Computer Facilitated Luring Or Solicitation Of A Child 587A Neglect And Termination Parental Rights

User Manual: 587A

Open the PDF directly: View PDF PDF.
Page Count: 506 [warning: Documents this large are best viewed by clicking the View PDF Link!]

National Center for Prosecution of Child Abuse
National District Attorneys Association
1
National District Attorneys Association
Child Neglect and Termination of Parental Rights
(Last Updated February 2012)
This compilation includes all statutes that allow for the termination of parental rights due to
neglect. Also included are definitions of neglect which apply to the relevant title, article, or
chapter of code. In addition to definitions are any religious- or poverty-based exemptions that
may apply. This compilation is up-to-date as of February 2012, but we recommend checking
case law and current statutes for any possible modifications.
ALABAMA .................................................................................................................................... 7
ALA. CODE § 12-15-301 (2011). Definitions. ............................................................................................ 7
ALA. CODE § 12-15-319 (2011). Grounds for termination of parental rights; factors considered;
presumption arising from abandonment. ................................................................................................... 8
ALASKA ........................................................................................................................................ 9
ALASKA STAT. § 47.10.011 (2011). Children in need of aid ..................................................................... 9
ALASKA STAT. § 47.10.014 (2011). Neglect .............................................................................................11
ALASKA STAT. § 47.10.085 (2011). Medical treatment by religious means .............................................11
ALASKA STAT. § 47.10.088 (2011). Involuntary termination of parental rights and responsibilities .......11
ARIZONA .................................................................................................................................... 14
ARIZ. REV. STAT. § 8-201 (2011). Definitions ..........................................................................................14
ARIZ. REV. STAT. § 8-533 (2011). Petition; who may file; grounds .........................................................18
ARKANSAS ................................................................................................................................. 20
ARK. CODE ANN. § 9-27-303 (2011). Definitions .....................................................................................20
ARK. CODE ANN. § 9-27-335 (2011). Disposition--Dependent-neglected--Limitations ...........................34
ARK. CODE ANN. § 9-27-341 (2011). Termination of parental rights .......................................................36
CALIFORNIA ............................................................................................................................. 40
CAL. FAM. CODE § 7802 (2012). Proceeding for declaration of freedom from parental custody and
control .......................................................................................................................................................40
CAL. FAM. CODE § 7803 (2012). Effect of declaration of freedom...........................................................40
CAL. FAM. CODE § 7823 (2012). Neglected or cruelly treated children; right to action ...........................41
CAL. FAM. CODE § 7829 (2012). Child found to be dependent child and reunification services not to be
provided; right to action ............................................................................................................................41
CAL. WELF. & INST. CODE § 300 (2012). Children subject to jurisdiction; legislative intent and
declarations; guardian defined ..................................................................................................................41
CAL. WELF. & INST. CODE § 300.5 (2012). Medical care; treatment by spiritual means ..........................43
CAL. WELF. & INST. CODE § 361.5 (2012). Child welfare services; reunification of family; hearing;
findings by court; incarcerated parents; adoption assessment ..................................................................43
CAL. WELF. & INST. CODE § 361.5 (2012). Child welfare services; reunification of family; hearing;
findings by court; incarcerated parents; adoption assessment ..................................................................52
CAL. WELF. & INST. CODE § 366.26 (2012). Hearings terminating parental rights or establishing
guardianship of children adjudged dependent children of court ...............................................................60
CAL. WELF. & INST. CODE § 366.26 (2012). Hearings terminating parental rights or establishing
guardianship of children adjudged dependent children of court ...............................................................70
COLORADO ............................................................................................................................... 79
COLO. REV. STAT. ANN. § 19-1-103 (2012). Definitions ..........................................................................79
COLO. REV. STAT. ANN. § 19-3-102 (2012). Neglected or dependent child .............................................96
COLO. REV. STAT. ANN. § 19-3-103 (2012). Child not neglected--when ..................................................97
COLO. REV. STAT. ANN. § 19-3-604 (2012). Criteria for termination .......................................................98
National Center for Prosecution of Child Abuse
National District Attorneys Association
2
CONNECTICUT ....................................................................................................................... 101
CONN. GEN. STAT. ANN. § 17a-101g (2011). Classification and evaluation of reports. Determination of
abuse or neglect of child. Investigation. Notice, entry of recommended finding. Referral to local law
enforcement authority. Home visit. Removal of child in imminent risk of harm ...................................101
CONN. GEN. STAT. ANN. § 17a-104 (2011). Treatment by Christian Science practitioner......................103
CONN. GEN. STAT. ANN. § 17a-112 (2011). Termination of parental rights of child committed to
commissioner. Cooperative postadoption agreements. Placement of child from another state. Interstate
Compact on the Placement of Children ..................................................................................................104
CONN. GEN. STAT. ANN. § 45a-715 (2011). Petition to terminate parental rights. Cooperative
postadoption agreements ........................................................................................................................107
CONN. GEN. STAT. ANN. § 45a-717 (2011). Termination of parental rights. Conduct of hearing.
Investigation and report. Grounds for termination ..................................................................................110
DELAWARE ............................................................................................................................. 113
DEL. CODE ANN. tit. 13, § 1101 (2011). Definitions ...............................................................................113
DEL. CODE ANN. tit. 13, § 1103 (2011). Grounds for termination of parental rights ..............................114
DISTRICT OF COLUMBIA .................................................................................................... 118
D.C. CODE § 16-2301 (2012). Definitions ..............................................................................................118
D.C. CODE § 16-2320 (2012). Disposition of child who is neglected, delinquent, or in need of
supervision. .............................................................................................................................................125
FLORIDA................................................................................................................................... 128
FLA. STAT. ANN. § 39.01 (2011). Definitions .........................................................................................128
FLA. STAT. ANN. § 39.806 (2011). Grounds for termination of parental rights ......................................140
GEORGIA .................................................................................................................................. 143
GA. CODE ANN. § 15-11-2 (2011). Definitions .......................................................................................143
GA. CODE ANN. § 15-11-94 (2011). Conditions and procedures under which parental rights may be
terminated ...............................................................................................................................................146
GA. CODE ANN. § 19-7-4 (2011). Protection of children being reared under immoral, etc., conditions .148
GA. CODE ANN. § 19-7-5 (2011). Reports by physicians, treating personnel, institutions and others as to
child abuse; failure to report suspected child abuse ................................................................................148
GA. CODE ANN. § 19-8-11 (2011). Termination of rights of remaining parent where termination of rights
of other parent or guardian has already been obtained ...........................................................................152
HAWAII ..................................................................................................................................... 153
HAW. REV. STAT. ANN. § 587A-4 (2011). Definitions............................................................................153
HAW. REV. STAT. ANN. § 587A-7 (2011). Safe family home factors .....................................................158
HAW. REV. STAT. ANN. § 587A-33 (2011). Termination of parental rights hearing ...............................160
IDAHO ....................................................................................................................................... 162
IDAHO CODE ANN. § 16-1602 (2012). Definitions ..................................................................................162
IDAHO CODE ANN. § 16-2002 (2012). Definitions ..................................................................................165
IDAHO CODE ANN. § 16-2005 (2012). Conditions under which termination may be granted .................168
ILLINOIS ................................................................................................................................... 170
20 ILL. COMP. STAT. ANN. 505/35.2 (2011). Termination of parental rights ..........................................170
705 ILL. COMP. STAT. ANN. 405/2-3 (2011). Neglected or abused minor ...............................................171
705 ILL. COMP. STAT. ANN. 405/2-21 (2011). Findings and adjudication ..............................................173
705 ILL. COMP. STAT. ANN. 405/2-23 (2011). Kinds of dispositional orders ..........................................175
INDIANA ................................................................................................................................... 177
IND. CODE ANN. § 31-34-1-1 (2011). Inability, refusal, or neglect of parent, guardian or custodian to
supply child with necessary food, clothing, shelter, medical care, education, or supervision ................177
IND. CODE ANN. § 31-34-1-2 (2011). Act or omission of parent, guardian or custodian seriously
endangering child's physical or mental health ........................................................................................177
IND. CODE ANN. § 31-34-1-14 (2011). Exception for failure of parent, guardian or custodian to provide
medical treatment because of religious beliefs; rebuttable presumption; effect of presumption ............177
IND. CODE ANN. § 31-34-1-16 (2011). Termination of parental rights or transfer of custody may not be
required; voluntary placement agreements .............................................................................................178
National Center for Prosecution of Child Abuse
National District Attorneys Association
3
IND. CODE ANN. § 31-34-21-5.6 (2011). Exceptions to requirement to make reasonable efforts to
preserve and reunify families ..................................................................................................................178
IND. CODE ANN. § 31-35-2-4 (2011). Petition; contents .........................................................................180
IOWA ......................................................................................................................................... 181
IOWA CODE ANN. § 232.2 (2011). Definitions ........................................................................................181
IOWA CODE ANN. § 232.116 (2011). Grounds for termination ...............................................................192
KANSAS ..................................................................................................................................... 196
KAN. STAT. ANN. § 38-2202 (2011). Definitions ....................................................................................196
KAN. STAT. ANN. § 38-2269 (2011). Factors to be considered in termination of parental rights;
appointment of permanent custodian ......................................................................................................200
KENTUCKY .............................................................................................................................. 202
KY. REV. STAT. ANN. § 600.020 (2011). Definitions for KRS Chapters 600 to 645 ..............................202
KY. REV. STAT. ANN. § 625.090 (2011). Grounds for termination .........................................................210
LOUISIANA .............................................................................................................................. 212
LA. CHILD. CODE ANN. art. 1003 (2011). Definitions .............................................................................212
LA. CHILD. CODE ANN. art. 1015 (2011). Grounds .................................................................................213
MAINE ....................................................................................................................................... 215
ME. REV. STAT. ANN. tit. 19-A, § 1653 (2011). Parental rights and responsibilities ..............................215
ME. REV. STAT. ANN. tit. 22, § 4002 (2011). Definitions .......................................................................223
ME. REV. STAT. ANN. tit. 22, § 4010 (2011). Spiritual treatment ...........................................................226
ME. REV. STAT. ANN. tit. 22, § 4035 (2011). Hearing on jeopardy order petition ..................................226
ME. REV. STAT. ANN. tit. 22, § 4038 (2011). Mandated review; review on motion ...............................227
ME. REV. STAT. ANN. tit. 22, § 4055 (2011). Grounds for termination ..................................................229
MARYLAND ............................................................................................................................. 231
MD. CODE ANN., FAM. LAW § 5-323 (2011). Grant of guardianship--Nonconsensual ...........................231
MD. CODE ANN., FAM. LAW § 5-701 (2011). Definitions .......................................................................234
MASSACHUSETTS .................................................................................................................. 238
MASS. GEN. LAWS ANN. ch. 119, § 26 (2011). Procedure at hearing; order of commitment; petition to
dispense with parental consent to adoption; reimbursement of commonwealth; petition for review .....238
MASS. GEN. LAWS ANN. ch. 210, § 3 (2011). Dispensing with required consent in certain cases ..........240
110 MASS. CODE REGS. 2.00 (2012): Glossary .......................................................................................244
MICHIGAN ............................................................................................................................... 256
MICH. COMP. LAWS ANN. § 712A.2 (2012). Family division of circuit court; authority and jurisdiction
................................................................................................................................................................256
MICH. COMP. LAWS ANN. § 712A.19b (2012). Termination of parental rights; notice, findings; orders260
MINNESOTA ............................................................................................................................ 264
MINN. STAT. ANN. § 260C.007 (2011). Definitions ................................................................................264
MINN. STAT. ANN. § 260C.201 (2011). Dispositions; children in need of protection or services or
neglected and in foster care ....................................................................................................................271
MINN. STAT. ANN. § 260C.301 (2011). Termination of parental rights ..................................................284
MINN. STAT. ANN. § 626.556 (2011). Reporting of maltreatment of minors ..........................................288
MISSISSIPPI ............................................................................................................................. 315
MISS. CODE ANN. § 43-15-13 (2011). Individualized plans, reviews, training .......................................315
MISS. CODE ANN. § 43-21-105 (2011). Definitions ................................................................................320
MISS. CODE ANN. § 93-15-103 (2011). Grounds; relinquishment; alternatives ......................................323
MISSOURI ................................................................................................................................. 325
MO. ANN. STAT. § 210.115 (2011). Reports of abuse, neglect, and under age eighteen deaths--persons
required to report--deaths required to report--deaths required to be reported to the division or child
fatality review panel, when--report made to another state, when ...........................................................325
MO. ANN. STAT. § 211.447 (2011). Petition to terminate parental rights, preliminary inquiry--juvenile
officer to file petition or join as party, when--grounds for termination ..................................................326
MONTANA ................................................................................................................................ 330
MONT. CODE ANN. § 41-3-102 (2011). Definitions ................................................................................330
National Center for Prosecution of Child Abuse
National District Attorneys Association
4
MONT. CODE ANN. § 41-3-609 (2011). Criteria for termination .............................................................336
NEBRASKA ............................................................................................................................... 337
NEB. REV. STAT. ANN. § 43-292 (2011). Termination of parental rights; grounds .................................337
NEVADA .................................................................................................................................... 338
NEV. REV. STAT. ANN. § 128.014 (2010). “Neglected child” defined ....................................................338
NEV. REV. STAT. ANN. § 128.018 (2010). “Unfit parent” defined ..........................................................339
NEV. REV. STAT. ANN. § 128.105 (2010). Grounds for terminating parental rights: Considerations;
required findings .....................................................................................................................................339
NEV. REV. STAT. ANN. § 128.106 (2010). Specific considerations in determining neglect by or unfitness
of parent ..................................................................................................................................................339
NEW HAMPSHIRE .................................................................................................................. 340
N.H. REV. STAT. ANN. § 169-C:3 (2011). Definitions. ...........................................................................340
N.H. REV. STAT. ANN. § 170-C:5 (2011). Grounds for Termination of the Parent-Child Relationship. 344
NEW JERSEY ........................................................................................................................... 345
N.J. STAT. ANN. § 30:4C-15 (2011). Guardianship; petition ..................................................................345
N.J. STAT. ANN. § 30:4C-15.1 (2011). Termination of parental rights; standards to be met ..................346
NEW MEXICO .......................................................................................................................... 348
N.M. STAT. ANN. § 32A-4-2 (2011). Definitions ....................................................................................348
N.M. STAT. ANN. § 32A-4-28 (2011). Termination of parental rights; adoption decree ........................350
NEW YORK .............................................................................................................................. 351
N.Y. FAM. CT. ACT § 614 (2011). Originating proceeding for the commitment of the guardianship and
custody of a permanently neglected child ...............................................................................................351
N.Y. SOC. SERV. LAW § 384-b (2011). Guardianship and custody of destitute or dependent children;
commitment by court order; modification of commitment and restoration of parental rights ................352
NORTH CAROLINA ................................................................................................................ 364
N.C. GEN. STAT. ANN. § 7B-101 (2011). Definitions .............................................................................364
N.C. GEN. STAT. ANN. § 7B-1111 (2011). Grounds for terminating parental rights ...............................367
NORTH DAKOTA .................................................................................................................... 369
N.D. CENT. CODE § 27-20-02 (2011). Definitions ..................................................................................369
N.D. CENT. CODE § 27-20-44 (2011). Termination of parental rights ....................................................373
OHIO .......................................................................................................................................... 373
OHIO REV. CODE ANN. § 2151.03 (2011). “Neglected child” defined ....................................................373
OHIO REV. CODE ANN. § 2151.04 (2011). “Dependent child” defined ...................................................374
OHIO REV. CODE ANN. § 2151.05 (2011). Child without proper parental care .......................................374
OHIO REV. CODE ANN. § 2151.353 (2011). Disposition of abused, neglected, or dependent child ........375
OKLAHOMA ............................................................................................................................ 379
OKLA. STAT. ANN. tit. 10A, § 1-1-105 (2011). Definitions ....................................................................379
OKLA. STAT. ANN. tit. 10A, § 1-4-904 (2011). Termination of parental rights in certain situations ......388
OREGON ................................................................................................................................... 391
OR. REV. STAT. ANN. § 419B.502 (2011). Termination for extreme conduct; considerations ...............391
OR. REV. STAT. ANN. § 419B.504 (2011). Termination for conduct seriously detrimental to child;
considerations .........................................................................................................................................392
OR. REV. STAT. ANN. § 419B.506 (2011). Termination for failure to provide for basic physical and
psychological needs of child; considerations ..........................................................................................392
PENNSYLVANIA ..................................................................................................................... 393
23 PA. CONS. STAT. ANN. § 2511 (2011). Grounds for involuntary termination ....................................393
23 PA. CONS. STAT. ANN. § 6303 (2011). Definitions .............................................................................394
RHODE ISLAND ...................................................................................................................... 399
R.I. GEN. LAWS § 15-7-7 (2011). Termination of parental rights ...........................................................399
SOUTH CAROLINA ................................................................................................................ 402
S.C. CODE ANN. § 63-7-20 (2011). Definitions. .....................................................................................402
S.C. CODE ANN. § 63-7-1660 (2011). Services with removal. ...............................................................405
National Center for Prosecution of Child Abuse
National District Attorneys Association
5
S.C. CODE ANN. § 63-7-2570 (2011). Grounds. .....................................................................................407
SOUTH DAKOTA .................................................................................................................... 409
S.D. CODIFIED LAWS § 26-8A-2 (2011). Abused or neglected child defined .........................................409
S.D. Codified Laws § 26-8A-26 (2011). Termination of parental rights--Return of child to parents or
continued placement--Annual permanency hearing for child in foster care ...........................................409
S.D. CODIFIED LAWS § 26-8A-26.1 (2011). Additional reasons for termination of parental rights ........410
TENNESSEE ............................................................................................................................. 411
TENN. CODE ANN. § 36-1-102 (2011). Definitions .................................................................................411
TENN. CODE ANN. § 36-1-113 (2011). Termination of parental rights ...................................................423
TENN. CODE ANN. § 37-1-102 (2011). Definitions .................................................................................431
TENN. CODE ANN. § 37-1-147 (2011). Termination of parental rights ...................................................435
TEXAS ........................................................................................................................................ 436
TEX. FAM. CODE ANN. § 161.001 (2011). Involuntary Termination of Parent-Child Relationship ........436
UTAH ......................................................................................................................................... 439
UTAH CODE ANN. § 78A-6-105 (2011). Definitions ...............................................................................439
UTAH CODE ANN. § 78A-6-507 (2011). Grounds for termination of parental rights--Findings regarding
reasonable efforts ....................................................................................................................................445
VERMONT ................................................................................................................................ 446
VT. STAT. ANN. tit. 15A, § 3-504 (2011). Grounds for terminating relationship of parent and child .....446
VT. STAT. ANN. tit. 33, § 5102 (2011). Definitions and provisions of general application ....................448
VT. STAT. ANN. tit. 33, § 5318 (2011). Disposition order ......................................................................452
VIRGINIA .................................................................................................................................. 453
VA. CODE ANN. § 16.1-228 (2011). Definitions .....................................................................................453
VA. CODE ANN. § 16.1-278.2 (2011). Abused, neglected, or abandoned children or children without
parental care ............................................................................................................................................458
VA. CODE ANN. § 16.1-283 (2011). Termination of residual parental rights ..........................................460
WASHINGTON ......................................................................................................................... 463
WASH. REV. CODE ANN. § 13.34.030 (2012). Definitions ......................................................................463
WASH. REV. CODE ANN. § 13.34.180 (2012). Order terminating parent and child relationship--Petition--
Filing--Allegations (as amended by 2009 c 477) ....................................................................................466
WASH. REV. CODE ANN. § 13.34.180 (2011). Order terminating parent and child relationship--Petition--
Filing--Allegations(as amended by 2009 c 520) .....................................................................................468
WASH. REV. CODE ANN. § 26.44.020. Definitions ..................................................................................470
WEST VIRGINIA ..................................................................................................................... 472
W.VA. CODE ANN. § 49-1-3 (2011). Definitions relating to abuse and neglect ......................................472
W.VA. CODE ANN. § 49-6-5 (2011). Disposition of neglected or abused children .................................477
WISCONSIN .............................................................................................................................. 481
WIS. STAT. ANN. § 48.02 (2011). Definitions .........................................................................................481
WIS. STAT. ANN. § 48.13 (2011). Jurisdiction over children alleged to be in need of protection or
services ...................................................................................................................................................486
WIS. STAT. ANN. § 48.415 (2011). Grounds for involuntary termination of parental rights ...................487
WYOMING ................................................................................................................................ 491
WYO. STAT. ANN. § 14-2-308 (2011). Definitions ..................................................................................491
WYO. STAT. ANN. § 14-2-309 (2011). Grounds for termination of parent-child relationship; clear and
convincing evidence ...............................................................................................................................492
WYO. STAT. ANN. § 14-3-202 (2011). Definitions ..................................................................................493
FEDERAL LEGISLATION ..................................................................................................... 495
42 U.S.C.S. § 5106i (2012). Rule of construction ..................................................................................495
AMERICAN SAMOA ............................................................................................................... 495
AM. SAMOA CODE ANN. § 45.0103 (2011). Definitions. ........................................................................495
AM. SAMOA CODE ANN. § 45.0355 (2011). Neglected or dependent child-Termination of parental rights.
