MISSISSIPPI LEGISLATURE

1998 Regular Session

To: Public Health and Welfare; Appropriations

By: Senator(s) Bean, Ferris, Smith, Huggins, Gordon, Woodfield, Mettetal, Hamilton, Thames, Jordan (24th), Scoper, Hall, Cuevas, Walls, Jackson, Horhn, Hawks, Harvey, Farris, Burton, Robertson, Furniss, White (29th), Gollott, Minor, Johnson (19th), Frazier, Little

Senate Bill 2173

(As Sent to Governor)

AN ACT RELATING TO THE ADMINISTRATION OF THE FOSTER CARE PROGRAM BY THE DEPARTMENT OF HUMAN SERVICES; TO AMEND SECTIONS 43-1-51 AND 43-1-53, MISSISSIPPI CODE OF 1972, TO PRESCRIBE STAFFING LEVELS WITHIN THE DEPARTMENT OF HUMAN SERVICES FOR THE FOSTER CARE PROGRAM; TO AMEND SECTION 43-15-13, MISSISSIPPI CODE OF 1972, TO ESTABLISH AND PROVIDE PRIORITIES AND STANDARDS FOR THE OPERATION OF THE FOSTER CARE PROGRAM, TO PROVIDE THAT THE INITIAL FOSTER CARE REVIEW SHALL BE HELD WITHIN THREE MONTHS OF THE CHILD'S INITIAL SHELTER HEARING AND TO CLARIFY THE PROCEDURE TO BE FOLLOWED BY FOSTER CARE EMPLOYEES, TO PROVIDE THAT THE YOUTH COURT'S DISPOSITIONAL ORDER IN SUCH CASES MUST BE ISSUED WITHIN 60 DAYS OF THE CHILD'S REMOVAL FROM THE HOME, TO PROVIDE THAT TESTIMONY FROM FOSTER PARENTS, GUARDIANS AD LITEM, CHILD CARING AGENCIES AND SOCIAL WORKERS SHALL BE RELEVANT IN CHILD REVIEWS CONDUCTED BY THE DEPARTMENT AND FILED WITH THE COURT, TO REQUIRE SEMI-ANNUAL REPORTS TO THE LEGISLATURE REGARDING FOSTER CARE REVIEW BOARD EVALUATIONS, TO DIRECT THE DEPARTMENT TO CONDUCT CONCURRENT PLANNING FOR CHILDREN IN THE FOSTER CARE PROGRAM, TO PROHIBIT UNNECESSARY MULTIPLE PLACEMENTS OF CHILDREN IN THE FOSTER CARE PROGRAM AND GIVE FORMER FOSTER PARENTS A CHOICE IF A CHILD IS RETURNED TO FOSTER CARE, TO PRESCRIBE THE RIGHTS AND RESPONSIBILITIES OF FOSTER PARENTS PARTICIPATING IN THE FOSTER CARE PROGRAM, TO DIRECT THE DEPARTMENT TO PROVIDE FOSTER PARENTS WITH A MINIMUM 72-HOUR NOTICE OF DEPARTURE FOR ANY CHILD LEAVING FOSTER CARE AND TO REQUIRE NOTICE TO THE PARENT(S) AND THE COURT IN SUCH CIRCUMSTANCES; TO AMEND SECTION 43-15-17, MISSISSIPPI CODE OF 1972, TO PROVIDE THAT THE PARENT(S) ARE RESPONSIBLE FOR REIMBURSING THE DEPARTMENT FOR FOSTER CARE PARENT PAYMENTS MADE ON BEHALF OF A CHILD BASED ON ABILITY TO PAY, TO PROVIDE AN INCREASE IN THE MONTHLY RATES FOR SUPPORT AND THERAPEUTIC CARE PAYMENTS FOR CHILDREN IN FOSTER CARE TO BE PAID BY THE DEPARTMENT, AND TO PROVIDE THAT FOSTER CARE PAYMENTS SHALL ONLY BE MADE TO LICENSED FOSTER CARE HOMES; TO AMEND SECTION 43-15-6, MISSISSIPPI CODE OF 1972, TO CLARIFY THE LIST OF CRIMES WHICH DISQUALIFY PERSONS TO BE LICENSED AS FOSTER PARENTS OR FOSTER HOMES; TO AMEND SECTIONS 43-21-105, 43-21-609 AND 43-21-613, MISSISSIPPI CODE OF 1972, TO DEFINE THE STATUS OF DURABLE LEGAL CUSTODY AND AUTHORIZE THE YOUTH COURT TO ORDER DURABLE LEGAL CUSTODY AS AN ALTERNATIVE IN NEGLECT AND ABUSE CASES; TO AMEND SECTION 43-21-121, MISSISSIPPI CODE OF 1972, TO PROVIDE THAT IN CASES WHERE THE COURT APPOINTS A LAYMAN AS GUARDIAN AD LITEM, THE COURT SHALL ALSO APPOINT AN ATTORNEY TO REPRESENT THE CHILD, TO PRESCRIBE THE TIME FOR SUCH APPOINTMENT, TO PRESCRIBE THE RESPONSIBILITIES OF THE GUARDIAN AD LITEM, TO PRESCRIBE THE FEE TO BE ALLOWED A GUARDIAN AD LITEM AND TO AUTHORIZE THE YOUTH COURT TO APPOINT A VOLUNTEER LAYPERSON TO ASSIST CHILDREN IN CERTAIN YOUTH COURT MATTERS; TO AMEND SECTION 93-15-103, MISSISSIPPI CODE OF 1972, TO CLARIFY THE GROUNDS FOR TERMINATION OF PARENTAL RIGHTS AND TO REQUIRE THE CHANCERY COURT TO TREAT CASES INVOLVING SEXUAL ABUSE OR SERIOUS BODILY INJURY TO THE CHILD AS PRIORITY CASES FOR TERMINATION OF PARENTAL RIGHTS; TO AMEND SECTION 93-15-107, MISSISSIPPI CODE OF 1972, TO PROVIDE THAT THE DEPARTMENT OF HUMAN SERVICES SHALL INITIATE TERMINATION OF PARENTAL RIGHTS PROCEEDINGS AND MAY PROVIDE FUNDS FOR THE COSTS OF ADOPTION PROCEEDINGS BROUGHT BY THE FAMILIES OF CHILDREN IN RELATIVE CARE; TO AMEND SECTION 43-21-603, MISSISSIPPI CODE OF 1972, TO REQUIRE THE YOUTH COURT TO HEAR RELEVANT TESTIMONY AND RECOMMENDATIONS FROM THE FOSTER PARENTS OF THE CHILD, THE GUARDIAN AD LITEM, CHILD CARING AGENCIES, THE SOCIAL WORKER ASSIGNED TO THE CASE AND OTHER RELEVANT TESTIMONY IN ABUSE AND NEGLECT CASES, AND TO PRESCRIBE CERTAIN AGGRAVATING CIRCUMSTANCES UNDER WHICH THE YOUTH COURT SHALL NOT REQUIRE REASONABLE EFFORTS FOR REUNIFICATION OF A CHILD WITH HIS PARENTS; TO AMEND SECTIONS 93-17-5 AND 93-17-9, MISSISSIPPI CODE OF 1972, TO REDUCE THE WAITING PERIOD AFTER THE BIRTH OF A CHILD REQUIRED BEFORE THE BIRTH PARENTS MAY CONSENT TO AN ADOPTION AND TO PROVIDE THAT IN THE CASE OF A CHILD BORN OUT OF WEDLOCK, THE FATHER SHALL NOT HAVE A RIGHT TO OBJECT TO AN ADOPTION UNLESS HE DEMONSTRATES A COMMITMENT TO PARENTHOOD AS PROVIDED BY LAW; TO CODIFY SECTION 93-17-6, MISSISSIPPI CODE OF 1972, TO PROVIDE A PROCEDURE FOR FILING A PETITION FOR DETERMINATION OF RIGHTS BY AN ALLEGED FATHER IN ADOPTION PROCEEDINGS AND TO PRESCRIBE THE ELEMENTS OF PROOF TO BE CONSIDERED BY THE COURT IN SUCH MATTERS; TO AMEND SECTION 93-17-7, MISSISSIPPI CODE OF 1972, TO PROVIDE FOR THE AWARDING OF AN ADOPTION OVER THE OBJECTION OF A PARENT, TO PROVIDE A DEFINITION OF "PARENTAL FITNESS" IN SUCH CASES AND TO PROVIDE FOR REPRESENTATION OF THE CHILD; TO CODIFY SECTION 93-17-8, MISSISSIPPI CODE OF 1972, TO PROVIDE A PROCEDURE TO BE FOLLOWED BY THE COURT IN CONTESTED ADOPTION CASES AND TO AUTHORIZE THE COURT TO ORDER THE BIRTH FATHER TO REIMBURSE THE DEPARTMENT OF HUMAN SERVICES OR THE FOSTER PARENTS FOR THE COSTS OF MEDICAL EXPENSES AND REASONABLE SUPPORT FOR THE CHILD AFTER HIS BIRTH; TO AMEND SECTION 93-17-13, MISSISSIPPI CODE OF 1972, TO DIRECT THE COURT TO ORDER HOME STUDIES IN ALL ADOPTION PROCEEDINGS AFTER JULY 1, 1998; TO AMEND SECTION 43-21-261, MISSISSIPPI CODE OF 1972, TO AUTHORIZE FOSTER CARE REVIEW BOARDS TO INSPECT YOUTH COURT RECORDS RELATING TO THEIR ABUSE, NEGLECT AND CHILD IN NEED OF SUPERVISION CASES; TO AMEND SECTION 43-21-309, MISSISSIPPI CODE OF 1972, TO CLARIFY THE ALTERNATIVES AVAILABLE TO THE YOUTH COURT AT SHELTER HEARINGS; AND FOR RELATED PURPOSES. 

