Regular Session, 1997

HOUSE BILL NO. 2485 ORIGINAL

BY REPRESENTATIVE JOHNS

CHILDREN/PARENTAL RIGHTS: Provides with respect to the surrender of parental rights

AN ACT

To amend and reenact Children's Code Arts. 1103(5), 1137, and 1138 and to enact Children's Code Art. 1103(6), all relative to the surrender of parental rights; to provide a definition of "parental fitness"; to provide for the opposition to an adoption by the alleged or adjudicated father and notice; to delete provisions on proof of establishment of parental relationship; to provide for representation of the child, a contradictory hearing and notice thereof, testing to determine paternity, the hearing on an alleged or adjudicated father's opposition to an adoption, the father's establishment of parental rights, acknowledgment, proof of substantial commitment, the termination of rights of the unsuccessfully opposing father, the award of custody to the successfully opposing father, and the costs of medical treatment; and to provide for related matters.

Be it enacted by the Legislature of Louisiana:

Section 1. Children's Code Arts. 1103(5), 1137, and 1138 are hereby amended and reenacted and Children's Code Art.

1103(6) is hereby enacted to read as follows:

Art. 1103. Definitions

As used in this Title:

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(5) "Parental fitness" means:

(a) That a parent has not abused the child. For purposes of this Paragraph, abuse means the infliction of physical or mental injury which causes deterioration to the child, sexual abuse, exploitation, or overworking of a child to such an extent that his health or moral or emotional well-being is endangered.

(b) That a parent has consistently offered to provide reasonably necessary food, clothing, appropriate shelter, or treatment for the child. For purposes of this Paragraph, treatment means medical care or other health services provided in accordance with the tenets of a well-recognized religious method of healing with a reasonable, proven record of success.

(c) That a parent suffers from no medical or emotional illness, mental deficiency, behavior or conduct disorder, severe physical disability, substance abuse, or chemical dependency which makes him unable or unwilling to provide an adequate permanent home for the child at the present time or in the reasonably near future based upon expert opinion or based upon an established pattern of behavior.

(d) Viewed in its entirety, the parent's past or present conduct, including his criminal convictions, would not pose a risk of substantial harm to the physical, mental, or emotional health of the child.

(6) "Putative father registry" means the Louisiana putative father registry established in Part I-C of Chapter 1 of Code Title VII of Code Book I of Title 9 of the Louisiana Revised Statutes of 1950, comprised of R.S. 9:400 and 400.1.

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Art. 1137. Notice of opposition to adoption by alleged or adjudicated father; time limitations; appointment of counsel for the child; scheduling of hearing; paternity testing

A. An alleged or adjudicated father or his representative, if applicable, may oppose the adoption of his child by filing a clear and written declaration of intention to oppose the adoption. The notice of opposition shall be filed with the court indicated in the notice of filing of surrender within fifteen days after the time he was served with the notice of surrender, or from the time he was served with notice of the filing of an adoption petition in the event that no surrender was executed or filed.

B. In order to establish his parental rights at the hearing provided in Article 1138, the alleged or adjudicated father must demonstrate to the court his affirmative efforts to establish or maintain a parental relationship with the child. Relevant evidence includes but is not limited to proof of attempted legitimation of the child, formal acknowledgment of the child, declaration of paternity filed in the putative father registry after July 1, 1992, adjudication of paternity by a court, or provision of substantial parental care and support to the child. Upon receipt of the notice of opposition, the court shall appoint an attorney to represent the child, subject to the limitations set out in Article 1121. Neither the child nor anyone purporting to act on his behalf may be permitted to waive this right. The costs of the child's representation shall be taxed as costs of court.

C. The court shall set the opposition for contradictory hearing, which hearing shall be held within twenty days of the filing of the opposition.

D. Notice of the hearing shall be served in accordance with Articles 1133 and 1134 on the opposing father, the legal custodian, and counsel appointed for the child.

E. If paternity is at issue, on its own motion or motion of any party, the court shall issue an order for immediate blood or tissue sampling in accordance with the provisions of R.S. 9:396 et seq. and shall order an expedited report. The hearing resolving this issue shall be held at the earliest time that the results of the testing can be reported to the court.

