SENATE DOCKET, NO. 542        FILED ON: 1/15/2015

SENATE  .  .  .  .  .  .  .  .  .  .  .  .  .  .  No. 75

The Commonwealth of Massachusetts

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PRESENTED BY:

Jennifer L. Flanagan

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To the Honorable Senate and House of Representatives of the Commonwealth of Massachusetts in General
Court assembled:

The undersigned legislators and/or citizens respectfully petition for the adoption of the accompanying bill:

An Act relative to the re-homing of children.

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PETITION OF:

SENATE DOCKET, NO. 542        FILED ON: 1/15/2015

SENATE  .  .  .  .  .  .  .  .  .  .  .  .  .  .  No. 75

The Commonwealth of Massachusetts

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In the One Hundred and Eighty-Ninth General Court
(2015-2016)

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An Act relative to the re-homing of children.

Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority of the same, as follows:
 

SECTION 1. Section 6 of chapter 15D of the General Laws is hereby amended by adding at the end thereof the following paragraphs:-

(f) A placement agency shall provide pre-adoptive parents with all relevant information about a child to enable the pre-adoptive parent to knowledgeably determine whether to accept the child for adoption. Relevant information shall include but not be limited to all mental, emotional, behavioral, or physical health issues of the child.

(g) A placement agency shall make available, either directly or by referral, post-adoption services to adoptive parents and adopted children to avoid disruption or dissolution of the adoption. Such services shall include but not be limited to: factual information pertaining to any adoption services provided at the placement agency; counseling concerning adoption related issues such as identity, roles and relationships; counseling and other services which support placements; assistance in joining or developing support groups; information regarding health care coverage for the child through the state; and general information regarding current adoption issues, practices and laws. If such services are being offered by referral, the placement agency must provide a list of agencies who provide such services to adoptive parents.

(h) When any adoption disrupts, the adoptive parent shall be required to contact the placement agency that facilitated the adoption if the adoptive parents(s) can no longer adequately care for the child.

(i) The Department of Early Education and Care shall create a uniform orientation curriculum for foster and adoptive parent applicants. All placement agencies shall provide this orientation for foster and adoptive parent applicants in which all foster and adoptive parent applicants must participate. The curriculum shall include a minimum number of hours to be completed as part of the orientation and shall include, at minimum, specific information for foster and adoptive parent applicants seeking to foster or adopt international children.

(j) For purposes of this section, disruption shall refer to an adoption process that ends after the child is placed in an adoptive home and before the adoption is legally finalized. Dissolution shall refer to an adoption in which the legal relationship between the adoptive parents and adoptive child is severed, either voluntarily or involuntarily, after the adoption is legally finalized.

SECTION 2. Article V of chapter 190B of the General Laws is hereby amended by striking out Section 5-103 and inserting in place thereof the following:-

(a) A parent or parents of a minor, other than a parent or parents whose parental rights have been terminated or a parent who has signed a voluntary surrender, or a guardian or guardians of a minor or incapacitated person may appoint a temporary agent for a period not exceeding 60 days, and may delegate to such agent any power that the parent or guardian has regarding the care, custody, or property of the minor child, ward or incapacitated person, except the power to consent to marriage or adoption of a minor; provided, however, that no parent or guardian shall appoint a temporary agent when a court has ordered that the minor child be placed in the custody of a person other than the parent or guardian.

(b) Any delegation under this section, regardless of the time period of delegation, shall be by a writing signed by, or at the direction of, the parent(s) or guardian(s) and attested by at least 2 witnesses 18 years of age or older, neither of whom is the temporary agent together with the written acceptance of the temporary agent.

(c) A parent or guardian may not appoint a temporary agent of a minor if the minor has another living parent whose whereabouts are known and who is willing and able to provide care and custody for the minor unless the nonappointing parent consents to the appointment in writing. A parent may not appoint a temporary agent if the appointing parent’s parental rights have been terminated or a parent who has signed a voluntary surrender.

(d) Any delegation under this section may be revoked or amended by the appointing parent(s) or guardian(s) and delivered to all interested persons. The authority of the temporary agent may be limited or altered by the court.

(e) A delegation under this section shall not exceed a period of 60 days regarding the care and custody of a minor child unless the delegation is approved by the court. A parent who has, in accordance with this section, appointed a temporary agent for the care and custody of a minor child, and wishes for the appointment to exceed 60 days, shall file a petition with the court requesting the court’s approval of such delegation. The petitioner shall attach a copy of the writing required by paragraph (b) and shall state in the petition all of the following:

(1) The name, address, and date of birth of the child who is the subject of the delegation of powers.

(2) The names and addresses of the parents of the child.

(3) The name and address of the person nominated as agent and the relationship of the agent to the child.

(4) Whether the parent wishes to delegate to the agent full parental power regarding the care and custody of the child or partial parental power regarding the care and custody of the child and, if the parent wishes to delegate partial parental power, the specific powers that the parent wishes to delegate and any limitations on those powers.

