. The guardian

2-12  may be appointed at a hearing conducted pursuant to NRS

2-13  432B.590 or at a separate hearing.

2-14      2.  A petition for the appointment of a guardian pursuant to

2-15  this section:

2-16      (a) May not be filed before the court has determined that the

2-17  child is in need of protection;

2-18      (b) Must include the information required pursuant to NRS

2-19  159.044; and

2-20      (c) Must include a statement explaining why the appointment

2-21  of a guardian, rather than the adoption of the child or the return

2-22  of the child to a parent, is in the best interests of the child.

2-23      3.  In addition to the notice required pursuant to NRS

2-24  432B.590, an agency that files a petition for the appointment of a

2-25  guardian must serve notice of the petition that includes a copy of

2-26  the petition and the date, time and location of the hearing on the

2-27  petition, by registered or certified mail or by personal service:

2-28      (a) To all the persons entitled to notice of the hearing pursuant

2-29  to NRS 432B.590, the parents of the child, any person or

2-30  governmental agency having care, custody or control over the

2-31  child, and, if the child is 14 years of age or older, the child; and

2-32      (b) At least 10 days before the hearing on the petition.

2-33      Sec. 4. 1.  The court may, upon the filing of a petition

2-34  pursuant to section 3 of this act, appoint a person as a guardian

2-35  for a child if:

2-36      (a) The court finds:

2-37          (1) That the child is in need of protection;

2-38          (2) That adoption of the child is not appropriate or is not

2-39  likely to occur and that termination of parental rights would not

2-40  be in the best interests of the child;

2-41          (3) That the proposed guardian is suitable and is not

2-42  disqualified from guardianship pursuant to NRS 159.059;

2-43          (4) That the child has been in the custody of the proposed

2-44  guardian for 6 months or more pursuant to a determination by a

3-1  court that the child was in need of protection, unless the court

3-2  waives this requirement for good cause shown;

3-3       (5) If the child is in the custody of an agency which

3-4  provides child welfare services, that the agency has made

3-5  reasonable efforts to preserve and reunify the family of the child

3-6  pursuant to NRS 432B.393, unless the agency is not required to

3-7  make such reasonable efforts pursuant to NRS 432B.393 or the

3-8  court determines that such reunification of the family would not

3-9  be in the best interests of the child because a parent of

3-10  the child is unwilling or unable to properly care for the child;

3-11          (6) That the proposed guardian has complied with the

3-12  requirements of chapter 159 of NRS; and

3-13          (7) That it is in the best interests of the child to appoint the

3-14  proposed guardian as the guardian of the child;

3-15      (b) The child consents to the guardianship, if the child is 14

3-16  years of age or older; and

3-17      (c) The court determines that the requirements for filing a

3-18  petition pursuant to section 3 of this act have been satisfied.

3-19      2.  A guardianship established pursuant to this section:

3-20      (a) Provides the guardian with the powers and duties provided

3-21  in NRS 159.079, and subjects the guardian to the limitations set

3-22  forth in NRS 159.0805;

3-23      (b) Is subject to the provisions of NRS 159.065 to 159.075,

3-24  inclusive, and 159.185 to 159.201, inclusive;

3-25      (c) Provides the guardian with sole legal and physical custody

3-26  of the child and terminates the rights of all other persons to legal

3-27  or physical custody of the child;

3-28      (d) Does not result in the termination of parental rights of a

3-29  parent of the child; and

3-30      (e) Does not affect any rights of the child to inheritance, a

3-31  succession or any services or benefits provided by the Federal

3-32  Government, this state or an agency or political subdivision of this

3-33  state.

3-34      Sec. 5.  1.  In determining whether to grant a petition for the

3-35  appointment of a guardian filed pursuant to section 3 of this act,

3-36  the court may consider all relevant and material evidence that is

3-37  admissible pursuant to this chapter, including, without limitation,

3-38  any report submitted by a special advocate appointed as a

3-39  guardian ad litem for the child pursuant to NRS 432B.500.

3-40      2.  If a court appoints a guardian for a child pursuant to

3-41  section 4 of this act, the court may order a reasonable right of

3-42  visitation to any person whose right to custody or visitation of the

3-43  child was terminated as a result of the appointment of the

3-44  guardian if the court finds that the visitation is in the best interests

3-45  of the child.