Art. 1138. Hearing of opposition to adoption; establishment of parental rights

A. Within twenty days after receiving notice of opposition from an At the hearing of the opposition, the alleged or adjudicated father, the court shall hold a hearing to decide if he has established or forfeited his must establish his parental rights by acknowledging that he is the father of the child and by proving that he has manifested a substantial commitment to his The court shall consider his fitness and his commitment to parental responsibilities, including his attempts to establish or maintain a relationship with the and that he is a fit parent of his child.

B. Proof of the father's substantial commitment to his parental responsibilities requires a showing, in accordance with his means and knowledge of the mother's pregnancy or the child's birth, that he either:

(1) Provided financial support, including but not limited to the payment of consistent support to the mother during her pregnancy, contributions to the payment of the medical expenses of pregnancy and birth, or contributions of consistent support of the child after birth; that he frequently and consistently visited the child after birth; and that he is now willing and able to assume legal and physical care of the child.

(2) Was willing to provide such support and to visit the child and that he made reasonable attempts to manifest such a parental commitment, but was thwarted in his efforts by the mother or her agents, and that he is now willing and able to assume legal and physical care of the child.

C. The child and the legal custodian may offer rebuttal evidence limited to the issues enumerated in Paragraphs A and B of this Article.

B. D. If the court finds that the alleged or adjudicated father has established his parental rights, the court shall declare that no adoption may be granted without his consent and shall order the child to be in his legal custody. If the court finds that the alleged or adjudicated father has forfeited failed to establish his parental rights, the court it shall decree that his rights are terminated.

E. If the court finds that the alleged or adjudicated father has established his parental rights, the court shall declare that no adoption may be granted without his consent and shall order the child to be in his legal custody. C. If the alleged or adjudicated father establishes his parental rights and refuses to consent to the adoption, the The court shall may also order him the alleged or adjudicated father to reimburse the department, or the licensed private adoption agency, or other agency, or whoever has assumed liability for such costs, all or part of the medical expenses incurred for the mother and the child in connection with the birth of the child.

DIGEST

The digest printed below was prepared by House Legislative Services. It constitutes no part of the legislative instrument.

Johns HB No. 2485

Proposed law amends certain provisions of Title XI of the Children's Code relative to the surrender of parental rights for subsequent adoption of the child.

Proposed law defines "parental fitness" to mean: (1) that the parent has not abused the child; (2) that the parent has consistently offered to provide reasonably necessary food, clothing, shelter, and treatment for the child; (3) that a parent suffers from no medical or emotional problems which makes him unable or unwilling to provide an adequate home for the child; and (4) that the parent's past or present conduct, viewed in its entirety, would not pose a risk of substantial harm to the child.

Present law provides that an alleged or adjudicated father may oppose the adoption of his child by filing a written declaration of opposition with the court within 15 days of service. Proposed law retains present law and further requires that upon receipt of the notice of opposition, the court must appoint an attorney to represent the child and, if paternity is at issue, order immediate blood or tissue sampling.

Present law provides that in order to establish parental rights at the hearing of opposition to adoption, the alleged or adjudicated father must demonstrate to the court his affirmative efforts to establish or maintain a parental relationship with the child. "Relevant evidence" includes: (1) proof of attempted legitimation of the child; (2) formal acknowledgment of the child; (3) declaration or adjudication of paternity; or (4) provisional or substantial parental care and support to the child. Proposed law requires that in order to establish parental rights, he must acknowledge that he is the father of the child, he manifested a substantial commitment to his parental responsibilities, and he is a fit parent. Under proposed law, proof of "substantial commitment to his parental responsibilities" requires a showing, in accordance with his means and knowledge of the pregnancy or birth of the child, that he either: (1) provided financial support, frequently and consistently visited the child after birth, and is now willing and able to assume legal and physical care of the child, or (2) he was willing to provide support and visit the child, but was thwarted in his efforts by the mother and that he is now willing and able to assume legal and physical care of the child.

Present law provides that the court must order the alleged or adjudicated father to reimburse DSS or the adoption agency for all medical expenses incurred for the mother and child in connection with the birth. Proposed law provides that the court may order the father to reimburse all or part of the medical expenses to DSS, the agency, or others who assumed liability for such expenses.

(Amends Ch.C. Arts. 1103(5), 1137, and 1138; Adds Ch.C. Art. 1103(6))

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POLICY AND PRACTICE

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