THE SENATE

S.B. NO.

210

THIRTIETH LEGISLATURE, 2019

S.D. 1

STATE OF HAWAII

 

 

 

 

 

 

A BILL FOR AN ACT

 

 

RELATING TO PARENTAL RIGHTS.

 

 

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

 


SECTION 1. Chapter 571, Hawaii Revised Statutes, is amended by adding a new section to be appropriately designated and to read as follows:

"571-   Involuntary suspension of parental rights; sexual assault criminal proceedings. (a) The family courts shall suspend custody and visitation in respect to any child for any parent or legal guardian who is charged in a criminal proceeding for a sexual assault of the child's other parent or legal guardian, or an equivalent offense under the laws of another state, territory, possession, or Native American tribe where the offense is alleged to have occurred, for the period of time between when the parent or legal guardian is charged and a court determination of the case, where such suspension is deemed in the best interest of the child; provided that:

(1) The suspension of custody and visitation shall not affect the obligation of the respondent to support the child;

(2) The court may order the respondent to pay child support;

(3) It is presumed that the suspension of custody and visitation is in the best interest of the child if the respondent has been charged in a criminal proceeding for a sexual assault of the petitioner; and

(4) A custodial petitioner may petition the court to reinstate the respondent's custody and visitation that was suspended pursuant to this section.

(b) Such authority may be exercised under this section only when a verified petition, substantially in the form above prescribed, has been filed by the petitioner on behalf of the child in the family court of the circuit in which the respondent resides or the child resides or was born, and the court has conducted a hearing on the petition.

(c) If the petitioner files with the petition an affidavit representing that the whereabouts of the respondent is unknown to the petitioner or not ascertainable by the petitioner, or that other good cause exists why notice cannot or should not be given to the respondent, the court shall conduct a hearing to determine whether notice is required.

(d) If the court finds that good cause exists why notice cannot or should not be given to the respondent, the court may suspend custody and visitation as described pursuant to this section without notice to the respondent.

(e) For purposes of this section:

"Petitioner" means the parent or legal guardian:

(1) Of any child; and

(2) Who petitions the family court for an order to suspend custody and visitation of the child.

"Respondent" means the parent or legal guardian:

(1) Of any child;

(2) Who is charged in a criminal proceeding for a sexual assault or equivalent offense of the child's other parent or legal guardian; and

(3) Is the subject of the petition for a court order to suspend custody and visitation of the child."

SECTION 2. Section 571-61, Hawaii Revised Statutes, is amended by amending subsection (b) to read as follows:

"(b) Involuntary termination.

(1) The family courts may terminate the parental rights in respect to any child as to any legal parent:

(A) Who has deserted the child without affording means of identification for a period of at least ninety days;

(B) Who has voluntarily surrendered the care and custody of the child to another for a period of at least two years;

(C) Who, when the child is in the custody of another, has failed to communicate with the child when able to do so for a period of at least one year;

(D) Who, when the child is in the custody of another, has failed to provide for care and support of the child when able to do so for a period of at least one year;

(E) Whose child has been removed from the parent's physical custody pursuant to legally authorized judicial action under section 571-11(9), and who is found to be unable to provide now and in the foreseeable future the care necessary for the well-being of the child;

(F) Who is found by the court to be mentally ill or intellectually disabled and incapacitated from giving consent to the adoption of or from providing now and in the foreseeable future the care necessary for the well-being of the child; or

(G) Who is found not to be the child's natural or adoptive father.

(2) The family courts may terminate the parental rights in respect to any minor of any natural but not legal father who is an adjudicated, presumed or concerned father under chapter 578, or who is named as the father on the child's birth certificate:

(A) Who falls within paragraph (1)(A), (B), (C), (D), (E), or (F);

(B) Whose child is sought to be adopted by the child's stepfather and the stepfather has lived with the child and the child's legal mother for a period of at least one year;

(C) Who is only a concerned father who has failed to file a petition for the adoption of the child or whose petition for the adoption of the child has been denied; or

(D) Who is found to be an unfit or improper parent or to be financially or otherwise unable to give the child a proper home and education.

(3) In respect to any proceedings under paragraphs (1) and (2), the authority to terminate parental rights may be exercised by the court only when a verified petition, substantially in the form above prescribed, has been filed by some responsible adult person on behalf of the child in the family court of the circuit in which the parent resides or the child resides or was born and the court has conducted a hearing [of] on the petition. A copy of the petition, together with notice of the time and place of the hearing thereof, shall be personally served at least twenty days prior to the hearing upon the parent whose rights are sought to be terminated. If personal service cannot be effected within the State, service of the notice may be made as provided in section 634-23 or 634-24.

