2017 Regular Session
To: Judiciary, Division A
By: Senator(s) Hill, Barnett, Burton, Dearing, Gollott, Jackson (11th), McDaniel, Parker, Seymour, Tollison, Watson, Witherspoon, Branning, Tindell, Harkins
(As Sent to Governor)
AN ACT TO AMEND SECTION 43-15-13, MISSISSIPPI CODE OF 1972, TO CLARIFY THAT RELATIVE CARE IS A LEGAL PLACEMENT OPTION FOR ABUSED AND NEGLECTED CHILDREN; TO AMEND SECTION 43-15-17, MISSISSIPPI CODE OF 1972, TO CONFORM REFERENCES TO CHILD PROTECTION SERVICES; TO AMEND SECTION 43-21-105, MISSISSIPPI CODE OF 1972, TO ENACT DEFINITIONS IN THE YOUTH COURT ACT CONCERNING FICTIVE KIN, DURABLE LEGAL RELATIVE GUARDIANSHIP, AND REASONABLE EFFORTS; TO AMEND SECTION 43-21-609, MISSISSIPPI CODE OF 1972, TO CLARIFY THAT GIVING CUSTODY TO A RELATIVE AND WAIVING ANY REQUIREMENT FOR THE RELATIVE TO PARTICIPATE IN FOSTER PARENT TRAINING IS WITHIN THE DISCRETION OF THE COURT AND TO CREATE A DURABLE LEGAL RELATIVE GUARDIANSHIP ALTERNATIVE; TO AMEND SECTION 43-21-613, MISSISSIPPI CODE OF 1972, TO CONFORM; TO AMEND SECTION 93-5-1, MISSISSIPPI CODE OF 1972, TO CLARIFY THE STATUS OF SPOUSAL DOMESTIC ABUSE AS A FAULT GROUND FOR DIVORCE; TO AMEND SECTION 93-17-303, MISSISSIPPI CODE OF 1972, TO CLARIFY THE RIGHT OF ADOPTIVE PARENTS, UNDER CERTAIN CIRCUMSTANCES, TO PROCEED PRO SE IN THE MATTER OF REGISTRATION OF A FOREIGN ADOPTION; AND FOR RELATED PURPOSES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
SECTION 1. Section 43-15-13, Mississippi Code of 1972, is amended as follows:
43-15-13. (1) For purposes of this section, “children” means persons found within the state who are under the age of twenty-one (21) years, and who were placed in the custody of the Department of * * * Child Protection Services by the youth court of the appropriate county.
(2) The Department of * * * Child Protection Services shall establish a foster care placement program for children whose custody lies with the department, with the following objectives:
(a) Protecting and promoting the health, safety and welfare of children;
(b) Preventing the unnecessary separation of children from their families by identifying family problems, assisting families in resolving their problems and preventing the breakup of the family where the prevention of child removal is desirable and possible when the child can be cared for at home without endangering the child’s health and safety;
(c) Remedying or assisting in the solution of problems that may result in the neglect, abuse, exploitation or delinquency of children;
(d) Restoring to their families children who have been removed, by the provision of services to the child and the families when the child can be cared for at home without endangering the child’s health and safety;
(e) Placing children in suitable adoptive homes approved by a licensed adoption agency or family protection specialist, in cases where restoration to the biological family is not safe, possible or appropriate;
(f) Assuring safe and adequate care of children away from their homes, in cases where the child cannot be returned home or cannot be placed for adoption, including temporary or emergency placement with a relative or fictive kin pending youth court action on the case. At the time of placement, the department shall implement concurrent planning, as described in subsection (8) of this section, so that permanency may occur at the earliest opportunity. Consideration of possible failure or delay of reunification should be given, to the end that the placement made is the best available placement to provide permanency for the child; and
(g) Providing a family protection specialist or worker or team of such specialists or workers for a family and child throughout the implementation of their permanent living arrangement plan. Wherever feasible, the same family protection specialist or worker or team shall remain on the case until the child is no longer under the jurisdiction of the youth court.