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:

 

SECTION 1. Section 43-1-51, Mississippi Code of 1972, is amended as follows:

43-1-51. There is hereby created within the Department of Human Services a single and separate Division of Family and Children's Services. The division shall be responsible for the development, execution and provision of services in the following areas: (a) protective services for children and adults; (b) foster care; (c) adoption services; (d) special services; (e) interstate compact; * * * (f) licensure; and (g) such services as may be designated by the board. Employees working within the division shall be limited to work within the areas of service enumerated herein. Services enumerated under Section 43-15-13 et seq., for the foster care program shall be provided by qualified staff with appropriate case loads.

SECTION 2. Section 43-1-53, Mississippi Code of 1972, is amended as follows:

43-1-53. (1) The Division of Family and Children's Services shall be formed at each level of the Department of Human Services, including state, regional and county levels. The Executive Director of the Department of Human Services shall appoint and employ a director for the division who shall have a Master's Degree in a field related to children's services. In addition, he shall have no less than three (3) years' experience in the field of service to children. In lieu of such degree and experience, he shall have a minimum of ten (10) years' actual experience in the field of children's services.

(2) The state office of the Division of Family and Children's Services shall develop policy, provide training and oversee the implementation of services. The director shall establish such planning and policy councils as may be necessary to carry out these functions.

(3) The regional office of the Division of Family and Children's Services shall consist of a regional services director and a crisis intervention team to be dispatched on a case-by-case basis by the regional services director. From and after July 1, 1998, the Department of Human Services shall at a minimum employ and assign to the Division of Family and Children's Services two (2) additional regional services directors for supervision of the foster care program.

(4) Area offices. Each region shall be divided into three (3) areas, each of which shall have two (2) supervisors and direct service workers deployed at the county level, but not limited in jurisdiction to that county.

(5) Counties. The area supervisors shall assign service workers so that every county has an appropriate access point for all services.

SECTION 3. 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 Human Services by the youth court of the appropriate county.

(2) The Department of Human 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 which 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 licensed social worker, 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. At the time of placement, the department shall implement concurrent planning, as described in subsection (7) 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 social worker or social work team for a family and child throughout the implementation of their permanent living arrangement plan. Wherever feasible, the same social worker or social work team shall remain on the case until the child is no longer under the jurisdiction of the youth court.

(3) The State Department of Human 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 such adjudication, and each public or private facility licensed by the department. The review shall be completed on each child within the first three (3) months and once every six (6) months after the child's initial forty-eight (48) hours shelter hearing. Such 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 its 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 State Department of Human Services shall be to return the child to its 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 twelve (12) months of the date of the dispositional order. The dispositional order must be issued within sixty (60) days of the date on which the child was removed from the home. In furthering this goal, the department shall establish policy and procedures designed to appropriately place children in permanent homes, such 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) and any interested relative for the first two (2) months following the child's entry into the foster care system * * *. Except in cases of aggravated circumstances prescribed in Section 43-21-603(7)(c) or (d), the child's natural parent(s) will have a reasonable time to be determined by the court. This time 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 within six (6) months thereafter. For children under the age of three (3) years, termination of parental rights shall be initiated within six (6) months and placement in a permanent relative's home, adoptive home or foster/adoptive home within two (2) months. For children who have been abandoned pursuant to 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.

