CHAPTER 317

FORMERLY

HOUSE BILL NO. 649

AS AMENDED BY HOUSE AMENDMENT NOS. 1, 2 AND 3

AN ACT TO AMEND TITLE 13 OF THE DELAWARE CODE RELATING TO TERMINATION OF PARENTAL RIGHTS.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF DELAWARE:

Section 1. Amend Section 1101(1) of Title 13 of the Delaware Code by striking it in its entirety and by substituting in lieu thereof the following:

"(1) 'Abandoned' shall be interpreted as referring to:

(a) a minor who has not attained six months of age at the time a petition for termination of parental rights has been filed, and for whom the respondent has failed to:

1. make reasonable and consistent payments, in accordance with the respondent's financial means, for support of the minor; and

2. visit regularly with the minor; and

3. manifest the ability and willingness to exercise parental responsibilities if, during this time, the minor was not in the physical custody of the other parent.

(b) a minor who has not attained six months of age at the time a petition for termination of parental rights has been filed, and for whom the respondent has manifested the unwillingness to exercise parental rights and responsibilities, as evidenced by the respondent's placing the minor in circumstances which leave the minor in substantial risk of injury or death.

(c) a minor who has attained six months of age at the time a petition for termination of parental rights has been filed, and for whom the respondent, for a period of at least six consecutive months immediately preceding the filing of the petition, has failed to:

1. make reasonable and consistent payments, in accordance with the respondent's financial means, for support of the minor; and

2. communicate or visit regularly with the minor; and

0. manifest the ability and willingness to exercise parental responsibilities, if during this time, the minor was not in the physical custody of the other parent.

The respondent's act of abandonment cannot be cured by subsequent conduct. No present intent to abandon the minor need be proved by the petitioner."

Section 2. Amend Section 1103(a)(4) of Title 13 of the Delaware Code by striking it in its entirety and by substituting in lieu thereof the following:

"(4) The respondent has been found by a court of competent jurisdiction to have:

a. committed a felony level offense against the person, as described within Subchapter II of Chapter 5 of Title 11 of this Code, in which the victim or any other child is the subject of the petition; or

b. aided or abetted, attempted, conspired or solicited to commit an offense set forth in subparagraph a. of this paragraph; or

c. committed or attempted to commit the offense of Dealing in Children, as set forth in § 1100 of Title 11 of the Delaware Code."

Section 3. Amend Section I103(a)(5) of Title 13 of the Delaware Code by striking it in its entirety and by substituting in lieu thereof the following:

"(5) The parent or parents of the child, or any person or persons holding parental rights over the child, are not able, or have failed, to plan adequately for the child's physical needs or mental and emotional health and development, and one or more of the following conditions are met:

a. In the case of a child in the care of the Department or a licensed agency:

1. The child has been in the care of the Department or licensed agency for a period of one year, or for a period of six months in the case of a child who comes into care as an infant, or there is a history of previous placement or placements of this child; or

2. There is a history of neglect, abuse or lack of care of the child or other children by the respondent; or

0. The respondent is incapable of discharging parental responsibilities due to extended or repeated incarceration, except that the Court may consider post-conviction conduct of the respondent; or

1. The respondent is not able or willing to assume promptly legal and physical custody of the child, and to pay for the child's support, in accordance with the respondent's financial means; or

(5) Failure to terminate the relationship of parent and child will result in continued emotional instability or physical risk to the child. In making a determination under this paragraph, the Court shall consider all relevant factors, including:

(i) whether the conditions that led to the child's placement, or similar conditions of a harmful nature, continue to exist and there appears to be little likelihood that these conditions will be remedied at an early date which would enable the respondent to discharge parental responsibilities so that the child can be returned to the respondent in the near future;

(ii). the respondent's efforts to assert parental rights of the child, and the role of other persons in thwarting the respondent's efforts to assert such rights;

(iii) the respondent's ability to care for the child, the age of the child, the quality of any previous relationship between the respondent and the child or any other children;

(iv) the effect of a change of physical custody on the child; and

(v) the effect of a delay in termination on the chances for a child to be placed for adoption.

b. In the case of a child in the home of a stepparent or blood relative:

1. The child has resided in the home of the stepparent or blood relative for a period of at least 1 year, or for a period of 6 months in the case of an infant; and

0. The Court finds the respondent is incapable of discharging parental responsibilities, and there appears to be little likelihood that the respondent will be able to discharge such parental responsibilities in the near future."

Section 4. Amend Section 1103(a) of Title 13 of the Delaware Code by adding thereto a new subsection to read:

"(6) The respondent's parental rights over a sibling of the child who is the subject of the petition have been involuntarily terminated in a prior proceeding."

Section 5. Amend Section 1103 of Title 13 of the Delaware Code by adding thereto a new subsection to read:

"(d) The Department is not required to perform, but is not prohibited from performing, reunification and related services as outlined in Chapter 90 of Title 29 of the Delaware Code when the grounds for termination of parental rights are those stated in Subsections (a)(2), (a)(4) or (a)(6) of this section."

Section 6. This bill shall be applied retroactively to all petitions filed after October 3, 1996.

Approved June 27, 1998