................................................................................................................................................................499
GUAM ........................................................................................................................................ 499
National Center for Prosecution of Child Abuse
National District Attorneys Association
6
GUAM CODE ANN. tit. 19, § 4302 (2011). Definitions. ...........................................................................499
GUAM CODE ANN. tit. 19, § 4303 (2011). Petition, Grounds. .................................................................500
PUERTO RICO ......................................................................................................................... 500
P.R. LAWS ANN. tit. 31, § 634a (2009). Grounds on which a person is deprived, restricted or suspended
from exercising patria potestas ...............................................................................................................500
VIRGIN ISLANDS .................................................................................................................... 502
V.I. CODE ANN. tit. 5, § 2502 (2011). Definitions ..................................................................................502
V.I. CODE ANN. tit. 5, § 2550 (2011). Termination of parental rights ....................................................506
National Center for Prosecution of Child Abuse
National District Attorneys Association
7
ALABAMA
ALA. CODE § 12-15-301 (2011). Definitions.
For purposes of this article, the following words and phrases shall have the following meanings:
(1) Abandonment. A voluntary and intentional relinquishment of the custody of a child by a parent, or
a withholding from the child, without good cause or excuse, by the parent, of his or her presence,
care, love, protection, maintenance, or the opportunity for the display of filial affection, or the failure
to claim the rights of a parent, or failure to perform the duties of a parent.
(2) Abuse. Harm or the risk of harm to the emotional, physical health, or welfare of a child. Harm or
the risk of harm to the emotional, physical health, or welfare of a child can occur through
nonaccidental physical or mental injury, sexual abuse, or attempted sexual abuse or sexual
exploitation or attempted sexual exploitation.
(3) Caregiver. An individual 21 years of age or older, other than a parent, legal guardian, or legal
custodian of a child who is an approved foster parent and who is a relative of the child and has been
providing care and support for the child while the child has been residing in the home of the caregiver
for at least the last six consecutive months while in the legal custody of the Department of Human
Resources.
(4) Child-placing agency. The same as the term is defined in subdivision (3) of Section 38-7-2.
(5) Eligible child. In addition to the definition of child in subdivision (3) of Section 12-15-102, an
individual under 18 years of age who has been residing with the caregiver for at least the last six
consecutive months while in the legal custody of the Department of Human Resources.
(6) Kinship guardian. A caregiver who is willing to assume care of a child because of parental
incapacity of a parent, legal guardian, or legal custodian, or other dependency reasons, with the intent
to raise the child to adulthood, and who is appointed the kinship guardian of the child by a juvenile
court. A kinship guardian shall be responsible for the care and protection of the child and for
providing for the health, education, and maintenance of the child.
(7) Neglect. Negligent treatment or maltreatment of a child, including, but not limited to, the failure
to provide adequate food, medical treatment, supervision, education, clothing, or shelter.
(8) Parental incapacity. Abandonment or incapacity of such a serious nature as to demonstrate that the
parent, legal guardian, or legal custodian is unable, unavailable, or unwilling to perform the regular
and expected functions of care and support of the child.
(9) Protective supervision. A legal status created by order of the juvenile court following an
adjudication of dependency whereby a child is placed with a parent or other person subject to
supervision by the Department of Human Resources.
(10) Reasonable efforts. Efforts made to preserve and reunify families prior to the placement of a
child in foster care, to prevent or eliminate the need for removing the child from his or her home, and
to make it possible for a child to return safely to his or her home. Reasonable efforts also refers to
National Center for Prosecution of Child Abuse
National District Attorneys Association
8
efforts made to place the child in a timely manner in accordance with the permanency plan, and to
complete whatever steps are necessary to finalize the permanency placement of the child. In
determining the reasonable efforts to be made with respect to a child, and in making these reasonable
efforts, the health and safety of the child shall be the paramount concern.
(11) Relative. An individual who is legally related to the child by blood, marriage, or adoption within
the fourth degree of kinship, including only a brother, sister, uncle, aunt, first cousin, grandparent,
great grandparent, great-aunt, great-uncle, great great grandparent, niece, nephew, grandniece,
grandnephew, or a stepparent.
(12) Sexual abuse. Sexual abuse includes the employment, use, persuasion, inducement, enticement,
or coercion of any child to engage in, or having a child assist any person to engage in, any sexually
explicit conduct or any simulation of the conduct for the purpose of producing any visual depiction of
the conduct. Sexual abuse also includes rape, molestation, prostitution, or other forms of sexual
exploitation or abuse of children, or incest with children, as those acts are defined in this article or by
Alabama law.
(13) Sexual exploitation. Sexual exploitation includes allowing, permitting, or encouraging a child to
engage in prostitution and allowing, permitting, encouraging, or engaging in the obscene or
pornographic photographing, filming, or depicting of a child.
(14) Termination of parental rights. A severance of all rights of a parent to a child.
ALA. CODE § 12-15-319 (2011). Grounds for termination of parental rights; factors
considered; presumption arising from abandonment.
(a) If the juvenile court finds from clear and convincing evidence, competent, material, and relevant
in nature, that the parents of a child are unable or unwilling to discharge their responsibilities to and
for the child, or that the conduct or condition of the parents renders them unable to properly care for
the child and that the conduct or condition is unlikely to change in the foreseeable future, it may
terminate the parental rights of the parents. In determining whether or not the parents are unable or
unwilling to discharge their responsibilities to and for the child and to terminate the parental rights,
the juvenile court shall consider the following factors including, but not limited to, the following:
(1) That the parents have abandoned the child, provided that in these cases, proof shall not be
required of reasonable efforts to prevent removal or reunite the child with the parents.
(2) Emotional illness, mental illness, or mental deficiency of the parent, or excessive use of alcohol
or controlled substances, of a duration or nature as to render the parent unable to care for needs of
the child.
(3) That the parent has tortured, abused, cruelly beaten, or otherwise maltreated the child, or
attempted to torture, abuse, cruelly beat, or otherwise maltreat the child, or the child is in clear and
present danger of being thus tortured, abused, cruelly beaten, or otherwise maltreated as evidenced
by the treatment of a sibling.
(4) Conviction of and imprisonment for a felony.
(5) Commission by the parents of any of the following:
National Center for Prosecution of Child Abuse
National District Attorneys Association
9
a. Murder or manslaughter of another child of that parent.
b. Aiding, abetting, attempting, conspiring, or soliciting to commit murder or manslaughter of
another child of that parent.
c. A felony assault or abuse which results in serious bodily injury to the surviving child or another
child of that parent. The term serious bodily injury shall mean bodily injury which involves
substantial risk of death, extreme physical pain, protracted and obvious disfigurement, or
protracted loss or impairment of the function of a bodily member, organ, or mental faculty.
(6) Unexplained serious physical injury to the child under those circumstances as would indicate
that the injuries resulted from the intentional conduct or willful neglect of the parent.
(7) That reasonable efforts by the Department of Human Resources or licensed public or private
child care agencies leading toward the rehabilitation of the parents have failed.
(8) That parental rights to a sibling of the child have been involuntarily terminated.
(9) Failure by the parents to provide for the material needs of the child or to pay a reasonable
portion of support of the child, where the parent is able to do so.
(10) Failure by the parents to maintain regular visits with the child in accordance with a plan
devised by the Department of Human Resources, or any public or licensed private child care
agency, and agreed to by the parent.
(11) Failure by the parents to maintain consistent contact or communication with the child.
(12) Lack of effort by the parent to adjust his or her circumstances to meet the needs of the child in
accordance with agreements reached, including agreements reached with local departments of
human resources or licensed child-placing agencies, in an administrative review or a judicial
review.
(b) A rebuttable presumption that the parents are unable or unwilling to act as parents exists in any
case where the parents have abandoned a child and this abandonment continues for a period of four
months next preceding the filing of the petition. Nothing in this subsection is intended to prevent the
filing of a petition in an abandonment case prior to the end of the four-month period.
ALASKA
ALASKA STAT. § 47.10.011 (2011). Children in need of aid
Subject to AS 47.10.019, the court may find a child to be a child in need of aid if it finds by a
preponderance of the evidence that the child has been subjected to any of the following:
(1) a parent or guardian has abandoned the child as described in AS 47.10.013, and the other parent is
absent or has committed conduct or created conditions that cause the child to be a child in need of aid
National Center for Prosecution of Child Abuse
National District Attorneys Association
10
under this chapter;
(2) a parent, guardian, or custodian is incarcerated, the other parent is absent or has committed
conduct or created conditions that cause the child to be a child in need of aid under this chapter, and
the incarcerated parent has not made adequate arrangements for the child;
(3) a custodian with whom the child has been left is unwilling or unable to provide care, supervision,
or support for the child, and the whereabouts of the parent or guardian is unknown;
(4) the child is in need of medical treatment to cure, alleviate, or prevent substantial physical harm or
is in need of treatment for mental injury and the child's parent, guardian, or custodian has knowingly
failed to provide the treatment;
(5) the child is habitually absent from home or refuses to accept available care and the child's conduct
places the child at substantial risk of physical or mental injury;
(6) the child has suffered substantial physical harm, or there is a substantial risk that the child will
suffer substantial physical harm, as a result of conduct by or conditions created by the child's parent,
guardian, or custodian or by the failure of the parent, guardian, or custodian to supervise the child
adequately;
(7) the child has suffered sexual abuse, or there is a substantial risk that the child will suffer sexual
abuse, as a result of conduct by or conditions created by the child's parent, guardian, or custodian or
by the failure of the parent, guardian, or custodian to adequately supervise the child; if a parent,
guardian, or custodian has actual notice that a person has been convicted of a sex offense against a
minor within the past 15 years, is registered or required to register as a sex offender under AS 12.63,
or is under investigation for a sex offense against a minor, and the parent, guardian, or custodian
subsequently allows a child to be left with that person, this conduct constitutes prima facie evidence
that the child is at substantial risk of being sexually abused;
(8) conduct by or conditions created by the parent, guardian, or custodian have
(A) resulted in mental injury to the child; or
(B) placed the child at substantial risk of mental injury as a result of
(i) a pattern of rejecting, terrorizing, ignoring, isolating, or corrupting behavior that would, if
continued, result in mental injury; or
(ii) exposure to conduct by a household member, as defined in AS 18.66.990, against another
household member that is a crime under AS 11.41.100--11.41.220, 11.41.230(a)(1) or (2), or
11.41.410--11.41.432, an offense under a law or ordinance of another jurisdiction having
elements similar to a crime under AS 11.41.100--11.41.220, 11.41.230(a)(1) or (2), or 11.41.410-
-11.41.432, an attempt to commit an offense that is a crime under AS 11.41.100--11.41.220 or
11.41.410--11.41.432, or an attempt to commit an offense under a law or ordinance of another
jurisdiction having elements similar to a crime under AS 11.41.100--11.41.220 or 11.41.410--
11.41.432; or
National Center for Prosecution of Child Abuse
National District Attorneys Association
11
(iii) repeated exposure to conduct by a household member, as defined in AS 18.66.990, against
another household member that is a crime under AS 11.41.230(a)(3) or 11.41.250--11.41.270 or
an offense under a law or ordinance of another jurisdiction having elements similar to a crime
under AS 11.41.230(a)(3) or 11.41.250--11.41.270;
(9) conduct by or conditions created by the parent, guardian, or custodian have subjected the child or
another child in the same household to neglect;
(10) the parent, guardian, or custodian's ability to parent has been substantially impaired by the
addictive or habitual use of an intoxicant, and the addictive or habitual use of the intoxicant has
resulted in a substantial risk of harm to the child; if a court has previously found that a child is a child
in need of aid under this paragraph, the resumption of use of an intoxicant by a parent, guardian, or
custodian within one year after rehabilitation is prima facie evidence that the ability to parent is
substantially impaired and the addictive or habitual use of the intoxicant has resulted in a substantial
risk of harm to the child as described in this paragraph;
(11) the parent, guardian, or custodian has a mental illness, serious emotional disturbance, or mental
deficiency of a nature and duration that places the child at substantial risk of physical harm or mental
injury;
(12) the child has committed an illegal act as a result of pressure, guidance, or approval from the
child's parent, guardian, or custodian.
ALASKA STAT. § 47.10.014 (2011). Neglect
For purposes of this chapter, the court may find neglect of a child if the parent, guardian, or custodian
fails to provide the child with adequate food, clothing, shelter, education, medical attention, or other
care and control necessary for the child's physical and mental health and development, though
financially able to do so or offered financial or other reasonable means to do so.
ALASKA STAT. § 47.10.085 (2011). Medical treatment by religious means
In a case in which the minor's status as a child in need of aid is sought to be based on the need for
medical care, the court may, upon consideration of the health of the minor and the fact, if it is a fact,
that the minor is being provided treatment by spiritual means through prayer in accordance with the
tenets and practices of a recognized church or religious denomination by an accredited practitioner of
the church or denomination, dismiss the proceedings and thereby close the matter. This may be done,
in the interests of justice and religious freedom, on the court's own motion or upon the application of
a party to the proceedings, at any stage of the proceedings after information is given to the court
under AS 47.10.020(a).
ALASKA STAT. § 47.10.088 (2011). Involuntary termination of parental rights and
responsibilities
(a) Except as provided in AS 47.10.080(o), the rights and responsibilities of the parent regarding the
child may be terminated for purposes of freeing a child for adoption or other permanent placement if
the court finds by clear and convincing evidence that
(1) the child has been subjected to conduct or conditions described in AS 47.10.011;
(2) the parent
National Center for Prosecution of Child Abuse
National District Attorneys Association
12
(A) has not remedied the conduct or conditions in the home that place the child at substantial risk
of harm; or
(B) has failed, within a reasonable time, to remedy the conduct or conditions in the home that
place the child in substantial risk so that returning the child to the parent would place the child at
substantial risk of physical or mental injury; and
(3) the department has complied with the provisions of AS 47.10.086 concerning reasonable efforts.
