AN ACT RELATIVE TO ADOPTION AND PROMOTING THE WELFARE OF CHILDREN.
Whereas , The deferred operation of this act would tend to defeat its purpose, which is to expedite the adoption process and promote the welfare of the children of the commonwealth, therefore it is hereby declared to be an emergency law, necessary for the immediate preservation of the public convenience.
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 10 of chapter 28A of the General Laws is hereby amended by inserting after the word "evaluation", in line 46, as appearing in the 1996 Official Edition, the following words:- including, but not limited to, reports by placement agencies detailing the number and nature, as defined by the department of social services, of adoptions processed during each calendar quarter to be filed with said department on or before January 30 of each year.
SECTION 2. Said chapter 28A is hereby further amended by inserting after section 11A the following section:-
Section 11B. Each placement agency shall register with an adoption resource exchange in the commonwealth any child whose goal is adoption, whether the child is free for adoption or at legal risk, for whom the placement agency has been unable to identify a specific adoptive family or initiate the adoption process with a prospective adoptive family within 60 days of the determination of the goal of adoption. For the purposes of this section, adoption resource exchange shall mean a nonprofit agency the primary purpose of which is to link children awaiting placement with permanent families by providing information and referral services and by the recruitment of potential adoptive families.
SECTION 3. Chapter 29 of the General Laws is hereby amended by inserting after section 2VV, inserted by section 29 of chapter 463 of the acts of 1998, the following section:-
Section 2WW. There is hereby established and set up on the books of the commonwealth a separate fund to be known as the Adoption Affordability Assistance Fund which shall be expended subject to appropriation and which shall consist of revenues received from: (1) state appropriations; (2) gifts, grants and donations from public and private sources; (3) interest earned from fund reserves; (4) federal reimbursements, grants-in-aid and other receipts which may be used for the purposes set forth herein; and (5) any other monies credited or transferred to the fund from any other source. The monies deposited annually in the fund shall be allocated to the office of child care services and administered by the office in order to provide funding for below market rate loans to families to adopt children. The commissioner of said office shall promulgate rules and regulations necessary to carry out the purposes of this section. The books and records of the fund shall be subject to a biennial audit by the state auditor.
SECTION 4. Section 1 of chapter 119 of the General Laws, as appearing in the 1996 Official Edition, is hereby amended by adding the following four paragraphs:-
The health and safety of the child shall be of paramount concern and shall include the long-term well-being of the child.
In all matters and decisions by the department, the policy of the department, as applied to children in its care and protection or children who receive its services, shall be to define best interests of the child as that which shall include, but not be limited to, considerations of precipitating factors and previous conditions leading to any decisions made in proceedings related to the past, current and future status of the child, the current state of the factors and conditions together with an assessment of the likelihood of their amelioration or elimination; the child's fitness, readiness, abilities and developmental levels; the particulars of the service plan designed to meet the needs of the child within his current placement whether with the child's family or in a substitute care placement and whether such service plan is used by the department or presented to the courts with written documentation; and the effectiveness, suitability and adequacy of the services provided and of placement decisions, including the progress of the child or children therein. The department's considerations of appropriate services and placement decisions shall be made in a timely manner in order to facilitate permanency planning for the child.
In all department proceedings that affect the child's past, current and future placements and status, when determining the best interests of the child, there shall be a presumption of competency that a child who has attained the age of 12 is able to offer statements on his own behalf and shall be provided with timely opportunities and access to offer such statements, which shall be considered by the department if the child is capable and willing. In all matters relative to the care and protection of a child, the ability, fitness and capacity of the child shall be considered in all department proceedings.
For purposes of this section, the words "all department proceedings" shall include departmental hearings and proceedings but shall not include a court proceeding even when the department is a party.
SECTION 5. Paragraph C of the first paragraph of section 23 of said chapter 119, as so appearing, is hereby amended by striking out the first paragraph and inserting in place thereof the following paragraph:-
The department may seek and shall accept on order of a probate court the responsibility for a child under 18 years of age who is without proper guardianship due to death, unavailability, incapacity or unfitness of the parent or guardian or on the consent of the parent or parents. Such responsibility shall include the right to: determine the child's abode, medical care and education; control visits to the child; give consent to enlistments, marriages and other contracts requiring parental consent and to consent to adoption only when it is expressly included in the order of the court. In making an order, the probate court shall consider the provisions of section 29C and shall make the written certification and determinations required by said section 29C. If a child is in the care of the department of mental health or the department of mental retardation, the responsibility enumerated above and all rights therein contained shall continue in the department. The department shall continue to have responsibility for a mentally retarded person, notwithstanding the fact that such person has reached the age of 18, if the department has accepted responsibility for such person prior to his reaching the age of 18 and such person has been declared to be legally incompetent. Responsibility shall continue in the department until such person shall be declared to be no longer legally incompetent.