(4) The review once every six (6) months shall be conducted by personnel within the State Department of Human 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 which has cared for the child, the social worker 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. In the interest of the child, the court shall, where appropriate, initiate proceedings on its own motion. The State Department of Human Services shall report to the Legislature as to the number of such children, the findings of the foster care review board and relevant statistical information in foster care in a semi-annual report to the Legislature to be submitted to the Joint Oversight Committee of the Department of Human Services. Said report shall not refer to the specific name of any child in foster care.

(5) The State Department of Human 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 prior to, or within ninety (90) days after child placement with such parent. Record of such foster care parent's training program participation shall be filed with the court as part of a foster care child's review plan once every six (6) months.

(6) When the Department of Human 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. 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 such requirements cannot be met in the relative's home.

(7) 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 Human 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 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.

(8) If the department has placed a child in foster care or relative care pursuant to 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 or unless the new placement is in an adoptive home or other permanent placement. In such cases, except in emergency circumstances as determined by the department or where the court orders placement of the child pursuant to 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 prior to any departure, and the court may conduct a review of such 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.

(9) The Department of Human 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 pursuant to 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.

(10) The Department of Human Services shall extend the following rights to foster care parents:

(a) A clear understanding of their role as foster parents 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 foster child as team members who have pertinent information based on their day-to-day knowledge of the child in care;

(d) Support from the social worker 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 social worker 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 foster parent education;

(g) The opportunity to be heard regarding agency practices that they may question; and

(h) Reimbursement for costs of the foster child's care in the form of a board payment based on the age of the foster child as prescribed in Section 43-15-17.

The Department of Human Services shall require the following responsibilities from participating foster parents:

(a) Understanding the department's function in regard to the foster care program and related social service programs;

(b) Sharing with the department any information which may contribute to the care of foster children;

(c) Functioning within the established goals and objectives to improve the general welfare of the foster child;

(d) Recognizing the problems in foster home placement that will require professional advice and assistance and that such help should be utilized to its full potential;

(e) Recognizing that the foster family 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 view of agency practices which relate to the foster child with the appropriate staff member;

(g) Understanding that all information shared with the foster parents 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 foster 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 4. Section 43-15-17, Mississippi Code of 1972, is amended as follows:

43-15-17. (1) The State Department of Human 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 State Department of Human 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 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 Human Services' foster care and therapeutic care monthly payment schedule in effect prior to that date shall be increased by One Hundred Dollars ($100.00) per month, with said minimum payment not to preclude the department from increasing payments in subsequent years as funds become available. From and after July 1, 1998, in order for foster parents to receive such monthly payments authorized under this subsection (2), the Department of Human 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 which emphasizes the goal of the foster care program to provide stable foster placement until a permanency outcome is achieved.

SECTION 5. Section 43-15-6, Mississippi Code of 1972, is amended as follows:

43-15-6. No person convicted of a crime affecting children or any other crime as set forth in Section 97-5-1, Mississippi Code of 1972, relating to the abandonment of a child under age six (6); Section 97-5-21, Mississippi Code of 1972, relating to seduction of a child under age eighteen (18); Section 97-5-23, Mississippi Code of 1972, relating to the touching of a child for lustful purposes; Section 97-5-35, Mississippi Code of 1972, relating to the exploitation of children; Section 97-5-39, Mississippi Code of 1972, relating to contributing to the neglect or delinquency of a child and felonious battery of a child; Section 97-5-41, Mississippi Code of 1972, relating to the carnal knowledge of a stepchild, adopted child or child of a cohabiting partner; Section 97-3-95, Mississippi Code of 1972, relating to sexual battery; Section 97-29-59, Mississippi Code of 1972, relating to unnatural intercourse; Section 41-29-145, Mississippi Code of 1972, relating to the distribution of controlled substances to persons under age twenty-one (21); Section 97-3-19, Mississippi Code of 1972, relating to murder and capital murder; Section 97-3-53, Mississippi Code of 1972, relating to kidnapping; Section 97-3-65, 97-3-67 or 97-3-71, Mississippi Code of 1972, relating to rape; Section 97-29-31, Mississippi Code of 1972, relating to indecent exposure; a felony conviction (a) for child abuse or neglect, (b) for spousal abuse, (c) for a crime against children (including child pornography), or (d) for a crime involving violence, including rape, sexual assault or homicide, but not including other physical assault or battery, where a court has determined that a felony was committed at any time; a felony conviction for physical assault, battery or a drug-related offense, if a court of competent jurisdiction has determined that the felony was committed by the person within the past five (5) years; or any other offense committed in another jurisdiction which, if committed in this state, would be deemed to be such a crime without regard to its designation elsewhere, shall be licensed as a foster parent or a foster home by the Department of Human Services. The Department of Human Services is authorized to check any public records available in the State of Mississippi for such criminal information.

SECTION 6. 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 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 or, while being required to attend an alternative school program provided under Section 37-13-92, willfully and habitually absents himself therefrom.

(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 Mississippi School Compulsory Attendance Law, 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; provided, 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 said mental condition be mentally retarded or mentally ill; 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 said child sexual abuse, sexual exploitation, emotional abuse, mental injury, nonaccidental physical injury or other maltreatment. Provided, however, that 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.

(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.

SECTION 7. 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 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 one (1) year under the supervision of the Department of Human Services. The requirements of Section 43-21-613 as to disposition review hearings does 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) 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;

(d) Order youth court personnel, the Department of Human 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;

(e) Give legal custody of the child to any of the following but in no event to any state training school:

(i) The Department of Human 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.

SECTION 8. 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 which complies with the sections governing petitions in this chapter and which 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) 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. Notice of such review shall be given in accordance with the provisions of Section 43-21-505(5). In conducting the review, the judge or referee may require a written report, 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. After the review, the youth court may modify the disposition order to any appropriate disposition which the youth court could have originally ordered. The judge or referee shall, at the review hearing, determine the future status of the child, including, but not limited to, whether the child should be returned to the parent or placed with suitable relatives, should be continued in foster care for a specified period, should be placed for adoption or should, because of the child's special needs or circumstances, be continued in foster care on a permanent or long-term basis.

In the event that the youth court either continues the custody or supervision of a child to be placed with the Department of Human Services or any other person or public or private agency, other than the child's parent, guardian or custodian, or orders that the custody or supervision of a child be placed with the Department of Human Services or any other person or public or private agency, other than the child's parent, guardian or custodian, the youth court shall find and the review hearing order shall recite that the effect of the continuation of the child's residence within his own home would be contrary to the welfare of the child and that placement or continued placement of the child in foster care is in the best interest of the child, and that:

(a) Reasonable efforts have been made to maintain the child within his own home, but that the circumstances warrant his removal and there is no reasonable alternative to custody; or

(b) The circumstances are of such an emergency nature that no reasonable efforts have been made to maintain the child within his own home, and that there is no reasonable alternative to custody.