(3) The Department of * * * Child Protection Services shall administer a system of individualized plans and reviews once every six (6) months for each child under its custody within the State of Mississippi, each child who has been adjudged a neglected, abandoned or abused child and whose custody was changed by court order as a result of that adjudication, and each public or private facility licensed by the department. The Department of * * * Child Protection Services’ administrative review shall be completed on each child within the first three (3) months and a relative placement, fictive kin placement, or foster care review once every six (6) months after the child’s initial forty-eight-hour shelter hearing. That system shall be for the purpose of enhancing potential family life for the child by the development of individual plans to return the child to * * * the child’s natural parent or parents, or to refer the child to the appropriate court for termination of parental rights and placement in a permanent relative’s home, adoptive home or foster/adoptive home. The goal of the Department of * * * Child Protection Services shall be to return the child to * * * the child’s natural parent(s) or refer the child to the appropriate court for termination of parental rights and placement in a permanent relative’s home, adoptive home or foster/adoptive home within the time periods specified in this subsection or in subsection (4) of this section. In furthering this goal, the department shall establish policy and procedures designed to appropriately place children in permanent homes, the policy to include a system of reviews for all children in foster care, as follows: foster care counselors in the department shall make all possible contact with the child’s natural parent(s), custodial parent(s) of all siblings of the child, and any interested relative for the first two (2) months following the child’s entry into the foster care system. For purposes of contacting custodial parent(s) of a sibling, siblings include those who are considered a sibling under state law, and those who would have been considered a sibling under state law, except for termination or disruption of parental rights. For any child who has been in foster care for fifteen (15) of the last twenty-two (22) months regardless of whether the foster care was continuous for all of those twenty-two (22) months, the department shall file a petition to terminate the parental rights of the child’s parents. The time period starts to run from the date the court makes a finding of abuse and/or neglect or sixty (60) days from when the child was removed from his or her home, whichever is earlier. The department can choose not to file a termination of parental rights petition if the following apply:
(a) The child is being cared for by a relative; and/or
(b) The department has documented compelling and extraordinary reasons why termination of parental rights would not be in the best interests of the child. Before granting or denying a request by the department for an extension of time for filing a termination of parental rights action, the court shall receive a written report on the progress which a parent of the child has made in treatment, to be made to the court in writing by a mental health/substance abuse therapist or counselor.
(4) In the case of any child who is placed in foster care on or after July 1, 1998, except in cases of aggravated circumstances prescribed in Section 43-21-603(7)(c), the child’s natural parent(s) will have a reasonable time to be determined by the court, which shall not exceed a six-month period of time, in which to meet the service agreement with the department for the benefit of the child unless the department has documented extraordinary and compelling reasons for extending the time period in the best interest of the child. If this agreement has not been satisfactorily met, simultaneously the child will be referred to the appropriate court for termination of parental rights and placement in a permanent relative’s home, adoptive home or a foster/adoptive home. For children under the age of three (3) years, termination of parental rights shall be initiated within six (6) months, unless the department has documented compelling and extraordinary circumstances, and placement in a permanent relative’s home, adoptive home or foster/adoptive home within two (2) months. For children who have been abandoned under the provisions of Section 97-5-1, termination of parental rights shall be initiated within thirty (30) days and placement in an adoptive home shall be initiated without necessity for placement in a foster home. The department need not initiate termination of parental rights proceedings where the child has been placed in durable legal custody, durable legal relative guardianship, or long-term or formalized foster care by a court of competent jurisdiction.
(5) The foster care review once every six (6) months shall be conducted by the youth court or its designee(s), and/or by personnel within the Department of * * * Child Protection Services or by a designee or designees of the department and may include others appointed by the department, and the review shall include at a minimum an evaluation of the child based on the following:
(a) The extent of the care and support provided by the parents or parent * * * while the child is in temporary custody;
(b) The extent of communication with the child by parents, parent or guardian;
(c) The degree of compliance by the agency and the parents with the social service plan established;
(d) The methods of achieving the goal and the plan establishing a permanent home for the child;
(e) Social services offered and/or utilized to facilitate plans for establishing a permanent home for the child; and
(f) Relevant testimony and recommendations from the foster parent of the child, the grandparents of the child, the guardian ad litem of the child, representatives of any private care agency that has cared for the child, the family protection worker or family protection specialist assigned to the case, and any other relevant testimony pertaining to the case.
Each child’s review plan once every six (6) months shall be filed with the court which awarded custody and shall be made available to natural parents or foster parents upon approval of the court. The court shall make a finding as to the degree of compliance by the agency and the parent(s) with the child’s social service plan. The court also shall find that the child’s health and safety are the paramount concern. In the interest of the child, the court shall, where appropriate, initiate proceedings on its own motion. The Department of * * * Child Protection Services shall report to the Legislature as to the number of those children, the findings of the foster care review board and relevant statistical information in foster care in a semiannual report to the Legislature to be submitted to the Joint Oversight Committee of the Department of * * * Child Protection Services. The report shall not refer to the specific name of any child in foster care.
(6) (a) The Department of * * * Child Protection Services, with the cooperation and assistance of the State Department of Health, shall develop and implement a training program for foster care parents to indoctrinate them as to their proper responsibilities upon a child’s entry into their foster care. The program shall provide a minimum of twelve (12) clock hours of training. The foster care training program shall be satisfactorily completed by such foster care parents before or within ninety (90) days after child placement with the parent. Record of the foster care parent’s training program participation shall be filed with the court as part of a child’s foster care * * * review plan once every six (6) months.