(b) In making a determination under (a)(2) of this section, the court may consider any fact relating to
the best interests of the child, including
(1) the likelihood of returning the child to the parent within a reasonable time based on the child's
age or needs;
(2) the amount of effort by the parent to remedy the conduct or the conditions in the home;
(3) the harm caused to the child;
(4) the likelihood that the harmful conduct will continue; and
(5) the history of conduct by or conditions created by the parent.
(c) In a proceeding under this chapter involving termination of the parental right of a parent, the court
shall consider the best interests of the child.
(d) Except as provided in (e) of this section, the department shall petition for termination of a parent's
rights to a child, without making further reasonable efforts, when a child is under the jurisdiction of
the court under AS 47.10.010 and 47.10.011, and
(1) the child has been in foster care for at least 15 of the most recent 22 months;
(2) the court has determined that the child is abandoned under AS 47.10.013 and the child is
younger than six years of age;
(3) the court has made a finding under AS 47.10.086(b) or a determination under AS 47.10.086(c)
that the best interests of the child do not require further reasonable efforts by the department;
(4) a parent has made three or more attempts within a 15-month period to remedy the parent's
conduct or conditions in the home without lasting change; or
(5) a parent has made no effort to remedy the parent's conduct or the conditions in the home by the
time of the permanency hearing under AS 47.10.080(l).
(e) If one or more of the conditions listed in (d) of this section are present, the department shall
petition for termination of the parental rights to a child unless the department
(1) has documented a compelling reason for determining that filing the petition would not be in the
best interests of the child; a compelling reason under this paragraph may include care by a relative
National Center for Prosecution of Child Abuse
National District Attorneys Association
13
for the child; or
(2) is required to make reasonable efforts under AS 47.10.086 and the department has not provided
to the parent, consistent with the time period in the department's case plan, the family support
services that the department has determined are necessary for the safe return of the child to the
home.
(f) A child is considered to have entered foster care under this chapter on the earlier of
(1) the date of the first judicial finding of child abuse or neglect; or
(2) 60 days after the date of removal of the child from the child's home under this chapter.
(g) This section does not preclude the department from filing a petition to terminate the parental
rights and responsibilities to a child for other reasons, or at an earlier time than those specified in (d)
of this section, if the department determines that filing a petition is in the best interests of the child.
(h) The court may order the termination of parental rights and responsibilities of one or both parents
under AS 47.10.080(c)(3) and commit the child to the custody of the department. The rights of one
parent may be terminated without affecting the rights of the other parent.
(i) The department shall concurrently identify, recruit, process, and approve a qualified person or
family for an adoption whenever a petition to terminate a parent's rights to a child is filed. Before
identifying a placement of the child in an adoptive home, the department shall attempt to locate all
living adult family members of the child and, if an adult family member expresses an interest in
adopting the child, investigate the adult family member's ability to care for the child. The department
shall provide to all adult family members of the child located by the department written notice of the
adult family members' rights under this chapter and of the procedures necessary to gain custody of the
child, but the department's obligation to provide written notice under this subsection does not apply to
a parent of the child whose parental rights are being or have been terminated or to an adult family
member who is known by the department to be ineligible for a foster care license under AS 47.32 and
regulations adopted under AS 47.32. If an adult family member of the child requests that the
department approve the adult family member for an adoption, the department shall approve the
request unless there is good cause not to approve the adoption. If the court issues an order to
terminate under (j) of this section, the department shall report within 30 days on the efforts being
made to recruit a permanent placement for the child if a permanent placement was not approved at the
time of the trial under (j) of this section. The report must document recruitment efforts made for the
child.
(j) No later than six months after the date on which the petition to terminate parental rights is filed,
the court before which the petition is pending shall hold a trial on the petition unless the court finds
that good cause is shown for a continuance. When determining whether to grant a continuance for
good cause, the court shall take into consideration the age of the child and the potential adverse effect
that the delay may have on the child. The court shall make written findings when granting a
continuance.
(k) The court shall issue an order on the petition to terminate within 90 days after the last day of the
trial on the petition to terminate parental rights.
National Center for Prosecution of Child Abuse
National District Attorneys Association
14
ARIZONA
ARIZ. REV. STAT. § 8-201 (2011). Definitions
In this title, unless the context otherwise requires:
1. “Abandoned” means the failure of the parent to provide reasonable support and to maintain regular
contact with the child, including providing normal supervision. Abandoned includes a judicial finding
that a parent has made only minimal efforts to support and communicate with the child. Failure to
maintain a normal parental relationship with the child without just cause for a period of six months
constitutes prima facie evidence of abandonment.
2. “Abuse” means the infliction or allowing of physical injury, impairment of bodily function or
disfigurement or the infliction of or allowing another person to cause serious emotional damage as
evidenced by severe anxiety, depression, withdrawal or untoward aggressive behavior and which
emotional damage is diagnosed by a medical doctor or psychologist and is caused by the acts or
omissions of an individual having care, custody and control of a child. Abuse includes:
(a) Inflicting or allowing sexual abuse pursuant to § 13-1404, sexual conduct with a minor pursuant
to § 13-1405, sexual assault pursuant to § 13-1406, molestation of a child pursuant to § 13-1410,
commercial sexual exploitation of a minor pursuant to § 13-3552, sexual exploitation of a minor
pursuant to § 13-3553, incest pursuant to § 13-3608 or child prostitution pursuant to § 13-3212.
(b) Physical injury that results from permitting a child to enter or remain in any structure or vehicle
in which volatile, toxic or flammable chemicals are found or equipment is possessed by any person
for the purpose of manufacturing a dangerous drug as defined in § 13-3401.
(c) Unreasonable confinement of a child.
3. “Adult” means a person who is eighteen years of age or older.
4. “Adult court” means the appropriate justice court, municipal court or criminal division of the
superior court that has jurisdiction to hear proceedings concerning offenses committed by juveniles as
provided in §§ 8-327 and 13-501.
5. “Award” or “commit” means to assign legal custody.
6. “Child”, “youth” or “juvenile” means an individual who is under the age of eighteen years.
7. “Complaint” means a written statement of the essential facts constituting a public offense that is
any of the following:
(a) Made on an oath before a judge or commissioner of the superior court or an authorized juvenile
hearing officer.
(b) Made pursuant to § 13-3903.
National Center for Prosecution of Child Abuse
National District Attorneys Association
15
(c) Accompanied by an affidavit of a law enforcement officer or employee that swears on
information and belief to the accuracy of the complaint pursuant to § 13-4261.
8. “Custodian” means a person, other than a parent or legal guardian, who stands in loco parentis to
the child or a person to whom legal custody of the child has been given by order of the juvenile court.
9. “Delinquency hearing” means a proceeding in the juvenile court to determine whether a juvenile
has committed a specific delinquent act as set forth in a petition.
10. “Delinquent act” means an act by a juvenile that if committed by an adult would be a criminal
offense or a petty offense, a violation of any law of this state, or of another state if the act occurred in
that state, or a law of the United States, or a violation of any law that can only be violated by a minor
and that has been designated as a delinquent offense, or any ordinance of a city, county or political
subdivision of this state defining crime. Delinquent act does not include an offense under § 13-501,
subsection A or B if the offense is filed in adult court. Any juvenile who is prosecuted as an adult or
who is remanded for prosecution as an adult shall not be adjudicated as a delinquent juvenile for the
same offense.
11. “Delinquent juvenile” means a child who is adjudicated to have committed a delinquent act.
12. “Department” means the department of economic security.
13. “Dependent child”:
(a) Means a child who is adjudicated to be:
(i) In need of proper and effective parental care and control and who has no parent or guardian, or
one who has no parent or guardian willing to exercise or capable of exercising such care and
control.
(ii) Destitute or who is not provided with the necessities of life, including adequate food, clothing,
shelter or medical care.
(iii) A child whose home is unfit by reason of abuse, neglect, cruelty or depravity by a parent, a
guardian or any other person having custody or care of the child.
(iv) Under eight years of age and who is found to have committed an act that would result in
adjudication as a delinquent juvenile or incorrigible child if committed by an older juvenile or
child.
(v) Incompetent or not restorable to competency and who is alleged to have committed a serious
offense as defined in § 13-706.
(b) Does not include a child who in good faith is being furnished Christian Science treatment by a
duly accredited practitioner if none of the circumstances described in subdivision (a) of this
paragraph exists.
14. “Detention” means the temporary confinement of a juvenile who requires secure care in a
physically restricting facility that is completely surrounded by a locked and physically secure barrier
National Center for Prosecution of Child Abuse
National District Attorneys Association
16
with restricted ingress and egress for the protection of the juvenile or the community pending court
disposition or as a condition of probation.
15. “Health professional” has the same meaning prescribed in § 32-3201.
16. “Incorrigible child” means a child who:
(a) Is adjudicated as a child who refuses to obey the reasonable and proper orders or directions of a
parent, guardian or custodian and who is beyond the control of that person.
(b) Is habitually truant from school as defined in § 15-803, subsection C.
(c) Is a runaway from the child's home or parent, guardian or custodian.
(d) Habitually behaves in such a manner as to injure or endanger the morals or health of self or
others.
(e) Commits any act constituting an offense that can only be committed by a minor and that is not
designated as a delinquent act.
(f) Fails to obey any lawful order of a court of competent jurisdiction given in a noncriminal action.
17. “Independent living program” includes a residential program with supervision of less than twenty-
four hours a day.
18. “Juvenile court” means the juvenile division of the superior court when exercising its jurisdiction
over children in any proceeding relating to delinquency, dependency or incorrigibility.
19. “Law enforcement officer” means a peace officer, sheriff, deputy sheriff, municipal police officer
or constable.
20. “Medical director of a mental health agency” means a psychiatrist, or licensed physician
experienced in psychiatric matters, who is designated in writing by the governing body of the agency
as the person in charge of the medical services of the agency, or a psychiatrist designated by the
governing body to act for the director. The term includes the superintendent of the state hospital.
21. “Mental health agency” means any private or public facility that is licensed by this state as a
mental health treatment agency, a psychiatric hospital, a psychiatric unit of a general hospital or a
residential treatment center for emotionally disturbed children and that uses secure settings or
mechanical restraints.
22. “Neglect” or “neglected” means:
(a) The inability or unwillingness of a parent, guardian or custodian of a child to provide that child
with supervision, food, clothing, shelter or medical care if that inability or unwillingness causes
unreasonable risk of harm to the child's health or welfare, except if the inability of a parent,
guardian or custodian to provide services to meet the needs of a child with a disability or chronic
illness is solely the result of the unavailability of reasonable services.
National Center for Prosecution of Child Abuse
National District Attorneys Association
17
(b) Permitting a child to enter or remain in any structure or vehicle in which volatile, toxic or
flammable chemicals are found or equipment is possessed by any person for the purposes of
manufacturing a dangerous drug as defined in § 13-3401.
(c) A determination by a health professional that a newborn infant was exposed prenatally to a drug
or substance listed in § 13-3401 and that this exposure was not the result of a medical treatment
administered to the mother or the newborn infant by a health professional. This subdivision does
not expand a health professional's duty to report neglect based on prenatal exposure to a drug or
substance listed in § 13-3401 beyond the requirements prescribed pursuant to § 13-3620, subsection
E. The determination by the health professional shall be based on one or more of the following:
(i) Clinical indicators in the prenatal period including maternal and newborn presentation.
(ii) History of substance use or abuse.
(iii) Medical history.
(iv) Results of a toxicology or other laboratory test on the mother or the newborn infant.
(d) Diagnosis by a health professional of an infant under one year of age with clinical findings
consistent with fetal alcohol syndrome or fetal alcohol effects.
(e) Deliberate exposure of a child by a parent, guardian or custodian to sexual conduct as defined in
§ 13-3551 or to sexual contact, oral sexual contact or sexual intercourse as defined in § 13-1401,
bestiality as prescribed in § 13-1411 or explicit sexual materials as defined in § 13-3507.
(f) Any of the following acts committed by the child's parent, guardian or custodian with reckless
disregard as to whether the child is physically present:
(i) Sexual contact as defined in § 13-1401.
(ii) Oral sexual contact as defined in § 13-1401.
(iii) Sexual intercourse as defined in § 13-1401.
(iv) Bestiality as prescribed in § 13-1411.
23. “Newborn infant” means a child who is under thirty days of age.
24. “Petition” means a written statement of the essential facts that allege delinquency, incorrigibility
or dependency.
25. “Prevention” means the creation of conditions, opportunities and experiences that encourage and
develop healthy, self-sufficient children and that occur before the onset of problems.
26. “Protective supervision” means supervision that is ordered by the juvenile court of children who
are found to be dependent or incorrigible.
National Center for Prosecution of Child Abuse
National District Attorneys Association
18
27. “Referral” means a report that is submitted to the juvenile court and that alleges that a child is
dependent or incorrigible or that a juvenile has committed a delinquent or criminal act.
28. “Secure care” means confinement in a facility that is completely surrounded by a locked and
physically secure barrier with restricted ingress and egress.
29. “Serious emotional injury” means an injury that is diagnosed by a medical doctor or a
psychologist and that does any one or a combination of the following:
(a) Seriously impairs mental faculties.
(b) Causes serious anxiety, depression, withdrawal or social dysfunction behavior to the extent that
the child suffers dysfunction that requires treatment.
(c) Is the result of sexual abuse pursuant to § 13-1404, sexual conduct with a minor pursuant to §
13-1405, sexual assault pursuant to § 13-1406, molestation of a child pursuant to § 13-1410, child
prostitution pursuant to § 13-3212, commercial sexual exploitation of a minor pursuant to § 13-
3552, sexual exploitation of a minor pursuant to § 13-3553 or incest pursuant to § 13-3608.
30. “Serious physical injury” means an injury that is diagnosed by a medical doctor and that does any
one or a combination of the following:
(a) Creates a reasonable risk of death.
(b) Causes serious or permanent disfigurement.
(c) Causes significant physical pain.
(d) Causes serious impairment of health.
(e) Causes the loss or protracted impairment of an organ or limb.
(f) Is the result of sexual abuse pursuant to § 13-1404, sexual conduct with a minor pursuant to §
13-1405, sexual assault pursuant to § 13-1406, molestation of a child pursuant to § 13-1410, child
prostitution pursuant to § 13-3212, commercial sexual exploitation of a minor pursuant to § 13-
3552, sexual exploitation of a minor pursuant to § 13-3553 or incest pursuant to § 13-3608.
31. “Shelter care” means the temporary care of a child in any public or private facility or home that is
licensed by this state and that offers a physically nonsecure environment that is characterized by the
absence of physically restricting construction or hardware and that provides the child access to the
surrounding community.
ARIZ. REV. STAT. § 8-533 (2011). Petition; who may file; grounds
A. Any person or agency that has a legitimate interest in the welfare of a child, including, but not
limited to, a relative, a foster parent, a physician, the department of economic security or a private
licensed child welfare agency, may file a petition for the termination of the parent-child relationship
alleging grounds contained in subsection B of this section.
National Center for Prosecution of Child Abuse
National District Attorneys Association
19
B. Evidence sufficient to justify the termination of the parent-child relationship shall include any one
of the following, and in considering any of the following grounds, the court shall also consider the
best interests of the child:
1. That the parent has abandoned the child.
2. That the parent has neglected or wilfully abused a child. This abuse includes serious physical or
emotional injury or situations in which the parent knew or reasonably should have known that a
person was abusing or neglecting a child.
3. That the parent is unable to discharge parental responsibilities because of mental illness, mental
deficiency or a history of chronic abuse of dangerous drugs, controlled substances or alcohol and
there are reasonable grounds to believe that the condition will continue for a prolonged
indeterminate period.
4. That the parent is deprived of civil liberties due to the conviction of a felony if the felony of
which that parent was convicted is of such nature as to prove the unfitness of that parent to have
future custody and control of the child, including murder of another child of the parent,
manslaughter of another child of the parent or aiding or abetting or attempting, conspiring or
soliciting to commit murder or manslaughter of another child of the parent, or if the sentence of that
parent is of such length that the child will be deprived of a normal home for a period of years.
5. That the potential father failed to file a paternity action within thirty days of completion of
service of notice as prescribed in § 8-106, subsection G.
6. That the putative father failed to file a notice of claim of paternity as prescribed in § 8-106.01.
7. That the parents have relinquished their rights to a child to an agency or have consented to the
adoption.
8. That the child is being cared for in an out-of-home placement under the supervision of the
juvenile court, the division or a licensed child welfare agency, that the agency responsible for the
care of the child has made a diligent effort to provide appropriate reunification services and that one
of the following circumstances exists:
(a) The child has been in an out-of-home placement for a cumulative total period of nine months
or longer pursuant to court order or voluntary placement pursuant to § 8-806 and the parent has
substantially neglected or wilfully refused to remedy the circumstances that cause the child to be
in an out-of-home placement.
(b) The child who is under three years of age has been in an out-of-home placement for a
cumulative total period of six months or longer pursuant to court order and the parent has
substantially neglected or wilfully refused to remedy the circumstances that cause the child to be
in an out-of-home placement, including refusal to participate in reunification services offered by
the department.
