ASSEMBLY, No. 903

STATE OF NEW JERSEY

215th LEGISLATURE

 

PRE-FILED FOR INTRODUCTION IN THE 2012 SESSION

 


 

Sponsored by:

Assemblywoman  HOLLY SCHEPISI

District 39 (Bergen and Passaic)

 

Co-Sponsored by:

Assemblymen Chivukula, Prieto, Assemblywoman N.Munoz and Assemblyman Johnson

 

 

 

 

SYNOPSIS

     Revises New Jersey Safe Haven Infant Protection Act and other laws relating thereto.

 

CURRENT VERSION OF TEXT

     Introduced Pending Technical Review by Legislative Counsel

  


An Act concerning certain abandoned children and amending P.L.1977, c.367, P.L.1951, c.138, P.L.1991, c.275, and P.L.2000, c.58.

 

     Be It Enacted by the Senate and General Assembly of the State of New Jersey:

 

     1.    Section 9 of P.L.1977, c.367 (C.9:3-45) is amended to read as follows:

     9.    a. In an adoption proceeding pursuant to P.L.1977, c.367 (C.9:3-37 et seq.), notice of the complaint may not be waived and a notice of hearing shall be served in accordance with the Rules of Court on each parent of the child to be adopted.  The notice shall inform each parent of the purpose of the action and of the parent's right to file written objections to the adoption within 20 days after notice is given in the case of a resident and 35 days in the case of a nonresident.  For purposes of this section, "parent" means (1) the husband of the mother of a child born or conceived during the marriage or (2) a putative or alleged biological mother or father of a child.

     b.    Notice pursuant to subsection a. of this section shall not be served on a parent:

     (1)   Who has executed a valid surrender to an approved agency pursuant to section 5 of P.L.1977, c.367 (C.9:3-41) or P.L.1955, c.232 (C.9:2-13 et seq.);

     (2)   Whose parental rights have been terminated in a separate judicial proceeding by court order;

     (3)   Who has, prior to the placement of the child for adoption, received notice of the intention to place the child, which notice shall inform the parent of the purpose of the placement, that failure to respond to the notice will prevent the person receiving the notice from objecting to any future adoption of the child, and that the parent has a right to file with the surrogate in the county in which venue is anticipated to lie, the address of which surrogate shall be included in the notice, written objections to the proposed placement within 20 days after notice is given, in the case of a resident, and 35 days in the case of a nonresident; and who has either failed to file written objections or denied paternity or maternity of the child. Failure to respond to this notice and object to the placement of the child for adoption shall constitute a waiver of all notice of any subsequent proceedings with regard to the child including proceedings for adoption or termination of parental rights;

     (4)   Who has given the child for adoption to the adopting parent, and the Superior Court, Chancery Division, Family Part, after a hearing at which the surrendering parent was heard as to the voluntariness of the surrender, has determined that the surrender was voluntary and proper;

     (5)   Whose child has been made available for adoption in a foreign state or country if the United States Immigration and Naturalization Service has determined that the child has been approved for adoptive placement. The finding of the United States Immigration and Naturalization Service shall be presumed valid and no notice shall be served ; or

     (6)   Who is presumed to be the biological father of the child who is the subject of the adoption proceeding pursuant to paragraph (2) of subsection a. of section 6 of P.L.1983, c.17 (C.9:17-43) but who, within 120 days of the birth of the child or prior to the date of the preliminary hearing, whichever occurs first, has not acknowledged paternity by amending the original birth certificate record filed with the local registrar's office in the municipality of birth of the child who is the subject of the adoption proceeding in accordance with birth record amendment procedures, or has not filed an action for paternity in court; or

     (7)   Whose parental rights have been terminated as a result of  a petition filed by the Division of Youth and Family Services pursuant to subsection b. of section 7 of P.L.1991, c.275 (C.30:4C-15.1).

     c.     If personal service of the notice cannot be effected because the whereabouts of a birth parent of the child to be adopted are unknown, the court shall determine that an adequate effort has been made to serve notice upon the parent if the plaintiff immediately prior to or during the placement and not more than nine months prior to the filing of a complaint has:

