§587-73 - OLD REPEALED.

§587-73 [OLD] REPEALED. L 1986, c 316,
§32.

§587-73 Permanent plan hearing. (a)
At the permanent plan hearing, the court shall consider fully all relevant
prior and current information pertaining to the safe family home guidelines, as
set forth in section 587-25, including but not limited to the report or reports
submitted pursuant to section 587-40, and determine whether there exists clear
and convincing evidence that:

(1) The child's legal mother, legal father,
adjudicated, presumed, or concerned natural father as defined under chapter 578
are not presently willing and able to provide the child with a safe family
home, even with the assistance of a service plan;

(2) It is not reasonably foreseeable that the child's
legal mother, legal father, adjudicated, presumed, or concerned natural father
as defined under chapter 578 will become willing and able to provide the child
with a safe family home, even with the assistance of a service plan, within a
reasonable period of time which shall not exceed two years from the date upon
which the child was first placed under foster custody by the court;

(3) The proposed permanent plan will assist in
achieving the goal which is in the best interests of the child; provided that
the court shall presume that:

(A) It is in the best interests of a child to
be promptly and permanently placed with responsible and competent substitute
parents and families in safe and secure homes; and

(B) The presumption increases in importance
proportionate to the youth of the child upon the date that the child was first
placed under foster custody by the court; and

(4) If the child has reached the age of fourteen, the
child consents to the permanent plan, unless the court, after consulting with
the child in camera, finds that it is in the best interest of the child to
dispense with the child's consent.

(b) If the court determines that the criteria
set forth in subsection (a) are established by clear and convincing evidence
and:

(1) The goal of the permanent plan is for the child to
be adopted or remain in permanent custody, the court shall order:

(A) That the existing service plan be
terminated and that the prior award of foster custody be revoked;

(B) That permanent custody be awarded to an
appropriate authorized agency;

(i) Be adopted pursuant to chapter 578;
provided that the court shall presume that it is in the best interests of the
child to be adopted, unless the child is or will be in the home of family or a
person who has become as family and who for good cause is unwilling or unable
to adopt the child but is committed to and is capable of being the child's
guardian or permanent custodian; or

(ii) Remain in permanent custody until the child
is subsequently adopted, placed under a guardianship, or reaches the age of
majority, and that such status shall not be subject to modification or
revocation except upon a showing of extraordinary circumstances to the court;

(D) That such further orders as the court
deems to be in the best interests of the child, including but not limited to
restricting or excluding unnecessary parties from participating in adoption or
other subsequent proceedings, be entered; and

(E) Until adoption or guardianship is ordered,
that each case be set for a permanent plan review hearing not later than one
year after the date that a permanent plan is ordered by the court, or sooner if
required by federal law, and thereafter, that subsequent permanent plan review
hearings be set not later than each year, or sooner if required by federal law;
provided that at each permanent plan review hearing, the court shall review the
existing permanent plan and enter such further orders as are deemed to be in
the best interests of the child; or

(2) The goal of the permanent plan is for the child
to be placed under guardianship pursuant to part 2 of article V of chapter 560,
the court shall order:

(A) That the prior award of foster custody be
continued and that the existing service plan be terminated;

(B) That an appropriate permanent plan be
implemented concerning the child whereby the child will be placed under
guardianship pursuant to part 2 of article V of chapter 560; and

(C) That, until the guardianship is ordered,
each case be set for a permanent plan review hearing not later than six months
after the date that a permanent plan is ordered by the court, or sooner if
required by federal law; provided that at each permanent plan review hearing,
the court shall review the existing permanent plan and enter such further
orders as are deemed to be in the best interests of the child.

