MISSISSIPPI LEGISLATURE
2023 Regular Session
To: Judiciary A
By: Representatives Cockerham, Anthony, Stamps
AN ACT TO PROVIDE A CLEAR PATH TO PERMANENCY FOR CHILDREN IN THE CUSTODY OF THE DEPARTMENT OF CHILD PROTECTION SERVICES; TO AMEND SECTION 43-21-201, MISSISSIPPI CODE OF 1972, TO PROVIDE THAT CHILDREN ALLEGED TO HAVE BEEN ABUSED OR NEGLECTED SHALL BE A PARTY AND SHALL BE REPRESENTED BY COUNSEL; TO PROVIDE THAT A PARTY'S RIGHT TO REPRESENTATION SHALL EXTEND TO SHELTER HEARINGS; TO PROVIDE THAT THE DEPARTMENT OF CHILD PROTECTION SERVICES SHALL BE A NECESSARY PARTY AT ALL STAGES OF THE PROCEEDINGS INVOLVING A CHILD FOR WHOM THE DEPARTMENT HAS CUSTODY INCLUDING, BUT NOT LIMITED TO, SHELTER, ADJUDICATORY, DISPOSITION AND PERMANENCY HEARINGS; TO AMEND SECTION 43-21-501, MISSISSIPPI CODE OF 1972, TO REQUIRE THE YOUTH COURT TO ISSUE A SUMMONS TO THE DEPARTMENT OF CHILD PROTECTION SERVICES IF A PETITION IS FILED THAT INVOLVES A CHILD FOR WHOM THE DEPARTMENT HAS CUSTODY OF OR MAY BE AWARDED CUSTODY OF; TO AMEND SECTION 43-21-701, MISSISSIPPI CODE OF 1972, TO ADD ADDITIONAL MEMBERS TO THE MISSISSIPPI COMMISSION ON A UNIFORM YOUTH COURT SYSTEM AND PROCEDURES; TO REVISE THE QUORUM OF THE COMMISSION; TO AMEND SECTION 43-21-703, MISSISSIPPI CODE OF 1972, TO PROVIDE THAT THE COMMISSION SHALL FILE A REPORT WITH THE LEGISLATURE ON OR BEFORE A CERTAIN DATE; TO AMEND SECTION 93-15-107, MISSISSIPPI CODE OF 1972, TO REQUIRE THE CLERK TO DOCKET TERMINATION-OF-PARENTAL-RIGHTS CASES AS PRIORITY CASES ON THE COURT'S DOCKET; TO REQUIRE IMMEDIATE NOTIFICATION TO THE ASSIGNED JUDGE UPON FILING; TO AMEND SECTION 93-17-3, MISSISSIPPI CODE OF 1972, TO PROVIDE THAT FOR ADOPTION PROCEEDINGS THE CHANCERY COURT HAS ORIGINAL EXCLUSIVE JURISDICTION OVER ALL ADOPTION PROCEEDINGS EXCEPT WHEN A COUNTY COURT SITTING AS A YOUTH COURT HAS ACQUIRED JURISDICTION OF A CHILD IN AN ABUSE OR NEGLECT PROCEEDING; TO PROVIDE THAT THE COUNTY COURT SHALL HAVE ORIGINAL EXCLUSIVE JURISDICTION TO HEAR A PETITION FOR ADOPTION OF A CHILD IN AN ABUSE OR NEGLECT PROCEEDING; TO REQUIRE THE CLERK TO DOCKET ADOPTION PROCEEDINGS AS PRIORITY CASES ON THE COURT'S DOCKET; TO REQUIRE IMMEDIATE NOTIFICATION TO THE ASSIGNED JUDGE UPON FILING; TO BRING FORWARD SECTION 7-5-1, MISSISSIPPI CODE OF 1972, WHICH PROVIDES FOR THE POWERS OF THE ATTORNEY GENERAL, FOR POSSIBLE AMENDMENT; AND FOR RELATED PURPOSES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
SECTION 1. Section 43-21-201, Mississippi Code of 1972, is amended as follows:
43-21-201. (1) (a) Each party shall have the right to be represented by counsel at all stages of the proceedings including, but not limited to, detention, shelter, adjudicatory and disposition hearings and parole or probation revocation proceedings.
