SB1429 - 542R

Be it enacted by the Legislature of the State of Arizona:

Section 1. Section 8-537, Arizona Revised Statutes, is amended to read:

START_STATUTE8-537. Termination adjudication hearing; right to jury

A. Mediation is the preferred manner of settling disputes regarding the parent‑child relationship. The parties shall submit to the court appropriate evidence of mediation to be entered in the court record.

B. If mediation fails, the court shall hold a trial to the bench in the manner prescribed by the court for a bench trial without a jury.

A. C. If a petition for terminating the parent‑child relationship is contested, the court shall hold a termination adjudication hearing. The general public shall may be excluded and only such persons admitted whose presence the judge finds to have a direct interest in the case or the work of the court, provided that such person so admitted shall not disclose any information secured at the hearing to the extent necessary to meet the CONFIDENTIALITY requirements of 42 United States Code section 5106a. If the court denies admission to any person, the court shall record its reasons for the denial and make this information available to the public. The court may direct any person admitted to the hearing not to disclose information divulged at the hearing. The court may require the presence of any parties and witnesses it deems necessary to the disposition of the petition, except that a parent who has executed a waiver pursuant to section 8‑535, or who has relinquished the parent's rights to the child shall not be required to appear at the hearing.

B. D. The court's or jury's findings with respect to grounds for termination shall be based upon clear and convincing on evidence under the rules applicable and adhering to the trial of civil causes beyond a reasonable doubt. The court or jury may consider any and all reports required by this article or ordered by the court pursuant to this article and such reports are admissible in evidence without objection.

C. E. If a parent does not appear at the pretrial conference, status conference or termination adjudication hearing, the court, after determining that the parent has been properly served notice and instructed as provided in section 8‑535, may find that the parent has waived the parent's legal rights that may be waived and is deemed to have admitted the allegations of the petition by the failure to appear. The court may terminate the parent‑child relationship as to a parent who does not appear based on the record and evidence presented as provided in rules prescribed by the supreme court that are not contrary to the law.

F. Taking a person's child is capital PUNISHMENT and the person whose child is taken shall be afforded all appropriate due process.

G. If a party believes that the party's rights have been substantially violated by the orders of the court and files a jury demand with the court, the court shall set a new hearing before a jury within thirty days. The jury may terminate parental rights only if it finds grounds for termination beyond a reasonable doubt. The right to a jury is available to a party who has not refused a jury in the prior fifteen months and if mediation and a bench trial have been held pursuant to subsections A and B of this section.

H. If a parent or guardian rehabilitates or was previously denied a right to a jury and wants to have parental rights restored, the parent or guardian shall be provided a new termination process on application to the court. The process shall begin with mediation as provided in subsection A of this section and any hearing shall be before a jury. At the new hearing, the state has the burden of proving beyond a reasonable doubt that the parental rights should remain terminated. If the jury denies restoration of parental rights, the parent or guardian may seek a new hearing by applying to the court twelve or more months after the date of the jury's decision.

I. A party may have the jury reexamine discrete portions of the court's orders without the entire case being relitigated or reexamined.

J. The jury may assess financial penalties not to exceed $2,500 against any litigant whom the jury deems to have abused the system. The penalties shall be paid to any individual, person or charity deemed appropriate by the jury.

K. Total fees for this subsequent hearing, heard and decided by the jury, may not exceed $500.

L. The court shall disclose to all parties the right to a jury prescribed in this section. If the court does not make this disclosure, any subsequent proceedings or rulings do not have the force of law. The right to a jury is inviolate. The court may not violate the right to a jury. the right to have a jury make the final decision on parental rights may not be waived.

M. False or withheld exculpatory evidence may be considered perjury and enforced in the criminal court. The judge or the jury with not more than two dissenting votes may prefer these charges to the county attorney. Prosecutorial discretion resides exclusively in the grand jury.

N. If the judge or jury explicitly or implicitly orders a child to be returned to the child's parent or guardian, the physical reunification must occur within THIRTY‑six hours after the order is issued. A failure to comply is considered unlawful imprisonment and violators and coconspirators are subject to prosecution under sections 13‑1003 and 13‑1303. END_STATUTE

Sec. 2. Section 8-824, Arizona Revised Statutes, is amended to read:

START_STATUTE8-824. Preliminary protective hearing; probable cause; appointment of counsel; right to jury

A. The court shall hold a preliminary protective hearing to review the taking into temporary custody of a child pursuant to section 8‑821 not fewer than five days nor more than seven days after the child is taken into custody, excluding Saturdays, Sundays and holidays. If clearly necessary to prevent abuse or neglect, to preserve the rights of a party or for other good cause shown, the court may grant one continuance that does not exceed five days.