(c) The child has been in an out-of-home placement for a cumulative total period of fifteen
months or longer pursuant to court order or voluntary placement pursuant to § 8-806, the parent
has been unable to remedy the circumstances that cause the child to be in an out-of-home
National Center for Prosecution of Child Abuse
National District Attorneys Association
20
placement and there is a substantial likelihood that the parent will not be capable of exercising
proper and effective parental care and control in the near future.
9. That the identity of the parent is unknown and continues to be unknown following three months
of diligent efforts to identify and locate the parent.
10. That the parent has had parental rights to another child terminated within the preceding two
years for the same cause and is currently unable to discharge parental responsibilities due to the
same cause.
11. That all of the following are true:
(a) The child was cared for in an out-of-home placement pursuant to court order.
(b) The agency responsible for the care of the child made diligent efforts to provide appropriate
reunification services.
(c) The child, pursuant to court order, was returned to the legal custody of the parent from whom
the child had been removed.
(d) Within eighteen months after the child was returned, pursuant to court order, the child was
removed from that parent's legal custody, the child is being cared for in an out-of-home
placement under the supervision of the juvenile court, the division or a licensed child welfare
agency and the parent is currently unable to discharge parental responsibilities.
C. Evidence considered by the court pursuant to subsection B of this section shall include any
substantiated allegations of abuse or neglect committed in another jurisdiction.
D. In considering the grounds for termination prescribed in subsection B, paragraph 8 or 11 of this
section, the court shall consider the availability of reunification services to the parent and the
participation of the parent in these services.
E. In considering the grounds for termination prescribed in subsection B, paragraph 8 of this section,
the court shall not consider the first sixty days of the initial out-of-home placement pursuant to § 8-
806 in the cumulative total period.
F. The failure of an alleged parent who is not the child's legal parent to take a test requested by the
department or ordered by the court to determine if the person is the child's natural parent is prima
facie evidence of abandonment unless good cause is shown by the alleged parent for that failure.
ARKANSAS
ARK. CODE ANN. § 9-27-303 (2011). Definitions
As used in this subchapter:
National Center for Prosecution of Child Abuse
National District Attorneys Association
21
(1) “Abandoned infant” means a juvenile less than nine (9) months of age whose parent, guardian, or
custodian left the child alone or in the possession of another person without identifying information or
with an expression of intent by words, actions, or omissions not to return for the infant;
(2) “Abandonment” means:
(A) Failure of the parent to provide reasonable support and to maintain regular contact with a
juvenile through statement or contact when the failure is accompanied by an intention on the part of
the parent to permit the condition to continue for an indefinite period in the future and support or
maintain regular contact with a juvenile without just cause; or
(B) An articulated intent to forego parental responsibility;
(3)(A) “Abuse” means any of the following acts or omissions by a parent, guardian, custodian, foster
parent, person eighteen (18) years of age or older living in the home with a child, whether related or
unrelated to the child, or any person who is entrusted with the juvenile's care by a parent, guardian,
custodian, or foster parent, including, but not limited to, an agent or employee of a public or private
residential home, child care facility, public or private school, or any person legally responsible for the
juvenile's welfare:
(i) Extreme or repeated cruelty to a juvenile;
(ii) Engaging in conduct creating a realistic and serious threat of death, permanent or temporary
disfigurement, or impairment of any bodily organ;
(iii) Injury to a juvenile's intellectual, emotional, or psychological development as evidenced by
observable and substantial impairment of the juvenile's ability to function within the juvenile's
normal range of performance and behavior;
(iv) Any injury that is at variance with the history given;
(v) Any nonaccidental physical injury;
(vi) Any of the following intentional or knowing acts, with physical injury and without justifiable
cause:
(a) Throwing, kicking, burning, biting, or cutting a child;
(b) Striking a child with a closed fist;
(c) Shaking a child; or
(d) Striking a child on the face; or
(vii) Any of the following intentional or knowing acts, with or without physical injury:
(a) Striking a child six (6) years of age or younger on the face or head;
National Center for Prosecution of Child Abuse
National District Attorneys Association
22
(b) Shaking a child three (3) years of age or younger;
(c) Interfering with a child's breathing;
(d) Urinating or defecating on a child;
(e) Pinching, biting, or striking a child in the genital area;
(f) Tying a child to a fixed or heavy object or binding or tying a child's limbs together;
(g) Giving a child or permitting a child to consume or inhale a poisonous or noxious substance
not prescribed by a physician that has the capacity to interfere with normal physiological
functions;
(h) Giving a child or permitting a child to consume or inhale a substance not prescribed by a
physician that has the capacity to alter the mood of the child, including, but not limited to, the
following:
(1) Marijuana;
(2) Alcohol, excluding alcohol given to a child during a recognized and established religious
ceremony or service;
(3) Narcotics; or
(4) Over-the-counter drugs if a person purposely administers an overdose to a child or
purposely gives an inappropriate over-the-counter drug to a child and the child is
detrimentally impacted by the overdose or over-the-counter drug;
(i) Exposing a child to chemicals that have the capacity to interfere with normal physiological
functions, including, but not limited to, chemicals used or generated during the manufacturing
of methamphetamine; or
(j) Subjecting a child to Munchausen syndrome by proxy, also known as factitious illness by
proxy, when reported and confirmed by medical personnel or a medical facility.
(B)(i) The list in subdivision (3)(A) of this section is illustrative of unreasonable action and is not
intended to be exclusive.
(ii) No unreasonable action shall be construed to permit a finding of abuse without having
established the elements of abuse.
(C) “Abuse” shall not include:
(i) Physical discipline of a child when it is reasonable and moderate and is inflicted by a parent or
guardian for purposes of restraining or correcting the child; or
National Center for Prosecution of Child Abuse
National District Attorneys Association
23
(ii) Instances when a child suffers transient pain or minor temporary marks as the result of a
reasonable restraint if:
(a) The person exercising the restraint is an employee of a residential child care facility licensed
or exempted from licensure under the Child Welfare Agency Licensing Act, § 9-28-401 et seq.;
(b) The person exercising the restraint is acting in his or her official capacity while on duty at a
residential child care facility or the residential child care facility is exempt from licensure under
the Child Welfare Agency Licensing Act, § 9-28-401 et seq.;
(c) The agency has policies and procedures regarding restraints;
(d) Other alternatives do not exist to control the child except for a restraint;
(e) The child is in danger of hurting himself or herself or others;
(f) The person exercising the restraint has been trained in properly restraining children, de-
escalation, and conflict resolution techniques; and
(g) The restraint is:
(1) For a reasonable period of time; and
(2) In conformity with training and agency policy and procedures.
(iii) Reasonable and moderate physical discipline inflicted by a parent or guardian shall not
include any act that is likely to cause and that does cause injury more serious than transient pain
or minor temporary marks.
(iv) The age, size, and condition of the child and the location of the injury and the frequency or
recurrence of injuries shall be considered when determining whether the physical discipline is
reasonable or moderate;
(4) “Adjudication hearing” means a hearing to determine whether the allegations in a petition are
substantiated by the proof;
(5) “Adult sentence” means punishment authorized by the Arkansas Criminal Code, § 5-1-101 et seq.,
subject to the limitations in § 9-27-507, for the act or acts for which the juvenile was adjudicated
delinquent as an extended juvenile jurisdiction offender;
(6) “Aggravated circumstances” means:
(A) A child has been abandoned, chronically abused, subjected to extreme or repeated cruelty, or
sexually abused, or a determination has been made by a judge that there is little likelihood that
services to the family will result in successful reunification; or
(B) A child has been removed from the custody of the parent or guardian and placed in foster care
or in the custody of another person three (3) or more times in the last fifteen (15) months;
National Center for Prosecution of Child Abuse
National District Attorneys Association
24
(7) “Attorney ad litem” means an attorney appointed to represent the best interest of a juvenile;
(8) “Caretaker” means a parent, guardian, custodian, foster parent, or any person ten (10) years of age
or older who is entrusted with a child's care by a parent, guardian, custodian, or foster parent,
including, but not limited to, an agent or employee of a public or private residential home, child care
facility, public or private school, or any person responsible for a child's welfare;
(9) “Case plan” means a document setting forth the plan for services for a juvenile and his or her
family, as described in § 9-27-402;
(10)(A) “Cash assistance” means short-term financial assistance.
(B) “Cash assistance” does not include:
(i) Long-term financial assistance or financial assistance that is the equivalent of the board
payment or adoption subsidy; or
(ii) Financial assistance for car insurance;
(11) “Commitment” means an order of the court that places a juvenile in the physical custody of the
Division of Youth Services of the Department of Human Services for placement in a youth services
facility;
(12) “Court” means the juvenile division of circuit court;
(13) “Court-appointed special advocate” means a volunteer appointed by the court to advocate for the
best interest of juveniles in dependency-neglect proceedings;
(14) “Custodian” means a person other than a parent or legal guardian who stands in loco parentis to
the juvenile or a person, agency, or institution to whom a court of competent jurisdiction has given
custody of a juvenile by court order;
(15) “Delinquent juvenile” means any juvenile:
(A) Ten (10) years old or older who has committed an act other than a traffic offense or game and
fish violation that, if the act had been committed by an adult, would subject the adult to prosecution
for a felony, misdemeanor, or violation under the applicable criminal laws of this state or who has
violated § 5-73-119; or
(B) Any juvenile charged with capital murder, § 5-10-101, or murder in the first degree, § 5-10-
102, subject to extended juvenile jurisdiction;
(16)(A) “Department” means the Department of Human Services and its divisions and programs.
(B) Unless otherwise stated in this subchapter, any reference to the department shall include all of
its divisions and programs;
(17) “Dependent juvenile” means:
National Center for Prosecution of Child Abuse
National District Attorneys Association
25
(A) A child of a parent who is in the custody of the department;
(B)(i) A child whose parent or guardian is incarcerated and the parent or guardian has no
appropriate relative or friend willing or able to provide care for the child.
(ii) If the reason for the incarceration is related to the health, safety, or welfare of the child, the
child is not a dependent juvenile but may be dependent-neglected;
(C) A child whose parent or guardian is incapacitated, whether temporarily or permanently, so that
the parent or guardian cannot provide care for the juvenile and the parent or guardian has no
appropriate relative or friend willing or able to provide care for the child;
(D) A child whose custodial parent dies and no appropriate relative or friend is willing or able to
provide care for the child;
(E) A child who is an infant relinquished to the custody of the department for the sole purpose of
adoption;
(F) A safe haven baby, § 9-34-201 et seq.; or
(G) A child who has disrupted his or her adoption, and the adoptive parents have exhausted
resources available to them;
(18)(A) “Dependent-neglected juvenile” means any juvenile who is at substantial risk of serious harm
as a result of the following acts or omissions to the juvenile, a sibling, or another juvenile:
(i) Abandonment;
(ii) Abuse;
(iii) Sexual abuse;
(iv) Sexual exploitation;
(v) Neglect;
(vi) Parental unfitness; or
(vii) Being present in a dwelling or structure during the manufacturing of methamphetamine with
the knowledge of his or her parent, guardian, or custodian.
(B) “Dependent-neglected juvenile” includes dependent juveniles;
(19) “Detention” means the temporary care of a juvenile in a physically restricting facility other than
a jail or lock-up used for the detention of adults prior to an adjudication hearing for delinquency or
pending commitment pursuant to an adjudication of delinquency;
(20) “Detention hearing” means a hearing held to determine whether a juvenile accused or
adjudicated of committing a delinquent act or acts should be released or held prior to adjudication or
National Center for Prosecution of Child Abuse
National District Attorneys Association
26
disposition;
(21) “Deviant sexual activity” means any act of sexual gratification involving:
(A) Penetration, however slight, of the anus or mouth of one (1) person by the penis of another
person; or
(B) Penetration, however slight, of the labia majora or anus of one (1) person by any body member
or foreign instrument manipulated by another person;
(22) “Disposition hearing” means a hearing held following an adjudication hearing to determine what
action will be taken in delinquency, family in need of services, or dependency-neglect cases;
(23) “Extended juvenile jurisdiction offender” means a juvenile designated to be subject to juvenile
disposition and an adult sentence imposed by the court;
(24) “Family in need of services” means any family whose juvenile evidences behavior that includes,
but is not limited to, the following:
(A) Being habitually and without justification absent from school while subject to compulsory
school attendance;
(B) Being habitually disobedient to the reasonable and lawful commands of his or her parent,
guardian, or custodian; or
(C) Having absented himself or herself from the juvenile's home without sufficient cause,
permission, or justification;
(25)(A) “Family services” means relevant services provided to a juvenile or his or her family,
including, but not limited to:
(i) Child care;
(ii) Homemaker services;
(iii) Crisis counseling;
(iv) Cash assistance;
(v) Transportation;
(vi) Family therapy;
(vii) Physical, psychiatric, or psychological evaluation;
(viii) Counseling; or
(ix) Treatment.
National Center for Prosecution of Child Abuse
National District Attorneys Association
27
(B) Family services are provided in order to:
(i) Prevent a juvenile from being removed from a parent, guardian, or custodian;
(ii) Reunite the juvenile with the parent, guardian, or custodian from whom the juvenile has been
removed; or
(iii) Implement a permanent plan of adoption, guardianship, or rehabilitation of the juvenile;
(26) “Fast track” means that reunification services will not be provided or will be terminated before
twelve (12) months of services;
(27)(A) “Forcible compulsion” means physical force, intimidation, or a threat, express or implied, of
death, physical injury to, rape, sexual abuse, or kidnapping of any person.
(B) If the act was committed against the will of the juvenile, then “forcible compulsion” has been
used.
(C) The age, developmental stage, and stature of the victim and the relationship of the victim to the
assailant, as well as the threat of deprivation of affection, rights, and privileges from the victim by
the assailant shall be considered in weighing the sufficiency of the evidence to prove compulsion;
(28) “Guardian” means any person, agency, or institution, as defined by § 28-65-101 et seq., whom a
court of competent jurisdiction has so appointed;
(29)(A) “Home study” means a written report that is obtained after an investigation of a home by the
department or other appropriate persons or agencies and that shall conform to regulations established
by the department.
(B)(i) An in-state home study, excluding the results of a criminal records check, shall be completed
and presented to the requesting court within thirty (30) working days of the receipt of the request
for the home study.
(ii) The results of the criminal records check shall be provided to the court as soon as they are
received.
(C)(i) The person or agency conducting the home study shall have the right to obtain a criminal
background check on any person in the household sixteen (16) years of age and older, including a
fingerprint-based check of national crime information databases.
(ii) Upon request, local law enforcement shall provide the person or agency conducting the home
study with criminal background information on any person in the household sixteen (16) years of
age and older;
(30) “Indecent exposure” means the exposure by a person of the person's sexual organs for the
purpose of arousing or gratifying the sexual desire of the person or any other person, under
circumstances in which the person knows the conduct is likely to cause affront or alarm;
National Center for Prosecution of Child Abuse
National District Attorneys Association
28
(31) “Independence” means a permanency planning hearing disposition known as Another Planned
Permanent Living Arrangement (APPLA) for the juvenile who will not be reunited with his or her
family and because another permanent plan is not in the juvenile's best interest;
(32) “Juvenile” means an individual who is:
(A) From birth to eighteen (18) years of age, whether married or single; or
(B) Adjudicated delinquent, a juvenile member of a family in need of services, or dependent or
dependent-neglected by the juvenile division of circuit court prior to eighteen (18) years of age and
for whom the juvenile division of circuit court retains jurisdiction;
(33) “Juvenile detention facility” means any facility for the temporary care of juveniles alleged to be
delinquent or adjudicated delinquent and awaiting disposition, who require secure custody in a
physically restricting facility designed and operated with all entrances and exits under the exclusive
control of the facility's staff, so that a juvenile may not leave the facility unsupervised or without
permission;
(34) “Law enforcement officer” means any public servant vested by law with a duty to maintain
public order or to make arrests for offenses;
(35) “Miranda rights” means the requirement set out in Miranda v. Arizona, 384 U.S. 436 (1966), for
law enforcement officers to clearly inform an accused, including a juvenile taken into custody for a
delinquent act or a criminal offense, that the juvenile has the right to remain silent, that anything the
juvenile says will be used against him or her in court, that the juvenile has the right to consult with a
lawyer and to have the lawyer with him or her during interrogation, and that, if the juvenile is
indigent, a lawyer will be appointed to represent him or her;
(36)(A) “Neglect” means those acts or omissions of a parent, guardian, custodian, foster parent, or
any person who is entrusted with the juvenile's care by a parent, custodian, guardian, or foster parent,
including, but not limited to, an agent or employee of a public or private residential home, child care
facility, public or private school, or any person legally responsible under state law for the juvenile's
welfare, that constitute:
(i) Failure or refusal to prevent the abuse of the juvenile when the person knows or has reasonable
cause to know the juvenile is or has been abused;
(ii) Failure or refusal to provide the necessary food, clothing, shelter, and education required by
law, excluding failure to follow an individualized education program, or medical treatment
necessary for the juvenile's well-being, except when the failure or refusal is caused primarily by
the financial inability of the person legally responsible and no services for relief have been
offered;
(iii) Failure to take reasonable action to protect the juvenile from abandonment, abuse, sexual
abuse, sexual exploitation, neglect, or parental unfitness when the existence of this condition was
known or should have been known;
(iv) Failure or irremediable inability to provide for the essential and necessary physical, mental,
or emotional needs of the juvenile, including failure to provide a shelter that does not pose a risk
National Center for Prosecution of Child Abuse
National District Attorneys Association
29
to the health or safety of the juvenile;
(v) Failure to provide for the juvenile's care and maintenance, proper or necessary support, or
medical, surgical, or other necessary care;
(vi) Failure, although able, to assume responsibility for the care and custody of the juvenile or to
participate in a plan to assume the responsibility; or
(vii) Failure to appropriately supervise the juvenile that results in the juvenile's being left alone at
an inappropriate age or in inappropriate circumstances, creating a dangerous situation or a
situation that puts the juvenile at risk of harm.