     (1)   Sent the notice by regular mail and by certified mail return receipt requested, to the parent's last known address;

     (2)   Made a discreet inquiry as to the whereabouts of the missing parent among any known relations, friends and current or former employers of the parent;

     (3)   Unless otherwise restricted by law, made direct inquiries, using the party's name and last known or suspected address, to the local post office, the Division of Motor Vehicles, county welfare agency, the municipal police department, the Division of State Police, the county probation office, the Department of Corrections, and any social service and law enforcement agencies known to have had contact with the party, or the equivalents in other states, territories or countries.  Failure to receive a response to the inquiries within 45 days shall be a negative response.

     d.    In any case where, within 120 days of the birth of the child or prior to the date of the preliminary hearing, whichever occurs first, the identity of a birth parent cannot be determined or where the known parent of a child is unable or refuses to identify the other parent, and the court is unable from other information before the court to identify the other parent, service on that parent shall be waived by the court.

     e.     In conducting the hearing required by paragraph (4) of subsection b. of this section, the court shall determine that the surrender is voluntary and that the birth parent knows (1) that the hearing is to surrender birth rights; (2) that the hearing is to permanently end the relationship and all contact between parent and child; (3) that such action is a relinquishment and termination of parental rights and consent on the part of the birth parent to the adoption; and (4) that no further notice of the adoption proceedings shall be provided to the birth parent if the surrender is accepted by the court.

(cf: P.L.1998, c.20, s.1)

 

     2.    Section 12 of P.L.1951, c.138 (C.30:4C-12) is amended to read as follows:

     12.  Whenever it shall appear that the parent or parents, guardian, or person having custody and control of any child within this State is unfit to be entrusted with the care and education of such child, or shall fail to provide such child with proper protection, maintenance and education, or shall fail to ensure the health and safety of the child, or is endangering the welfare of such child, a written or oral complaint may be filed with the division, or other entity designated by the commissioner, by any person or by any public or private agency or institution interested in such child.  When such a complaint is filed by a public or private agency or institution, it shall be accompanied by a summary setting forth the reason for such complaint and other social history of the child and his family's situation which justifies such complaint; or, if this is not feasible, such summary shall be made available to the division, or other entity within the department that is investigating the complaint, as soon thereafter as possible.  Upon receipt of a complaint as provided in this section, the division, or other entity designated by the commissioner, shall investigate, or shall cause to be investigated, the statements set forth in such complaint.  If the circumstances so warrant, the parent, parents, guardian, or person having custody and control of the child  may be afforded an opportunity to file an application for care, as provided in section 11 of P.L.1951, c.138 (C.30:4C-11).  If the parent, parents, guardian, or person having custody and control of the child  refuses to permit or in any way impedes an investigation, and the  department determines that further investigation is necessary in the best interests of the child, the division may thereupon apply to the Family Part of the Chancery Division of the Superior Court in the county where the child resides, for an order directing the parent, parents, guardian, or person having custody and control of the child to permit immediate investigation.  The court, upon such application, may proceed to hear the matter in a summary manner and if satisfied that the best interests of the child so require may issue an order as requested.

     If, after such investigation has been completed, it appears that the child requires care and supervision by the division or other action to ensure the health and safety of the child, the division may apply to the Family Part of the Chancery Division of the Superior Court in the county where the child resides for an order making the child a ward of the court and placing the child under the care and supervision or custody of the division.

     The court, at a summary hearing held upon notice to the division, and to the parent, parents, guardian, or person having custody and control of the child, if satisfied that the best interests of the child so require, may issue an order as requested, which order shall have the same force and effect as the acceptance of a child for care by the division as provided in section 11 of P.L.1951, c.138 (C.30:4C-11); provided, however, that such order shall not be effective beyond a period of six months from the date of entry unless the court, upon application by the division, at a summary hearing held upon notice to the parent, parents, guardian, or person having custody of the child, extends the time of the order.