(4) The family courts may terminate the parental rights in respect to any child as to any natural father who is not the child's legal, adjudicated, presumed or concerned father under chapter 578.

(5) The family courts [may] shall terminate the parental rights in respect to any child of any natural parent upon a finding by clear and convincing evidence that the natural parent committed sexual assault of the other natural parent, or an equivalent offense under the laws of another state, territory, possession, or Native American tribe where the offense occurred[, and]; the child was conceived as a result of the sexual assault perpetrated by the parent whose rights are sought to be terminated; and termination of parental rights is in the best interests of the child; provided that:

(A) The court shall accept, as conclusive proof of the sexual assault, a guilty plea or conviction of the child's natural parent for the sexual assault, or an equivalent offense under the laws of another state, territory, possession, or Native American tribe where the offense occurred, of the other natural parent;

(B) Termination shall mean, when used with respect to parental rights in this paragraph, a complete and final termination of the parent's right to custody of, guardianship of, visitation with, access to, and inheritance from a child;

(C) The termination of parental rights shall not affect the obligation of the child's natural parent to support the child;

(D) The court may order the child's natural parent to pay child support;

(E) It is presumed that termination of parental rights is in the best interest of the child if the child was conceived as a result of the sexual assault;

(F) This paragraph shall not apply if subsequent to the date of the sexual assault, the child's natural parent and custodial natural parent cohabitate and establish a mutual custodial environment for the child; and

(G) The custodial natural parent may petition the court to reinstate the child's natural parent's parental rights terminated pursuant to this paragraph.

Such authority may be exercised under this chapter only when a verified petition, substantially in the form above prescribed, has been filed by some responsible adult person on behalf of the child in the family court of the circuit in which the parent resides or the child resides or was born, and the court has conducted a hearing [of] on the petition.

If the mother of the child files with the petition an affidavit representing that the identity or whereabouts of the child's father is unknown to her or not ascertainable by her or that other good cause exists why notice cannot or should not be given to the father, the court shall conduct a hearing to determine whether notice is required.

If the court finds that good cause exists why notice cannot or should not be given to the child's father, and that the father is neither the legal nor adjudicated nor presumed father of the child, nor has he demonstrated a reasonable degree of interest, concern, or responsibility as to the existence or welfare of the child, the court may enter an order authorizing the termination of the father's parental rights and the subsequent adoption of the child without notice to the father."

SECTION 3. Section 571-63, Hawaii Revised Statutes, is amended to read as follows:

"571-63 Findings and judgment. No judgment of termination of parental rights entered under sections 571-61 to 571-63 shall be valid or binding unless it contains a finding that the facts upon which the petition is based bring the child within such sections and have been proved by the evidence and that the adjudication of termination of parental rights is necessary for the protection and preservation of the best interests of the child concerned [and]. No judgment of termination of parental rights entered under sections 571-61 to 571-63, with the exception of section 571-61(b)(5), shall be valid or binding unless it contains a finding that it will facilitate the legal adoption of the child.

In any judgment entered pursuant to sections 571-61 to 571-63 the court may terminate the parental rights of one or both of the parents of the child concerned, may transfer the care, custody and control of the child to any proper person not forbidden by law to place a child for adoption or to the department of human services or to any child-placing organization approved by the department, may appoint a guardian of the child, and may authorize the person or the department or the agency or the guardian to consent to the legal adoption of the child.

No judgment of termination of parental rights entered under sections 571-61 to 571-63 shall operate to terminate the mutual rights of inheritance of the child and the parent or parents involved, or to terminate the legal duties and liabilities of the parent or parents, unless and until the child has been legally adopted.