(B)(i) “Neglect” shall also include:
(a) Causing a child to be born with an illegal substance present in the child's bodily fluids or
bodily substances as a result of the pregnant mother's knowingly using an illegal substance
before the birth of the child; or
(b) At the time of the birth of a child, the presence of an illegal substance in the mother's bodily
fluids or bodily substances as a result of the pregnant mother's knowingly using an illegal
substance before the birth of the child.
(ii) For the purposes of this subdivision (36)(B), “illegal substance” means a drug that is
prohibited to be used or possessed without a prescription under the Arkansas Criminal Code, § 5-
1-101 et seq.
(iii) A test of the child's bodily fluids or bodily substances may be used as evidence to establish
neglect under subdivision (36)(B)(i)(a) of this section.
(iv) A test of the mother's bodily fluids or bodily substances or the child's bodily fluids or bodily
substances may be used as evidence to establish neglect under subdivision (36)(B)(i)(b) of this
section;
(37)(A) “Notice of hearing” means a notice that describes the nature of the hearing, the time, date,
and place of hearing, the right to be present, heard, and represented by counsel, and instructions on
how to apply to the court for appointment of counsel, if indigent, or a uniform notice as developed
and prescribed by the Supreme Court.
(B) The notice of hearing shall be served in the manner provided for service under the Arkansas
Rules of Civil Procedure;
(38) “Order to appear” means an order issued by the court directing a person who may be subject to
the court's jurisdiction to appear before the court at a date and time as set forth in the order;
(39)(A) “Out-of-home placement” means:
(i) Placement in a home or facility other than placement in a youth services center, a detention
facility, or the home of a parent or guardian of the juvenile; or
National Center for Prosecution of Child Abuse
National District Attorneys Association
30
(ii) Placement in the home of an individual other than a parent or guardian, not including any
placement when the court has ordered that the placement be made permanent and ordered that no
further reunification services or six-month reviews are required.
(B) “Out-of-home placement” shall not include placement in a youth services center or detention
facility as a result of a finding of delinquency;
(40) “Parent” means a biological mother, an adoptive parent, or a man to whom the biological mother
was married at the time of conception or birth or who has signed an acknowledgment of paternity
pursuant to § 9-10-120 or who has been found by a court of competent jurisdiction to be the
biological father of the juvenile;
(41) “Paternity hearing” means a proceeding brought pursuant to bastardy jurisdiction to determine
the biological father of a juvenile;
(42) “Pornography” means:
(A) Pictures, movies, and videos lacking serious literary, artistic, political, or scientific value that
when taken as a whole and applying contemporary community standards would appear to the
average person to appeal to the prurient interest;
(B) Material that depicts sexual conduct in a patently offensive manner lacking serious literary,
artistic, political, or scientific value; or
(C) Obscene or licentious material;
(43)(A) “Predisposition report” means a report concerning the juvenile, the family of the juvenile, all
possible disposition alternatives, the location of the school in which the juvenile is or was last
enrolled, whether the juvenile has been tested for or has been found to have any disability, the name
of the juvenile's attorney and, if appointed by the court, the date of the appointment, any participation
by the juvenile or his or her family in counseling services previously or currently being provided in
conjunction with adjudication of the juvenile, and any other matters relevant to the efforts to provide
treatment to the juvenile or the need for treatment of the juvenile or the family.
(B) The predisposition report shall include a home study of any out-of-home placement that may be
part of the disposition;
(44) “Prosecuting attorney” means an attorney who is elected as district prosecuting attorney, the duly
appointed deputy prosecuting attorney, or any city prosecuting attorney;
(45) “Protection plan” means a written plan developed by the department in conjunction with the
family and support network to protect the juvenile from harm and which allows the juvenile to remain
safely in the home;
(46) “Putative father” means any man not deemed or adjudicated under the laws of the jurisdiction of
the United States to be the biological father of a juvenile who claims or is alleged to be the biological
father of the juvenile;
National Center for Prosecution of Child Abuse
National District Attorneys Association
31
(47)(A)(i) “Reasonable efforts” means efforts to preserve the family prior to the placement of a child
in foster care to prevent the need for removing the child from his or her home and efforts to reunify a
family made after a child is placed out of his or her home to make it possible for him or her to safely
return home.
(ii) Reasonable efforts shall also be made to obtain permanency for a child who has been in an
out-of-home placement for more than twelve (12) months or for fifteen (15) of the previous
twenty-two (22) months.
(iii) In determining whether or not to remove a child from a home or return a child back to a
home, the child's health and safety shall be the paramount concern.
(iv) The department or other appropriate agency shall exercise reasonable diligence and care to
utilize all available services related to meeting the needs of the juvenile and the family.
(B) The juvenile division of circuit court may deem that reasonable efforts have been made when
the court has found that the first contact by the department occurred during an emergency in which
the child could not safely remain at home, even with reasonable services being provided.
(C) Reasonable efforts to reunite a child with his or her parent or parents shall not be required in all
cases. Specifically, reunification shall not be required if a court of competent jurisdiction, including
the juvenile division of circuit court, has determined by clear and convincing evidence that the
parent has:
(i) Subjected the child to aggravated circumstances;
(ii) Committed murder of any child;
(iii) Committed manslaughter of any child;
(iv) Aided or abetted, attempted, conspired, or solicited to commit the murder or the
manslaughter;
(v) Committed a felony battery that results in serious bodily injury to any child;
(vi) Had the parental rights involuntarily terminated as to a sibling of the child;
(vii) Abandoned an infant as defined in subdivision (1) of this section; or
(viii) Registered with a sex offender registry under the 2006 Adam Walsh Child Protection and
Safety Act.
(D) Reasonable efforts to place a child for adoption or with a legal guardian or permanent custodian
may be made concurrently with reasonable efforts to reunite a child with his or her family;
(48) “Residence” means:
(A) The place where the juvenile is domiciled; or
National Center for Prosecution of Child Abuse
National District Attorneys Association
32
(B) The permanent place of abode where the juvenile spends an aggregate of more than six (6)
months of the year;
(49)(A) “Restitution” means actual economic loss sustained by an individual or entity as a proximate
result of the delinquent acts of a juvenile.
(B) Such economic loss shall include, but not be limited to, medical expenses, funeral expenses,
expenses incurred for counseling services, lost wages, and expenses for repair or replacement of
property;
(50) “Safety plan” means a plan ordered by the court to be developed for an adjudicated delinquent
sex offender under § 9-27-356 who is at moderate or high risk of reoffending for the purposes of § 9-
27-309;
(51) “Sexual abuse” means:
(A) By a person thirteen (13) years of age or older to a person younger than eighteen (18) years of
age:
(i) Sexual intercourse, deviant sexual activity, or sexual contact by forcible compulsion;
(ii) Attempted sexual intercourse, attempted deviant sexual activity, or attempted sexual contact
by forcible compulsion;
(iii) Indecent exposure; or
(iv) Forcing the watching of pornography or live human sexual activity;
(B)(i) By a person eighteen (18) years of age or older to a person who is younger than fifteen (15)
years of age and is not his or her spouse:
(a) Sexual intercourse, deviant sexual activity, or sexual contact;
(b) Attempted sexual intercourse, attempted deviant sexual activity, or attempted sexual
contact; or
(c) Solicitation of sexual intercourse, solicitation of deviate sexual activity, or solicitation of
sexual contact.
(ii) By a person twenty (20) years of age or older to a person who is younger than sixteen (16)
years of age who is not his or her spouse:
(a) Sexual intercourse, deviant sexual activity, or sexual contact;
(b) Attempted sexual intercourse, attempted deviant sexual activity, or attempted sexual
contact; or
National Center for Prosecution of Child Abuse
National District Attorneys Association
33
(c) Solicitation of sexual intercourse, solicitation of deviant sexual activity, or solicitation of
sexual contact;
(C) By a caretaker to a person younger than eighteen (18) years of age:
(i) Sexual intercourse, deviant sexual activity, or sexual contact;
(ii) Attempted sexual intercourse, attempted deviant sexual activity, or attempted sexual contact;
(iii) Forcing or encouraging the watching of pornography;
(iv) Forcing, permitting, or encouraging the watching of live sexual activity;
(v) Forcing listening to a phone sex line; or
(vi) An act of voyeurism;
(D) By a person younger than thirteen (13) years of age to a person younger than eighteen (18)
years of age:
(i) Sexual intercourse, deviant sexual activity, or sexual contact by forcible compulsion; or
(ii) Attempted sexual intercourse, attempted deviant sexual activity, or attempted sexual contact
by forcible compulsion;
(52)(A) “Sexual contact” means any act of sexual gratification involving:
(i) Touching, directly or through clothing, of the sex organs, buttocks, or anus of a juvenile or the
breast of a female juvenile;
(ii) Encouraging the juvenile to touch the offender in a sexual manner; or
(iii) Requesting the offender to touch the juvenile in a sexual manner.
(B) Evidence of sexual gratification may be inferred from the attendant circumstances surrounding
the investigation of the specific complaint of child maltreatment.
(C) This section shall not permit normal, affectionate hugging to be construed as sexual contact;
(53) “Sexual exploitation” includes:
(A) Allowing, permitting, or encouraging participation or depiction of the juvenile in:
(i) Prostitution;
(ii) Obscene photographing; or
(iii) Obscene filming; or
National Center for Prosecution of Child Abuse
National District Attorneys Association
34
(B) Obscenely depicting, obscenely posing, or obscenely posturing a juvenile for any use or
purpose;
(54) “Shelter care” means the temporary care of a juvenile in physically unrestricting facilities
pursuant to an order for placement pending or pursuant to an adjudication of dependency-neglect or
family in need of services;
(55) “Trial placement” means that custody of the juvenile remains with the department, but the
juvenile is returned to the home of a parent or the person from whom custody was removed for a
period not to exceed sixty (60) days;
(56) “UCCJEA” means the Uniform Child-Custody Jurisdiction and Enforcement Act, § 9-19-101 et
seq.;
(57) “UIFSA” means the Uniform Interstate Family Support Act, § 9-17-101 et seq.;
(58) “Victim” means any person or entity entitled to restitution as defined in subdivision (49) of this
section as the result of a delinquent act committed by a juvenile adjudicated delinquent;
(59)(A) “Voyeurism” means looking for the purpose of sexual arousal or gratification into a private
location or place in which a juvenile may reasonably be expected to be nude or partially nude.
(B) This definition does not apply to delinquency actions;
(60) “Youth services center” means a youth services facility operated by the state or a contract
provider;
(61) “Youth services facility” means a facility operated by the state or its designee for the care of
juveniles who have been adjudicated delinquent or convicted of a crime and who require secure
custody in either a physically restrictive facility or a staff-secured facility operated so that a juvenile
may not leave the facility unsupervised or without supervision.
(62) “Temporary custody” means custody that is transferred to a person during the pendency of the
juvenile court case when services are being provided to achieve the goal of the case plan; and
(63) “Permanent custody” means custody that is transferred to a person as a permanency disposition
in a juvenile case when the court has ordered that:
(A) Reunification services are no longer required; and
(B) Six-month reviews are not required.
ARK. CODE ANN. § 9-27-335 (2011). Disposition--Dependent-neglected--Limitations
(a)(1) At least five (5) working days before ordering the Department of Human Services, excluding
community-based providers, to provide or pay for family services in any case in which the
department is not a party, the circuit court shall fax a written notice of intent to the Director of the
Department of Human Services and to the attorney of the local office of chief counsel of the
department.
National Center for Prosecution of Child Abuse
National District Attorneys Association
35
(2) At any hearing in which the department is ordered to provide family services, the court shall
provide the department with the opportunity to be heard.
(3) Failure to provide at least five (5) working days' notice to the department renders any part of the
order pertaining to the department void.
(b)(1) For purposes of this section, the court shall not specify a particular provider for placement or
family services if the department is the payor or provider.
(2)(A) The court may order a child to be placed or to remain in a placement if the court finds the
placement is in the best interest of the child after hearing evidence from all parties.
(B) A court may also order a child into a licensed or approved placement after a hearing where
the court makes a finding that it is in the best interest of the child based on bona fide
consideration of evidence and recommendations from all the parties.
(c)(1) In all cases in which family services are ordered, the court shall determine the ability of the
parent, guardian, or custodian to pay, in whole or in part, for these services.
(2) The determination of ability to pay and the evidence supporting it shall be made in writing in
the order ordering family services.
(3) If the court determines that the parent, guardian, or custodian is able to pay, in whole or in part,
for the services, the court shall enter a written order setting forth the amount the parent, guardian, or
custodian is able to pay for the family services ordered and order the parent, guardian, or custodian
to pay the amount periodically to the provider from whom family services are received.
(d) Custody of a juvenile may be transferred to a relative or other individual only after a home study
of the placement is conducted by the department or by a licensed social worker who is approved to do
home studies and submitted to the court in writing and the court determines that the placement is in
the best interest of the juvenile.
(e)(1)(A) The court shall enter an order transferring custody of a juvenile in a dependency-neglect
case only after determining that reasonable efforts have been made by the department to deliver
family services designed to prevent the need for out-of-home placement and that the need for out-of-
home placement exists.
(B) The juvenile's health and safety shall be the paramount concern of the court in determining if
the department could have made reasonable efforts to prevent the juvenile's removal.
(2) If the court finds that reasonable efforts to deliver family services could have been made with
the juvenile safely remaining at home but were not made, the court may:
(A) Dismiss the petition;
(B) Order family services reasonably calculated to prevent the need for out-of-home placement;
or
National Center for Prosecution of Child Abuse
National District Attorneys Association
36
(C) Transfer custody of the juvenile despite the lack of reasonable efforts by the department to
prevent the need for out-of-home placement if the transfer is necessary:
(i) To protect the juvenile's health and safety; or
(ii) To prevent the removal of the juvenile from the jurisdiction of the court.
(f) In a case of medical neglect involving a child's receiving treatment through prayer alone in
accordance with a religious method of healing in lieu of medical care, the adjudication order shall be
limited to:
(1) Preventing or remedying serious harm to the child; or
(2) Preventing the withholding of medically indicated treatment from a child with a life-threatening
condition.
(g) No court may commit a juvenile found solely in criminal contempt to the Division of Youth
Services of the Department of Human Services.
(h) For purposes of this section, the court shall not order the department to expend or forward social
security benefits for which the department is payee.
ARK. CODE ANN. § 9-27-341 (2011). Termination of parental rights
(a)(1)(A) This section shall be a remedy available only to the Department of Human Services or a
court-appointed attorney ad litem.
(B) This section shall not be available for private litigants or other agencies.
(2) This section shall be used only in cases in which the department is attempting to clear a juvenile
for permanent placement.
(3) The intent of this section is to provide permanency in a juvenile's life in all instances in which
the return of a juvenile to the family home is contrary to the juvenile's health, safety, or welfare and
it appears from the evidence that a return to the family home cannot be accomplished in a
reasonable period of time as viewed from the juvenile's perspective.
(4)(A) A parent's resumption of contact or overtures toward participating in the case plan or
following the orders of the court following the permanency planning hearing and preceding the
termination of parental rights hearing is an insufficient reason to not terminate parental rights.
(B) The court shall rely upon the record of the parent's compliance in the entire dependency-
neglect case and evidence presented at the termination hearing in making its decision whether it is
in the juvenile's best interest to terminate parental rights.
(b)(1)(A) The circuit court may consider a petition to terminate parental rights if the court finds that
there is an appropriate permanency placement plan for the juvenile.
(B) This section does not require that a permanency planning hearing be held as a prerequisite to
the filing of a petition to terminate parental rights or as a prerequisite to the court's considering a
National Center for Prosecution of Child Abuse
National District Attorneys Association
37
petition to terminate parental rights.
(2)(A) The petitioner shall serve the petition to terminate parental rights as required under Rule 5 of
the Arkansas Rules of Civil Procedure, except:
(i) Service shall be made as required under Rule 4 of the Arkansas Rules of Civil Procedure if
the:
(a) Parent was not served under Rule 4 of the Arkansas Rules of Civil Procedure at the
initiation of the proceeding;
(b) Parent is not represented by an attorney; or
(c) Initiation of the proceeding was more than two (2) years ago; or
(ii) When the court orders service of the petition to terminate parental rights as required under
Rule 4 of the Arkansas Rules of Civil Procedure.
(B) The petitioner shall check with the Putative Father Registry if the name or whereabouts of the
putative father is unknown.
(3) An order forever terminating parental rights shall be based upon a finding by clear and
convincing evidence:
(A) That it is in the best interest of the juvenile, including consideration of the following factors:
(i) The likelihood that the juvenile will be adopted if the termination petition is granted; and
(ii) The potential harm, specifically addressing the effect on the health and safety of the child,
caused by returning the child to the custody of the parent, parents, or putative parent or parents;
and
(B) Of one (1) or more of the following grounds:
(i)(a) That a juvenile has been adjudicated by the court to be dependent-neglected and has
continued to be out of the custody of the parent for twelve (12) months and, despite a
meaningful effort by the department to rehabilitate the parent and correct the conditions that
caused removal, those conditions have not been remedied by the parent.
