HB620: (New Title) providing various protections for parents in cases involving the guardianship of minors.

CHAPTER 11

HB 620-FN- FINAL VERSION

25mar03… 0834h

01/07/04 2553s

18Mar2004… 0879eba

2004 SESSION

03-0204

09/10

HOUSE BILL 620-FN

AN ACT providing various protections for parents in cases involving the guardianship of minors.

SPONSORS: Rep. Espiefs, Ches 25; Rep. B. Richardson, Ches 26; Rep. McHugh, Hills 61; Rep. M. Cooney, Graf 15; Sen. Larsen, Dist 15

COMMITTEE: Children and Family Law

AMENDED ANALYSIS

This bill addresses various protections for parents in cases involving the guardianship of minors.

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Explanation: Matter added to current law appears in bold italics.

Matter removed from current law appears [in brackets and struckthrough.]

Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.

25mar03… 0834h

01/07/04 2553s

18Mar2004… 0879eba

03-0204

09/10

STATE OF NEW HAMPSHIRE

In the Year of Our Lord Two Thousand Four

AN ACT providing various protections for parents in cases involving the guardianship of minors.

Be it Enacted by the Senate and House of Representatives in General Court convened:

11:1 Procedure for Appointment. Amend RSA 463:5, IV(d) to read as follows:

(d) Whether guardianship is being sought by the department as part of the permanent plan for a child in the department’s custody pursuant to the Adoption and Safe Families Act of 1997, Public Law 105-89.

(e) Whether an adoption of the minor by the proposed guardian or guardians is contemplated.

11:2 Notice. RSA 463:6 is repealed and reenacted to read as follows:

463:6 Notice.

I. After the filing of a petition, the court shall set a date for a hearing, and issue orders of notice in reasonably understandable language. The orders of notice shall be sent by certified mail, return receipt requested, to both parents of the minor and to any person or persons alleged to have had principal care and custody of the minor during the 60 days preceding the filing of the petition, and by first class mail to:

(a) The minor, if 14 years of age or older and not the petitioner.

(b) The person nominated in the petition to be the guardian.

(c) Any person named as a testamentary guardian of the person or of the estate or of both of the minor in the will of a decedent parent.

(d) The department, if the petition identifies any juvenile proceeding affecting the minor.

(e) Any parent or any sibling, aunt, uncle, or adult child of the parents of the minor if both parents are deceased.

(f) The petitioner or petitioners.

II. The orders of notice required by paragraph I shall further specify:

(a) That either parent has a right to object to and contest the guardianship petition.

(b) That either parent has a right to consent to the granting of the guardianship petition, and if such parent consents, he or she shall do so before the court or the court’s designee as specified in RSA 468:8, VII.

(c) The nature and purpose of the proceeding and hearing as set forth in RSA 463:8, and that the parent or parents with legal custody are required to attend the hearing whether consenting or objecting to the petition.

III. A written consent to the petition is submission to the jurisdiction of the court.

IV. If the location of the parent or parents is unknown and this fact is sworn to under oath by the petitioner, the court may take whatever steps it deems necessary to ensure due process is satisfied unless, for good cause shown, it determines that process is impracticable or would serve no purpose, in which case notice may be waived.

11:3 Ex Parte and Temporary Orders. Amend RSA 463:7, II to read as follows:

II. Ex parte or temporary orders issued may include the appointment of a guardian or co-guardian, injunctive relief, support orders, restraining orders, visitation orders, or such other orders as the court may enter on the merits.

11:4 Conduct of Hearing. Amend RSA 463:8, III(b) to read as follows:

(b) If a parent objects to the establishment of the guardianship of the person requested by a non-parent, the court shall set a date for the hearing specified in this section. The burden of proof shall be on the petitioner to establish by clear and convincing evidence that the best interests of the minor require substitution or supplementation of parental care and supervision to provide for the essential physical and safety needs of the minor or to prevent specific, significant psychological harm to the minor.