SECTION 6. Said chapter 119 is hereby further amended by striking out section 24, as so appearing, and inserting in place thereof the following section:-
Section 24. The divisions of the juvenile court department, upon the petition under oath of a person alleging on behalf of a child under the age of 18 within the jurisdiction of the court that the child: (a) is without necessary and proper physical or educational care and discipline; (b) is growing up under conditions or circumstances damaging to the child's sound character development; (c) lacks proper attention of the parent, guardian with care and custody or custodian; or (d) has a parent, guardian or custodian who is unwilling, incompetent or unavailable to provide any such care, discipline or attention, may issue a precept to bring the child before the court, shall issue a notice to the department and summonses to both parents of the child to show cause why the child should not be committed to the custody of the department or that any other appropriate order should not be made. The summonses shall include notice that the court may dispense with the right of the parents to notice of or consent to the adoption, custody or guardianship or any other disposition of the child named therein if it finds that the child is in need of care and protection and that the best interests of the child would be served by any such disposition. Notice shall be by personal service upon the parent. If the identity or whereabouts of a parent is unknown, the petitioner shall cause notice in a form prescribed by the court to be served upon such parent by publication once in each of three successive weeks in any newspaper as the court may order. If, after reasonable search, no parent can be found, a summons shall be issued to the child's legal guardian, if any, known to reside within the commonwealth and, if none, to the person with whom such child last resided, if known. If, after a recitation under oath by the petitioner of the facts of the condition of the child who is the subject of the petition, the court is satisfied that there is reasonable cause to believe that the child is suffering from serious abuse or neglect or is in immediate danger of serious abuse or neglect and that immediate removal of the child is necessary to protect the child from serious abuse or neglect, the court may issue an emergency order transferring custody of the child to the department or to a licensed child care agency or individual described in clause (2) of the first paragraph of section 26. A transfer of custody shall be for a period not exceeding 72 hours except that upon the entry of the order, notice shall be given to either or both parents, guardian with care and custody or other custodian to appear before the court. The court shall, at that time, determine whether temporary custody shall continue until a hearing on the merits of the petition for care and protection is concluded before the court. The court shall also consider the provisions of section 29C and shall make the written certification and determinations required by said section 29C.
Upon the issuance of the precept and order of notice, the court shall appoint a person qualified under section 21 to make a report to the court under oath of an investigation into conditions affecting the child. The report shall then be attached to the petition and be a part of the record.
If a child who is the subject of a petition is alleged to be abandoned as defined in section 3 of chapter 210, hearings on the petition under section 26 shall be scheduled and heard on an expedited basis. Any child may be committed to the department under this section without a hearing or notice with the consent of the parents or guardian.
SECTION 7. Section 25 of said chapter 119, as so appearing, is hereby amended by adding the following paragraph:-
If the court commits a child to the custody of the department, the court shall consider the provisions of section 29C and shall make the written certification and determinations required by said section 29C.
SECTION 8. The second paragraph of section 26 of said chapter 119, as amended by section 1 of chapter 14 of the acts of 1998, is hereby further amended by striking out the introductory paragraph and inserting in place thereof the following paragraph:-
If the court finds the allegations in the petition proved within the meaning of this chapter, it may adjudge that the child is in need of care and protection. In making such adjudication, the health and safety of the child shall be of paramount concern. If the child is adjudged to be in need of care and protection, the court may commit the child to the custody of the department until he becomes 18 years of age or until, in the opinion of the department, the object of his commitment has been accomplished, whichever occurs first, and the court shall consider the provisions of section 29C and shall make the written certification and determinations required by said section 29C and any other appropriate order with reference to the care and custody of the child as may be in his best interest including, but not limited to, any one or more of the following:-.
SECTION 9. Said second paragraph of said section 26 of said chapter 119 is hereby further amended by striking out clause (4), as amended by said section 1 of said chapter 14, and inserting in place thereof the following clause:-
(4) The department of social services shall file a petition or, in the alternative, a motion to amend a petition pending pursuant to this section, to dispense with parental consent to adoption, custody, guardianship or other disposition of the child under the following circumstances: (i) the child has been abandoned; (ii) the parent has been convicted by a court of competent jurisdiction of the murder or voluntary manslaughter of another child of such parent, of aiding, abetting, attempting, conspiring or soliciting to commit such murder or voluntary manslaughter or of an assault constituting a felony which resulted in serious bodily injury to the child or to another child of such parent; or (iii) the child has been in foster care in the custody of the state for 15 of the immediately preceding 22 months. For the purposes of this paragraph, a child shall be considered to have entered foster care on the earlier of: (a) the date of the first judicial finding, pursuant to section 24 or this section, that the child has been subjected to abuse or neglect; or (b) the date that is 60 days after the date on which the child is removed from the home. For the purposes of this section, "serious bodily injury" shall mean bodily injury which involves a 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. The department shall concurrently identify, recruit, process, and approve a qualified family for adoption.