(b) (i) The court may waive foster care training for an appropriate relative placement.
(ii) A relative exempted from foster care training is not eligible for board payments, foster care payments, kinship care payments, therapeutic care payments, or any other monthly payments from the department to assist in the care of the child.
(7) When the Department of * * * Child Protection Services is considering placement of a child in a foster home and when the department deems it to be in the best interest of the child, the department shall give first priority to placing the child in the home of one (1) of the child’s relatives within the third degree, as computed by the civil law rule.
(a) In placing the child in a relative’s home, the department may waive any rule, regulation or policy applicable to placement in foster care that would otherwise require the child to have a separate bed or bedroom or have a bedroom of a certain size, if placing the child in a relative’s home would be in the best interest of the child and those requirements cannot be met in the relative’s home.
(b) The court may waive foster care training for a relative only when appropriate.
(8) The Legislature recognizes that the best interests of the child require that the child be placed in the most permanent living arrangement as soon as is practicably possible. To achieve this goal, the Department of * * * Child Protection Services is directed to conduct concurrent planning so that a permanent living arrangement may occur at the earliest opportunity. Permanent living arrangements may include prevention of placement of a child outside the home of the family when the child can be cared for at home without endangering the child’s health or safety; reunification with the family, when safe and appropriate, if temporary placement is necessary; or movement of the child toward the most permanent living arrangement and permanent legal status. When a child is placed in foster care or relative care, the department shall first ensure and document that reasonable efforts, as defined in Section 43-21-105, were made to prevent or eliminate the need to remove the child from the child’s home. The department’s first priority shall be to make reasonable efforts to reunify the family when temporary placement of the child occurs or shall request a finding from the court that reasonable efforts are not appropriate or have been unsuccessful. A decision to place a child in foster care or relative care shall be made with consideration of the child’s health, safety and best interests. At the time of placement, consideration should also be given so that if reunification fails or is delayed, the placement made is the best available placement to provide a permanent living arrangement for the child. The department shall adopt rules addressing concurrent planning for reunification and a permanent living arrangement. The department shall consider the following factors when determining appropriateness of concurrent planning:
(a) The likelihood of prompt reunification;
(b) The past history of the family;
(c) The barriers to reunification being addressed by the family;
(d) The level of cooperation of the family;
(e) The foster parents’ willingness to work with the family to reunite;
(f) The willingness and ability of the foster family or relative placement to provide an adoptive home or long-term placement;
(g) The age of the child; and
(h) Placement of siblings.
(9) If the department has placed a child in foster care or relative care under a court order, the department may not change the child’s placement unless the department specifically documents to the court that the current placement is unsafe or unsuitable or that another placement is in the child’s best interests unless the new placement is in an adoptive home or other permanent placement. Except in emergency circumstances as determined by the department or where the court orders placement of the child under Section 43-21-303, the foster parents, grandparents or other relatives of the child shall be given an opportunity to contest the specific reasons documented by the department at least seventy-two (72) hours before any such departure, and the court may conduct a review of that placement unless the new placement is in an adoptive home or other permanent placement. When a child is returned to foster care or relative care, the former foster parents or relative placement shall be given the prior right of return placement in order to eliminate additional trauma to the child.
(10) The Department of * * * Child Protection Services shall provide the foster parents, grandparents or other relatives with at least a seventy-two-hour notice of departure for any child placed in their foster care or relative care, except in emergency circumstances as determined by the department or where the court orders placement of the child under Section 43-21-303. The parent/legal guardian, grandparents of the child, guardian ad litem and the court exercising jurisdiction shall be notified in writing when the child leaves foster care or relative care placement, regardless of whether the child’s departure was planned or unplanned. The only exceptions to giving a written notice to the parent(s) are when a parent has voluntarily released the child for adoption or the parent’s legal rights to the child have been terminated through the appropriate court with jurisdiction.
(11) The Department of * * * Child Protection Services shall extend the following rights to persons who provide foster care and relative care:
(a) A clear understanding of their role while providing care and the roles of the birth parent(s) and the placement agency in respect to the child in care;
(b) Respect, consideration, trust and value as a family who is making an important contribution to the agency’s objectives;
(c) Involvement in all the agency’s crucial decisions regarding the child as team members who have pertinent information based on their day-to-day knowledge of the child in care;
(d) Support from the family protection worker or the family protection specialist in efforts to do a better day-to-day job in caring for the child and in working to achieve the agency’s objectives for the child and the birth family through provision of:
(i) Pertinent information about the child and the birth family;
(ii) Help in using appropriate resources to meet the child’s needs;
(iii) Direct interviews between the family protection worker or specialist and the child, previously discussed and understood by the foster parents;
(e) The opportunity to develop confidence in making day-to-day decisions in regard to the child;
(f) The opportunity to learn and grow in their vocation through planned education in caring for the child;
(g) The opportunity to be heard regarding agency practices that they may question;
(h) Reimbursement for costs of the child’s care in the form of a board payment based on the age of the child as prescribed in Section 43-15-17 unless the relative is exempt from foster care training and chooses to exercise the exemption; and
(i) Reimbursement for property damages caused by children in the custody of the Department of * * * Child Protection Services in an amount not to exceed Five Hundred Dollars ($500.00), as evidenced by written documentation. The Department of * * * Child Protection Services shall not incur liability for any damages as a result of providing this reimbursement.