(c) If the court determines that the criteria
set forth in subsection (a) are not established by clear and convincing
evidence, the court shall order that:

(1) The permanent plan hearing be continued for a
reasonable period of time not to exceed six months from the date of the
continuance or the case be set for a review hearing within six months;

(2) The existing service plan be revised as the
court, upon such hearing as the court deems to be appropriate and after
ensuring that the requirement of section 587-71(h) is satisfied, determines to
be in the best interests of the child; provided that a copy of the revised
service plan shall be incorporated as part of the order;

(3) The authorized agency submit a written report
pursuant to section 587-40; and

(4) Such further orders as the court deems to be in
the best interests of the child be entered.

(d) At the continued permanent plan hearing,
the court shall proceed pursuant to subsections (a), (b), and (c) until such
date as the court determines that:

(1) There is sufficient evidence to proceed pursuant
to subsection (b); or

(2) The child's family is willing and able to provide
the child with a safe family home, even with the assistance of a service plan,
upon which determination the court may:

(A) Revoke the prior award of foster custody
to the authorized agency and return the child to the family home;

(B) Terminate jurisdiction;

(D) Order such revisions to the existing
service plan as the court, upon such hearing as the court deems to be
appropriate and after ensuring that the requirement of section 587-71(h) is
satisfied, determines to be in the best interests of the child; provided that a
copy of the revised service plan shall be incorporated as part of the order;

(E) Set the case for a review hearing within
six months; and

(F) Enter such further orders as the court
deems to be in the best interests of the child. [L 1986, c 316, §30; am L 1992,
c 190, §26; am L 1999, c 153, §5; am L 2000, c 78, §1; am L 2007, c 106, §2]

Case Notes

Where family court did not clearly err in determining that,
pursuant to paragraph (a)(1), mother was not willing and able to provide child
with a safe family home, even with the assistance of a service plan, appellate
court's holding that clear and convincing evidence did not support the
divestiture of mother's parental rights in child, pursuant to subsection (a),
was erroneous. 95 H. 183, 20 P.3d 616.

A parent's allegations of a violation of the Americans with
Disabilities Act do not raise a defense in a proceeding to terminate parental
rights under this section. 100 H. 335, 60 P.3d 285.

Agency properly awarded foster custody of child under
subsection (a)(2) where evidence, including mother's incarceration and drug
abuse, supported finding that it was not reasonably foreseeable that child
could be reunited with mother no later than three years after award of custody
to agency. 89 H. 477 (App.), 974 P.2d 1067.

Subsection (a)(2) does not apply to reunification efforts per
se, but establishes the period of time which must be taken into account in
predicting when a safe home will become available for the purpose of
determining whether parental rights should be terminated. 89 H. 477 (App.),
974 P.2d 1067.

Nothing in chapter 587 precludes settlement of a proceeding
brought under this section. 90 H. 200 (App.), 978 P.2d 166.

Mother's recurring drug problems, mother and father's
inability to care for children while in prison, additional time they needed to
go through services to acquire necessary parenting skills and likelihood they
would not acquire those skills, and general neglect children suffered while at
grandparents' home demonstrated the inability of mother and father to provide a
safe family home for children and supported family court's decision on
permanent custody in a foster home. 103 H. 130 (App.), 80 P.3d 20.

The purpose of a show cause hearing authorized or required by
§587-71 and this section is to allow a child's family to present "evidence
to the court regarding such reasons and considerations that the family has to
offer as to why the case should not be set for a permanent plan hearing";
because, depending on the evidence presented, this show cause hearing may or
may not result in a subsequent permanent plan hearing, a show cause hearing and
a permanent plan hearing cannot be scheduled at the same time; thus, family
court erred when it scheduled a combined "order to show cause and
permanent plan hearing". 112 H. 331 (App.), 145 P.3d 874.

When a parent is not presently willing and able to provide a
child with a safe family home and it is not reasonably foreseeable that the
parent will become willing and able to do so within a reasonable period of time
not to exceed two years from the date upon which the child was first placed
under foster custody by the court, the fact that the parent has a relative who
is presently willing and able to provide the child with a safe family home
until the parent's eventual release from confinement is not a basis for denying
a motion for termination of the parent's parental rights. 113 H. 492 (App.),
155 P.3d 675.