The department need not file such a motion or petition to dispense with parental consent to the adoption, custody, guardianship or other disposition of the child if the child is being cared for by a relative or the department has documented in the case plan a compelling reason for determining that such a petition would not be in the best interests of the child or that the family of the child has not been provided, consistent with the time period in the case plan, such services as the department deems necessary for the safe return of the child to the child's home if reasonable efforts as set forth in section 29C are required to be made with respect to the child.
Notwithstanding the foregoing, the following circumstances shall constitute grounds for dispensing with the need for consent to adoption, custody, guardianship or other disposition of the child: (i) the child has been abandoned; (ii) the parent has been convicted by a court of competent jurisdiction of the murder or voluntary manslaughter of another child of such parent, of aiding, abetting, attempting, conspiring or soliciting to commit such murder or voluntary manslaughter or of an assault constituting a felony which resulted in serious bodily injury to the child or to another child of the parent.
SECTION 10. Said chapter 119 is hereby further amended by inserting after section 26 the following section:-
Section 26A. When deciding whether to approve or reject a registration of interest for foster care placement, the department shall conduct a review of any misdemeanor offense discovered through a criminal offender record information search conducted pursuant to section 172B of chapter 6 in order to assist the department in accurately evaluating whether the mere existence of the offense has a substantial effect on the applicant's current or future ability to assume and carry out the responsibilities of a foster parent in such a manner that the rights of the child to sound health and normal physical, mental, spiritual and moral development are insured. The review shall include, but not be limited to, a review of the following: the time that has elapsed between the date of the offense and the filing of the registration of interest, the seriousness and specific circumstances of the offense, the number and nature of other offenses, the age of the offender at the time of the offense, the findings and recommendations of the family resource worker assigned by the department to discuss the facts surrounding the misdemeanor with the applicant, the recommendations given to the family resource worker by personal or employment references chosen by the applicant or received otherwise, the current and future needs of the child to be placed and the probable effect that the misdemeanor would have on the applicant's ability to fulfill those needs, any reports or recommendations received by the department from the applicant's parole or probation officer should one have been assigned, a copy of the police report pertaining to the offense in question if obtainable within a reasonable period of time or discussions with a police officer familiar with the facts surrounding the offense and, unless inappropriate, discussions with the child to be placed regarding his current and past relationship with the applicant. Nothing in this section shall be construed to affect the discretion of the department to approve or reject the registration of interest for foster care placement.
SECTION 11. Section 27 of said chapter 119, as appearing in the 1996 Official Edition, is hereby amended by striking out, in line 17, the word "ten" and inserting in place thereof the following figure:- 30.
SECTION 12. Said chapter 119 is hereby further amended by striking out sections 29B and 29C, as so appearing, and inserting in place thereof the following three sections:-
Section 29B. Except as provided herein, within 12 months of the original commitment, grant of custody or transfer of responsibility of a child to the department by a court of competent jurisdiction, and not less frequently than every 12 months thereafter while the child remains in the care of the department, the committing court shall conduct a permanency hearing, in accordance with rules established by the chief justice for administration and management, to determine and periodically review thereafter the permanency plan for the child. The plan shall address whether and, if applicable, when: (1) the child will be returned to the parent; (2) the child will be placed for adoption and the steps the department shall take to free the child for adoption; (3) the child will be referred for legal guardianship; or (4) the child will be placed in another planned permanent living arrangement. The department shall file a permanency plan prior to a permanency hearing which shall address the above placement alternatives.
In the case of a child placed in foster care outside the commonwealth in which the home of the parents of the child is located, the permanency plan shall also address whether the out-of-state placement continues to be appropriate and in the best interest of the child. In the case of a child who has attained age 16, the permanency plan shall also address the services needed to assist the child in making the transition from foster care to independent living.
Upon making its determination, the court may make any appropriate order as may be in the child's best interests including, but not limited to, orders with respect to the child's care or custody. At the same time, the court shall consider the provisions of section 29C, and shall make the written certification and determinations required by said section 29C. The health and safety of the child shall be of paramount, but not exclusive, concern.
The permanency hearing shall be held within 30 days of a hearing at which a court determines that reasonable efforts to preserve and reunify families are not required pursuant to section 29C. The court may, however, make such determination at the time of the permanency hearing.
If continuation of reasonable efforts to return the child safely to his parent or guardian are found to be inconsistent with the permanency plan for the child or if reasonable efforts are not required pursuant to the provisions set forth in section 29C, the department shall make reasonable efforts to place the child in a timely manner in accordance with the permanency plan. In subsequent permanency hearings held on behalf of the child, the court shall determine whether the department has made such efforts in accordance with section 29C.