(12) The Department of * * * Child Protection Services shall require the following responsibilities from participating persons who provide foster care and relative care:
(a) Understanding the department’s function in regard to the foster care and relative care program and related social service programs;
(b) Sharing with the department any information which may contribute to the care of children;
(c) Functioning within the established goals and objectives to improve the general welfare of the child;
(d) Recognizing the problems in home placement that will require professional advice and assistance and that such help should be utilized to its full potential;
(e) Recognizing that the family who cares for the child will be one of the primary resources for preparing a child for any future plans that are made, including return to birth parent(s), termination of parental rights or reinstitutionalization;
(f) Expressing their views of agency practices which relate to the child with the appropriate staff member;
(g) Understanding that all information shared with the persons who provide foster care or relative care about the child and his/her birth parent(s) must be held in the strictest of confidence;
(h) Cooperating with any plan to reunite the child with his birth family and work with the birth family to achieve this goal; and
(i) Attending dispositional review hearings and termination of parental rights hearings conducted by a court of competent jurisdiction, or providing their recommendations to the court in writing.
SECTION 2. Section 43-15-17, Mississippi Code of 1972, is amended as follows:
43-15-17. (1) The Department of * * * Child Protection Services is authorized to make such payments as may be appropriate for supportive services to facilitate either the return of children to their natural parents or their adoption, depending upon and contingent upon the availability of the Department of * * * Child Protection Services securing or having sufficient funds to render this supportive service. Upon court order, the parent(s) shall be responsible for reimbursing the department for any foster care or kinship care payments made on behalf of his or her child, based upon financial ability to pay, until such time as there is a termination of parental rights regarding the child, or the child is adopted.
(2) For those children placed in foster care by the state or county departments of human services, the department shall make monthly payments for the support of these children’s room and board, clothing, allowance and personal needs. From and after July 1, 1998, and subject to the availability of funds specifically appropriated therefor, the Department of * * * Child Protection Services’ foster care and therapeutic care monthly payment schedule in effect before that date shall be increased by One Hundred Dollars ($100.00) per month, with that minimum payment not to preclude the department from increasing payments in later years as funds become available. From and after July 1, 1998, in order for foster parents to receive the monthly payments authorized under this subsection (2), the Department of * * * Child Protection Services shall require foster care placements to be licensed as foster care homes and shall require prospective foster parents to satisfactorily complete an appropriate training program that emphasizes the goal of the foster care program to provide stable foster placement until a permanency outcome is achieved.
(3) For a child placed in the care of the child’s relative within the third degree by the state or county departments of human services, unless a child is placed in the care of a relative who is exempt from foster care training requirements, the department shall make monthly payments to defray the relative’s expense of furnishing room and board. The department’s relative care payment shall be in an amount up to one hundred percent (100%) of the amount of the foster care board payment. The department may continue to make those payments to the relative after the department relinquishes legal custody of the child to the relative if the relative has complied with foster care training requirements. Any such payments for relative care shall be subject to specific appropriation therefor by the Legislature.
SECTION 3. Section 43-21-105, Mississippi Code of 1972, is amended as follows:
43-21-105. The following words and phrases, for purposes of this chapter, shall have the meanings ascribed herein unless the context clearly otherwise requires:
(a) “Youth court” means the Youth Court Division.
(b) “Judge” means the judge of the Youth Court Division.
(c) “Designee” means any person that the judge appoints to perform a duty which this chapter requires to be done by the judge or his designee. The judge may not appoint a person who is involved in law enforcement or who is an employee of the Mississippi Department of Human Services to be his designee.
(d) “Child” and “youth” are synonymous, and each means a person who has not reached his eighteenth birthday. A child who has not reached his eighteenth birthday and is on active duty for a branch of the armed services or is married is not considered a “child” or “youth” for the purposes of this chapter.
(e) “Parent” means the father or mother to whom the child has been born, or the father or mother by whom the child has been legally adopted.
(f) “Guardian” means a court-appointed guardian of the person of a child.
(g) “Custodian” means any person having the present care or custody of a child whether such person be a parent or otherwise.