(b) In delinquency matters the court shall appoint legal defense counsel who is not also a guardian ad litem for the same child. If the party is a child, the child shall be represented by counsel at all critical stages: detention, adjudicatory and disposition hearings; parole or probation revocation proceedings; and post-disposition matters. If indigent, the child shall have the right to have counsel appointed for him by the youth court.
(c) A child who is alleged to have been abused or neglected shall be deemed to be a party to the proceedings under this chapter. The child shall be represented by an attorney at all stages of any proceedings held pursuant to this chapter. The court shall appoint an attorney to any child who is unrepresented.
(2) When a party first appears before the youth court, the judge shall ascertain whether he is represented by counsel and, if not, inform him of his rights including his right to counsel. If the court determines that a parent or guardian who is a party in an abuse, neglect or termination of parental rights proceeding is indigent, the youth court judge may appoint counsel to represent the indigent parent or guardian in the proceeding.
(3) An attorney appointed
to represent a * * * child shall be required to complete annual juvenile
justice training that is approved by the Mississippi Office of State Public
Defender and the Mississippi Commission on Continuing Legal Education. An
attorney appointed to represent a parent or guardian in an abuse, neglect or
termination of parental rights proceeding shall be required to complete annual
training that is approved by the Office of State Public Defender and the
Mississippi Commission on Continuing Legal Education. The Mississippi Office
of State Public Defender and the Mississippi Commission on Continuing Legal
Education shall determine the amount of juvenile justice training and
continuing education required to fulfill the requirements of this subsection.
The State Public Defender shall maintain a roll of attorneys who have complied
with the training requirements and shall enforce the provisions of this
subsection. Should an attorney fail to complete the annual training
requirement or fail to attend the required training within six (6) months of
being appointed to a youth court case, the attorney shall be disqualified to
serve and the youth court shall immediately terminate the representation and
appoint another attorney. Attorneys appointed by a youth court to five (5) or
fewer cases a year are exempt from the requirements of this subsection.
(4) The child's attorney shall owe the same duties of undivided loyalty, confidentiality and competent representation to the child or minor as is due an adult client pursuant to the Mississippi Rules of Professional Conduct.
(5) An attorney shall enter his appearance on behalf of a party in the proceeding by filing a written notice of appearance with the youth court, by filing a pleading, notice or motion signed by counsel or by appearing in open court and advising the youth court that he is representing a party. After counsel has entered his appearance, he shall be served with copies of all subsequent pleadings, motions and notices required to be served on the party he represents. An attorney who has entered his appearance shall not be permitted to withdraw from the case until a timely appeal, if any, has been decided, except by leave of the court then exercising jurisdiction of the cause after notice of his intended withdrawal is served by him on the party he represents.
(6) Each designee appointed by a youth court judge shall be subject to the Code of Judicial Conduct and shall govern himself or herself accordingly.
(7) The Department of Child Protection Services shall be a necessary party at all stages of the proceedings involving a child for whom the department has custody, including, but not limited to, shelter, adjudicatory, disposition and permanency hearings.
SECTION 2. Section 43-21-501, Mississippi Code of 1972, is amended as follows:
43-21-501. When a petition has been filed and the date of hearing has been set by the youth court, the judge or his designee shall order the clerk of the youth court to issue a summons to the following to appear personally at such hearing:
(a) The child named in the petition;
(b) The person or persons who have custody or control of the child;
(c) The parent or
guardian of the child if such parent or guardian does not have custody of the
child; * * *
(d) The Department of Child Protection Services; and
( * * *e) Any other person whom the court
deems necessary.