4-1  Sec. 6.  Upon the entry of a final order by the court

4-2  establishing a guardianship pursuant to section 4 of this act:

4-3  1.  The custody of the child by the agency that petitioned for

4-4  the appointment of the guardian is terminated;

4-5  2.  The proceedings concerning the child conducted pursuant

4-6  to NRS 432B.410 to 432B.590, inclusive, and sections 3 to 7,

4-7  inclusive, of this act terminate; and

4-8  3.  Unless subsequently ordered by the court to assist the court,

4-9  the following agencies and persons are excused from any

4-10  responsibility to participate in the guardianship case:

4-11      (a) The agency that petitioned for the appointment of the

4-12  guardian; and

4-13      (b) Any counsel or guardian ad litem appointed by the court to

4-14  assist in the proceedings conducted pursuant to NRS 432B.410 to

4-15  432B.590, inclusive, and sections 3 to 7, inclusive, of this act.

4-16      Sec. 7.  1.  The court may retain jurisdiction to enforce,

4-17  modify or terminate a guardianship established pursuant to

4-18  section 4 of this act until the child reaches 18 years of age.

4-19      2.  Any person having a direct interest in a guardianship

4-20  established pursuant to section 4 of this act may move to enforce,

4-21  modify or terminate an order concerning the guardianship.

4-22      3.  The court may issue an order directing an agency to file a

4-23  report and make a recommendation in response to any motion to

4-24  enforce, modify or terminate an order concerning a guardianship

4-25  established pursuant to section 4 of this act. The agency must

4-26  submit the report to the court within 45 days after receiving the

4-27  order of the court.

4-28      4.  A successor guardian may be appointed in accordance with

4-29  the procedures set forth in chapter 159 of NRS.

4-30      Sec. 8.  NRS 432B.250 is hereby amended to read as follows:

4-31      432B.250  Any person who is required to make a report

4-32  pursuant to NRS 432B.220 may not invoke any of the privileges set

4-33  forth in chapter 49 of NRS:

4-34      1.  For his failure to make a report pursuant to NRS 432B.220;

4-35      2.  In cooperating with an agency which provides child welfare

4-36  services or a guardian ad litem for a child; or

4-37      3.  In any proceeding held pursuant to NRS 432B.410 to

4-38  432B.590, inclusive[.] , and sections 3 to 7, inclusive, of this act.

4-39      Sec. 9.  NRS 432B.420 is hereby amended to read as follows:

4-40      432B.420  1.  A parent or other person responsible for the

4-41  welfare of a child who is alleged to have abused or neglected the

4-42  child may be represented by an attorney at all stages of any

4-43  proceedings under NRS 432B.410 to 432B.590, inclusive[.] , and

4-44  sections 3 to 7, inclusive, of this act. Except as otherwise provided

4-45  in subsection 2, if the person is indigent, the court may appoint an

5-1  attorney to represent him. The court may, if it finds it appropriate,

5-2  appoint an attorney to represent the child. The child may be

5-3  represented by an attorney at all stages of any proceedings held

5-4  pursuant to NRS 432B.410 to 432B.590, inclusive[.] , and sections

5-5  3 to 7, inclusive, of this act. If the child is represented by an

5-6  attorney, the attorney has the same authority and rights as an

5-7  attorney representing a party to the proceedings.

5-8  2.  If the court determines that the parent of an Indian child for

5-9  whom protective custody is sought is indigent, the court:

5-10      (a) Shall appoint an attorney to represent the parent;

5-11      (b) May appoint an attorney to represent the Indian child; and

5-12      (c) May apply to the Secretary of the Interior for the payment of

5-13  the fees and expenses of such an attorney,

5-14  as provided in the Indian Child Welfare Act.

5-15      3.  Each attorney, other than a public defender, if appointed

5-16  under the provisions of subsection 1, is entitled to the same

5-17  compensation and payment for expenses from the county as

5-18  provided in NRS 7.125 and 7.135 for an attorney appointed to

5-19  represent a person charged with a crime. Except as otherwise

5-20  provided in NRS 432B.500, an attorney appointed to represent a

5-21  child may also be appointed as guardian ad litem for the child. He

5-22  may not receive any compensation for his services as a guardian ad

5-23  litem.

5-24      Sec. 10.  NRS 432B.430 is hereby amended to read as follows:

5-25      432B.430  Except as otherwise provided in NRS 432B.457,

5-26  only those persons having a direct interest in the case, as ordered by

5-27  the judge or master, may be admitted to any proceeding held

5-28  pursuant to NRS 432B.410 to 432B.590, inclusive[.] , and sections

5-29  3 to 7, inclusive, of this act.

5-30      Sec. 11.  NRS 432B.440 is hereby amended to read as follows:

5-31      432B.440  The agency which provides child welfare services

5-32  shall assist the court during all stages of any proceeding in

5-33  accordance with NRS 432B.410 to 432B.590, inclusive[.] , and

5-34  sections 3 to 7, inclusive, of this act.