The provisions of this subsection shall also apply to review of cases involving a dependent child; provided, 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.

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.

SECTION 9. Section 43-21-121, Mississippi Code of 1972, is amended as follows:

43-21-121. (1) The youth court shall appoint a guardian ad litem for the child:

(a) When a child has no parent, guardian or custodian;

(b) When the youth court cannot acquire personal jurisdiction over a parent, a guardian or a custodian;

(c) When the parent is a minor or a person of unsound mind;

(d) When the parent is indifferent to the interest of the child or if the interests of the child and the parent, considered in the context of the cause, appear to conflict;

(e) In every case involving an abused or neglected child which results in a judicial proceeding; or

(f) In any other instance where the youth court finds appointment of a guardian ad litem to be in the best interest of the child.

(2) The guardian ad litem shall be appointed by the court when custody is ordered or at the first judicial hearing regarding the case, whichever occurs first.

(3) In addition to all other duties required by law, a guardian ad litem shall have the duty to protect the interest of a child for whom he has been appointed guardian ad litem. The guardian ad litem shall investigate, make recommendations to the court or enter reports as necessary to hold paramount the child's best interest. The guardian ad litem is not an adversary party and the court shall insure that guardians ad litem perform their duties properly and in the best interest of their wards. The guardian ad litem shall be a competent person who has no adverse interest to the minor. The court shall insure that the guardian ad litem is adequately instructed on the proper performance of his duties.

(4) The court may appoint either a suitable attorney or a suitable layman as guardian ad litem. In cases where the court appoints a layman as guardian ad litem, the court shall also appoint an attorney to represent the child. From and after January 1, 1999, in order to be eligible for an appointment as a guardian ad litem, such attorney or lay person must have received child protection and juvenile justice training provided by or approved by the Mississippi Judicial College within the year immediately preceding such appointment. The Mississippi Judicial College shall determine the amount of child protection and juvenile justice training which shall be satisfactory to fulfill the requirements of this section. The Administrative Office of Courts shall maintain a roll of all attorneys and laymen eligible to be appointed as a guardian ad litem under this section and shall enforce the provisions of this subsection. * * *

(5) Upon appointment of a guardian ad litem, the youth court shall continue any pending proceedings for a reasonable time to allow the guardian ad litem to familiarize himself with the matter, consult with counsel and prepare his participation in the cause.

(6) Upon order of the youth court, the guardian ad litem shall be paid a fee by the county out of the general fund as provided under Section 43-21-123. To be eligible for such fee, the guardian ad litem shall submit an accounting of the time spent in performance of his duties to the court. The fee for serving as a guardian ad litem shall not exceed the hourly rate paid by the county to attorneys appointed to defend indigent criminal defendants, as allowed by the court.

(7) The court, in its sound discretion, may appoint a volunteer trained layperson to assist children subject to the provisions of this section in addition to the appointment of a guardian ad litem.

SECTION 10. Section 93-15-103, Mississippi Code of 1972, is amended as follows:

93-15-103. (1) When a child has been removed from the home of its natural parents and cannot be returned to the home of his natural parents within a reasonable length of time because returning to the home would be damaging to the child or the parent is unable or unwilling to care for the child, relatives are not appropriate or are unavailable, and when adoption is in the best interest of the child, taking into account whether the adoption is needed to secure a stable placement for the child and the strength of the child's bonds to his natural parents and the effect of future contacts between them, the grounds listed in subsections (2) and (3) of this section shall be considered as grounds for the termination of parental rights. The grounds may apply singly or in combination in any given case.

(2) The rights of a parent with reference to a child, including parental rights to control or withhold consent to an adoption, and the right to receive notice of a hearing on a petition for adoption, may be relinquished and the relationship of the parent and child terminated by the execution of a written voluntary release, signed by the parent, regardless of the age of the parent.

(3) Grounds for termination of parental rights shall be based on one or more of the following factors:

(a) A parent has deserted without means of identification or abandoned a child as defined in Section 97-5-1, or

(b) A parent has made no contact with a child under the age of three (3) for six (6) months or a child three (3) years of age or older for a period of one (1) year; or

(c) A parent has been responsible for a series of abusive incidents concerning one or more children; or

(d) When the child has been in the care and custody of a licensed child caring agency or the Department of Human Services for at least one (1) year, that agency or the department has made diligent efforts to develop and implement a plan for return of the child to its parents, and:

(i) The parent has failed to exercise reasonable available visitation with the child; or

(ii) The parent, having agreed to a plan to effect placement of the child with the parent, fails to implement the plan so that the child caring agency is unable to return the child to said parent; or

(e) The parent exhibits ongoing behavior which would make it impossible to return the child to the parent's care and custody:

(i) Because the parent has a diagnosable condition unlikely to change within a reasonable time such as alcohol or drug addiction, severe mental deficiencies or mental illness, or extreme physical incapacitation, which condition makes the parent unable to assume minimally, acceptable care of the child; or

(ii) Because the parent fails to eliminate behavior, identified by the child caring agency or the court, which prevents placement of said child with the parent in spite of diligent efforts of the child caring agency to assist the parent; or

(f) When there is an extreme and deep-seated antipathy by the child toward the parent or when there is some other substantial erosion of the relationship between the parent and child which was caused at least in part by the parent's serious neglect, abuse, prolonged and unreasonable absence, unreasonable failure to visit or communicate, or prolonged imprisonment; or

(g) When a parent has been convicted of any of the following offenses against his natural or adopted child: (i) rape of a child under the provisions of Section 97-3-65, (ii) sexual battery of a child under the provisions of Section 97-3-95(c), (iii) touching a child for lustful purposes under the provisions of Section 97-5-23, (iv) exploitation of a child under the provisions of Section 97-5-31, (v) felonious abuse or battery of a child under the provisions of Section 97-5-39(2), * * * (vi) carnal knowledge of a step or adopted child or a child of a cohabitating partner under the provisions of Section 97-5-41, or (vii) murder of another child of such parent, voluntary manslaughter of another child of such parent, aided or abetted, attempted, conspired or solicited to commit such murder or voluntary manslaughter, or a felony assault that results in the serious bodily injury to the surviving child or another child of such parent; or

(h) The child has been adjudicated to have been abused or neglected and custody has been transferred from the child's parent(s) for placement pursuant to Section 43-15-13, and a court of competent jurisdiction has determined that reunification shall not be in the child's best interest.

(4) Legal custody and guardianship by persons other than the parent as well as other permanent alternatives which end the supervision by the Department of Human Services should be considered as alternatives to the termination of parental rights, and these alternatives should be selected when, in the best interest of the child, parental contacts are desirable and it is possible to secure such placement without termination of parental rights.