SECTION 3. Section 43-21-701, Mississippi Code of 1972, is amended as follows:
43-21-701. (1) There is
hereby established the Mississippi Commission on a Uniform Youth Court System
and Procedures. The commission shall consist of the following * * * twenty-one (21) members:
(a) One (1) circuit court judge appointed by the Chief Justice of the Mississippi Supreme Court;
(b) One (1) chancery court judge, appointed by the Chief Justice of the Mississippi Supreme Court;
(c) The President of the Mississippi Council of Youth Court Judges, or his designee;
(d) Two (2) who may be either family court judges or county court judges, appointed by the President of the Mississippi Council of Youth Court Judges;
(e) Two (2) youth court referees, appointed by the President of the Mississippi Council of Youth Court Judges;
(f) One (1) member of the Mississippi House of Representatives to be appointed by the Speaker of the House;
(g) One (1) member of the Mississippi Senate to be appointed by the Lieutenant Governor;
(h) The directors of
the following state agencies or their designated representatives: the
Mississippi Department of * * * Youth Human Services and the Mississippi Department of * * * Child Protection Services;
(i) The director or his designated representative of the Governor's Office of Federal-State Programs;
(j) * * * Two (2) employees,
other than the director, of the Department of * * * Child Protection Services
who * * * are
supervisors of social workers primarily assigned to youth cases, appointed
by the Governor;
(k) One (1) employee, other than the director, of the Department of Child Protection Services who is experienced with the legal process of youth court cases, appointed by the Governor;
( * * *l) One (1) municipal police chief, appointed
by the Governor;
( * * *m) One (1) county sheriff, appointed
by the Governor;
( * * *n) Two (2) lawyers experienced in
youth court work, appointed by the Governor; and
( * * *o) Two (2) prosecuting attorneys who
prosecute cases in youth court, appointed by the Governor.
(2) The members shall be
appointed to the commission within fifteen (15) days of the effective date of
Sections 43-21-701 and 43-21-703 and shall serve until the end of their
respective terms of office, if applicable, or until October 1, * * * 2024, whichever occurs first. Vacancies
on the commission shall be filled in the manner of the original appointment.
Members shall be eligible for reappointment provided that upon such
reappointment they meet the qualifications required of a new appointee.
(3) The commission may elect any officers from among its membership as it deems necessary for the efficient discharge of the commission's duties.
(4) The commission shall
adopt rules and regulations governing times and places for meetings and
governing the manner of conducting its business. * * * Twelve (12) or more members
shall constitute a quorum for the purpose of conducting any business of the
commission; provided, however, a vote of not less than * * * fourteen (14) members shall
be required for any recommendations to the Legislature.
(5) Members of the commission shall serve without compensation, except that state and county employees and officers shall receive any per diem as authorized by law from appropriations available to their respective agencies or political subdivisions. All commission members shall be entitled to receive reimbursement for any actual and reasonable expenses incurred as a necessary incident to service on the commission, including mileage as provided by law.
(6) The commission may select and employ a research director who shall perform the duties which the commission directs, which duties shall include the hiring of such other employees for the commission as the commission may approve. The research director and all other employees of the commission shall be in the state service and their salaries shall be established by the commission subject to approval by the State Personnel Board. Employees of the commission shall be reimbursed for the expenses necessarily incurred in the performance of their official duties in the same manner as other state employees. The commission may also employ any consultants it deems necessary, including consultants to compile any demographic data needed to accomplish the duties of the commission.
(7) The Governor's Office
of Federal-State Programs shall support the Commission on a Uniform Youth Court
System and shall act as agent for any funds made available to the commission
for its use. In order to expedite the implementation of the Commission on a
Uniform Youth Court System, any funds available to the Governor's Office of
Federal-State Programs for the * * * 2023-2024 fiscal year
may be expended for the purpose of defraying the expenses of the commission
created herein.