B. The following persons shall be present at the preliminary protective hearing:

1. The child's parents or guardian, unless they cannot be located or they fail to appear in response to the notice.

2. Counsel for the parents if one has been requested or retained.

3. The child's guardian ad litem or attorney.

4. The child safety worker and additional representatives of the department if requested by the department.

5. Counsel for the child safety worker.

C. If the court finds that it is in the best interests of the child, the court may allow the following to be present at the preliminary protective hearing:

1. The child.

2. Any relative or other interested person with whom the child is or might be placed as described in section 8‑845, subsection A.

3. Witnesses called by the parties.

4. An advocate or interested person as requested by the parent or guardian.

5. Other persons who have knowledge of or an interest in the welfare of the child.

D. At the hearing, the court shall advise the parent or guardian of the following rights:

1. The right to counsel, including appointed counsel if the parent or guardian is indigent.

2. The right to cross‑examine all witnesses who are called to testify against the parent or guardian.

3. The right to trial by court on the allegations in the petition.

4. The right to use the process of the court to compel the attendance of witnesses.

5. The right to a jury hearing to make the final decision to remove a child after this hearing or any subsequent hearing.

E. At the hearing, the court:

1. Shall receive a report of any agreement reached pursuant to section 8‑823, subsection D. The report may be made orally.

2. Shall provide an opportunity for the child's parent or guardian, if present, and any other person who has relevant knowledge, to provide relevant testimony.

3. May limit testimony and evidence that is beyond the scope of the removal of the child, the child's need for continued protection, placement, visitation and services to be provided to the child and family.

4. May take into consideration as a mitigating factor the participation of the parent or guardian in the healthy families program established by section 8‑481.

5. Shall take into consideration as a mitigating factor the availability of reasonable services to the parent or guardian to prevent or eliminate the need for removal of the child and the effort of the parent or guardian to obtain and participate in these services.

6. Shall inform the child's parent or guardian that the hearing may result in further proceedings to terminate parental rights with final decisions made by a jury as subsequently deemed necessary by the parent or guardian.

7. Shall order the parent or guardian to provide the court with the names, the type of relationship and all available information necessary to locate persons who are related to the child or who have a significant relationship with the child. If there is not sufficient information available to locate a relative or person with a significant relationship with the child, the parent or guardian shall inform the court of this fact. The court shall further order the parent or guardian to inform the department immediately if the parent or guardian becomes aware of information related to the existence or location of a relative or person with a significant relationship to the child.

8. Shall inform the parent that substantially neglecting or wilfully refusing to remedy the circumstances that cause the child to be in an out‑of‑home placement, including refusing to participate in reunification services, is grounds for termination of parental rights to a child.

9. Shall give paramount consideration to both of the following:

(a) The health and safety of the child.

(b) The fundamental liberty interest of parents to parent their own children.

10. Shall determine whether the department is attempting to identify and assess placement of the child with a grandparent or another member of the child's extended family including a person who has a significant relationship with the child. If the court fails to make this determination and act in a just manner, the case shall be dismissed.

11. Shall inform a foster parent, a preadoptive parent or a member of the child's extended family with whom the department has placed the child of the right to be heard in any proceeding to be held with respect to the child.

F. The petitioner has the burden of presenting evidence as to whether there is probable cause to believe that continued temporary custody is clearly necessary to prevent abuse or neglect pending the hearing any further hearings on the dependency petition.

G. The department must make reasonable efforts to place a child with siblings and, if that is not possible, to maintain frequent visitation or other ongoing contact between all siblings.

H. If the child is in the temporary custody of the department, the department shall submit not later than the day before the hearing a written report to the court and the parties that states:

1. The reasons the child was removed from the parent's or guardian's custody.

2. Any services that have been provided to the child or the child's parent or guardian to prevent removal.

3. The need, if any, for continued temporary custody.

4. The types of service needed to facilitate the return of the child to the custody of the child's parents or guardian.

5. If the child is not placed with a grandparent, whether the child has any relatives or other interested parties as described in section 8‑845, subsection A who may be able and willing to take temporary custody.

6. Any services that are requested by the parent or guardian but that are not provided and the reasons the services were not provided.

7. What efforts the department has made to place siblings together, and if they are not placed together, the specific reasons why this did not occur.