(5) When a parent has been convicted of rape of a child under the provisions of Section 97-3-65, sexual battery of a child under the provisions of Section 97-3-95(c), touching a child for lustful purposes under the provisions of Section 97-5-23, exploitation of a child under the provisions of Section 97-5-31, felonious abuse or battery of a child under the provisions of Section 97-5-39(2), or carnal knowledge of a step or adopted child or a child of a cohabitating partner under the provisions of Section 97-5-41, notice of the conviction shall be forwarded by the circuit clerk of the county in which the conviction occurred to the Mississippi Department of Human Services, Division of Social Services.

(6) In any case where a child has been removed from the parent's home due to sexual abuse or serious bodily injury to the child, the court shall treat such case for termination of parental rights as a preference case to be determined with all reasonable expedition.

SECTION 11. Section 93-15-107, Mississippi Code of 1972, is amended as follows:

93-15-107. (1) In an action to terminate parental rights, the mother of the child, the legal father of the child, and the putative father of the child, when known, shall be parties defendant. A guardian ad litem shall be appointed to protect the interest of the child in the termination of parental rights. A child may be made party plaintiff, and any agency holding custody of a minor shall act as party plaintiff.

(2) The Department of Human Services shall initiate proceedings to terminate parental rights in accordance with Section 93-15-101 et seq. in cases where a child has been placed in the physical custody of a relative and the department has been given legal custody of the child. The department may provide necessary funds to defray the costs and attorney fees for any adoption proceedings brought by the relative of such child in cases where the relative is unable to pay such costs and fees based on criteria established by the department in compliance with federal law and the availability of funds to the department to pay such costs and fees.

SECTION 12. Section 43-21-603, Mississippi Code of 1972, is amended as follows:

43-21-603. (1) At the beginning of each disposition hearing, the judge shall inform the parties of the purpose of the hearing.

(2) All testimony shall be under oath unless waived by all parties and may be in narrative form. The court may consider any evidence which is material and relevant to the disposition of the cause, including hearsay and opinion evidence. At the conclusion of the evidence, the youth court shall give the parties an opportunity to present oral argument.

(3) If the child has been adjudicated a delinquent child, prior to entering a disposition order, the youth court should consider, among others, the following relevant factors:

(a) The nature of the offense;

(b) The manner in which the offense was committed;

(c) The nature and number of a child's prior adjudicated offenses; and

(d) The child's need for care and assistance.

(4) If the child has been adjudicated a child in need of supervision, prior to entering a disposition order, the youth court should consider, among others, the following relevant factors:

(a) The nature and history of the child's conduct;

(b) The family and home situation; and

(c) The child's need of care and assistance.

(5) If the child has been adjudicated a neglected child or an abused child, prior to entering a disposition order, the youth court shall consider, among others, the following relevant factors:

(a) The child's physical and mental conditions;

(b) The child's need of assistance;

(c) The manner in which the parent, guardian or custodian participated in, tolerated or condoned the abuse, neglect or abandonment of the child; * * *

(d) The ability of a child's parent, guardian or custodian to provide proper supervision and care of a child; and

(e) Relevant testimony and recommendations, where available, 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 which has cared for the child, the social worker assigned to the case, and any other relevant testimony pertaining to the case.

(6) After consideration of all the evidence and the relevant factors, the youth court shall enter a disposition order which shall not recite any of the facts or circumstances upon which such disposition is based, nor shall it recite that a child has been found guilty; but it shall recite that a child is found to be a delinquent child, a child in need of supervision, a neglected child or an abused child.

(7) In the event that the youth court orders that the custody or supervision of a child be placed with the Department of Human Services or any other person or public or private agency, other than the child's parent, guardian or custodian, the youth court shall find and the disposition order shall recite that: (a) reasonable efforts have been made to maintain the child within his own home, but that the circumstances warrant his removal and there is no reasonable alternative to custody; or (b) the circumstances are of such an emergency nature that no reasonable efforts have been made to maintain the child within his own home, and that there is no reasonable alternative to custody; or (c) reasonable efforts to maintain the child within his home shall not be required if the court determines that (i) the parent has subjected the child to aggravated circumstances including, but not limited to, abandonment, torture, chronic abuse and sexual abuse, or (ii) the parent has been convicted of murder of another child of such parent, voluntary manslaughter of another child of such parent, aided or abetted, attempted, conspired or solicited to commit such murder or voluntary manslaughter, or a felony assault that results in the serious bodily injury to the surviving child or another child of such parent; or (d) the parental rights of the parent to a sibling have been terminated involuntarily; and (e) that the effect of the continuation of the child's residence within his own home would be contrary to the welfare of the child and that placement of the child in foster care is in the best interests of the child. The youth court shall also order that reasonable efforts shall continue to be made towards reunification of the family.

(8) Upon a written motion by a party, the youth court shall make written findings of fact and conclusions of law upon which it relies for the disposition order.

SECTION 13. Section 93-17-5, Mississippi Code of 1972, is amended as follows:

93-17-5. (1) There shall be made parties to the proceeding by process or by the filing therein of a consent to the adoption proposed in the petition, which consent shall be duly sworn to or acknowledged and executed only by the following persons, but not before seventy-two (72) hours after the birth of said child: (a) the parents, or parent, if only one (1) parent, though either be under the age of twenty-one (21) years; or, (b) in the event both parents are dead, then any two (2) adult kin of the child within the third degree computed according to the civil law, provided that, if one of such kin is in possession of the child, he or she shall join in the petition or be made a party to the suit; or, (c) the guardian ad litem of an abandoned child, upon petition showing that the names of the parents of such child are unknown after diligent search and inquiry by the petitioners. In addition to the above, there shall be made parties to any proceeding to adopt a child, either by process or by the filing of a consent to the adoption proposed in the petition, the following:

(i) Those persons having physical custody of such child, except persons having such child as foster parents as a result of placement with them by the Department of Human Services of the State of Mississippi.

(ii) Any person to whom custody of such child may have been awarded by a court of competent jurisdiction of the State of Mississippi.

(iii) The agent of the county Department of Human Services of the State of Mississippi that has placed a child in foster care, either by agreement or by court order.

(2) Such consent may also be executed and filed by the duly authorized officer or representative of a home to whose care the child has been delivered. The child shall join the petition by its next friend.

[Until June 30, 1999, this subsection (3) shall read as follows:]

(3) In the case of a child born out of wedlock, the father shall not have a right to object to an adoption unless he has demonstrated, within the period ending thirty (30) days after the birth of the child, a full commitment to the responsibilities of parenthood. Determination of the rights of the father of a child born out of wedlock may be made in proceedings pursuant to a Petition for Determination of Rights as provided in Section 93-17-6.

