MISSISSIPPI LEGISLATURE

2001 Regular Session

To: Judiciary B; Public Health and Welfare

By: Representative Clarke, Brown, Ellis, Flaggs, Fredericks, Frierson, Gadd, Green, Harrison, Huddleston, Mayo, Moak, Montgomery (15th), Moody, Peranich, Reynolds, Rushing, Scott (17th), Straughter, Thomas, Wallace, Watson, Whittington

AN ACT TO PROVIDE THAT HEALTH CARE PROVIDERS SHALL TAKE POSSESSION OF CERTAIN CHILDREN WHO ARE VOLUNTARILY DELIVERED TO SUCH PROVIDERS; TO PROVIDE NOTICE TO THE DEPARTMENT OF HUMAN SERVICES; TO PROVIDE FOR THE ACCEPTANCE OF POSSESSION OF AN ABANDONED CHILD; TO AMEND SECTION 93-15-103, MISSISSIPPI CODE OF 1972, TO PROVIDE THAT SUCH ABANDONMENT SHALL BE GROUNDS FOR THE TERMINATION OF PARENTAL RIGHTS; TO AMEND SECTION 97-5-1, MISSISSIPPI CODE OF 1972, TO PROVIDE AN AFFIRMATIVE DEFENSE FOR SUCH ABANDONMENT; AND FOR RELATED PURPOSES.

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

SECTION 1. (1) A licensed health care provider shall, without a court order, take possession of a child who is thirty (30) days old or younger if the child is voluntarily delivered to the provider by the child's parent and the parent did not express an intent to return for the child.

(2) A health care provider who takes possession of a child under this section shall perform any act necessary to protect the physical health or safety of the child.

SECTION 2. (1) Not later than the close of the first business day after the date on which a health care provider takes possession of a child under Section 1 of this act, the provider shall notify the Department of Human Services that the provider has taken possession of the child.

(2) The department shall assume the care, control and custody of the child immediately on receipt of notice under subsection (1).

SECTION 3. A child for whom the Department of Human Services assumes care, control and custody under Section 2 of this act shall be treated as a child taken into possession without a court order, and the department shall take action as required by law with regard to the child.

SECTION 4. 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; or

(i) The child has been voluntarily delivered to a health care provider as provided in Section 1 of this act without expressing an intent to return for the child.

(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 5. Section 97-5-1, Mississippi Code of 1972, is amended as follows:

97-5-1. (1) If the father or mother of any child under the age of six (6) years, or any other person having the lawful custody of such child, or to whom such child shall have been confided, shall expose such child in any highway, street, field, house, outhouse, or elsewhere, with intent wholly to abandon it, such person shall, upon conviction, be punished by imprisonment in the Penitentiary not more than seven (7) years, or in the county jail not more than one (1) year.

(2) It is an affirmative defense to prosecution under subsection (1) of this section that the actor voluntarily delivered the child to a health care provider under Section 1 of this act.

SECTION 6. This act shall take effect and be in force from and after July 1, 2001.