Every such judgment of termination of parental rights when the procedural provisions of sections 571-61 to 571-63 have been followed shall become final and binding upon all of the parties concerned as of the date of its entry and filing, subject to the right of appeal. No such judgment shall be set aside for reasons other than the best interests and welfare of the child concerned, after the entry of a decree of adoption of the child concerned or during any period when the child is in an adoptive home in which the child has been placed by the department of human services or by a child-placing organization approved by the department or by any person not forbidden by law to place a child for adoption. When any such child is placed for adoption, a sworn certificate evidencing the placement shall be filed in the termination proceeding by the agency or person making the placement. Upon the entry of a final decree of adoption of any such child, a certified copy of the decree shall be filed in the termination proceeding and notification of the entry of the decree, without disclosing the identity of the adopting parents, shall, unless waived by the court, be given to each person whose parental rights have been terminated by registered or certified mail addressed to the last known address of each such person; provided that at any time following the expiration of one year from the date of the entry of any such judgment of termination of parental rights, upon the motion of the parent or parents of the child or the department of human services or any child-placing organization approved by the department or any other proper person, based upon the fact that the child has not been adopted or placed in a prospective adoptive home, the court in which the judgment was entered shall review the same and shall consider the currently reported circumstances of the child and of the parent or parents and shall enter its findings as to whether the circumstances, and the present best interests of the child, justify the continuance of the judgment. Upon such reconsideration, the court may either set aside the judgment or continue it in effect, as the circumstances may warrant. Upon the entry in the termination proceeding of a certified copy of the final decree of adoption of any such child and notification thereof to the person whose parental rights have been terminated, unless waived as herein provided, or upon the dismissal or discontinuance or other final disposition of the petition in the termination proceeding the clerk of the court shall seal all records in the termination proceeding and the seal shall not be broken and the records shall not be inspected by any person, including the parties to the termination proceeding, except upon order of the court."

SECTION 4. Section 804-7.1, Hawaii Revised Statutes, is amended to read as follows:

"804-7.1 Conditions of release on bail, recognizance, or supervised release. Upon a showing that there exists a danger that the defendant will commit a serious crime or will seek to intimidate witnesses, or will otherwise unlawfully interfere with the orderly administration of justice, the judicial officer named in section 804-5 may deny the defendant's release on bail, recognizance, or supervised release.

Upon the defendant's release on bail, recognizance, or supervised release, however, the court may enter an order:

(1) Prohibiting the defendant from approaching or communicating with particular persons or classes of persons, except that no such order should be deemed to prohibit any lawful and ethical activity of defendant's counsel;

(2) Prohibiting the defendant from going to certain described geographical areas or premises;

(3) Prohibiting the defendant from possessing any dangerous weapon, engaging in certain described activities, or indulging in intoxicating liquors or certain drugs;

(4) Requiring the defendant to report regularly to and remain under the supervision of an officer of the court;

(5) Requiring the defendant to maintain employment, or, if unemployed, to actively seek employment, or attend an educational or vocational institution;

(6) Requiring the defendant to comply with a specified curfew;

(7) Requiring the defendant to seek and maintain mental health treatment or testing, including treatment for drug or alcohol dependency, or to remain in a specified institution for that purpose;

(8) Requiring the defendant to remain in the jurisdiction of the judicial circuit in which the charges are pending unless approval is obtained from a court of competent jurisdiction to leave the jurisdiction of the court;

(9) Requiring the defendant to satisfy any other condition reasonably necessary to assure the appearance of the person as required and to assure the safety of any other person or community; [or]

(10) Imposing any combination of conditions listed above[.]; or

(11) When a defendant has been charged with sexual assault, any prohibitions that restrict a defendant from approaching or communicating with the victim of sexual assault shall, at the victim's request, also apply with respect to the victim's minor children, regardless of the existence of a parental relationship between the defendant and the child of the victim, where such prohibitions are in the best interest of the child.

The judicial officer may revoke a defendant's bail upon proof that the defendant has breached any of the conditions imposed."

SECTION 5. This Act does not affect rights and duties that matured, penalties that were incurred, and proceedings that were begun before its effective date.

SECTION 6. If any provision of this Act, or the application thereof to any person or circumstance, is held invalid, the invalidity does not affect other provisions or applications of the Act that can be given effect without the invalid provision or application, and to this end the provisions of this Act are severable.

SECTION 7. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.

SECTION 8. This Act shall take effect upon its approval.

 



 

Report Title:

Involuntary Termination of Parental Rights; Involuntary Suspension of Parental Rights; Sexual Assault

 

Description:

Requires the family court to terminate parental rights if the court determines, by clear and convincing evidence, that a natural parent committed sexual assault of the other natural parent; the child was conceived as a result of the sexual assault by the parent; and termination of parental rights is in the best interests of the child, under certain conditions. Requires the family court to suspend custody and visitation, after proper filing of a petition and a hearing, to any child whose parent or legal guardian is charged for a sexual assault or other offense, under certain conditions. (SD1)

 

 

 

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