(h) “Legal custodian” means a court-appointed custodian of the child.
(i) “Delinquent child” means a child who has reached his tenth birthday and who has committed a delinquent act.
(j) “Delinquent act” is any act, which if committed by an adult, is designated as a crime under state or federal law, or municipal or county ordinance other than offenses punishable by life imprisonment or death. A delinquent act includes escape from lawful detention and violations of the Uniform Controlled Substances Law and violent behavior.
(k) “Child in need of supervision” means a child who has reached his seventh birthday and is in need of treatment or rehabilitation because the child:
(i) Is habitually disobedient of reasonable and lawful commands of his parent, guardian or custodian and is ungovernable; or
(ii) While being required to attend school, willfully and habitually violates the rules thereof or willfully and habitually absents himself therefrom; or
(iii) Runs away from home without good cause; or
(iv) Has committed a delinquent act or acts.
(l) “Neglected child” means a child:
(i) Whose parent, guardian or custodian or any person responsible for his care or support, neglects or refuses, when able so to do, to provide for him proper and necessary care or support, or education as required by law, or medical, surgical, or other care necessary for his well-being; however, a parent who withholds medical treatment from any child who in good faith is under treatment by spiritual means alone through prayer in accordance with the tenets and practices of a recognized church or religious denomination by a duly accredited practitioner thereof shall not, for that reason alone, be considered to be neglectful under any provision of this chapter; or
(ii) Who is otherwise without proper care, custody, supervision or support; or
(iii) Who, for any reason, lacks the special care made necessary for him by reason of his mental condition, whether the mental condition is having mental illness or having an intellectual disability; or
(iv) Who, for any reason, lacks the care necessary for his health, morals or well-being.
(m) “Abused child” means a child whose parent, guardian or custodian or any person responsible for his care or support, whether legally obligated to do so or not, has caused or allowed to be caused, upon the child, sexual abuse, sexual exploitation, emotional abuse, mental injury, nonaccidental physical injury or other maltreatment. However, physical discipline, including spanking, performed on a child by a parent, guardian or custodian in a reasonable manner shall not be deemed abuse under this section. “Abused child” also means a child who is or has been trafficked within the meaning of the Mississippi Human Trafficking Act by any person, without regard to the relationship of the person to the child.
(n) “Sexual abuse” means obscene or pornographic photographing, filming or depiction of children for commercial purposes, or the rape, molestation, incest, prostitution or other such forms of sexual exploitation of children under circumstances which indicate that the child’s health or welfare is harmed or threatened.
(o) “A child in need of special care” means a child with any mental or physical illness that cannot be treated with the dispositional alternatives ordinarily available to the youth court.
(p) A “dependent child” means any child who is not a child in need of supervision, a delinquent child, an abused child or a neglected child, and which child has been voluntarily placed in the custody of the Department of Human Services by his parent, guardian or custodian.
(q) “Custody” means the physical possession of the child by any person.
(r) “Legal custody” means the legal status created by a court order which gives the legal custodian the responsibilities of physical possession of the child and the duty to provide him with food, shelter, education and reasonable medical care, all subject to residual rights and responsibilities of the parent or guardian of the person.
(s) “Detention” means the care of children in physically restrictive facilities.
(t) “Shelter” means care of children in physically nonrestrictive facilities.
(u) “Records involving children” means any of the following from which the child can be identified:
(i) All youth court records as defined in Section 43-21-251;
(ii) All social records as defined in Section 43-21-253;
(iii) All law enforcement records as defined in Section 43-21-255;
(iv) All agency records as defined in Section 43-21-257; and
(v) All other documents maintained by any representative of the state, county, municipality or other public agency insofar as they relate to the apprehension, custody, adjudication or disposition of a child who is the subject of a youth court cause.
(v) “Any person responsible for care or support” means the person who is providing for the child at a given time. This term shall include, but is not limited to, stepparents, foster parents, relatives, nonlicensed babysitters or other similar persons responsible for a child and staff of residential care facilities and group homes that are licensed by the Department of Human Services.
(w) The singular includes the plural, the plural the singular and the masculine the feminine when consistent with the intent of this chapter.
(x) “Out-of-home” setting means the temporary supervision or care of children by the staff of licensed day care centers, the staff of public, private and state schools, the staff of juvenile detention facilities, the staff of unlicensed residential care facilities and group homes and the staff of, or individuals representing, churches, civic or social organizations.
(y) “Durable legal custody” means the legal status created by a court order which gives the durable legal custodian the responsibilities of physical possession of the child and the duty to provide him with care, nurture, welfare, food, shelter, education and reasonable medical care. All these duties as enumerated are subject to the residual rights and responsibilities of the natural parent(s) or guardian(s) of the child or children.