A child, parent, guardian or the department may appeal to the appeals court from the determination or order of the trial court. The claim of appeal shall be filed in the office of the clerk or register of the trial court within 30 days following the court's determination or order. Thereafter, the appeal shall be governed by the Massachusetts Rules of Appellate Procedure. The scope of appellate review shall be limited to abuse of judicial discretion.
Section 29C. If a court of competent jurisdiction commits, grants custody or transfers responsibility for a child to the department or its agent, the court shall certify that the continuation of the child in his home is contrary to his best interests and shall determine whether the department or its agent, as appropriate, has made reasonable efforts prior to the placement of a child with the department to prevent or eliminate the need for removal from the home. Except as provided herein, if a court has previously committed, granted custody or transferred responsibility for a child to the department or its agent, the court shall determine not less than annually whether the department or its agent has made reasonable efforts to make it possible for the child to return safely to his parent or guardian. In making any determination, the health and safety of the child shall be of paramount concern.
Reasonable efforts by the department prior to removal of a child from the home or to return the child to a parent or guardian shall not be required if the court finds that: (1) the child has been abandoned as defined in section 3 of chapter 210; (2) the parent's consent to adoption of a sibling of the child was dispensed with under section 26 or under said section 3 of said chapter 210, or the parent's rights were involuntarily terminated in a case involving a sibling of the child; (3) the parent has been convicted of one of the following crimes by a court of competent jurisdiction: (a) murder or voluntary manslaughter of another child of the parent or aiding, abetting, attempting, conspiring or soliciting to commit such a murder or voluntary manslaughter; or (b) an assault constituting a felony which resulted in serious bodily injury to the child or another child of the parent; or (4) a parent has subjected the child to aggravated circumstances consisting of murder of another parent of the child in the presence of the child or by subjecting the child or other children in the home to sexual abuse or exploitation or severe or repetitive conduct of a physically or emotionally abusive nature. For the purposes of this section, conduct of an "emotionally abusive nature" shall mean any conduct causing an impairment to or disorder of the intellectual or psychological capacity of a child as evidenced by observable and substantial reduction in the child's ability to function within a normal range of performance and behavior. For the purposes of this section, "serious bodily injury" shall mean bodily injury which involves a 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.
If a court has determined at a permanency hearing convened pursuant to section 29B, that reasonable efforts to safely return the child to his parent or guardian are inconsistent with the permanency plan for the child or if a court has determined that reasonable efforts are not required as set forth herein, the court shall determine at least annually thereafter whether the department has made reasonable efforts to place the child in a timely manner in accordance with the permanency plan determined and reviewed under section 29B.
The court shall make the certification and determinations required under this section in written form, which shall include the basis for the certification and determinations. A determination by the court that reasonable efforts were not made shall not preclude the court from making any appropriate order conducive to the child's best interest.
Section 29D. The department shall provide notice of hearings held under sections 26, 29B and 39G to a foster parent, pre-adoptive parent or relative providing care for the child who is the subject of the petition and shall inform the foster parent, pre-adoptive parent or relative of his right to attend the hearing and to be heard. Nothing in this provision shall be construed to provide that such foster parent, pre-adoptive parent or relative shall be made a party to the proceeding.
SECTION 13. Section 32 of said chapter 119, as so appearing, is hereby amended by adding the following paragraph:-
A medically needy child who is in foster care, whether specialized or other type of care as provided by the department or its agents, may not be placed in another foster home or other placement without an individualized health care plan that is unique to the child's health care needs; provided, however, that in an emergency due to abuse or neglect, the child may be removed without a plan. The plan shall include, but not be limited to: a description of the specific health care needs of the child and specific treatment and services necessary to meet those needs; identification of health care agencies or personnel or other professionals who may conduct transitional training on the child's health care needs for the subsequent foster parents or other placement or the family to whom the child will return. The department shall also provide to the subsequent foster parents or other placement or to the family to whom the child will return information on health care resources available and health care and other personnel whose services are required by the child.
SECTION 14. The first paragraph of section 39G of said chapter 119, as so appearing, is hereby amended by striking out clause (c) and inserting in place thereof the following clause:-
(c) subject to the provisions of sections 32 and 33 and with such conditions and limitations as the court may recommend, commit the child to the department of social services. At the same time, the court shall consider the provisions of section 29C and shall make the written certification and determinations required by said section 29C. The department shall give due consideration to the recommendations of the court. The department may not refuse out-of-home placement of a child if the placement is recommended by the court provided that the court has made the written certification and determinations required by said section 29C. The department shall direct the type and length of such out-of-home placement. The department shall give due consideration to the requests of the child that the child be placed outside the home of a parent or guardian where there is a history of abuse and neglect in the home by the parent or guardian.