11:5 New Paragraphs; Conduct of Hearing. Amend RSA 463:8 by inserting after paragraph VI the following new paragraphs:

VII. If a parent consents to the appointment of a guardianship, such consent shall be executed by an instrument in writing, signed by the parent, in the presence and with the approval of the court of the county in which the case is pending. The court may designate a person or another court to take the parent's consent on the court's behalf for good cause shown. The court, or its designee, shall also question the consenting parent regarding his or her understanding and knowledge of the nature and consequences if the petition is granted; and to insure that the parent understands he or she has the right to contest the petition. If the court, based on its own determination or its duly certified designee, finds:

(a) That consent is being given voluntarily and knowingly, the court may conduct a hearing pursuant to this section and thereon make all orders authorized by this chapter; or

(b) That consent is not being given voluntarily and knowingly for any reason such as because the parent lacked the mental capacity to give such consent. In this case, the court may:

(1) Hold a hearing pursuant to this section within 6 months, or earlier, if it is reasonably likely that the parent's mental capacity will be restored within a shorter time period, and during the interim make or renew whatever temporary orders under RSA 463:7 the court deems necessary; or

(2) If it is unlikely that capacity will be restored within 6 months, schedule and conduct a hearing pursuant to this section as if the parent were objecting under paragraph III and make or renew whatever temporary orders under RSA 463:7 the court deems necessary until the hearing is conducted.

VIII. If the parent does not appear at the hearing and the court has not received a properly and duly executed consent form, the court may conduct such hearing as necessary to make the determinations required by this section and thereon make all orders authorized by this chapter.

IX. When the court grants guardianship as part of the permanency plan for a child in the department's custody pursuant to the Adoption and Safe Families Act of 1997, Public Law 105-89, the court shall so specify in its order.

11:6 Letters of Guardianship. Amend RSA 463:11, I (c)-(d) to read as follows:

(c) The nature and scope of the guardianship, whether over the person and estate, or the person, or the estate; [and]

(d) Limitations imposed by the court on the guardian[.]; and

(e) Whether the guardianship is part of the permanent plan for a child previously under the custody of the department pursuant to the Adoption and Safe Families Act of 1997, Public Law 105-89.

11:7 Section Heading. Amend the section heading of RSA 463:13 to read as follows:

463:13 Order for Support for the Benefit of a Minor Under Guardianship and Visitation.

11:8 New Paragraph; Order for Support; Visitation Rights. Amend RSA 463:13 by inserting after paragraph II the following new paragraph:

III. The court may award reasonable visitation rights to the parent or parents. The presumption shall be in favor of liberal visitation rights absent a showing of harm to the minor. If a party wishes to have any pre-existing court visitation orders incorporated into the guardianship order, that party has the burden of providing said visitation orders to the court for its consideration. The court shall incorporate such visitation orders in its order, unless there has been a change in circumstances that warrants different visitation arrangements. In guardianships granted as part of the permanency plan for a child previously in the department’s custody pursuant to the Adoption and Safe Families Act of 1997, Public Law 105-89, the court may give the guardian discretion to determine visitation.

11:9 Periodic Court Review. RSA 463:17 is repealed and reenacted to read as follows:

463:17 Periodic Court Review. The status of all minors for whom guardianship or co-guardianship has been granted shall be reviewed by the court at 6, 12, and 24 months and annually thereafter, except that the court may waive (1) any or all reviews in cases in which a parent or the parents are co-guardians and (2) any or all reviews in all other cases after the 24-month review upon good cause shown. The guardian shall file a report with the court on or before each review date. The parent may file a statement or report with the court on or before each review date. The court may also, as part of the review, conduct a hearing on its own motion, or upon the request of a parent or guardian who seeks to substantially change the existing orders upon a showing by the parent that he or she has a reasonable likelihood of prevailing, if allowed a hearing. If termination of the guardianship is sought as part of the review proceeding, the burdens and standards of proof set forth in RSA 463:15 shall apply. Failure of any party to appear at any hearing held under this section without good cause, shall not cause the hearing to be continued.

11:10 Effective Date. This act shall take effect January 1, 2005.

(Approved: April 5, 2004)

(Effective Date: January 1, 2005)