(z) “Status offense” means conduct subject to adjudication by the youth court that would not be a crime if committed by an adult.
(aa) “Financially able” means a parent or child who is ineligible for a court-appointed attorney.
(bb) “Assessment” means an individualized examination of a child to determine the child’s psychosocial needs and problems, including the type and extent of any mental health, substance abuse or co-occurring mental health and substance abuse disorders and recommendations for treatment. The term includes, but is not limited to, a drug and alcohol, psychological or psychiatric evaluation, records review, clinical interview or the administration of a formal test and instrument.
(cc) “Screening” means a process, with or without the administration of a formal instrument, that is designed to identify a child who is at increased risk of having mental health, substance abuse or co-occurring mental health and substance abuse disorders that warrant immediate attention, intervention or more comprehensive assessment.
(dd) “Durable legal relative guardianship” means the legal status created by a youth court order that conveys the physical and legal custody of a child or children by durable legal guardianship to a relative or fictive kin who is licensed as a foster or resource parent.
(ee) “Relative” means a person related to the child by affinity or consanguinity within the third degree.
(ff) “Fictive kin” means a person not related to the child legally or biologically but who is considered a relative due to a significant, familial-like and ongoing relationship with the child and family.
(gg) “Reasonable efforts” means the exercise of reasonable care and due diligence by the Department of Human Services, the Department of Child Protection Services, or any other appropriate entity or person to use appropriate and available services to prevent the unnecessary removal of the child from the home or provide other services related to meeting the needs of the child and the parents.
SECTION 4. Section 43-21-609, Mississippi Code of 1972, is amended as follows:
43-21-609. In neglect and abuse cases, the disposition order may include any of the following alternatives, giving precedence in the following sequence:
(a) Release the child without further action;
(b) Place the child in the custody of his parents, a relative or other person subject to any conditions and limitations as the court may prescribe. If the court finds that temporary relative placement, adoption or foster care placement is inappropriate, unavailable or otherwise not in the best interest of the child, durable legal custody may be granted by the court to any person subject to any limitations and conditions the court may prescribe; such durable legal custody will not take effect unless the child or children have been in the physical custody of the proposed durable custodians for at least * * * six (6) months under the supervision of the Department of Human Services. The requirements of Section 43-21-613 as to disposition review hearings * * * do not apply to those matters in which the court has granted durable legal custody. In such cases, the Department of Human Services shall be released from any oversight or monitoring responsibilities;
(c) (i) Grant durable legal relative guardianship to a relative or fictive kin licensed as a foster parent if the licensed relative foster parent or licensed fictive kin foster parent exercised physical custody of the child for at least six (6) months before the grant of durable legal relative guardianship and the Department of Child Protection Services had legal custody or exercised supervision of the child for at least six (6) months. In order to establish durable legal relative guardianship, the youth court must find the following:
1. That both reunification and adoption have been determined to be inappropriate;
2. That the relative guardian or fictive kin guardian shows full commitment to the care, shelter, education, nurture, and reasonable medical care of the child; and
3. That the youth court consulted with any child twelve (12) years of age or older before granting durable legal relative guardianship.
(ii) The requirements of Section 43-21-613 as to disposition review hearings do not apply to a hearing concerning durable legal relative guardianship. However, the Department of Child Protection Services must conduct an annual review and recertification of the durable legal relative guardianship to determine whether it remains in the best interest of the child. If a material change in circumstances occurs adverse to the best interest of the child, the parent, relative guardian, fictive kin guardian, or Department of Child Protection Services may petition the court to review the durable legal relative guardianship;
( * * *d) Order terms of treatment calculated to assist the child and the child’s parent, guardian or custodian which are within the ability of the parent, guardian or custodian to perform;
( * * *e) Order youth court personnel, the Department of * * * Child Protection Services or child care agencies to assist the child and the child’s parent, guardian or custodian to secure social or medical services to provide proper supervision and care of the child;
( * * *f) Give legal custody of the child to any of the following but in no event to any state training school:
(i) The Department of * * * Child Protection Services for appropriate placement; or
(ii) Any private or public organization, preferably community-based, able to assume the education, care and maintenance of the child, which has been found suitable by the court. Prior to assigning the custody of any child to any private institution or agency, the youth court through its designee shall first inspect the physical facilities to determine that they provide a reasonable standard of health and safety for the child;
( * * *g) If the court makes a finding that custody is necessary as defined in Section 43-21-301(3)(b), and that the child, in the action pending before the youth court had not previously been taken into custody, the disposition order shall recite that the effect of the continuation of the child’s residing within his or her own home would be contrary to the welfare of the child, that the placement of the child in foster care is in the best interests of the child, and unless the reasonable efforts requirement is bypassed under Section 43-21-603(7)(c), the order also must state:
(i) That reasonable efforts have been made to maintain the child within his or her own home, but that the circumstances warrant his or her removal, and there is no reasonable alternative to custody; or
(ii) The circumstances are of such an emergency nature that no reasonable efforts have been made to maintain the child within his or her own home, and there is no reasonable alternative to custody; or
(iii) If the court makes a finding in accordance with (ii) of this paragraph, the court shall order that reasonable efforts be made towards the reunification of the child with his or her family * * *; or
( * * *h) If the court had, before the disposition hearing in the action pending before the court, taken the child into custody, the judge or referee shall determine, and the youth court order shall recite that reasonable efforts were made by the Department of * * * Child Protection Services to finalize the child’s permanency plan that was in effect on the date of the disposition hearing.