SECTION 15. Section 1 of chapter 210 of the General Laws, as so appearing, is hereby amended by inserting after the word "both", in line 9, the following words:- ; provided, however, that the prayer of the petition may be granted although the spouse of the petitioner is not a party to the petition if the court finds: (i) the failure of the spouse to join in the petition or to consent to the adoption is excused by reason of prolonged unexplained absence, legal separation, incapacity or circumstances constituting an unreasonable withholding of consent; (ii) the husband and wife are not in the process of an ongoing divorce; and (iii) the granting of the petition is in the best interests of the child.
SECTION 16. Said chapter 210 is hereby further amended by inserting after section 2A the following section:-
Section 2B. Every decree of adoption entered by the court shall include the words "This adoption is final and irrevocable."
SECTION 17. Said chapter 210 is hereby further amended by striking out section 3, as most recently amended by section 3 of chapter 14 of the acts of 1998, and inserting in place thereof the following section:-
Section 3. (a) Whenever a petition for adoption is filed by a person having the care or custody of a child, the consent of the persons named in section 2, other than that of the child, shall not be required if:- (i) the person to be adopted is 18 years of age or older; or (ii) the court hearing the petition finds that the allowance of the petition is in the best interests of the child pursuant to paragraph (c).
(b) The department of social services or a licensed child care agency may commence a proceeding, independent of a petition for adoption, in the probate court in Suffolk county or in any other county in which the department or agency maintains an office, to dispense with the need for consent of any person named in section 2 to adoption of the child in the care or custody of the department or agency. Notice of such proceeding shall be given to such person in a manner prescribed by the court. The court shall appoint counsel to represent the child in the proceeding unless the petition is not contested by any party. The court shall issue a decree dispensing with the need for consent or notice of any petition for adoption, custody, guardianship or other disposition of the child named therein, if it finds that the best interests of the child as provided in paragraph (c) will be served by the decree. Pending a hearing on the merits of a petition filed under this paragraph, temporary custody may be awarded to the petitioner. The entry of such decree shall have the effect of terminating the rights of a person named therein to receive notice of or to consent to any legal proceeding affecting the custody, guardianship, adoption or other disposition of the child named therein. The department shall provide notice of the hearing on the merits to any foster parent, pre-adoptive parent or relative providing care for the child informing the foster parent, pre-adoptive parent or relative of his right to attend the hearing and be heard. The provisions of this paragraph shall not be construed to require that a foster parent, pre-adoptive parent or relative be made a party to the proceeding.
The department of social services shall file a petition or, in the alternative, a motion to amend a petition pending pursuant to section 26 of chapter 119 to dispense with parental consent to adoption, custody, guardianship or other disposition of the child under the following circumstances: (i) the child has been abandoned; (ii) the parent has been convicted by a court of competent jurisdiction of the murder or voluntary manslaughter of another child of such parent, of aiding, abetting, attempting, conspiring or soliciting to commit such murder or voluntary manslaughter or of any assault constituting a felony which results in serious bodily injury to the child or to another child of the parent; or (iii) the child has been in foster care in the custody of the commonwealth for 15 of the immediately preceding 22 months. For the purposes of this paragraph, a child shall be considered to have entered foster care on the earlier of: (a) the date of the first judicial finding, pursuant to section 24 or section 26 of chapter 119, that the child has been subjected to abuse or neglect; or (b) the date that is 60 days after the date on which the child is removed from the home. For the purposes of this paragraph, "serious bodily injury" shall mean bodily injury which involves a 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.
The department shall concurrently identify, recruit, process and approve a qualified family for adoption.
The department need not file a motion or petition to dispense with parental consent to the adoption, custody, guardianship or other disposition of the child, or, where the child is the subject of a pending petition pursuant to section 26 of chapter 119, a motion to amend the petition to dispense with parental consent to the adoption, custody, guardianship or other disposition of the child, if the child is being cared for by a relative or the department has documented in the case plan a compelling reason for determining that such a petition would not be in the best interests of the child or that the family of the child has not been provided, consistent with the time period in the case plan, such services as the department deems necessary for the safe return of the child to the child's home if reasonable efforts as set forth in section 29C of said chapter 119 are required to be made with respect to the child.
(c) In determining whether the best interests of the child will be served by granting a petition for adoption without requiring certain consent as permitted under paragraph (a), the court shall consider the ability, capacity, fitness and readiness of the child's parents or other person named in section 2 to assume parental responsibility and shall also consider the ability, capacity, fitness and readiness of the petitioners under said paragraph (a) to assume such responsibilities. In making the determination, the health and safety of the child shall be of paramount, but not exclusive, concern.