(b) It is not necessary that the twelve-month period referenced in subdivision (b)(3)(B)(i)(a)
of this section immediately precede the filing of the petition for termination of parental rights
or that it be for twelve (12) consecutive months;
(ii)(a) The juvenile has lived outside the home of the parent for a period of twelve (12) months,
and the parent has willfully failed to provide significant material support in accordance with the
parent's means or to maintain meaningful contact with the juvenile.
(b) To find willful failure to maintain meaningful contact, it must be shown that the parent
was not prevented from visiting or having contact with the juvenile by the juvenile's
National Center for Prosecution of Child Abuse
National District Attorneys Association
38
custodian or any other person, taking into consideration the distance of the juvenile's
placement from the parent's home.
(c) Material support consists of either financial contributions or food, shelter, clothing, or
other necessities when the contribution has been requested by the juvenile's custodian or
ordered by a court of competent jurisdiction.
(d) It is not necessary that the twelve-month period referenced in subdivision (b)(3)(B)(ii)(a)
of this section immediately precede the filing of the petition for termination of parental rights
or that it be for twelve (12) consecutive months;
(iii) The presumptive legal father is not the biological father of the juvenile and the welfare of
the juvenile can best be served by terminating the parental rights of the presumptive legal
father;
(iv) A parent has abandoned the juvenile;
(v)(a) A parent has executed consent to termination of parental rights or adoption of the
juvenile, subject to the court's approval.
(b) If the consent is executed under oath by a person authorized to administer the oath, the
parent is not required to execute the consent in the presence of the court unless required by
federal law or federal regulations;
(vi)(a) The court has found the juvenile or a sibling dependent-neglected as a result of neglect
or abuse that could endanger the life of the child, sexual abuse, or sexual exploitation, any of
which was perpetrated by the juvenile's parent or parents or step-parent or step-parents.
(b) Such findings by the juvenile division of circuit court shall constitute grounds for
immediate termination of the parental rights of one (1) or both of the parents;
(vii)(a) That other factors or issues arose subsequent to the filing of the original petition for
dependency-neglect that demonstrate that return of the juvenile to the custody of the parent is
contrary to the juvenile's health, safety, or welfare and that, despite the offer of appropriate
family services, the parent has manifested the incapacity or indifference to remedy the
subsequent issues or factors or rehabilitate the parent's circumstances that prevent return of the
juvenile to the custody of the parent.
(b) The department shall make reasonable accommodations in accordance with the
Americans with Disabilities Act of 1990, 42 U.S.C. § 12101 et seq., to parents with
disabilities in order to allow them meaningful access to reunification and family preservation
services.
(c) For purposes of this subdivision (b)(3)(B)(vii), the inability or incapacity to remedy or
rehabilitate includes, but is not limited to, mental illness, emotional illness, or mental
deficiencies;
National Center for Prosecution of Child Abuse
National District Attorneys Association
39
(viii) The parent is sentenced in a criminal proceeding for a period of time that would constitute
a substantial period of the juvenile's life; or
(ix)(a) The parent is found by a court of competent jurisdiction, including the juvenile division
of circuit court, to:
(1) Have committed murder or manslaughter of any juvenile or to have aided or abetted, attempted,
conspired, or solicited to commit the murder or manslaughter;
(2) Have committed a felony battery that results in serious bodily injury to any juvenile or to have
aided or abetted, attempted, conspired, or solicited to commit felony battery that results in serious
bodily injury to any juvenile;
(3)(A) Have subjected any juvenile to aggravated circumstances.
(B) “Aggravated circumstances” means:
(i) A juvenile has been abandoned, chronically abused, subjected to extreme or repeated
cruelty, sexually abused, or a determination has been made by a judge that there is little
likelihood that services to the family will result in successful reunification; or
(ii) A juvenile has been removed from the custody of the parent or guardian and placed in foster
care or in the custody of another person three (3) or more times in the last fifteen (15) months;
(4) Have had his or her parental rights involuntarily terminated as to a sibling of the child; or
(5) Have abandoned an infant, as defined at § 9-27-303(2).
(b) This subchapter does not require reunification of a surviving child with a parent who has been
found guilty of any of the offenses listed in subdivision (b)(3)(B)(ix)(a) of this section.
(c)(1) An order terminating the relationship between parent and juvenile divests the parent and the
juvenile of all legal rights, powers, and obligations with respect to each other, including the right to
withhold consent to adoption, except the right of the juvenile to inherit from the parent, that is
terminated only by a final order of adoption.
(2)(A)(i) Termination of the relationship between a juvenile and one (1) parent shall not affect the
relationship between the juvenile and the other parent if those rights are legally established.
(ii) If no legal rights have been established, a putative parent must prove that significant
contacts existed with the juvenile in order for the putative parent's rights to attach.
(iii) A court may terminate the rights of one (1) parent and not the other parent if the court finds
that it is in the best interest of the child.
(B)(i) When the petitioner has actual knowledge that an individual is claiming to be or is named
as the putative parent of the juvenile and the paternity of the juvenile has not been judicially
determined, the individual is entitled to notice of the petition to terminate parental rights.
National Center for Prosecution of Child Abuse
National District Attorneys Association
40
(ii) The notice shall identify the rights sought to be terminated and those that may be
terminated.
(iii) The notice shall further specify that the putative parent must prove that significant contacts
existed with the juvenile for the putative parent's rights to attach.
(3) An order terminating parental rights under this section may authorize the department to consent
to adoption of the juvenile.
(d) The court shall conduct and complete a termination of parental rights hearing within ninety (90)
days from the date the petition for termination of parental rights is filed unless continued for good
cause as articulated in the written order of the court.
(e) A written order shall be filed by the court or by a party or party's counsel as designated by the
court within thirty (30) days of the date of the termination hearing or before the next hearing,
whichever is sooner.
(f) After the termination of parental rights hearing, the court shall review the case at least every six
(6) months, and a permanency planning hearing shall be held each year following the initial
permanency hearing until permanency is achieved for that juvenile.
(g)(1)(A) A parent may withdraw consent to termination of parental rights within ten (10) calendar
days after it was signed by filing an affidavit with the circuit clerk in the county designated by the
consent as the county in which the termination of parental rights will be filed.
(B) If the ten-day period ends on a weekend or legal holiday, the person may file the affidavit the
next working day.
(C) No fee shall be charged for the filing of the affidavit.
(2) The consent to terminate parental rights shall state that the person has the right of withdrawal of
consent and shall provide the address of the circuit clerk of the county in which the termination of
parental rights will be filed.
CALIFORNIA
CAL. FAM. CODE § 7802 (2012). Proceeding for declaration of freedom from parental
custody and control
A proceeding may be brought under this part for the purpose of having a minor child declared free
from the custody and control of either or both parents.
CAL. FAM. CODE § 7803 (2012). Effect of declaration of freedom
A declaration of freedom from parental custody and control pursuant to this part terminates all
parental rights and responsibilities with regard to the child.
National Center for Prosecution of Child Abuse
National District Attorneys Association
41
CAL. FAM. CODE § 7823 (2012). Neglected or cruelly treated children; right to action
(a) A proceeding under this part may be brought where all of the following requirements are satisfied:
(1) The child has been neglected or cruelly treated by either or both parents.
(2) The child has been a dependent child of the juvenile court under any subdivision of Section 300
of the Welfare and Institutions Code and the parent or parents have been deprived of the child's
custody for one year before the filing of a petition pursuant to this part.
(b) Physical custody by the parent or parents for insubstantial periods of time does not interrupt the
running of the one-year period.
CAL. FAM. CODE § 7829 (2012). Child found to be dependent child and reunification
services not to be provided; right to action
A proceeding under this part may be brought where both of the following requirements are satisfied:
(a) The child has been found to be a dependent child of the juvenile court.
(b) The juvenile court has determined, pursuant to paragraph (3), (4), or (5) of subdivision (b) of
Section 361.5 of the Welfare and Institutions Code, that reunification services shall not be provided to
the child's parent or guardian.
CAL. WELF. & INST. CODE § 300 (2012). Children subject to jurisdiction; legislative
intent and declarations; guardian defined
Any child who comes within any of the following descriptions is within the jurisdiction of the
juvenile court which may adjudge that person to be a dependent child of the court:
(a) The child has suffered, or there is a substantial risk that the child will suffer, serious physical harm
inflicted nonaccidentally upon the child by the child's parent or guardian. For the purposes of this
subdivision, a court may find there is a substantial risk of serious future injury based on the manner in
which a less serious injury was inflicted, a history of repeated inflictions of injuries on the child or the
child's siblings, or a combination of these and other actions by the parent or guardian which indicate
the child is at risk of serious physical harm. For purposes of this subdivision, “serious physical harm”
does not include reasonable and age-appropriate spanking to the buttocks where there is no evidence
of serious physical injury.
(b) The child has suffered, or there is a substantial risk that the child will suffer, serious physical harm
or illness, as a result of the failure or inability of his or her parent or guardian to adequately supervise
or protect the child, or the willful or negligent failure of the child's parent or guardian to adequately
supervise or protect the child from the conduct of the custodian with whom the child has been left, or
by the willful or negligent failure of the parent or guardian to provide the child with adequate food,
clothing, shelter, or medical treatment, or by the inability of the parent or guardian to provide regular
care for the child due to the parent's or guardian's mental illness, developmental disability, or
substance abuse. No child shall be found to be a person described by this subdivision solely due to the
lack of an emergency shelter for the family. Whenever it is alleged that a child comes within the
jurisdiction of the court on the basis of the parent's or guardian's willful failure to provide adequate
medical treatment or specific decision to provide spiritual treatment through prayer, the court shall
give deference to the parent's or guardian's medical treatment, nontreatment, or spiritual treatment
National Center for Prosecution of Child Abuse
National District Attorneys Association
42
through prayer alone in accordance with the tenets and practices of a recognized church or religious
denomination, by an accredited practitioner thereof, and shall not assume jurisdiction unless
necessary to protect the child from suffering serious physical harm or illness. In making its
determination, the court shall consider (1) the nature of the treatment proposed by the parent or
guardian, (2) the risks to the child posed by the course of treatment or nontreatment proposed by the
parent or guardian, (3) the risk, if any, of the course of treatment being proposed by the petitioning
agency, and (4) the likely success of the courses of treatment or nontreatment proposed by the parent
or guardian and agency. The child shall continue to be a dependent child pursuant to this subdivision
only so long as is necessary to protect the child from risk of suffering serious physical harm or illness.
(c) The child is suffering serious emotional damage, or is at substantial risk of suffering serious
emotional damage, evidenced by severe anxiety, depression, withdrawal, or untoward aggressive
behavior toward self or others, as a result of the conduct of the parent or guardian or who has no
parent or guardian capable of providing appropriate care. No child shall be found to be a person
described by this subdivision if the willful failure of the parent or guardian to provide adequate
mental health treatment is based on a sincerely held religious belief and if a less intrusive judicial
intervention is available.
(d) The child has been sexually abused, or there is a substantial risk that the child will be sexually
abused, as defined in Section 11165.1 of the Penal Code, by his or her parent or guardian or a
member of his or her household, or the parent or guardian has failed to adequately protect the child
from sexual abuse when the parent or guardian knew or reasonably should have known that the child
was in danger of sexual abuse.
(e) The child is under the age of five years and has suffered severe physical abuse by a parent, or by
any person known by the parent, if the parent knew or reasonably should have known that the person
was physically abusing the child. For the purposes of this subdivision, “severe physical abuse” means
any of the following: any single act of abuse which causes physical trauma of sufficient severity that,
if left untreated, would cause permanent physical disfigurement, permanent physical disability, or
death; any single act of sexual abuse which causes significant bleeding, deep bruising, or significant
external or internal swelling; or more than one act of physical abuse, each of which causes bleeding,
deep bruising, significant external or internal swelling, bone fracture, or unconsciousness; or the
willful, prolonged failure to provide adequate food. A child may not be removed from the physical
custody of his or her parent or guardian on the basis of a finding of severe physical abuse unless the
social worker has made an allegation of severe physical abuse pursuant to Section 332.
(f) The child's parent or guardian caused the death of another child through abuse or neglect.
(g) The child has been left without any provision for support; physical custody of the child has been
voluntarily surrendered pursuant to Section 1255.7 of the Health and Safety Code and the child has
not been reclaimed within the 14-day period specified in subdivision (e) of that section; the child's
parent has been incarcerated or institutionalized and cannot arrange for the care of the child; or a
relative or other adult custodian with whom the child resides or has been left is unwilling or unable to
provide care or support for the child, the whereabouts of the parent are unknown, and reasonable
efforts to locate the parent have been unsuccessful.
(h) The child has been freed for adoption by one or both parents for 12 months by either
relinquishment or termination of parental rights or an adoption petition has not been granted.
National Center for Prosecution of Child Abuse
National District Attorneys Association
43
(i) The child has been subjected to an act or acts of cruelty by the parent or guardian or a member of
his or her household, or the parent or guardian has failed to adequately protect the child from an act or
acts of cruelty when the parent or guardian knew or reasonably should have known that the child was
in danger of being subjected to an act or acts of cruelty.
(j) The child's sibling has been abused or neglected, as defined in subdivision (a), (b), (d), (e), or (i),
and there is a substantial risk that the child will be abused or neglected, as defined in those
subdivisions. The court shall consider the circumstances surrounding the abuse or neglect of the
sibling, the age and gender of each child, the nature of the abuse or neglect of the sibling, the mental
condition of the parent or guardian, and any other factors the court considers probative in determining
whether there is a substantial risk to the child.
It is the intent of the Legislature that nothing in this section disrupt the family unnecessarily or intrude
inappropriately into family life, prohibit the use of reasonable methods of parental discipline, or
prescribe a particular method of parenting. Further, nothing in this section is intended to limit the
offering of voluntary services to those families in need of assistance but who do not come within the
descriptions of this section. To the extent that savings accrue to the state from child welfare services
funding obtained as a result of the enactment of the act that enacted this section, those savings shall
be used to promote services which support family maintenance and family reunification plans, such as
client transportation, out-of-home respite care, parenting training, and the provision of temporary or
emergency in-home caretakers and persons teaching and demonstrating homemaking skills. The
Legislature further declares that a physical disability, such as blindness or deafness, is no bar to the
raising of happy and well-adjusted children and that a court's determination pursuant to this section
shall center upon whether a parent's disability prevents him or her from exercising care and control.
The Legislature further declares that a child whose parent has been adjudged a dependent child of the
court pursuant to this section shall not be considered to be at risk of abuse or neglect solely because of
the age, dependent status, or foster care status of the parent.
As used in this section, “guardian” means the legal guardian of the child.
CAL. WELF. & INST. CODE § 300.5 (2012). Medical care; treatment by spiritual means
In any case in which a child is alleged to come within the provisions of Section 300 on the basis that
he or she is in need of medical care, the court, in making that finding, shall give consideration to any
treatment being provided to the child by spiritual means through prayer alone in accordance with the
tenets and practices of a recognized church or religious denomination by an accredited practitioner
thereof.
CAL. WELF. & INST. CODE § 361.5 (2012). Child welfare services; reunification of
family; hearing; findings by court; incarcerated parents; adoption assessment
<Section operative until Jan. 1, 2014. See, also, section operative Jan. 1, 2014.>
(a) Except as provided in subdivision (b), or when the parent has voluntarily relinquished the child
and the relinquishment has been filed with the State Department of Social Services, or upon the
establishment of an order of guardianship pursuant to Section 360, whenever a child is removed from
a parent's or guardian's custody, the juvenile court shall order the social worker to provide child
welfare services to the child and the child's mother and statutorily presumed father or guardians.
Upon a finding and declaration of paternity by the juvenile court or proof of a prior declaration of
paternity by any court of competent jurisdiction, the juvenile court may order services for the child
National Center for Prosecution of Child Abuse
National District Attorneys Association
44
and the biological father, if the court determines that the services will benefit the child.
(1) Family reunification services, when provided, shall be provided as follows:
(A) Except as otherwise provided in subparagraph (C), for a child who, on the date of initial
removal from the physical custody of his or her parent or guardian, was three years of age or
older, court-ordered services shall be provided beginning with the dispositional hearing and
ending 12 months after the date the child entered foster care as defined in Section 361.49, unless
the child is returned to the home of the parent or guardian.
(B) For a child who, on the date of initial removal from the physical custody of his or her parent
or guardian, was under three years of age, court-ordered services shall be provided for a period of
six months from the dispositional hearing as provided in subdivision (e) of Section 366.21, but no
longer than 12 months from the date the child entered foster care as defined in Section 361.49
unless the child is returned to the home of the parent or guardian.
(C) For the purpose of placing and maintaining a sibling group together in a permanent home
should reunification efforts fail, for a child in a sibling group whose members were removed from
parental custody at the same time, and in which one member of the sibling group was under three
years of age on the date of initial removal from the physical custody of his or her parent or
guardian, court-ordered services for some or all of the sibling group may be limited as set forth in
subparagraph (B). For the purposes of this paragraph, “a sibling group” shall mean two or more
children who are related to each other as full or half siblings.