     Immediately after the court's order and while the child is in the division's care, except as provided by subsection g. of section 4 of P.L.2000, c.58 (C.30:4C-15.7), the division shall initiate a search for the child's mother or father, if they are not known to the division.  The search shall be initiated within 30 days of the court order.  The search will be completed when all sources contacted have either responded to the inquiry or failed to respond within 45 days.  The results shall be valid for six months after the date it was completed.

(cf: P.L.2006, c.47, s.122)

 

     3.    Section 6 of P.L.1991, c.275 (C.30:4C-12.1) is amended to read as follows:

     6.    a. In any case in which the Department of Children and Families accepts a child in its care or custody, including placement, the department shall initiate a search for relatives who may be willing and able to provide the care and support required by the child.  The search shall be initiated within 30 days of the department's acceptance of the child in its care or custody.  The search will be completed when all sources contacted have either responded to the inquiry or failed to respond within 45 days.  The department shall complete an assessment of each interested relative's ability to provide the care and support, including placement, required by the child.

     b.    If the department determines that the relative is unwilling or unable to assume the care of the child, the department shall not be required to re-evaluate the relative.  The department shall inform the relative in writing of:

     (1)   the reasons for the  department's determination;

     (2)   the responsibility of the relative to inform the  department if there is a change in the circumstances upon which the determination was made;

     (3)   the possibility that termination of parental rights may occur if the child remains in  resource family care for more than six months; and

     (4)   the right to seek review by the  department of such determination.

     c.     The department may decide to pursue the termination of parental rights if the department determines that termination of parental rights is in the child's best interests.

     d.    The provisions of this section shall not apply when the custody of a child is relinquished pursuant to the provisions of section 4 of P.L.2000, c.58 (C.30:4C-15.7).

(cf: P.L.2006, c.47, s.123)

 

     4.    Section 7 of P.L.1991, c.275 (C.30:4C-15.1) is amended to read as follows:

     7.    a. The division shall initiate a petition to terminate parental rights on the grounds of the "best interests of the child" pursuant to subsection (c) of section 15 of P.L.1951, c.138 (C.30:4C-15) if the following standards are met:

     (1)   The child's safety, health or development has been or will continue to be endangered by the parental relationship;

     (2)   The parent is unwilling or unable to eliminate the harm facing the child or is unable or unwilling to provide a safe and stable home for the child and the delay of permanent placement will add to the harm.  Such harm may include evidence that separating the child from his resource family parents would cause serious and enduring emotional or psychological harm to the child;

     (3)   The division has made reasonable efforts to provide services to help the parent correct the circumstances which led to the child's placement outside the home and the court has considered alternatives to termination of parental rights; and

     (4)   Termination of parental rights will not do more harm than good.

     b.    The division shall initiate a petition to terminate parental rights on the ground that the "parent has abandoned the child" pursuant to subsection (e) of section 15 of P.L.1951, c.138 (C.30:4C-15) if the following standards are met:

     (1)   a court finds that for a period of six or more months:

     (a)   the parent, although able to have contact, has had no contact with the child, the child's resource family parent or the division; and

     (b)   the parent's whereabouts are unknown, notwithstanding the division's reasonable efforts to locate the parent; or

     (2)   where the identities of the parents are unknown and the division has exhausted all reasonable methods of attempting identification, the division may immediately file for termination of parental rights upon the completion of the law enforcement investigation; or

     (3)   where the parent voluntarily delivered  [the child to] and [left] relinquished the child [at] to, or voluntarily arranged for another person to deliver [the child to] and [leave] relinquish the child to law enforcement personnel at a State, county or municipal police station or to staff at [an emergency department of] a licensed general hospital in this State when the child is or appears to be no more than 30 days old, without expressing an intent to return for the child or, if the child is relinquished to staff at a licensed general hospital for the express purpose of receiving medical care or treatment for the child with an affirmative expression of an intent not to return for the child, as provided in section 4 of P.L.2000, c.58 (C.30:4C-15.7), the division shall file for termination of parental rights no [later than 21] sooner than 120 days after the day the division assumed care, custody and control of the child.  Notice of a complaint for termination of parental rights shall not be served on a parent who relinquished the child pursuant to the "New Jersey Safe Haven Infant Protection Act," P.L.2000, c.58 (C.30:4C-15.5 et. al), or any person presumed to be the parent of the child, unless that person has taken deliberate and substantial action to assert a claim of parental rights within 120 days of the birth of the child.