In determining whether the best interests of the child will be served by issuing a decree dispensing with the need for consent as permitted under paragraph (b), the court shall consider the ability, capacity, fitness and readiness of the child's parents or other person named in section 2 to assume parental responsibility, and shall also consider the plan proposed by the department or other agency initiating the petition. In making the determination, the health and safety of the child shall be of paramount, but not exclusive, concern.
In considering the fitness of the child's parent or other person named in section 2, the court shall consider, without limitation, the following factors:
(i) the child has been abandoned;
(ii) the child or another member of the immediate family of the child has been abused or neglected as a result of the acts or omissions of one or both parents, the parents were offered or received services intended to correct the circumstances which led to the abuse or neglect and refused, or were unable to utilize such services on a regular and consistent basis so that a substantial danger of abuse or neglect continues to exist, or have utilized such services on a regular and consistent basis without effectuating a substantial and material or permanent change in the circumstances which led to the abuse or neglect;
(iii) a court of competent jurisdiction has transferred custody of the child from the child's parents to the department, the placement has lasted for a least six months and the parents have not maintained significant and meaningful contact with the child during the previous six months nor have they, on a regular and consistent basis, accepted or productively utilized services intended to correct the circumstances;
(iv) the child is four years of age or older, a court of competent jurisdiction has transferred custody of the child from the child's parents to the department and custody has remained with the department for at least 12 of the immediately preceding 15 months and the child cannot be returned to the custody of the parents at the end of such 15-month period; provided, however, that the parents were offered or received services intended to correct the circumstances and refused or were unable to utilize such services on a regular and consistent basis;
(v) the child is younger than four years of age, a court of competent jurisdiction has transferred custody of the child from the child's parents to the department and custody has remained with the department for at least 6 of the immediately preceding 12 months and the child cannot be returned to the custody of the parents at the end of such 12-month period; provided, however, that the parents were offered or received services intended to correct the circumstances and refused or were unable to utilize such services on a regular and consistent basis;
(vi) the parent, without excuse, fails to provide proper care or custody for the child and there is a reasonable expectation that the parent will not be able to provide proper care or custody within a reasonable time considering the age of the child provided that the parents were offered or received services intended to correct the circumstances and refused or were unable to utilize such services on a regular and consistent basis;
(vii) because of the lengthy absence of the parent or the parent's inability to meet the needs of the child, the child has formed a strong, positive bond with his substitute caretaker, the bond has existed for a substantial portion of the child's life, the forced removal of the child from the caretaker would likely cause serious psychological harm to the child and the parent lacks the capacity to meet the special needs of the child upon removal;
(viii) a lack of effort by a parent or other person named in section 2 to remedy conditions which create a risk of harm due to abuse or neglect of the child;
(ix) severe or repetitive conduct of a physically, emotionally or sexually abusive or neglectful nature toward the child or toward another child in the home;
(x) the willful failure to visit the child where the child is not in the custody of the parent or other person named in section 2;
(xi) the willful failure to support the child where the child is not in the custody of the parent or other person named in section 2. Failure to support shall mean that the parent or other person has failed to make a material contribution to the child's care when the contribution has been requested by the department or ordered by the court;
(xii) a condition which is reasonably likely to continue for a prolonged, indeterminate period, such as alcohol or drug addiction, mental deficiency or mental illness, and the condition makes the parent or other person named in section 2 unlikely to provide minimally acceptable care of the child;
(xiii) the conviction of a parent or other person named in section 2 of a felony that the court finds is of such a nature that the child will be deprived of a stable home for a period of years. Incarceration in and of itself shall not be grounds for termination of parental rights; or
(xiv) whether or not there has been a prior pattern of parental neglect or misconduct or an assault constituting a felony which resulted in serious bodily injury to the child and a likelihood of future harm to the child based on such prior pattern or assault.
For the purposes of this section "abandoned" shall mean being left without any provision for support and without any person responsible to maintain care, custody and control because the whereabouts of the person responsible therefor is unknown and reasonable efforts to locate the person have been unsuccessful. A brief and temporary absence from the home without intent to abandon the child shall not constitute abandonment.
Hearings on petitions to dispense with consent to adoption that allege that a child has been abandoned shall be scheduled and heard on an expedited basis. Notwithstanding the foregoing, the following circumstances shall constitute grounds for dispensing with the need for consent to adoption, custody, guardianship or other disposition of the child: (i) the child has been abandoned; (ii) the parent has been convicted by a court of competent jurisdiction of the murder or voluntary manslaughter of another child of such parent, of aiding, abetting, attempting, conspiring or soliciting to commit such murder or voluntary manslaughter or of an assault constituting a felony which resulted in serious bodily injury to the child or to another child of the parent. For the purposes of this section, "serious bodily injury" shall mean bodily injury which involves a 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.