SECTION 5. Section 43-21-613, Mississippi Code of 1972, is amended as follows:
43-21-613. (1) If the youth court finds, after a hearing which complies with the sections governing adjudicatory hearings, that the terms of a delinquency or child in need of supervision disposition order, probation or parole have been violated, the youth court may, in its discretion, revoke the original disposition and make any disposition which it could have originally ordered. The hearing shall be initiated by the filing of a petition that complies with the sections governing petitions in this chapter and that includes a statement of the youth court’s original disposition order, probation or parole, the alleged violation of that order, probation or parole, and the facts which show the violation of that order, probation or parole. Summons shall be served in the same manner as summons for an adjudicatory hearing.
(2) On motion of a child or a child’s parent, guardian or custodian, the youth court may, in its discretion, conduct an informal hearing to review the disposition order. If the youth court finds a material change of circumstances relating to the disposition of the child, the youth court may modify the disposition order to any appropriate disposition of equal or greater precedence which the youth court could have originally ordered.
(3) (a) Unless the youth court’s jurisdiction has been terminated, all disposition orders for supervision, probation or placement of a child with an individual or an agency shall be reviewed by the youth court judge or referee at least annually to determine if continued placement, probation or supervision is in the best interest of the child or the public. For children who have been adjudicated abused or neglected, the youth court shall conduct a permanency hearing within twelve (12) months after the earlier of:
(i) An adjudication that the child has been abused or neglected; or
(ii) The date of the child’s removal from the allegedly abusive or neglectful custodian/parent. Notice of such hearing shall be given in accordance with the provisions of Section 43-21-505(5). In conducting the hearing, the judge or referee shall require a written report and may require information or statements from the child’s youth court counselor, parent, guardian or custodian, which includes, but is not limited to, an evaluation of the child’s progress and recommendations for further supervision or treatment. The judge or referee shall, at the permanency hearing determine the future status of the child, including, but not limited to, whether the child should be returned to the parent(s) or placed with suitable relatives, placed for adoption, placed for the purpose of establishing durable legal custody or should, because of the child’s special needs or circumstances, be continued in foster care on a permanent or long-term basis. If the child is in an out-of-state placement, the hearing shall determine whether the out-of-state placement continues to be appropriate and in the best interest of the child. At the permanency hearing the judge or referee shall determine, and the youth court order shall recite that reasonable efforts were made by the Department of Human Services to finalize the child’s permanency plan that was in effect on the date of the permanency hearing. The judge or referee may find that reasonable efforts to maintain the child within his home shall not be required in accordance with Section 43-21-603(7)(c), and that the youth court shall continue to conduct permanency hearings for a child who has been adjudicated abused or neglected, at least annually thereafter, for as long as the child remains in the custody of the Mississippi Department of Human Services.
(b) The court may find that the filing of a termination of parental rights petition is not in the child’s best interest if:
(i) The child is being cared for by a relative; and/or
(ii) The Department of Human Services has documented compelling and extraordinary reasons why termination of parental rights would not be in the best interests of the child.
(c) The provisions of this subsection shall also apply to review of cases involving a dependent child; however, such reviews shall take place not less frequently than once each one hundred eighty (180) days. A dependent child shall be ordered by the youth court judge or referee to be returned to the custody and home of the child’s parent, guardian or custodian unless the judge or referee, upon such review, makes a written finding that the return of the child to the home would be contrary to the child’s best interests.
(d) Reviews are not to be conducted unless explicitly ordered by the youth court concerning those cases in which the court has granted durable legal custody. In such cases, the Department of Human Services shall be released from any oversight or monitoring responsibilities, and relieved of physical and legal custody and supervision of the child.
(4) The provisions of this section do not apply to proceedings concerning durable legal relative guardianship.
SECTION 6. Section 93-5-1, Mississippi Code of 1972, is amended as follows:
93-5-1. Divorces from the bonds of matrimony may be decreed to the injured party for any one or more of the following twelve (12) causes:
First. Natural impotency.