5-35      Sec. 12.  NRS 432B.450 is hereby amended to read as follows:

5-36      432B.450  In any civil proceeding had pursuant to NRS

5-37  432B.410 to 432B.590, inclusive, and sections 3 to 7, inclusive, of

5-38  this act, if there is expert testimony that a physical or mental injury

5-39  of a child would ordinarily not be sustained or a condition not exist

5-40  without either negligence or a deliberate but unreasonable act or

5-41  failure to act by the person responsible for his welfare, the court

5-42  shall find that the child is in need of protection unless that testimony

5-43  is rebutted.

 

 

6-1  Sec. 13.  NRS 432B.459 is hereby amended to read as follows:

6-2  432B.459  1.  If a proceeding held pursuant to NRS 432B.410

6-3  to 432B.590, inclusive, and sections 3 to 7, inclusive, of this act is

6-4  recorded using sound recording equipment or is transcribed, the

6-5  clerk of the court shall, upon request, provide to a parent or guardian

6-6  of the child who is the subject of the proceeding and the attorney of

6-7  the parent or guardian a copy of the sound recording or transcript of

6-8  the proceeding if:

6-9  (a) Such a copy is available or could be made available; and

6-10      (b) The parent or guardian or the county in which the proceeding

6-11  is held, as appropriate, pays the fee for the copy in accordance with

6-12  subsection 2.

6-13      2.  Each board of county commissioners shall adopt a sliding

6-14  scale for determining the amount to be paid for a copy of a sound

6-15  recording or transcript of a proceeding pursuant to subsection 1 for a

6-16  proceeding that was held in a court in its county. The sliding scale

6-17  must be based on the ability of the parent or guardian to pay. The

6-18  court shall review each case and make a finding as to the

6-19  reasonableness of the charge in relation to the ability of the parent or

6-20  guardian to pay. To the extent that the court determines that a parent

6-21  or guardian is unable to pay for a copy of the recording or transcript

6-22  pursuant to subsection 1, the cost of providing the copy of the sound

6-23  recording or transcript is a charge against the county in which the

6-24  proceeding was held.

6-25      Sec. 14.  NRS 432B.513 is hereby amended to read as follows:

6-26      432B.513  1.  Except as otherwise provided in subsection 3, a

6-27  person who submits a report or information to the court for

6-28  consideration in a proceeding held pursuant to NRS 432B.500 to

6-29  432B.590, inclusive, and sections 3 to 7, inclusive, of this act shall

6-30  provide a copy of the report or information, to the extent that the

6-31  data or information in the report or information is available pursuant

6-32  to NRS 432B.290, to each parent or guardian of the child who is the

6-33  subject of the proceeding and to the attorney of each parent or

6-34  guardian not later than 72 hours before the proceeding.

6-35      2.  If a person does not provide a copy of a report or

6-36  information to a parent or guardian of a child and an attorney of the

6-37  parent or guardian before a proceeding if required by subsection 1,

6-38  the court or master:

6-39      (a) Shall provide the parent or guardian and his attorney an

6-40  opportunity to review the report or information; and

6-41      (b) May grant a continuance of the proceeding until a later date

6-42  that is agreed upon by all the parties to the proceeding if the parent

6-43  or guardian or his attorney requests that the court grant the

6-44  continuance so that the parent or guardian and his attorney may

6-45  properly respond to the report or information.

7-1  3.  If a child was delivered to a provider of emergency services

7-2  pursuant to NRS 432B.630 and the location of the parent of the

7-3  child is unknown, a copy of a report or information described in

7-4  subsection 1 need not be sent to that parent or his attorney pursuant

7-5  to subsection 1.

7-6  4.  As used in this section, “person” includes, without

7-7  limitation, a government, governmental agency or political

7-8  subdivision of a government.

7-9  Sec. 15.  NRS 432B.555 is hereby amended to read as follows:

7-10      432B.555  In any proceeding held pursuant to NRS 432B.410

7-11  to 432B.590, inclusive, and sections 3 to 7, inclusive, of this act, if

7-12  the court determines that a custodial parent or guardian of a child

7-13  who has been placed in protective custody has ever been convicted

7-14  of a violation of NRS 200.508, the court shall not release the child

7-15  to that custodial parent or guardian unless the court finds by clear

7-16  and convincing evidence presented at the proceeding that no

7-17  physical or psychological harm to the child will result from his

7-18  release to that parent or guardian.

7-19      Sec. 16.  NRS 432B.590 is hereby amended to read as follows:

7-20      432B.590  1.  Except as otherwise provided in NRS 432B.513,

7-21  the court shall hold a hearing concerning the permanent placement

7-22  of a child:

7-23      (a) Not later than 12 months after the initial removal of the child

7-24  from his home and annually thereafter.