[From and after July 1, 1999, this subsection (3) shall read as follows:]

(3) In the case of a child born out of wedlock, the father shall not be deemed to be a parent for the purpose of this chapter, and no reference shall be made to the illegitimacy of such child.

(4) If such consent be not filed, then process shall be had upon the parties as provided by law for process in person or by publication, if they be nonresidents of the state or are not found therein, after diligent search and inquiry, or are unknown after diligent search and inquiry; provided that the court or chancellor in vacation may fix a date in termtime or in vacation to which process may be returnable and shall have power to proceed in termtime or vacation. In any event, if the child is more than fourteen (14) years of age, a consent to the adoption, sworn to or acknowledged by the child, shall also be required or personal service of process shall be had upon the child in the same manner and in the same effect as if it were an adult.

SECTION 14. The following provision shall be codified as Section 93-17-6, Mississippi Code of 1972:

93-17-6. Petition for Determination of Rights.

(1) Any person who would be a necessary party to an adoption proceeding under this chapter and any person alleged or claiming to be the father of a child born out of wedlock who is proposed for adoption or who has been determined to be such by any administrative or judicial procedure (the "alleged father") may file a petition for determination of rights as a preliminary pleading to a petition for adoption in any court which would have jurisdiction and venue of an adoption proceeding. A petition for determination of rights may be filed at any time after the period ending thirty (30) days after the birth of the child. Should competing petitions be filed in two (2) or more courts having jurisdiction and venue, the court in which the first such petition was properly filed shall have jurisdiction over the whole proceeding until its disposition. The prospective adopting parents need not be a party to such petition. Where the child's biological mother has surrendered the child to a home for adoption, the home may represent the biological mother and her interests in this proceeding.

(2) The court shall set this petition for hearing as expeditiously as possible allowing not less than ten (10) days' notice from the service or completion of process on the parties to be served.

(3) The sole matter for determination under a petition for determination of rights is whether the alleged father has a right to object to an adoption as set out in Section 93-17-5(3).

(4) Proof of an alleged father's full commitment to the responsibilities of parenthood would be shown by proof that, in accordance with his means and knowledge of the mother's pregnancy or the child's birth, that he either:

(a) 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, and 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; or

(b) 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.

(5) If the court determines that the alleged father has not met his full responsibilities of parenthood, it shall enter an order terminating his parental rights and he shall have no right to object to an adoption under Section 93-17-7.

(6) If the court determines that the alleged father has met his full responsibilities of parenthood and that he objects to the child's adoption, the court shall set the matter as a contested adoption in accord with Section 93-17-8.

(7) A petition for determination of rights may be used to determine the rights of alleged fathers whose identity is unknown or uncertain. In such cases the court shall determine what, if any, notice can be and is to be given such persons. Determinations of rights under the procedure of this section may also be made under a petition for adoption.

(8) Petitions for determination of rights shall be considered adoption cases and all subsequent proceedings such as a contested adoption under Section 93-17-8 and the adoption proceeding itself shall be portions of the same file.

(9) A petition for determination of rights may not be filed after a final decree of adoption has become incontestable under Section 93-17-15.

(10) This Section 93-17-6 shall stand repealed from and after July 1, 1999.

SECTION 15. Section 93-17-7, Mississippi Code of 1972, is amended as follows:

[Until June 30, 1999, this section shall read as follows:]

93-17-7. (1) No infant shall be adopted to any person if either parent, after having been summoned, shall appear and object thereto before the making of a decree for adoption, unless it shall be made to appear to the court from evidence touching such matters that the parent so objecting had abandoned or deserted such infant or is mentally, or morally, or otherwise unfit to rear and train it, including, but not limited to, those matters set out in subsection (2) below, in either of which cases the adoption may be decreed notwithstanding the objection of such parent, first considering the welfare of the child, or children, sought to be adopted. Provided, however, the parents shall not be summoned in the adoption proceedings nor have the right to object thereto if the parental rights of the parent or parents have been terminated by the procedure set forth in Sections 93-15-101 through 93-15-111, and such termination shall be res judicata on the question of parental abandonment or unfitness in the adoption proceedings. Appointment of a guardian ad litem by the court shall not be mandatory when the adoption is uncontested.

(2) An adoption may be allowed over the objection of a parent where:

(a) The parent has 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) The parent has not consistently offered to provide reasonably necessary food, clothing, appropriate shelter and 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) The parent suffers from a 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 pose a risk of substantial harm to the physical, mental or emotional health of the child.

(e) The parent has engaged in acts or omissions permitting termination of parental rights under Section 93-15-103, subsections (2) and (3)(a), (b), (d) or (e).

(f) The enumeration of conduct or omissions in this subsection (2) in no way limits the court's power to such enumerated conduct or omissions in determining a parent's abandonment or desertion of the child or unfitness under subparagraph (1) above.

[From and after July 1, 1999, this section shall read as it appears in the main volume.]

SECTION 16. The following provision shall be codified as Section 93-17-8, Mississippi Code of 1972:

93-17-8. Contested Adoptions.

(1) Whenever an adoption becomes a contested matter, whether after a hearing on a petition for determination of rights under Section 92-17-6 or otherwise, the court:

(a) Shall, on motion of any party or on its own motion, issue an order for immediate blood or tissue sampling in accordance with the provisions of Section 93-9-21 et seq., if paternity is at issue. The court shall order an expedited report of such testing and shall hold the hearing resolving this matter at the earliest time possible.

(b) Shall appoint a guardian ad litem to represent the child. Such guardian ad litem shall be an attorney, however his duties are as guardian ad litem and not as attorney for the child. The reasonable costs of the guardian ad litem shall be taxed as costs of court. Neither the child nor anyone purporting to act on his behalf may waive the appointment of a guardian ad litem.

(c) Shall determine first whether or not the objecting parent is entitled to so object under the criteria of Section 93-17-7 and then shall determine the custody of the child in accord with the best interests of the child and the rights of the parties as established by the hearings and judgments.

(d) Shall schedule all hearings concerning the contested adoption as expeditiously as possible for prompt conclusion of the matter.

(2) In determining the custody of the child after a finding that the adoption will not be granted, the fact of the surrender of the child for adoption by a parent shall not be taken as any evidence of that parent's abandonment or desertion of the child or of that parent's unfitness as a parent.

(3) In contested adoptions arising through petitions for determination of rights where the prospective adopting parents were not parties to that proceeding, they need not be made parties to the contested adoption until there has been a ruling that the objecting parent is not entitled to enter a valid objection to the adoption. At that point the prospective adopting parents shall be made parties by joinder which shall show their suitability to be adopting parents as would a petition for adoption. The identity and suitability of the prospective adopting parents shall be made known to the court and the guardian ad litem, but shall not be made known to other parties to the proceeding unless the court determines that the interests of justice or the best interests of the child require it.