(8) The commission may contract for suitable office space in accordance with the provisions of Section 29-5-2, Mississippi Code of 1972. In addition, the commission may utilize, with their consent, the services, equipment, personnel, information and resources of other state agencies; and may accept voluntary and uncompensated services, contract with individuals, public and private agencies, and request information, reports and data from any agency of the state, or any of its political subdivisions, to the extent authorized by law.
(9) In order to conduct and carry out its purposes, duties and related activities as provided for in this section and Section 43-21-703, the commission is authorized to apply for and accept gifts, grants, subsidies and other funds from persons, corporations, foundations, the United States government or other entities, provided that the receipt of such gifts, grants, subsidies and funds shall be reported and otherwise accounted for in the manner provided by law.
SECTION 4. Section 43-21-703, Mississippi Code of 1972, is amended as follows:
43-21-703. (1) The
commission shall study the youth court system in Mississippi, and prepare a
report including any proposed changes in the youth court system and/or its
procedures. It shall submit the report to the Legislature, on or before October
1, * * * 2024,
along with a report detailing any legislation which may be needed to implement
the plan. In preparing the report, the commission shall evaluate the existing
juvenile services in the state and may recommend changes in the organizational
concepts, institutions, laws and resources.
(2) In formulating its report, the commission shall take into consideration the following:
(a) Whether a uniform statewide youth court system would be desirable;
(b) How best the service needs of the state could be met in relation to the taxing and resource capacity of various multi-county districts now existing or proposed;
(c) Whether counties in a given service area or district may develop district shelters, detention centers and diagnostic centers to serve a multi-county area; and
(d) What proposals or alternatives would update or modernize the system to provide staffing for all counties and citizens.
(3) The commission, in addition to recommending the plan described in this section, shall serve as a clearinghouse and information center for the collection, preparation, analysis and dissemination of information on the youth court system in Mississippi and shall conduct ongoing research relating to the improvement of the youth court system. Pursuant to its duties under this subsection, the commission may request the regular submission to it of such reports, information and statistics by the courts, judges, prosecuting attorneys and agencies of this state which the commission deems necessary for the development of its reports.
SECTION 5. Section 93-15-107, Mississippi Code of 1972, is amended as follows:
93-15-107. (1) (a) Involuntary termination of parental rights proceedings are commenced upon the filing of a petition under this chapter. The petition may be filed by any interested person, or any agency, institution or person holding custody of the child. The simultaneous filing of a petition for adoption is not a prerequisite for filing a petition under this chapter.
(b) The proceeding shall be triable, either in term time or vacation, thirty (30) days after personal service of process to any necessary party or, for a necessary party whose address is unknown after diligent search, thirty (30) days after the date of the first publication of service of process by publication that complies with the Mississippi Rules of Civil Procedure.
(c) Necessary parties to a termination of parental rights action shall include the mother of the child, the legal father of the child, the putative father of the child when known, and any agency, institution or person holding custody of the child. The absence of a necessary party who has been properly served does not preclude the court from conducting the hearing or rendering a final judgment.
(d) A guardian ad litem shall be appointed to protect the best interest of the child, except that the court, in its discretion, may waive this requirement when a parent executes a written voluntary release to terminate parental rights. The guardian ad litem fees shall be determined and assessed in the discretion of the court.
(2) Voluntary termination of parental rights by written voluntary release is governed by Section 93-15-111.
(3) In all cases involving termination of parental rights, a minor parent shall be served with process as an adult.
(4) The court may waive service of process if an adoptive child was born in a foreign country, put up for adoption in the birth country, and has been legally admitted into this country.
(5) The clerk shall docket cases seeking relief under this chapter as priority cases. The assigned judge shall be immediately notified when a case is filed in order to provide for expedited proceedings.