(d) Nothing in this section shall be construed to prohibit the petitioner and a birth parent from entering into an agreement for post-termination contact or communication. The court issuing the termination decree under this section shall have jurisdiction to resolve matters concerning the agreement. Such agreement shall become null and void upon the entry of an adoption or guardianship decree.
Notwithstanding the existence of any agreement for post-termination or post-adoption contact or communication, the decree entered under this section shall be final.
Nothing in this section shall be construed to prohibit a birth parent who has entered into a post-termination agreement from entering into an agreement for post-adoption contact or communication pursuant to section 6C once an adoptive family has been identified.
SECTION 18. Said chapter 210 is hereby further amended by inserting after section 3 the following section:-
Section 3B. When deciding whether to approve or reject a registration of interest for pre-adoptive or adoptive placement, the department shall conduct a review of any misdemeanor offense discovered through a criminal offender record information search conducted pursuant to section 172B of chapter 6 in order to assist the department in accurately evaluating whether the mere existence of the offense has a substantial effect on the applicant's current or future ability to assume and carry out the responsibilities of an adoptive or pre-adoptive parent in such a manner that the rights of the child to sound health and normal physical, mental, spiritual and moral development are insured. The review shall include, but need not be limited to, a review of the following: the time that has elapsed between the date of the offense and the filing of the registration of interest, the seriousness and specific circumstances of the offense, the number and nature of other offenses, the age of the offender at the time of the offense, the findings and recommendations of the family resource worker assigned by the department to discuss the facts surrounding the misdemeanor with the applicant, the recommendations given to the family resource worker by personal or employment references chosen by the applicant or received otherwise, the current and future needs of the child to be placed or adopted and the probable effect that the misdemeanor would have on the applicant's ability to fulfill those needs, any reports or recommendations received by the department from the applicant's parole or probation officer should one have been assigned, a copy of the police report pertaining to the offense in question if obtainable within a reasonable period of time or discussions with a police officer familiar with the facts surrounding the offense and, unless inappropriate, discussions with the child to be placed regarding his current and past relationship with the applicant. Nothing in this section shall be construed to affect the discretion of the department to approve or reject the registration of interest for adoptive or pre-adoptive placement.
SECTION 19. Said chapter 210 is hereby further amended by inserting after section 5D the following section:-
Section 5E. The department of social services shall submit a report detailing the number and nature, as defined by the department, of adoptions processed by the department during each calendar quarter to be filed with said department on or before January 30 of each year.
SECTION 20. Section 6 of said chapter 210, as appearing in the 1996 Official Edition, is hereby amended by inserting after the third paragraph the following paragraph:-
Every decree of adoption entered by the court shall include the words "This adoption is final and irrevocable."
SECTION 21. Said chapter 210 is hereby further amended by inserting after section 6B the following three sections:-
Section 6C. (a) Prior to the entry of an adoption decree, prospective adoptive parents and a birth parent may enter into an agreement for post-adoption contact or communication between or among a minor to be adopted, the prospective adoptive parents and the birth parents. Such agreement may be approved by the court issuing the termination decree under section 3; provided, however, that an agreement under this section shall be finally approved by the court issuing the adoption decree. Any breach, modification or invalidation of the agreement, or any part of it, shall not affect the validity of the adoption. The adoption shall be final.
(b) The court shall approve an agreement for post-adoption contact or communication if the court finds that such agreement:
(i) is in the best interests of the child;
(ii) contains terms that are fair and reasonable; and
(iii) has been entered knowingly and voluntarily by all parties to the agreement. This requirement may be satisfied by an affidavit executed by all parties, either jointly or separately, that is filed with the court. The affidavit shall state that the agreement is entered into knowingly and voluntarily and is not the product of coercion or duress. The court may hear testimony from the parties to the agreement.
(c) To be approved by the court, an agreement for post-adoption contact or communication shall contain the following statements:
(i) This agreement is entered into pursuant to the provisions of section 6C of chapter 210 of the General Laws.
(ii) Any breach, modification or invalidation of the agreement or any part of it shall not affect the validity of the adoption. The adoption shall be final.
(iii) The parties acknowledge that either the birth or adoptive parents who have entered into the agreement have the right to seek enforcement as set forth in section 6D of chapter 210 of the General Laws.
(iv) The parties have not relied on any representations other than those contained in this agreement.
The agreement shall be signed by the parties and acknowledged before a notary public as the free act and deed of the parties. If the child is above the age of 12, the agreement shall contain the written consent of the child. If the child is in the custody of the department of social services, the agreement shall contain the written approval of the department and the attorney for the child. If the child is in the custody of a licensed child care agency, the agreement shall contain the written approval of the agency.