Second. Adultery, unless it should appear that it was committed by collusion of the parties for the purpose of procuring a divorce, or unless the parties cohabited after a knowledge by complainant of the adultery.
Third. Being sentenced to any penitentiary, and not pardoned before being sent there.
Fourth. Willful, continued and obstinate desertion for the space of one (1) year.
Fifth. Habitual drunkenness.
Sixth. Habitual and excessive use of opium, morphine or other like drug.
Seventh. Habitual Cruel and inhuman treatment, including spousal domestic abuse.
Spousal domestic abuse may be established through the reliable testimony of a single credible witness, who may be the injured party, and includes, but is not limited to:
That the injured party’s spouse attempted to cause, or purposely, knowingly or recklessly caused bodily injury to the injured party, or that the injured party’s spouse attempted by physical menace to put the injured party in fear of imminent serious bodily harm; or
That the injured party’s spouse engaged in a pattern of behavior against the injured party of threats or intimidation, emotional or verbal abuse, forced isolation, sexual extortion or sexual abuse, or stalking or aggravated stalking as defined in Section 97-3-107, if the pattern of behavior rises above the level of unkindness or rudeness or incompatibility or want of affection.
Eighth. Having mental illness or an intellectual disability at the time of marriage, if the party complaining did not know of that infirmity.
Ninth. Marriage to some other person at the time of the pretended marriage between the parties.
Tenth. Pregnancy of the wife by another person at the time of the marriage, if the husband did not know of the pregnancy.
Eleventh. Either party may have a divorce if they are related to each other within the degrees of kindred between whom marriage is prohibited by law.
Twelfth. Incurable mental illness. However, no divorce shall be granted upon this ground unless the party with mental illness has been under regular treatment for mental illness and causes thereof, confined in an institution for persons with mental illness for a period of at least three (3) years immediately preceding the commencement of the action. However, transfer of a party with mental illness to his or her home for treatment or a trial visit on prescription or recommendation of a licensed physician, which treatment or trial visit proves unsuccessful after a bona fide effort by the complaining party to effect a cure, upon the reconfinement of the party with mental illness in an institution for persons with mental illness, shall be regular treatment for mental illness and causes thereof, and the period of time so consumed in seeking to effect a cure or while on a trial visit home shall be added to the period of actual confinement in an institution for persons with mental illness in computing the required period of three (3) years confinement immediately preceding the beginning of the action. No divorce shall be granted because of mental illness until after a thorough examination of the person with mental illness by two (2) physicians who are recognized authorities on mental diseases. One (1) of those physicians shall be either the superintendent of a state psychiatric hospital or institution or a veterans hospital for persons with mental illness in which the patient is confined, or a member of the medical staff of that hospital or institution who has had the patient in charge. Before incurable mental illness can be successfully proven as a ground for divorce, it shall be necessary that both of those physicians make affidavit that the patient is a person with mental illness at the time of the examination, and both affidavits shall be made a part of the permanent record of the divorce proceedings and shall create the prima facie presumption of incurable mental illness, such as would justify a divorce based on that ground. Service of process shall be made on the superintendent of the hospital or institution in which the defendant is a patient. If the patient is in a hospital or institution outside the state, process shall be served by publication, as in other cases of service by publication, together with the sending of a copy by registered mail to the superintendent of the hospital or institution. In addition, process shall be served upon the next blood relative and guardian, if any. If there is no legal guardian, the court shall appoint a guardian ad litem to represent the interest of the person with mental illness. The relative or guardian and superintendent of the hospital or institution shall be entitled to appear and be heard upon any and all issues. The status of the parties as to the support and maintenance of the person with mental illness shall not be altered in any way by the granting of the divorce.
However, in the discretion of the chancery court, and in those cases as the court may deem it necessary and proper, before any such decree is granted on the ground of incurable mental illness, the complainant, when ordered by the court, shall enter into bond, to be approved by the court, in such an amount as the court may think just and proper, conditioned for the care and keeping of the person with mental illness during the remainder of his or her natural life, unless the person with mental illness has a sufficient estate in his or her own right for that purpose.
SECTION 7. Section 93-17-303, Mississippi Code of 1972, is amended as follows:
93-17-303. (1) A child who has automatically acquired United States citizenship following a foreign adoption and who possesses a Certificate of Citizenship in accordance with the Child Citizenship Act, Public Law 106-395, may be issued a Mississippi birth certificate upon compliance with this article and the requirements for adoptions under this chapter to the extent not superseded by this article.
(2) A parent shall not proceed under this article if the foreign adoption has been registered or otherwise finalized by a court of this or any other state.
(3) A parent who is eligible to obtain a decree of registration of a foreign adoption under this article may proceed pro se.
SECTION 8. This act shall take effect and be in force from and after July 1, 2017.
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