SECTION 6. Section 93-17-3, Mississippi Code of 1972, is amended as follows:
93-17-3. (1) Except as otherwise provided in this section, a court of this state has jurisdiction over a proceeding for the adoption or readoption of a minor commenced under this chapter if:
(a) Immediately before commencement of the proceeding, the minor lived in this state with a parent, a guardian, a prospective adoptive parent or another person acting as parent, for at least six (6) consecutive months, excluding periods of temporary absence, or, in the case of a minor under six (6) months of age, lived in this state from soon after birth with any of those individuals and there is available in this state substantial evidence concerning the minor's present or future care;
(b) Immediately before commencement of the proceeding, the prospective adoptive parent lived in this state for at least six (6) consecutive months, excluding periods of temporary absence, and there is available in this state substantial evidence concerning the minor's present or future care;
(c) The agency that placed the minor for adoption is licensed in this state and it is in the best interest of the minor that a court of this state assume jurisdiction because:
(i) The minor and the minor's parents, or the minor and the prospective adoptive parent, have a significant connection with this state; and
(ii) There is available in this state substantial evidence concerning the minor's present or future care;
(d) The minor and the prospective adoptive parent or parents are physically present in this state and the minor has been abandoned or it is necessary in an emergency to protect the minor because the minor has been subjected to or threatened with mistreatment or abuse or is otherwise neglected, and the prospective adoptive parent or parents, if not residing in Mississippi, have completed and provided the court with a satisfactory Interstate Compact for Placement of Children (ICPC) home study and accompanying forms;
(e) It appears that no other state would have jurisdiction under prerequisites substantially in accordance with paragraphs (a) through (d), or another state has declined to exercise jurisdiction on the ground that this state is the more appropriate forum to hear a petition for adoption of the minor, and it is in the best interest of the minor that a court of this state assume jurisdiction; or
(f) The child has been adopted in a foreign country, the agency that placed the minor for adoption is licensed in this state, and it is in the best interest of the child to be readopted in a court of this state having jurisdiction.
(2) A court of this state may not exercise jurisdiction over a proceeding for adoption of a minor if, at the time the petition for adoption is filed, a proceeding concerning the custody or adoption of the minor is pending in a court of another state exercising jurisdiction substantially in conformity with the Uniform Child Custody Jurisdiction Act or this section unless the proceeding is stayed by the court of the other state.
(3) If a court of another state has issued a decree or order concerning the custody of a minor who may be the subject of a proceeding for adoption in this state, a court of this state may not exercise jurisdiction over a proceeding for adoption of the minor unless:
(a) The court of this state finds that the court of the state which issued the decree or order:
(i) Does not have continuing jurisdiction to modify the decree or order under jurisdictional prerequisites substantially in accordance with the Uniform Child Custody Jurisdiction Act or has declined to assume jurisdiction to modify the decree or order; or
(ii) Does not have jurisdiction over a proceeding for adoption substantially in conformity with subsection (1)(a) through (d) or has declined to assume jurisdiction over a proceeding for adoption; and
(b) The court of this state has jurisdiction over the proceeding.
(4) Any person may be adopted in accordance with the provisions of this chapter in term time or in vacation by an unmarried adult, by a married person whose spouse joins in the petition, by a married person whose spouse does not join in the petition because such spouse does not cohabit or reside with the petitioning spouse, and in any circumstances determined by the court that the adoption is in the best interest of the child. Only the consenting adult will be a legal parent of the child. In those adoption proceedings where the chancery court has jurisdiction, the adoption shall be by sworn petition filed in the chancery court of the county in which the adopting petitioner or petitioners reside or in which the child to be adopted resides or was born, or was found when it was abandoned or deserted, or in which the home is located to which the child has been surrendered by a person authorized to so do. In those adoption proceedings where the county court sitting as a youth court has jurisdiction, the adoption shall be by sworn petition filed in that county court. The petition shall be accompanied by a doctor's or nurse practitioner's certificate showing the physical and mental condition of the child to be adopted and a sworn statement of all property, if any, owned by the child. In addition, the petition shall be accompanied by affidavits of the petitioner or petitioners stating the amount of the service fees charged by any adoption agencies or adoption facilitators used by the petitioner or petitioners and any other expenses paid by the petitioner or petitioners in the adoption process as of the time of filing the petition. If the doctor's or nurse practitioner's certificate indicates any abnormal mental or physical condition or defect, the condition or defect shall not, in the discretion of the chancellor or youth court judge, bar the adoption of the child if the adopting parent or parents file an affidavit stating full and complete knowledge of the condition or defect and stating a desire to adopt the child, notwithstanding the condition or defect. The court shall have the power to change the name of the child as a part of the adoption proceedings. The word "child" in this section shall be construed to refer to the person to be adopted, though an adult.