7-25      (b) Within 30 days after making any of the findings set forth in

7-26  subsection 3 of NRS 432B.393.

7-27  Notice of this hearing must be given by registered or certified mail

7-28  to all the persons to whom notice must be given pursuant to

7-29  subsection 4 of NRS 432B.580.

7-30      2.  The court may require the presence of the child at the

7-31  hearing and shall provide to each person to whom notice was given

7-32  pursuant to subsection 1 an opportunity to be heard at the hearing.

7-33      3.  At the hearing, the court shall review any plan for the

7-34  permanent placement of the child adopted pursuant to NRS

7-35  432B.553 and determine:

7-36      (a) Whether the agency with legal custody of the child has made

7-37  the reasonable efforts required by subsection 1 of NRS 432B.553;

7-38  and

7-39      (b) Whether, and if applicable when:

7-40          (1) The child should be returned to his parents or placed with

7-41  other relatives;

7-42          (2) It is in the best interests of the child to [initiate] :

7-43              (I) Initiate proceedings to[:

7-44              (I) Terminate] terminate parental rights pursuant to

7-45  chapter 128 of NRS so that the child can be placed for adoption; [or

8-1           (II) Establish]

8-2           (II) Initiate proceedings to establish a guardianship

8-3  pursuant to chapter 159 of NRS; or

8-4           (III) Establish a guardianship in accordance with

8-5  sections 3 to 7, inclusive, of this act; or

8-6       (3) The agency with legal custody of the child has produced

8-7  documentation of its conclusion that there is a compelling reason for

8-8  the placement of the child in another permanent living

8-9  arrangement.

8-10  The court shall prepare an explicit statement of the facts upon which

8-11  each of its determinations is based. If the court determines that it is

8-12  in the best interests of the child to terminate parental rights, the

8-13  court shall use its best efforts to ensure that the procedures required

8-14  by chapter 128 of NRS are completed within 6 months after the date

8-15  the court makes that determination, including, without limitation,

8-16  appointing a private attorney to expedite the completion of the

8-17  procedures. The provisions of this subsection do not limit the

8-18  jurisdiction of the court to review any decisions of the agency with

8-19  legal custody of the child regarding the permanent placement of the

8-20  child.

8-21      4.  If a child has been placed outside of his home and has

8-22  resided outside of his home pursuant to that placement for 14

8-23  months of any 20 consecutive months, the best interests of the child

8-24  must be presumed to be served by the termination of parental rights.

8-25      5.  This hearing may take the place of the hearing for review

8-26  required by NRS 432B.580.

8-27      6.  The provision of notice and an opportunity to be heard

8-28  pursuant to this section does not cause any person planning to adopt

8-29  the child, or any relative or provider of foster care to become a party

8-30  to the hearing.

8-31      Sec. 17.  NRS 49.295 is hereby amended to read as follows:

8-32      49.295  1.  Except as otherwise provided in subsections 2 and

8-33  3 and NRS 49.305:

8-34      (a) A husband cannot be examined as a witness for or against his

8-35  wife without his consent, nor a wife for or against her husband

8-36  without her consent.

8-37      (b) Neither a husband nor a wife can be examined, during the

8-38  marriage or afterwards, without the consent of the other, as to any

8-39  communication made by one to the other during marriage.

8-40      2.  The provisions of subsection 1 do not apply to a:

8-41      (a) Civil proceeding brought by or on behalf of one spouse

8-42  against the other spouse;

8-43      (b) Proceeding to commit or otherwise place a spouse, the

8-44  property of the spouse or both the spouse and the property of the

9-1  spouse under the control of another because of the alleged mental or

9-2  physical condition of the spouse;

9-3  (c) Proceeding brought by or on behalf of a spouse to establish

9-4  his competence;

9-5  (d) Proceeding in the juvenile court or family court pursuant to

9-6  chapter 62 of NRS and NRS 432B.410 to 432B.590, inclusive[;] ,

9-7  and sections 3 to 7, inclusive, of this act; or

9-8  (e) Criminal proceeding in which one spouse is charged with:

9-9       (1) A crime against the person or the property of the other

9-10  spouse or of a child of either, or of a child in the custody or control

9-11  of either, whether the crime was committed before or during

9-12  marriage.

9-13          (2) Bigamy or incest.

9-14          (3) A crime related to abandonment of a child or nonsupport

9-15  of a wife or child.

9-16      3.  The provisions of subsection 1 do not apply in any criminal

9-17  proceeding to events which took place before the husband and wife

9-18  were married.

9-19      Sec. 18.  NRS 159.176 is hereby amended to read as follows:

9-20      159.176  Every guardianship established pursuant to this

9-21  chapter must be reviewed by the court annually.

 

9-22  H