(2) Any motion to terminate court-ordered reunification services prior to the hearing set pursuant to
subdivision (f) of Section 366.21 for a child described by subparagraph (A) of paragraph (1), or
prior to the hearing set pursuant to subdivision (e) of Section 366.21 for a child described by
subparagraph (B) or (C) of paragraph (1), shall be made pursuant to the requirements set forth in
subdivision (c) of Section 388. A motion to terminate court-ordered reunification services shall not
be required at the hearing set pursuant to subdivision (e) of Section 366.21 if the court finds by
clear and convincing evidence one of the following:
(A) That the child was removed initially under subdivision (g) of Section 300 and the
whereabouts of the parent are still unknown.
(B) That the parent has failed to contact and visit the child.
(C) That the parent has been convicted of a felony indicating parental unfitness.
(3) Notwithstanding subparagraphs (A), (B), and (C) of paragraph (1), court-ordered services may
be extended up to a maximum time period not to exceed 18 months after the date the child was
originally removed from physical custody of his or her parent or guardian if it can be shown, at the
hearing held pursuant to subdivision (f) of Section 366.21, that the permanent plan for the child is
that he or she will be returned and safely maintained in the home within the extended time period.
The court shall extend the time period only if it finds that there is a substantial probability that the
child will be returned to the physical custody of his or her parent or guardian within the extended
time period or that reasonable services have not been provided to the parent or guardian. In
determining whether court-ordered services may be extended, the court shall consider the special
circumstances of an incarcerated or institutionalized parent or parents, or parent or parents court-
National Center for Prosecution of Child Abuse
National District Attorneys Association
45
ordered to a residential substance abuse treatment program, including, but not limited to, barriers to
the parent's or guardian's access to services and ability to maintain contact with his or her child. The
court shall also consider, among other factors, good faith efforts that the parent or guardian has
made to maintain contact with the child. If the court extends the time period, the court shall specify
the factual basis for its conclusion that there is a substantial probability that the child will be
returned to the physical custody of his or her parent or guardian within the extended time period.
The court also shall make findings pursuant to subdivision (a) of Section 366 and subdivision (e) of
Section 358.1.
When counseling or other treatment services are ordered, the parent or guardian shall be ordered to
participate in those services, unless the parent's or guardian's participation is deemed by the court to
be inappropriate or potentially detrimental to the child, or unless a parent or guardian is
incarcerated and the corrections facility in which he or she is incarcerated does not provide access
to the treatment services ordered by the court. Physical custody of the child by the parents or
guardians during the applicable time period under subparagraph (A), (B), or (C) of paragraph (1)
shall not serve to interrupt the running of the period. If at the end of the applicable time period, a
child cannot be safely returned to the care and custody of a parent or guardian without court
supervision, but the child clearly desires contact with the parent or guardian, the court shall take the
child's desire into account in devising a permanency plan.
In cases where the child was under three years of age on the date of the initial removal from the
physical custody of his or her parent or guardian or is a member of a sibling group as described in
subparagraph (C) of paragraph (1), the court shall inform the parent or guardian that the failure of
the parent or guardian to participate regularly in any court-ordered treatment programs or to
cooperate or avail himself or herself of services provided as part of the child welfare services case
plan may result in a termination of efforts to reunify the family after six months. The court shall
inform the parent or guardian of the factors used in subdivision (e) of Section 366.21 to determine
whether to limit services to six months for some or all members of a sibling group as described in
subparagraph (C) of paragraph (1).
(4) Notwithstanding paragraph (3), court-ordered services may be extended up to a maximum time
period not to exceed 24 months after the date the child was originally removed from physical
custody of his or her parent or guardian if it is shown, at the hearing held pursuant to subdivision
(b) of Section 366.22, that the permanent plan for the child is that he or she will be returned and
safely maintained in the home within the extended time period. The court shall extend the time
period only if it finds that it is in the child's best interest to have the time period extended and that
there is a substantial probability that the child will be returned to the physical custody of his or her
parent or guardian who is described in subdivision (b) of Section 366.22 within the extended time
period, or that reasonable services have not been provided to the parent or guardian. If the court
extends the time period, the court shall specify the factual basis for its conclusion that there is a
substantial probability that the child will be returned to the physical custody of his or her parent or
guardian within the extended time period. The court also shall make findings pursuant to
subdivision (a) of Section 366 and subdivision (e) of Section 358.1.
When counseling or other treatment services are ordered, the parent or guardian shall be ordered to
participate in those services, in order for substantial probability to be found. Physical custody of the
child by the parents or guardians during the applicable time period under subparagraph (A), (B), or
(C) of paragraph (1) shall not serve to interrupt the running of the period. If at the end of the
applicable time period, the child cannot be safely returned to the care and custody of a parent or
National Center for Prosecution of Child Abuse
National District Attorneys Association
46
guardian without court supervision, but the child clearly desires contact with the parent or guardian,
the court shall take the child's desire into account in devising a permanency plan.
Except in cases where, pursuant to subdivision (b), the court does not order reunification services,
the court shall inform the parent or parents of Section 366.26 and shall specify that the parent's or
parents' parental rights may be terminated.
(b) Reunification services need not be provided to a parent or guardian described in this subdivision
when the court finds, by clear and convincing evidence, any of the following:
(1) That the whereabouts of the parent or guardian is unknown. A finding pursuant to this paragraph
shall be supported by an affidavit or by proof that a reasonably diligent search has failed to locate
the parent or guardian. The posting or publication of notices is not required in that search.
(2) That the parent or guardian is suffering from a mental disability that is described in Chapter 2
(commencing with Section 7820) of Part 4 of Division 12 of the Family Code and that renders him
or her incapable of utilizing those services.
(3) That the child or a sibling of the child has been previously adjudicated a dependent pursuant to
any subdivision of Section 300 as a result of physical or sexual abuse, that following that
adjudication the child had been removed from the custody of his or her parent or guardian pursuant
to Section 361, that the child has been returned to the custody of the parent or guardian from whom
the child had been taken originally, and that the child is being removed pursuant to Section 361, due
to additional physical or sexual abuse.
(4) That the parent or guardian of the child has caused the death of another child through abuse or
neglect.
(5) That the child was brought within the jurisdiction of the court under subdivision (e) of Section
300 because of the conduct of that parent or guardian.
(6) That the child has been adjudicated a dependent pursuant to any subdivision of Section 300 as a
result of severe sexual abuse or the infliction of severe physical harm to the child, a sibling, or a
half sibling by a parent or guardian, as defined in this subdivision, and the court makes a factual
finding that it would not benefit the child to pursue reunification services with the offending parent
or guardian.
A finding of severe sexual abuse, for the purposes of this subdivision, may be based on, but is not
limited to, sexual intercourse, or stimulation involving genital-genital, oral-genital, anal-genital, or
oral-anal contact, whether between the parent or guardian and the child or a sibling or half sibling
of the child, or between the child or a sibling or half sibling of the child and another person or
animal with the actual or implied consent of the parent or guardian; or the penetration or
manipulation of the child's, sibling's, or half sibling's genital organs or rectum by any animate or
inanimate object for the sexual gratification of the parent or guardian, or for the sexual gratification
of another person with the actual or implied consent of the parent or guardian.
A finding of the infliction of severe physical harm, for the purposes of this subdivision, may be
based on, but is not limited to, deliberate and serious injury inflicted to or on a child's body or the
body of a sibling or half sibling of the child by an act or omission of the parent or guardian, or of
National Center for Prosecution of Child Abuse
National District Attorneys Association
47
another individual or animal with the consent of the parent or guardian; deliberate and torturous
confinement of the child, sibling, or half sibling in a closed space; or any other torturous act or
omission that would be reasonably understood to cause serious emotional damage.
(7) That the parent is not receiving reunification services for a sibling or a half sibling of the child
pursuant to paragraph (3), (5), or (6).
(8) That the child was conceived by means of the commission of an offense listed in Section 288 or
288.5 of the Penal Code, or by an act committed outside of this state that, if committed in this state,
would constitute one of those offenses. This paragraph only applies to the parent who committed
the offense or act.
(9) That the child has been found to be a child described in subdivision (g) of Section 300; that the
parent or guardian of the child willfully abandoned the child, and the court finds that the
abandonment itself constituted a serious danger to the child; or that the parent or other person
having custody of the child voluntarily surrendered physical custody of the child pursuant to
Section 1255.7 of the Health and Safety Code. For the purposes of this paragraph, “serious danger”
means that without the intervention of another person or agency, the child would have sustained
severe or permanent disability, injury, illness, or death. For purposes of this paragraph, “willful
abandonment” shall not be construed as actions taken in good faith by the parent without the intent
of placing the child in serious danger.
(10) That the court ordered termination of reunification services for any siblings or half siblings of
the child because the parent or guardian failed to reunify with the sibling or half sibling after the
sibling or half sibling had been removed from that parent or guardian pursuant to Section 361 and
that parent or guardian is the same parent or guardian described in subdivision (a) and that,
according to the findings of the court, this parent or guardian has not subsequently made a
reasonable effort to treat the problems that led to removal of the sibling or half sibling of that child
from that parent or guardian.
(11) That the parental rights of a parent over any sibling or half sibling of the child had been
permanently severed, and this parent is the same parent described in subdivision (a), and that,
according to the findings of the court, this parent has not subsequently made a reasonable effort to
treat the problems that led to removal of the sibling or half sibling of that child from the parent.
(12) That the parent or guardian of the child has been convicted of a violent felony, as defined in
subdivision (c) of Section 667.5 of the Penal Code.
(13) That the parent or guardian of the child has a history of extensive, abusive, and chronic use of
drugs or alcohol and has resisted prior court-ordered treatment for this problem during a three-year
period immediately prior to the filing of the petition that brought that child to the court's attention,
or has failed or refused to comply with a program of drug or alcohol treatment described in the case
plan required by Section 358. 1 on at least two prior occasions, even though the programs identified
were available and accessible.
(14) That the parent or guardian of the child has advised the court that he or she is not interested in
receiving family maintenance or family reunification services or having the child returned to or
placed in his or her custody and does not wish to receive family maintenance or reunification
National Center for Prosecution of Child Abuse
National District Attorneys Association
48
services.
The parent or guardian shall be represented by counsel and shall execute a waiver of services form
to be adopted by the Judicial Council. The court shall advise the parent or guardian of any right to
services and of the possible consequences of a waiver of services, including the termination of
parental rights and placement of the child for adoption. The court shall not accept the waiver of
services unless it states on the record its finding that the parent or guardian has knowingly and
intelligently waived the right to services.
(15) That the parent or guardian has on one or more occasions willfully abducted the child or child's
sibling or half sibling from his or her placement and refused to disclose the child's or child's
sibling's or half sibling's whereabouts, refused to return physical custody of the child or child's
sibling or half sibling to his or her placement, or refused to return physical custody of the child or
child's sibling or half sibling to the social worker.
(c) In deciding whether to order reunification in any case in which this section applies, the court shall
hold a dispositional hearing. The social worker shall prepare a report that discusses whether
reunification services shall be provided. When it is alleged, pursuant to paragraph (2) of subdivision
(b), that the parent is incapable of utilizing services due to mental disability, the court shall order
reunification services unless competent evidence from mental health professionals establishes that,
even with the provision of services, the parent is unlikely to be capable of adequately caring for the
child within the time limits specified in subdivision (a).
The court shall not order reunification for a parent or guardian described in paragraph (3), (4), (6),
(7), (8), (9), (10), (11), (12), (13), (14), or (15) of subdivision (b) unless the court finds, by clear and
convincing evidence, that reunification is in the best interest of the child.
In addition, the court shall not order reunification in any situation described in paragraph (5) of
subdivision (b) unless it finds that, based on competent testimony, those services are likely to prevent
reabuse or continued neglect of the child or that failure to try reunification will be detrimental to the
child because the child is closely and positively attached to that parent. The social worker shall
investigate the circumstances leading to the removal of the child and advise the court whether there
are circumstances that indicate that reunification is likely to be successful or unsuccessful and
whether failure to order reunification is likely to be detrimental to the child.
The failure of the parent to respond to previous services, the fact that the child was abused while the
parent was under the influence of drugs or alcohol, a past history of violent behavior, or testimony by
a competent professional that the parent's behavior is unlikely to be changed by services are among
the factors indicating that reunification services are unlikely to be successful. The fact that a parent or
guardian is no longer living with an individual who severely abused the child may be considered in
deciding that reunification services are likely to be successful, provided that the court shall consider
any pattern of behavior on the part of the parent that has exposed the child to repeated abuse.
(d) If reunification services are not ordered pursuant to paragraph (1) of subdivision (b) and the
whereabouts of a parent become known within six months of the out-of-home placement of the child,
the court shall order the social worker to provide family reunification services in accordance with this
subdivision.
National Center for Prosecution of Child Abuse
National District Attorneys Association
49
(e)(1) If the parent or guardian is incarcerated or institutionalized, the court shall order reasonable
services unless the court determines, by clear and convincing evidence, those services would be
detrimental to the child. In determining detriment, the court shall consider the age of the child, the
degree of parent-child bonding, the length of the sentence, the length and nature of the treatment, the
nature of the crime or illness, the degree of detriment to the child if services are not offered and, for
children 10 years of age or older, the child's attitude toward the implementation of family
reunification services, the likelihood of the parent's discharge from incarceration or
institutionalization within the reunification time limitations described in subdivision (a), and any
other appropriate factors. In determining the content of reasonable services, the court shall consider
the particular barriers to an incarcerated or otherwise institutionalized parent's access to those court-
mandated services and ability to maintain contact with his or her child, and shall document this
information in the child's case plan. Reunification services are subject to the applicable time
limitations imposed in subdivision (a). Services may include, but shall not be limited to, all of the
following:
(A) Maintaining contact between the parent and child through collect telephone calls.
(B) Transportation services, where appropriate.
(C) Visitation services, where appropriate.
(D) Reasonable services to extended family members or foster parents providing care for the
child if the services are not detrimental to the child.
An incarcerated parent may be required to attend counseling, parenting classes, or vocational training
programs as part of the reunification service plan if actual access to these services is provided. The
social worker shall document in the child's case plan the particular barriers to an incarcerated or
institutionalized parent's access to those court-mandated services and ability to maintain contact with
his or her child.
(2) The presiding judge of the juvenile court of each county may convene representatives of the
county welfare department, the sheriff's department, and other appropriate entities for the purpose
of developing and entering into protocols for ensuring the notification, transportation, and presence
of an incarcerated or institutionalized parent at all court hearings involving proceedings affecting
the child pursuant to Section 2625 of the Penal Code. The county welfare department shall utilize
the prisoner locator system developed by the Department of Corrections and Rehabilitation to
facilitate timely and effective notice of hearings for incarcerated parents.
(3) Notwithstanding any other provision of law, if the incarcerated parent is a woman seeking to
participate in the community treatment program operated by the Department of Corrections and
Rehabilitation pursuant to Chapter 4.8 (commencing with Section 1174) of Title 7 of Part 2 of,
Chapter 4 (commencing with Section 3410) of Title 2 of Part 3 of, the Penal Code, the court shall
determine whether the parent's participation in a program is in the child's best interest and whether
it is suitable to meet the needs of the parent and child.
(f) If the court, pursuant to paragraph (2), (3), (4), (5), (6), (7), (8), (9), (10), (11), (12), (13), (14), or
(15) of subdivision (b) or paragraph (1) of subdivision (e), does not order reunification services, it
shall, at the dispositional hearing, that shall include a permanency hearing, determine if a hearing
under Section 366.26 shall be set in order to determine whether adoption, guardianship, or long-term
National Center for Prosecution of Child Abuse
National District Attorneys Association
50
foster care, or in the case of an Indian child, in consultation with the child's tribe, tribal customary
adoption, is the most appropriate plan for the child, and shall consider in-state and out-of-state
placement options. If the court so determines, it shall conduct the hearing pursuant to Section 366.26
within 120 days after the dispositional hearing. However, the court shall not schedule a hearing so
long as the other parent is being provided reunification services pursuant to subdivision (a). The court
may continue to permit the parent to visit the child unless it finds that visitation would be detrimental
to the child.
(g)(1) Whenever a court orders that a hearing shall be held pursuant to Section 366.26, including,
when, in consultation with the child's tribe, tribal customary adoption is recommended, it shall direct
the agency supervising the child and the licensed county adoption agency, or the State Department of
Social Services when it is acting as an adoption agency in counties that are not served by a county
adoption agency, to prepare an assessment that shall include:
(A) Current search efforts for an absent parent or parents and notification of a noncustodial parent
in the manner provided for in Section 291.
(B) A review of the amount of and nature of any contact between the child and his or her parents
and other members of his or her extended family since the time of placement. Although the
extended family of each child shall be reviewed on a case-by-case basis, “extended family” for
the purpose of this subparagraph shall include, but not be limited to, the child's siblings,
grandparents, aunts, and uncles.
(C) An evaluation of the child's medical, developmental, scholastic, mental, and emotional status.
(D) A preliminary assessment of the eligibility and commitment of any identified prospective
adoptive parent or guardian, including a prospective tribal customary adoptive parent, particularly
the caretaker, to include a social history, including screening for criminal records and prior
referrals for child abuse or neglect, the capability to meet the child's needs, and the understanding
of the legal and financial rights and responsibilities of adoption and guardianship. If a proposed
guardian is a relative of the minor, the assessment shall also consider, but need not be limited to,
all of the factors specified in subdivision (a) of Section 361.3 and in Section 361.4. As used in
this subparagraph, “relative” means an adult who is related to the minor by blood, adoption, or
affinity within the fifth degree of kinship, including stepparents, stepsiblings, and all relatives
whose status is preceded by the words “great,” “great-great,” or “grand,” or the spouse of any of
those persons even if the marriage was terminated by death or dissolution.