(5) The proposed term of the delegation of powers, the reasons for the delegation of powers, and whether the parent proposes to provide any support to the agent during that term. If so, the petition shall indicate the amount of that support.

(6) Facts and circumstances showing that the delegation of powers would be in the best interest of the child and that the person nominated as agent is fit, willing and able to exercise those powers.

(f) The court shall hold a hearing on a petition filed under paragraph (e) within 45 days after the filing of the petition. The petitioner shall cause the petition and notice of the time and place of the hearing to be served at least 10 days before the time of the hearing on the child, if 12 years of age or older; the child’s guardian ad litem and counsel, if any; the parents of the child; the person nominated as agent; any guardian, legal custodian, and physical custodian of the child; any organization that is facilitating the delegation of power. Notice shall be served in person or by first class mail. Notice is considered to be given by proof of personal service, by proof that the notice was mailed to the last-known address of the recipient, or, if the recipient is an adult, by the written admission of service of the person served.

(g) At the hearing, the court shall first determine whether any party wishes to contest the petition. If the petition is not contested, the court shall immediately proceed to a fact-finding and dispositional hearing, unless an adjournment is requested. If the petition is contested or if an adjournment is requested, the court shall set a date for a fact-finding and dispositional hearing that allows reasonable time for the parties to prepare but is no more than 30 days after the initial hearing. At the fact-finding and dispositional hearing, any party may present evidence and argument relating to the allegations in the petition.

(h) In determining the appropriate disposition of a petition filed under (e), the best interests of the child shall be the prevailing factor to be considered by the court. The court shall also consider whether the person nominated as agent would be fit, willing, and able to exercise the powers to be delegated, the reasons for the delegation of powers, and the amount of support that the parent is willing and able to provide to the agent during the term of the delegation of powers.

(i) At the conclusion of the fact-finding and dispositional hearing, the court shall grant one of the following dispositions, unless the court adjourns the hearing paragraph (j):

(1) A disposition dismissing the petition if the court finds that the petitioner has not proved the allegations in the petition by clear and convincing evidence or determines that approval of the proposed delegation of powers is not in the best interest of the child; or

(2) A disposition approving the proposed delegation of powers, if the court finds that the petition has proved the allegations in the petition by clear and convincing evidence and determines that the proposed delegation of powers is in the best interest of the child. The disposition may also designate an amount of support to be paid by the child’s parent to the agent. If the court approves the proposed delegation of powers, the parent and the person nominated as agent may execute a power of attorney delegating those powers as approved by the court.

(j) If at the conclusion of the fact-finding and dispositional hearing the court finds that the petitioner has proved the allegations in the petition by clear and convincing evidence, but that the person nominated as agent is not fit, willing, and able to serve as agent or that appointment of that person as agent would not be in the best interest of the child, the court may, in lieu of granting a disposition dismissing the petition under paragraph (i) adjourn the hearing for not more than 30 days and request the petitioner or any other party to nominate a different person as agent.

(k) Any person who delegates his or her powers regarding care and custody of a child for longer than 60 days without first obtaining the approval of the court as provided in this section is subject to a fine not to exceed $10,000 or imprisonment not to exceed 9 months, or both.

SECTION 3. Chapter 210 of the General Laws is hereby amended by striking out section 11A and inserting in place thereof the following section:-

a) As used in this section, the term published shall include but not be limited to, any computerized communication system including by electronic mail, Internet site, Internet profile, or any similar medium of communication provided via the Internet.

b) Any person or entity other than a duly authorized agent or employee of the department of children and families or a child care or placement agency listed under the provisions of chapter 15D, who causes to be published in the commonwealth, an advertisement or notice of children offered or wanted for adoption or any other permanent physical placement, or in any way offers to place, locate or dispose of children offered or wanted for adoption or any other permanent physical placement, or who holds himself out in any way as being able to place, locate or dispose of children for adoption or any other permanent physical placement shall be punished by a fine of not less than five thousand nor more than twenty five thousand dollars. Any such person who shall accept payment in the form of money or other consideration in return for placing a child for adoption or any other permanent physical placement shall be punished by a fine of not less than five thousand and no more than thirty thousand dollars, or by imprisonment in jail or house of correction for not more than two and one-half years or in the state prison for not more than five years, or both.

c) Whoever receives a child to be adopted or placed in any other permanent physical placement, in violation of this section, shall be punished by a fine of not less than ten thousand and no more than forty thousand dollars, or by imprisonment in jail or house of correction for not more than two and one-half years or in the state prison for not more than five years, or both.

d) A parent or legal guardian who causes a child to be adopted or placed in any other permanent physical placement, in violation of this section, shall be punished by imprisonment in the state prison for not less than 5 years nor more than 20 years and by a fine of not more than $25,000. Such sentence shall not be reduced to less than 5 years, or suspended, nor shall any person convicted under this section be eligible for probation, parole, work release or furlough or receive any deduction from his sentence for good conduct until he has served 5 years of such sentence.