     c.     As used in this section and in section 15 of P.L.1951, c.138 (C.30:4C-15) "reasonable efforts" mean attempts by an agency authorized by the division to assist the parents in remedying the circumstances and conditions that led to the placement of the child and in reinforcing the family structure, including, but not limited to:

     (1)   consultation and cooperation with the parent in developing a plan for appropriate services;

     (2)   providing services that have been agreed upon, to the family, in order to further the goal of family reunification;

     (3)   informing the parent at appropriate intervals of the child's progress, development and health; and

     (4)   facilitating appropriate visitation.

     d.    The division shall not be required to provide "reasonable efforts" as defined in subsection c. of this section prior to filing a petition for the termination of parental rights if an exception to the requirement to provide reasonable efforts to reunify the family has been established pursuant to section 25 of P.L.1999, c.53 (C.30:4C-11.3).

(cf: P.L.2004, c.130, s.56)


     5.    Section 4 of P.L.2000, c.58 (C.30:4C-15.7) is amended to read as follows:

     4.    a.  If a person voluntarily  delivers [a child who is or appears to be no more than 30 days old to,] and [leaves the child] relinquishes a child who is or appears to be no more than 30 days old to law enforcement personnel at a State, county or municipal police station and does not express an intent to return for the child, a State, county or municipal police officer shall take the child to the emergency department of a licensed general hospital in this State and the hospital shall proceed as specified in subsection b. of this section.

     b.    If a person voluntarily delivers [a child who is or appears to be no more than 30 days old to,] and [leaves the child] relinquishes a child who is or appears to be no more than 30 days old to staff at [an emergency department of] a licensed general hospital in this State and does not express an intent to return for the child, or, if the child is relinquished to staff at a licensed general hospital for the express purpose of receiving medical care or treatment for the child with an affirmative expression of an intent not to return for the child, a State, county or municipal police officer brings a child to a licensed general hospital under the circumstances set forth in subsection a. of this section, the hospital shall:

     (1)   take possession of the child without a court order;

     (2)   take any action or provide any treatment necessary to protect the child's physical health and safety; and

     (3)   no later than the first business day after taking possession of the child, notify the Division of Youth and Family Services in the Department of Children and Families that the hospital has taken possession of the child.

     c.     The Division of Youth and Family Services shall assume the care, custody and control of the child immediately upon receipt of notice from a licensed general hospital pursuant to paragraph (3) of subsection b. of this section.  The division shall commence a thorough search of all listings of missing children to ensure that the relinquished child has not been reported missing.

     d.    A child for whom the Division of Youth and Family Services assumes care, custody and control pursuant to subsection c. of this section shall be treated as a child taken into possession without a court order, and a complaint shall be filed pursuant to section 12 of P.L.1951, c.138 (C.30:4C-12), and service upon the parents of the child shall be waived.

     e.     [It shall be an affirmative defense to prosecution for abandonment of a child that the parent voluntarily delivered the child to and left the child at, or voluntarily arranged for another person to deliver the child to and leave the child at,  a State, county or municipal police station as provided in subsection a. of this section or the emergency department of a licensed general hospital in this State as provided in subsection b. of this section.] No person shall be liable to prosecution for abandonment of a child if a parent voluntarily delivers and relinquishes or voluntarily arranges for another person to deliver and relinquish a child as described in subsections a. or b. of this section.  Nothing in this subsection shall be construed to [create a defense to] grant immunity from any prosecution arising from any conduct other than the act of delivering and relinquishing the child as described herein, and this subsection specifically shall not [constitute a defense to] grant immunity from any prosecution arising from an act of abuse or neglect committed prior to the delivery and relinquishment of the child to law enforcement personnel at  a State, county or municipal police station as provided in subsection a. of this section or [the emergency department of] to staff at a licensed general hospital in this State as provided in subsection b. of this section.