(5) No person may be placed
in the home of or adopted by the prospective adopting parties before a court-ordered
or voluntary home study is satisfactorily completed by a licensed adoption
agency, a licensed, experienced social worker approved by the chancery court, a
court-appointed guardian ad litem that has knowledge or training in conducting
home studies if so directed by the court, or by the Department of * * * Child Protection Services on the
prospective adoptive parties if required by Section 93-17-11.
(6) No person may be adopted by a person or persons who reside outside the State of Mississippi unless the provisions of the Interstate Compact for Placement of Children (Section 43-18-1 et seq.) have been complied with. In such cases Forms 100A, 100B (if applicable) and evidence of Interstate Compact for Placement of Children approval shall be added to the permanent adoption record file within one (1) month of the placement, and a minimum of two (2) post-placement reports conducted by a licensed child-placing agency shall be provided to the Mississippi Department of Child Protection Services Interstate Compact for Placement of Children office.
(7) No person may be adopted unless the provisions of the Indian Child Welfare Act (ICWA) have been complied with, if applicable. When applicable, proof of compliance shall be included in the court adoption file prior to finalization of the adoption. If not applicable, a written statement or paragraph in the petition for adoption shall be included in the adoption petition stating that the provisions of ICWA do not apply before finalization.
(8) The readoption of a child who has automatically acquired United States citizenship following an adoption in a foreign country and who possesses a Certificate of Citizenship in accordance with the Child Citizenship Act, CAA, Public Law 106-395, may be given full force and effect in a readoption proceeding conducted by a court of competent jurisdiction in this state by compliance with the Mississippi Registration of Foreign Adoptions Act, Article 9 of this chapter.
(9) For adult adoptees who consent to the adoption, a chancellor may waive any of the petition requirements and procedural requirements within subsections (4), (5), (6) and (7) of this section.
(10) For proceedings filed under this chapter, the chancery court has original exclusive jurisdiction over all adoption proceedings except when a county court sitting as a youth court has acquired jurisdiction of a child in an abuse or neglect proceeding. In such case, the county court shall have original exclusive jurisdiction to hear a petition for adoption of that child pursuant to the procedures of this chapter.
(11) The clerk shall docket cases seeking relief under this chapter as priority cases. The assigned judge shall be immediately notified when a case is filed in order to provide for expedited proceedings.
SECTION 7. Section 7-5-1, Mississippi Code of 1972, is brought forward as follows:
7-5-1. The Attorney General provided for by Section 173 of the Mississippi Constitution shall be elected at the same time and in the same manner as the Governor is elected. His term of office shall be four (4) years and his compensation shall be fixed by the Legislature. He shall be the chief legal officer and advisor for the state, both civil and criminal, and is charged with managing all litigation on behalf of the state, except as otherwise specifically provided by law. No arm or agency of the state government shall bring or defend a suit against another arm or agency without prior written approval of the Attorney General. He shall have the powers of the Attorney General at common law and, except as otherwise provided by law, is given the sole power to bring or defend a lawsuit on behalf of a state agency, the subject matter of which is of statewide interest. He shall intervene and argue the constitutionality of any statute when notified of a challenge thereto, pursuant to the Mississippi Rules of Civil Procedure. His qualifications for office shall be as provided for chancery and circuit judges in Section 154 of the Mississippi Constitution.
SECTION 8. This act shall take effect and be in force from and after July 1, 2023.