(4) No birth parent or alleged parent shall be permitted to contradict statements given in a proceeding for the adoption of their child in any other proceeding concerning that child or his ancestry.

(5) Appointment of a guardian ad litem is not required in any proceeding under this chapter except as provided in subsection (1)(b) above and except for the guardian ad litem needed for an abandoned child. It shall not be necessary for a guardian ad litem to be appointed where the chancery judge presiding in the adoption proceeding deems it unnecessary and no adoption agency is involved in the proceeding. No final decree of adoption heretofore granted shall be set aside or modified because a guardian ad litem was not appointed unless as the result of a direct appeal not now barred.

(6) The provisions of Chapter 15 of this Title 93, Mississippi Code of 1972, are not applicable to proceedings under this chapter except as specifically provided by reference herein.

(7) The court may order a child's birth father, identified as such in the proceedings, to reimburse the Department of Human Services, the foster parents, the adopting parents, the home, any other agency or person who has assumed liability for such child, all or part of the costs of the medical expenses incurred for the mother and the child in connection with the birth of the child, as well as reasonable support for the child after his birth.

SECTION 17. Section 93-17-9, Mississippi Code of 1972, is amended as follows:

93-17-9. As used in this chapter the word "home" shall be construed to include any charitable or religious corporation or organization or the superintendent or head of such charitable or religious corporation or organization organized under the laws of the State of Mississippi, or any public authority to which has been granted the power to provide care for or procure the adoption of children by any statute or statutes of this state, and any association or institution engaged in placing children for adoption on July 1, 1955. Any person required to be a party to an adoption proceeding by Section 93-17-5 may execute the surrender of a child to a home by sworn or acknowledged instrument which shall include the following: the name of the child and the home; that there is thereby vested in the home the exclusive custody, care and control of such child; that all parental rights to such child including the right of inheritance are relinquished by such person; provided, the rights of inheritance of the natural parents and the child shall not be affected until entry of a final decree of adoption; that the home is authorized to execute a consent to adoption as provided by this chapter and that process in any adoption proceeding is waived; that such surrender shall be irrevocable and that such person will not, in any manner, interfere with the custody of such child thus vested in the home. Said instrument shall not be executed until seventy-two (72) hours after the birth of the child and shall effectually vest in the home all rights thus surrendered and all powers thus created, with the right and power to execute the consent to adoption as required in this chapter authorizing the court to vest in the child and the adopting parent or parents the rights herein provided.

Where a child has been surrendered to a home or other agency operating under the laws of another state, and the child is delivered into the custody of a petitioner or home within this state, the execution of such consent by such nonresident home or agency shall be accepted in lieu of the execution of such consent by a home.

SECTION 18. Section 93-17-13, Mississippi Code of 1972, is amended as follows:

93-17-13. A final decree of adoption shall not be entered before the expiration of six (6) months from the entry of the interlocutory decree except (a) when a child is a stepchild of a petitioner or is related by blood to the petitioner within the third degree according to the rules of the civil law or in any case in which the chancellor in the exercise of his discretion shall determine from all the proceedings and evidence in said cause that the six-month waiting period is not necessary or required for the benefit of the court, the petitioners or the child to be adopted, and shall so adjudicate in the decree entered in said cause, in either of which cases the final decree may be entered immediately without any delay and without an interlocutory decree, or (b) when the child has resided in the home of any petitioner prior to the granting of the interlocutory decree, in which case the court may, in its discretion, shorten the waiting period by the length of time the child has thus resided.

The final decree shall adjudicate, in addition to such other provisions as may be found by the court to be proper for the protection of the interests of the child; and its effect, unless otherwise specifically provided, shall be that (a) the child shall inherit from and through the adopting parents and shall likewise inherit from the other children of the adopting parents to the same extent and under the same conditions as provided for the inheritance between brothers and sisters of the full blood by the laws of descent and distribution of the State of Mississippi, and that the adopting parents and their other children shall inherit from the child, just as if such child had been born to the adopting parents in lawful wedlock; (b) the child and the adopting parents and adoptive kindred are vested with all of the rights, powers, duties and obligations, respectively, as if such child had been born to the adopting parents in lawful wedlock, including all rights existing by virtue of Section 11-7-13, Mississippi Code of 1972; provided, however, that inheritance by or from the adopted child shall be governed by subsection (a) above; (c) that the name of the child shall be changed if desired; and (d) that the natural parents and natural kindred of the child shall not inherit by or through the child except as to a natural parent who is the spouse of the adopting parent, and all parental rights of the natural parent, or parents, shall be terminated, except as to a natural parent who is the spouse of the adopting parent. Nothing in this chapter shall restrict the right of any person to dispose of property under a last will and testament.

SECTION 19. Section 43-21-261, Mississippi Code of 1972, is amended as follows:

43-21-261. (1) Except as otherwise provided in this section, records involving children shall not be disclosed, other than to necessary staff of the youth court, except pursuant to an order of the youth court specifying the person or persons to whom the records may be disclosed, the extent of the records which may be disclosed and the purpose of the disclosure. Such court orders for disclosure shall be limited to those instances in which the youth court concludes, in its discretion, that disclosure is required for the best interests of the child, the public safety or the functioning of the youth court and then only to the following persons:

(a) The judge of another youth court or member of another youth court staff;

(b) The court of the parties in a child custody or adoption cause in another court;

(c) A judge of any other court or members of another court staff;

(d) Representatives of a public or private agency providing supervision or having custody of the child under order of the youth court;

(e) Any person engaged in a bona fide research purpose, provided that no information identifying the subject of the records shall be made available to the researcher unless it is absolutely essential to the research purpose and the judge gives prior written approval, and the child, through his or her representative, gives permission to release the information;

(f) The Mississippi Employment Security Commission, or its duly authorized representatives, for the purpose of a child's enrollment into the Job Corps Training Program as authorized by Title IV of the Comprehensive Employment Training Act of 1973 (29 U.S.C.A. Section 923 et seq.). However, no records, reports, investigations or information derived therefrom pertaining to child abuse or neglect shall be disclosed; and

(g) To any person pursuant to a finding by a judge of the youth court of compelling circumstances affecting the health or safety of a child and that such disclosure is in the best interests of the child.

Law enforcement agencies may disclose information to the public concerning the taking of a child into custody for the commission of a delinquent act without the necessity of an order from the youth court. The information released shall not identify the child or his address unless the information involves a child convicted as an adult.