     f.     [A] State, county or municipal [police officer] law enforcement personnel and the governmental jurisdiction employing that [officer] personnel or an employee of [an emergency department of] a licensed general hospital in this State and the hospital employing that person shall incur no civil or criminal liability for any good faith acts or omissions performed pursuant to this section.

     g.     Any person who voluntarily delivers a child who is or appears to be no more than 30 days old to staff at a licensed general hospital or law enforcement personnel at a police station in accordance with this section shall not be required to disclose that person's name or other identifying information or that of the child or the child's parent, if different from the person who delivers the child to the hospital or police station, or provide background or medical information about the child, but may voluntarily do so. Notwithstanding any information voluntarily disclosed pursuant to this subsection, the division shall not attempt to contact the parents of the child or to identify them unless the provisions of section 4 of P.L.1971, c.437 (C.9:6-8.11) apply.

(cf: P.L.2006, c.47, s.124)

 

     6.    Section 5 of P.L.2000, c.58 (C.30:4C-15.8) is amended to read as follows:

     5.    The division, after assuming the care, custody and control of a child from a licensed general hospital pursuant to section 4 of P.L.2000, c.58 (C.30:4C-15.7), shall not be required to attempt to reunify the child with the child's parents.  Additionally, the division shall not be required to search for relatives of the child as a placement or permanency option, or to implement other placement requirements that give preference to relatives [if the division does not have information as to the identity of the child, the child's mother or the child's father].  The division shall place the child with potential adoptive parents as soon as possible.

(cf: P.L.2000, c.58, s.5)

 

     7.  This act shall take effect on the 30th day after enactment.

 

 

STATEMENT

 

     This bill revises the "New Jersey Safe Haven Infant Protection Act" (N.J.S.A.30:4C-15.5 et seq.) (hereafter the "Safe Haven Act") to ensure that a parent may safely surrender an infant without fear of prosecution for child abandonment. The bill provides that no person is to be liable to prosecution for abandonment of a child if a parent voluntarily delivers and relinquishes or voluntarily arranges for another person to deliver and relinquish a child to  law enforcement personnel at a police station or staff at a licensed general hospital, or if the child is relinquished to law enforcement personnel or hospital staff for the express purpose of receiving medical care or treatment for the child with an affirmative expression of an intent not to return for the child pursuant to the safe haven law.  Currently, the law provides an affirmative defense against prosecution for child abandonment.

     In order to encourage parents to safely surrender their infants without fear of identifying themselves, this bill also prohibits the Division of Youth and Family Services (DYFS) from attempting to contact the parents of an infant or identify the parent in the event that any identifying information is disclosed when the infant is surrendered unless the provisions of N.J.S.A.9:6-8.11 apply (DYFS has received a complaint or allegation of child abuse or neglect against the parents of the infant).  Under current regulations, if DYFS becomes aware of the identity of the safe haven infant's parents, birth family or the person who surrendered the infant, then the DYFS representative consults with the Deputy Attorney General to determine whether to attempt to contact the parent or parents, or notify members of the birth family in developing a permanent plan for the infant.

     The bill also amends the law governing notice in adoption proceedings to exclude from notification, parents whose parental rights have been terminated as a result of a petition filed by DYFS in the case of child abandonment under subsection b. of section 7 of P.L.1991, c.275 (C.30:4C-15.1).

     Additionally, the bill provides that a search for parents and relatives under section 12 of P.L.1951, c.138 (C.30:4C-12) and section 6 of P.L.1991, c.275  and (C.30:4C-12.1), respectively, would not apply if a child is relinquished under the "Safe Haven Act."

     Finally, the bill requires that when a child has been relinquished under the "Safe Haven Act," DYFS  shall:

     -- file for termination of parental rights no sooner than 120 days after DYFS assumed care, custody and control of the child, instead of no later than 21 days as current law requires.  Notice of the complaint for termination shall not be served on the parent or person presumed to be the child's parent unless that person has taken deliberate and substantial action to assert a claim of parental rights within 120 days of the birth of the child; and

     -- file a complaint pursuant to section 12 of P.L 1951, c.138 (C.30:4C-12) concerning unfitness of the parents, when a child has been relinquished. Service of such notice upon the parents of the child shall be waived.