(d) To be enforceable, an agreement for post-adoption contact or communication shall be: (i) in writing; (ii) approved by the court prior to the date for entry of the adoption decree; and (iii) incorporated but not merged into the adoption decree, and shall survive as an independent contract.
(e) An agreement under this section need not disclose the identity of the parties to be enforceable; but if an identity is not disclosed, the unidentified person shall designate an agent for the purpose of service of process.
(f) An agreement for post-adoption contact or communication shall cease to be enforceable on the date the adopted person turns 18 years of age.
Section 6D. A party to a court-approved agreement for post-adoption contact or communication may seek to enforce the agreement by commencing a civil action for specific performance. A court order for specific performance of the terms of a post-adoption contact agreement shall be the sole remedy for breach of an agreement.
In such proceedings, parties shall not be entitled to the appointment of counsel; provided, however, that the court may appoint a guardian ad litem to represent the interests of the child.
In an enforcement proceeding, the court may modify the terms of the agreement if the court finds that there has been a material and substantial change in circumstances and the modification is necessary in the best interests of the child. A court-imposed modification of a previously approved agreement may limit, restrict, condition or decrease contact between the birth parents and the child but in no event shall a court-imposed modification serve to expand, enlarge or increase the amount of contact between the birth parents and the child or place new obligations on adoptive parents.
If the court finds that an action brought under this section was wholly insubstantial, frivolous and not advanced in good faith in accordance with the provisions of section 6F of chapter 231, the court may award attorney's fees to all prevailing parties.
Nothing in the agreement shall preclude a party seeking to enforce an agreement for post-adoption contact or communication from utilizing child welfare mediation or permanency mediation before, or in addition to, the commencement of a civil action for specific enforcement. All proceedings conducted under this section shall be closed to the public and confidential and papers shall be segregated in accordance with section 5D.
Section 6E. Nothing contained in sections 6C and 6D shall be construed to abrogate the right of an adoptive parent to make decisions on behalf of his child.
SECTION 22. Section 59 of chapter 218 of the General Laws, as appearing in the 1996 Official Edition, is hereby amended by striking out, in line 11, the words "chapter one hundred and nineteen" and inserting in place thereof the following words:- chapters 119 and 210.
SECTION 23. Within one year after the effective date of this act, the secretary of health and human services, based on information from the department of social services and the department of public health, shall prepare and submit to the house and senate committees on ways and means a report which describes the extent and scope of the problems of substance abuse, mental illness and poverty as they pertain to the temporary or permanent placement of children within the care and custody of said department of social services in foster care, pre-adoptive and adoptive homes. The report shall include recommendations for legislation that may be necessary to improve coordination in providing such services to the biological parents of the children and an analysis of the outcomes resulting from the current provision of such services to the parents and the expected outcomes that would result from the adoption of any legislative recommendations.
SECTION 24. For the purpose of protecting the safety, health and welfare of the children of the commonwealth, the department of social services, in consultation with the executive office of public safety and appropriate state and federal agencies, shall develop a plan for conducting nationwide criminal offender record information checks to determine whether individuals currently providing foster and substitute care to children in the custody of the commonwealth and individuals applying to the department to become foster or adoptive parents have a criminal record in any jurisdiction outside the commonwealth.
The plan shall: (1) evaluate the feasibility and effectiveness of utilizing interagency agreements, interstate compacts or other agreements or criminal justice record linkages to provide such criminal offender record information; (2) set forth procedures, including proposed rules and regulations, for determining the circumstances under which criminal offender record checks shall be necessary and appropriate; and (3) determine the most cost-effective, efficient and effective manner of conducting criminal offender record checks for jurisdictions outside the commonwealth. The plan, including proposed legislation necessary to carry out the purposes of this section, shall be completed and filed with the house and senate committees on ways and means, the joint committee on the judiciary and the joint committee on human services and elderly affairs on or before May 31, 1999.
SECTION 25. The commissioner of child care services shall promulgate the rules and regulations required pursuant to section 2WW of chapter 29 of the General Laws not later than six months following the effective date of said section 2WW of said chapter 29.
SECTION 25A. The department of social services shall conduct a study on the feasibility and cost to the commonwealth of establishing a child welfare training and leadership institute to be operated with federal revenues collected pursuant to Title IV-E and Title XIX of the Social Security Act. Said department shall report to the general court the results of its study, and its recommendations, if any, together with drafts of legislation necessary to carry its recommendations into effect, by filing the same with the clerk of the house of representatives who shall forward the same to the joint committee on the judiciary, the joint committee on human services and elderly affairs, and the house and senate committees on ways and means on or before October 1, 1999.
SECTION 26. The provisions of sections 1, 2, 10, 11, 13, 15, 16, 18, 19, 20 and 21 of this act shall take effect on July 1, 1999.