(E) The relationship of the child to any identified prospective adoptive parent or guardian,
including a prospective tribal customary parent, the duration and character of the relationship, the
degree of attachment of the child to the prospective relative guardian or adoptive parent, the
relative's or adoptive parent's strong commitment to caring permanently for the child, the
motivation for seeking adoption or guardianship, a statement from the child concerning
placement and the adoption or guardianship, and whether the child over 12 years of age has been
consulted about the proposed relative guardianship arrangements, unless the child's age or
physical, emotional, or other condition precludes his or her meaningful response, and if so, a
description of the condition.
(F) An analysis of the likelihood that the child will be adopted if parental rights are terminated.
National Center for Prosecution of Child Abuse
National District Attorneys Association
51
(G) In the case of an Indian child, in addition to subparagraphs (A) to (F), inclusive, an
assessment of the likelihood that the child will be adopted, when, in consultation with the child's
tribe, a customary tribal adoption, as defined in Section 366.24, is recommended. If tribal
customary adoption is recommended, the assessment shall include an analysis of both of the
following:
(i) Whether tribal customary adoption would or would not be detrimental to the Indian child
and the reasons for reaching that conclusion.
(ii) Whether the Indian child cannot or should not be returned to the home of the Indian parent
or Indian custodian and the reasons for reaching that conclusion.
(2)(A) A relative caregiver's preference for legal guardianship over adoption, if it is due to
circumstances that do not include an unwillingness to accept legal or financial responsibility for the
child, shall not constitute the sole basis for recommending removal of the child from the relative
caregiver for purposes of adoptive placement.
(B) A relative caregiver shall be given information regarding the permanency options of
guardianship and adoption, including the long-term benefits and consequences of each option,
prior to establishing legal guardianship or pursuing adoption.
(h) If, at any hearing held pursuant to Section 366.26, a guardianship is established for the minor with
an approved relative caregiver and juvenile court dependency is subsequently dismissed, the minor
shall be eligible for aid under the Kin-GAP Program as provided for in Article 4.5 (commencing with
Section 11360) or Article 4.7 (commencing with Section 11385) of Chapter 2, as applicable.
(i) In determining whether reunification services will benefit the child pursuant to paragraph (6) or (7)
of subdivision (b), the court shall consider any information it deems relevant, including the following
factors:
(1) The specific act or omission comprising the severe sexual abuse or the severe physical harm
inflicted on the child or the child's sibling or half sibling.
(2) The circumstances under which the abuse or harm was inflicted on the child or the child's
sibling or half sibling.
(3) The severity of the emotional trauma suffered by the child or the child's sibling or half sibling.
(4) Any history of abuse of other children by the offending parent or guardian.
(5) The likelihood that the child may be safely returned to the care of the offending parent or
guardian within 12 months with no continuing supervision.
(6) Whether or not the child desires to be reunified with the offending parent or guardian.
(j) When the court determines that reunification services will not be ordered, it shall order that the
child's caregiver receive the child's birth certificate in accordance with Sections 16010.4 and 16010.5.
Additionally, when the court determines that reunification services will not be ordered, it shall order,
National Center for Prosecution of Child Abuse
National District Attorneys Association
52
when appropriate, that a child who is 16 years of age or older receive his or her birth certificate.
(k) The court shall read into the record the basis for a finding of severe sexual abuse or the infliction
of severe physical harm under paragraph (6) of subdivision (b), and shall also specify the factual
findings used to determine that the provision of reunification services to the offending parent or
guardian would not benefit the child.
(l) This section shall remain in effect only until January 1, 2014, and as of that date is repealed, unless
a later enacted statute, that is enacted before January 1, 2014, deletes or extends that date.
CAL. WELF. & INST. CODE § 361.5 (2012). Child welfare services; reunification of family;
hearing; findings by court; incarcerated parents; adoption assessment
<Section operative Jan. 1, 2014. See, also, section operative until Jan. 1, 2014.>
(a) Except as provided in subdivision (b), or when the parent has voluntarily relinquished the child
and the relinquishment has been filed with the State Department of Social Services, or upon the
establishment of an order of guardianship pursuant to Section 360, whenever a child is removed from
a parent's or guardian's custody, the juvenile court shall order the social worker to provide child
welfare services to the child and the child's mother and statutorily presumed father or guardians.
Upon a finding and declaration of paternity by the juvenile court or proof of a prior declaration of
paternity by any court of competent jurisdiction, the juvenile court may order services for the child
and the biological father, if the court determines that the services will benefit the child.
(1) Family reunification services, when provided, shall be provided as follows:
(A) Except as otherwise provided in subparagraph (C), for a child who, on the date of initial
removal from the physical custody of his or her parent or guardian, was three years of age or
older, court-ordered services shall be provided beginning with the dispositional hearing and
ending 12 months after the date the child entered foster care as defined in Section 361.49, unless
the child is returned to the home of the parent or guardian.
(B) For a child who, on the date of initial removal from the physical custody of his or her parent
or guardian, was under three years of age, court-ordered services shall be provided for a period of
six months from the dispositional hearing as provided in subdivision (e) of Section 366.21, but no
longer than 12 months from the date the child entered foster care as defined in Section 361.49
unless the child is returned to the home of the parent or guardian.
(C) For the purpose of placing and maintaining a sibling group together in a permanent home
should reunification efforts fail, for a child in a sibling group whose members were removed from
parental custody at the same time, and in which one member of the sibling group was under three
years of age on the date of initial removal from the physical custody of his or her parent or
guardian, court-ordered services for some or all of the sibling group may be limited as set forth in
subparagraph (B). For the purposes of this paragraph, “a sibling group” shall mean two or more
children who are related to each other as full or half siblings.
(2) Any motion to terminate court-ordered reunification services prior to the hearing set pursuant to
subdivision (f) of Section 366.21 for a child described by subparagraph (A) of paragraph (1), or
prior to the hearing set pursuant to subdivision (e) of Section 366.21 for a child described by
subparagraph (B) or (C) of paragraph (1), shall be made pursuant to the requirements set forth in
National Center for Prosecution of Child Abuse
National District Attorneys Association
53
subdivision (c) of Section 388. A motion to terminate court-ordered reunification services shall not
be required at the hearing set pursuant to subdivision (e) of Section 366.21 if the court finds by
clear and convincing evidence one of the following:
(A) That the child was removed initially under subdivision (g) of Section 300 and the
whereabouts of the parent are still unknown.
(B) That the parent has failed to contact and visit the child.
(C) That the parent has been convicted of a felony indicating parental unfitness.
(3) Notwithstanding subparagraphs (A), (B), and (C) of paragraph (1), court-ordered services may
be extended up to a maximum time period not to exceed 18 months after the date the child was
originally removed from physical custody of his or her parent or guardian if it can be shown, at the
hearing held pursuant to subdivision (f) of Section 366.21, that the permanent plan for the child is
that he or she will be returned and safely maintained in the home within the extended time period.
The court shall extend the time period only if it finds that there is a substantial probability that the
child will be returned to the physical custody of his or her parent or guardian within the extended
time period or that reasonable services have not been provided to the parent or guardian. In
determining whether court-ordered services may be extended, the court shall consider the special
circumstances of an incarcerated or institutionalized parent or parents, or parent or parents court-
ordered to a residential substance abuse treatment program, including, but not limited to, barriers to
the parent's or guardian's access to services and ability to maintain contact with his or her child. The
court shall also consider, among other factors, good faith efforts that the parent or guardian has
made to maintain contact with the child. If the court extends the time period, the court shall specify
the factual basis for its conclusion that there is a substantial probability that the child will be
returned to the physical custody of his or her parent or guardian within the extended time period.
The court also shall make findings pursuant to subdivision (a) of Section 366 and subdivision (e) of
Section 358.1.
When counseling or other treatment services are ordered, the parent or guardian shall be ordered to
participate in those services, unless the parent's or guardian's participation is deemed by the court to
be inappropriate or potentially detrimental to the child, or unless a parent or guardian is
incarcerated and the corrections facility in which he or she is incarcerated does not provide access
to the treatment services ordered by the court. Physical custody of the child by the parents or
guardians during the applicable time period under subparagraph (A), (B), or (C) of paragraph (1)
shall not serve to interrupt the running of the period. If at the end of the applicable time period, a
child cannot be safely returned to the care and custody of a parent or guardian without court
supervision, but the child clearly desires contact with the parent or guardian, the court shall take the
child's desire into account in devising a permanency plan.
In cases where the child was under three years of age on the date of the initial removal from the
physical custody of his or her parent or guardian or is a member of a sibling group as described in
subparagraph (C) of paragraph (1), the court shall inform the parent or guardian that the failure of
the parent or guardian to participate regularly in any court-ordered treatment programs or to
cooperate or avail himself or herself of services provided as part of the child welfare services case
plan may result in a termination of efforts to reunify the family after six months. The court shall
inform the parent or guardian of the factors used in subdivision (e) of Section 366.21 to determine
whether to limit services to six months for some or all members of a sibling group as described in
National Center for Prosecution of Child Abuse
National District Attorneys Association
54
subparagraph (C) of paragraph (1).
(4) Notwithstanding paragraph (3), court-ordered services may be extended up to a maximum time
period not to exceed 24 months after the date the child was originally removed from physical
custody of his or her parent or guardian if it is shown, at the hearing held pursuant to subdivision
(b) of Section 366.22, that the permanent plan for the child is that he or she will be returned and
safely maintained in the home within the extended time period. The court shall extend the time
period only if it finds that it is in the child's best interest to have the time period extended and that
there is a substantial probability that the child will be returned to the physical custody of his or her
parent or guardian who is described in subdivision (b) of Section 366.22 within the extended time
period, or that reasonable services have not been provided to the parent or guardian. If the court
extends the time period, the court shall specify the factual basis for its conclusion that there is a
substantial probability that the child will be returned to the physical custody of his or her parent or
guardian within the extended time period. The court also shall make findings pursuant to
subdivision (a) of Section 366 and subdivision (e) of Section 358.1.
When counseling or other treatment services are ordered, the parent or guardian shall be ordered to
participate in those services, in order for substantial probability to be found. Physical custody of the
child by the parents or guardians during the applicable time period under subparagraph (A), (B), or
(C) of paragraph (1) shall not serve to interrupt the running of the period. If at the end of the
applicable time period, the child cannot be safely returned to the care and custody of a parent or
guardian without court supervision, but the child clearly desires contact with the parent or guardian,
the court shall take the child's desire into account in devising a permanency plan.
Except in cases where, pursuant to subdivision (b), the court does not order reunification services,
the court shall inform the parent or parents of Section 366.26 and shall specify that the parent's or
parents' parental rights may be terminated.
(b) Reunification services need not be provided to a parent or guardian described in this subdivision
when the court finds, by clear and convincing evidence, any of the following:
(1) That the whereabouts of the parent or guardian is unknown. A finding pursuant to this paragraph
shall be supported by an affidavit or by proof that a reasonably diligent search has failed to locate
the parent or guardian. The posting or publication of notices is not required in that search.
(2) That the parent or guardian is suffering from a mental disability that is described in Chapter 2
(commencing with Section 7820) of Part 4 of Division 12 of the Family Code and that renders him
or her incapable of utilizing those services.
(3) That the child or a sibling of the child has been previously adjudicated a dependent pursuant to
any subdivision of Section 300 as a result of physical or sexual abuse, that following that
adjudication the child had been removed from the custody of his or her parent or guardian pursuant
to Section 361, that the child has been returned to the custody of the parent or guardian from whom
the child had been taken originally, and that the child is being removed pursuant to Section 361, due
to additional physical or sexual abuse.
(4) That the parent or guardian of the child has caused the death of another child through abuse or
neglect.
National Center for Prosecution of Child Abuse
National District Attorneys Association
55
(5) That the child was brought within the jurisdiction of the court under subdivision (e) of Section
300 because of the conduct of that parent or guardian.
(6) That the child has been adjudicated a dependent pursuant to any subdivision of Section 300 as a
result of severe sexual abuse or the infliction of severe physical harm to the child, a sibling, or a
half sibling by a parent or guardian, as defined in this subdivision, and the court makes a factual
finding that it would not benefit the child to pursue reunification services with the offending parent
or guardian.
A finding of severe sexual abuse, for the purposes of this subdivision, may be based on, but is not
limited to, sexual intercourse, or stimulation involving genital-genital, oral-genital, anal-genital, or
oral-anal contact, whether between the parent or guardian and the child or a sibling or half sibling
of the child, or between the child or a sibling or half sibling of the child and another person or
animal with the actual or implied consent of the parent or guardian; or the penetration or
manipulation of the child's, sibling's, or half sibling's genital organs or rectum by any animate or
inanimate object for the sexual gratification of the parent or guardian, or for the sexual gratification
of another person with the actual or implied consent of the parent or guardian.
A finding of the infliction of severe physical harm, for the purposes of this subdivision, may be
based on, but is not limited to, deliberate and serious injury inflicted to or on a child's body or the
body of a sibling or half sibling of the child by an act or omission of the parent or guardian, or of
another individual or animal with the consent of the parent or guardian; deliberate and torturous
confinement of the child, sibling, or half sibling in a closed space; or any other torturous act or
omission that would be reasonably understood to cause serious emotional damage.
(7) That the parent is not receiving reunification services for a sibling or a half sibling of the child
pursuant to paragraph (3), (5), or (6).
(8) That the child was conceived by means of the commission of an offense listed in Section 288 or
288.5 of the Penal Code, or by an act committed outside of this state that, if committed in this state,
would constitute one of those offenses. This paragraph only applies to the parent who committed
the offense or act.
(9) That the child has been found to be a child described in subdivision (g) of Section 300, that the
parent or guardian of the child willfully abandoned the child, and the court finds that the
abandonment itself constituted a serious danger to the child; or that the parent or other person
having custody of the child voluntarily surrendered physical custody of the child pursuant to
Section 1255.7 of the Health and Safety Code. For the purposes of this paragraph, “serious danger”
means that without the intervention of another person or agency, the child would have sustained
severe or permanent disability, injury, illness, or death. For purposes of this paragraph, “willful
abandonment” shall not be construed as actions taken in good faith by the parent without the intent
of placing the child in serious danger.
(10) That the court ordered termination of reunification services for any siblings or half siblings of
the child because the parent or guardian failed to reunify with the sibling or half sibling after the
sibling or half sibling had been removed from that parent or guardian pursuant to Section 361 and
that parent or guardian is the same parent or guardian described in subdivision (a) and that,
according to the findings of the court, this parent or guardian has not subsequently made a
reasonable effort to treat the problems that led to removal of the sibling or half sibling of that child
National Center for Prosecution of Child Abuse
National District Attorneys Association
56
from that parent or guardian.
(11) That the parental rights of a parent over any sibling or half sibling of the child had been
permanently severed, and this parent is the same parent described in subdivision (a), and that,
according to the findings of the court, this parent has not subsequently made a reasonable effort to
treat the problems that led to removal of the sibling or half sibling of that child from the parent.
(12) That the parent or guardian of the child has been convicted of a violent felony, as defined in
subdivision (c) of Section 667.5 of the Penal Code.
(13) That the parent or guardian of the child has a history of extensive, abusive, and chronic use of
drugs or alcohol and has resisted prior court-ordered treatment for this problem during a three-year
period immediately prior to the filing of the petition that brought that child to the court's attention,
or has failed or refused to comply with a program of drug or alcohol treatment described in the case
plan required by Section 358. 1 on at least two prior occasions, even though the programs identified
were available and accessible.
(14) That the parent or guardian of the child has advised the court that he or she is not interested in
receiving family maintenance or family reunification services or having the child returned to or
placed in his or her custody and does not wish to receive family maintenance or reunification
services.
The parent or guardian shall be represented by counsel and shall execute a waiver of services form
to be adopted by the Judicial Council. The court shall advise the parent or guardian of any right to
services and of the possible consequences of a waiver of services, including the termination of
parental rights and placement of the child for adoption. The court shall not accept the waiver of
services unless it states on the record its finding that the parent or guardian has knowingly and
intelligently waived the right to services.
(15) That the parent or guardian has on one or more occasions willfully abducted the child or child's
sibling or half sibling from his or her placement and refused to disclose the child's or child's
sibling's or half sibling's whereabouts, refused to return physical custody of the child or child's
sibling or half sibling to his or her placement, or refused to return physical custody of the child or
child's sibling or half sibling to the social worker.
(c) In deciding whether to order reunification in any case in which this section applies, the court shall
hold a dispositional hearing. The social worker shall prepare a report that discusses whether
reunification services shall be provided. When it is alleged, pursuant to paragraph (2) of subdivision
(b), that the parent is incapable of utilizing services due to mental disability, the court shall order
reunification services unless competent evidence from mental health professionals establishes that,
even with the provision of services, the parent is unlikely to be capable of adequately caring for the
child within the time limits specified in subdivision (a).
The court shall not order reunification for a parent or guardian described in paragraph (3), (4), (6),
(7), (8), (9), (10), (11), (12), (13), (14), or (15) of subdivision (b) unless the court finds, by clear and
convincing evidence, that reunification is in the best interest of the child.