8. If the placement of siblings together was not possible for all or any of the siblings, efforts the department has made to facilitate communications among siblings and a proposal for frequent visitation or contact pursuant to subsection G of this section. If frequent visitation or contact with siblings is not recommended, the department shall state the reasons why this would be contrary to the child's or a sibling's safety or well-being.

9. A proposal for visitation with the child's parents or guardian and the results of any visitation that has occurred since the child was removed. The requirements of this paragraph do not apply to a specific parent or guardian if there is a court order relating to a criminal case that prohibits that parent or guardian from contact with the child. Before the department allows visitation it must first determine that there are no court orders relating to any superior court criminal case that prohibit the parent or guardian from contact with the child.

10. A proposed case plan for services to the family.

I. The parent or guardian shall state whether the parent or guardian admits or denies the allegations in the petition filed pursuant to section 8‑841. If the parent or guardian admits or does not contest the allegations in the petition, the court shall determine that the parent or guardian understands the rights described in subsection D of this section and that the parent or guardian knowingly, intelligently and voluntarily waives these rights, except the right to a jury making the final decision on any judicial order regarding the physical custody of the child may not be waived.

J. At the hearing, if the child is not returned to the parent or guardian, the court shall:

1. Enter orders regarding the placement of the child pending the determination of the dependency petition and visitation, if any.

2. If a relative is identified as a possible placement for the child, notify the relative of the right to be heard in any proceeding to be held with respect to the child.

3. Determine if the tasks and services set forth in the case plan are reasonable and necessary to carry out the case plan.

K. The right to a jury is inviolate. the court may not violate the right to a jury. If a challenge is made to a removal order that results from a preliminary protective hearing conducted as a bench trial and a jury demand is filed with the court, the court shall schedule a new hearing in which the evidence is presented to and a verdict is rendered by a jury. In regard to this determination, all of the following apply:

1. Mediation is the preferred manner of settling disputes regarding the parent‑child relationship. The parties shall submit to the court appropriate evidence of mediation to be entered in the court record.

2. If mediation fails, the court shall hold a trial to the bench in the manner prescribed by the court for a bench trial without a jury.

3. If a party believes that the party's rights have been substantially violated by the orders of the court and files a jury demand with the court within twenty days after the court's orders were filed, the court shall set a new hearing before a jury within ten days after the demand is filed. Evidence gained through additional investigation may not be admitted for the jury trial.

4. The jury shall determine if there is probable cause for removal of a child in a hearing to review a removal order that results from a preliminary protective hearing conducted as a bench trial. a verdict must be rendered with not more than two dissenting votes.

5. False or withheld exculpatory evidence may be considered perjury and enforced in the criminal court. The jury with not more than two dissenting votes may prefer these charges to the county attorney. Prosecutorial discretion resides exclusively in the grand jury.

6. A party may have the jury reexamine discrete portions of the court's orders without the entire case being relitigated or reexamined.

7. The jury may assess financial penalties not to exceed $2,500 against any litigant whom the jury deems to have abused the system. The penalties shall be paid to any individual, person or charity deemed appropriate by the jury.

8. The jury may render a verdict that either affirms the judicial order or changes the judicial order. The jury may order that the child be returned to the parent or guardian.

9. If a matter is contested, this subsection applies to all other hearings and court rulings that occur before the hearing for termination of the parent‑child relationship, except that To reach a decision, the jury may have not more than one dissenting vote, Issues must be proved beyond a reasonable doubt and hearings must be held at thirty‑day intervals leading up to the final termination hearing. At all stages of these proceedings, the jury shall make the final decision if requested to do so by the parties.

10. Suppression of exculpatory information is a criminal act and subject to mandatory reporting pursuant to section 13‑3620.

11. A jury verdict may not be reexamined by any court. A judge may overturn a grossly unjust or unconstitutional verdict and schedule a new jury trial within twenty‑one calendar days after the verdict is overturned.

12. Jury instructions must include the statement, "Parental rights are a fundamental liberty interest, to be interfered with by the state only under the most compelling circumstances. Potential Financial Conflict of INTEREST: Taxpayers pay approximately $83,000 per year for each child taken into custody."

13. Total fees for the subsequent hearing, heard and decided by the jury, may not exceed $500.

14. If the judge or jury explicitly or implicitly orders a child to be returned to the child's parent or guardian, the physical reunification must occur within THIRTY‑six hours. A failure to comply is considered unlawful imprisonment and violators and coconspirators are subject to prosecution under sections 13‑1003 and 13‑1303. Any person may file such a complaint with law enforcement, who shall investigate and submit the results to the grand jury within ninety‑six hours after the complaint is made. prosecutorial discretion resides exclusively in the grand jury. END_STATUTE