(2) Any records involving children which are disclosed under an order of the youth court and the contents thereof shall be kept confidential by the person or agency to whom the record is disclosed except as provided in the order. Any further disclosure of any records involving children shall be made only under an order of the youth court as provided in this section.

(3) Upon request, the parent, guardian or custodian of the child who is the subject of a youth court cause or any attorney for such parent, guardian or custodian, shall have the right to inspect any record, report or investigation which is to be considered by the youth court at a hearing, except that the identity of the reporter shall not be released, nor the name of any other person where the person or agency making the information available finds that disclosure of the information would be likely to endanger the life or safety of such person.

(4) Upon request, the child who is the subject of a youth court cause shall have the right to have his counsel inspect and copy any record, report or investigation which is filed with the youth court.

(5) (a) The youth court prosecutor or prosecutors, the county attorney, the district attorney, the youth court defender or defenders, or any attorney representing a child shall have the right to inspect any law enforcement record involving children.

(b) The Department of Human Services shall disclose to a county prosecuting attorney or district attorney any and all records resulting from an investigation into suspected child abuse or neglect when the case has been referred by the Department of Human Services to the county prosecuting attorney or district attorney for criminal prosecution.

(c) Agency records made confidential under the provisions of this section may be disclosed to a court of competent jurisdiction.

(6) Information concerning an investigation into a report of child abuse or child neglect may be disclosed by the Department of Human Services without order of the youth court to any attorney, physician, dentist, intern, resident, nurse, psychologist, social worker, child care giver, minister, law enforcement officer, public or private school employee making that report pursuant to Section 43-21-353(1) if the reporter has a continuing professional relationship with the child and a need for such information in order to protect or treat the child.

(7) Information concerning an investigation into a report of child abuse or child neglect may be disclosed without further order of the youth court to any interagency child abuse task force established in any county or municipality by order of the youth court of that county or municipality.

(8) Names and addresses of juveniles twice adjudicated as delinquent for an act which would be a felony if committed by an adult or for the unlawful possession of a firearm shall not be held confidential and shall be made available to the public.

(9) Names and addresses of juveniles adjudicated as delinquent for murder, manslaughter, burglary, arson, armed robbery, aggravated assault, any sex offense as defined in Section 45-33-1, or for any violation of Section 41-29-139(a)(1), shall not be held confidential and shall be made available to the public.

(10) The judges of the circuit and county courts, and presentence investigators for the circuit courts, as provided in Section 47-7-9, shall have the right to inspect any youth court records of a person convicted of a crime for sentencing purposes only.

(11) The victim of an offense committed by a child who is the subject of a youth court cause shall have the right to be informed of the child's disposition by the youth court.

(12) The Classification Committee of the State Department of Corrections, as provided in Section 47-5-103, shall have the right to inspect any youth court records, excluding abuse and neglect records, of any offender in the custody of the department who as a child or minor was a juvenile offender or was the subject of a youth court cause of action, and the State Parole Board, as provided in Section 47-7-17, shall have the right to inspect such records when said offender becomes eligible for parole.

(13) The youth court shall notify the Department of Public Safety of the name, and any other identifying information such department may require, of any child who is adjudicated delinquent as a result of a violation of the Uniform Controlled Substances Law.

(14) The Administrative Office of Courts shall have the right to inspect any youth court records in order that the number of youthful offenders, abused, neglected, truant and dependent children, as well as children in need of special care and children in need of supervision, may be tracked with specificity through the youth court and adult justice system, and to utilize tracking forms for such purpose.

(15) Upon a request by a youth court, the Administrative Office of Courts shall disclose all information at its disposal concerning any previous youth court intakes alleging that a child was a delinquent child, child in need of supervision, child in need of special care, truant child, abused child or neglected child, as well as any previous youth court adjudications for the same and all dispositional information concerning a child who at the time of such request comes under the jurisdiction of the youth court making such request.

(16) Any member of a foster care review board designated by the Department of Human Services shall have the right to inspect youth court records relating to the abuse, neglect or child in need of supervision cases assigned to such member for review.

SECTION 20. Section 43-21-309, Mississippi Code of 1972, is amended as follows:

43-21-309. (1) A child who has been ordered or taken into custody may be held in custody for longer than temporary custody if:

(a) A written complaint or petition has been filed; and

(b) A court order has been entered for continued custody following a review of that custody at a detention hearing in delinquency and child in need of supervision cases and at a shelter hearing in abuse and neglect cases.

(2) Reasonable oral or written notice of the time, place and purpose of the hearing shall be given to the child; to his parent, guardian or custodian; to his guardian ad litem, if any; and to his counsel. If the parent, guardian or custodian cannot be found, the youth court may hold the hearing in the absence of the child's parent, guardian or custodian.

(3) At the detention or shelter hearing, all parties present shall have the right to present evidence and cross-examine witnesses produced by others. The youth court may, in its discretion, limit the extent but not the right or presentation of evidence and cross-examination of witnesses. The youth court may receive any testimony and other evidence relevant to the necessity for the continued custody of the child without regard to the formal rules of evidence, including hearsay and opinion evidence. All testimony shall be made under oath and may be in narrative form.

(4) (a) At the conclusion of the detention or shelter hearing, the youth court shall order that the child be released to the custody of the child's parent, guardian or custodian unless the youth court finds and the detention or shelter hearing order recites that:

(i) There is probable cause that the youth court has jurisdiction; and

(ii) Custody is necessary as defined in Section 43-21-301(3)(b). * * *

(b) In the case of a shelter hearing, the shelter hearing order shall further recite that:

(i) Reasonable efforts have been made to maintain the child within his own home, but that the circumstances warrant his 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 own home, and there is no reasonable alternative to custody.

(c) In the event that the court makes a finding in accordance with * * * subparagraph (ii), the court shall order that reasonable efforts be made towards reunification of the child with his family * * * and shall further order that the effect of the continuation of the child's residence within his own home would be contrary to the welfare of the child and that placement of the child in foster care is in the best interests of the child.

(5) The child with advice of counsel may waive in writing the time of the detention hearing or the detention hearing itself. The child's guardian ad litem, and parent, guardian or custodian, and child may waive in writing the time of the shelter hearing or the shelter hearing itself. If the child has not reached his tenth birthday, the child's consent shall not be required.

(6) Any order placing a child into custody shall comply with the * * * requirements provided in Section 43-21-301 * * *.

SECTION 21. An elected official shall not be precluded from serving as a foster parent under this act, and any payments on behalf of or for the benefit of a foster child shall not be considered a contract of interest or compensation or financial income to the elected official in violation of Section 109 of the Mississippi Constitution or any related statutes.

SECTION 22. This act shall take effect and be in force from and after July 1, 1998; provided that Section 2 shall take effect and be in force from and after its passage.