Pro Bono Attorney CAP Manual Appendix A Revisions Nevada Statutes

Transcription

1 Pro Bono Attorney CAP Manual Appendix A Revisions Nevada Statutes Summary of Revisions... Page 1 SB Page 6 SB Page 15 SB Page 20 SB Page 32 AB Page 39 AB Page 58 AB Page 59 AB Page 69

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3 Summary of Revisions Appendix A Nevada Statutes Chapter 432B Protection of Children from Abuse and Neglect Senate Bill No. 58 NRS 432B.290 Senate Bill No. 58 Revises provisions concerning the release of certain information relating to child welfare services. SB 58 amends NRS 432B.290. Existing law makes it a gross misdemeanor for certain persons to disseminate or make public information relating to child welfare services. (NRS 432B.290). Section 1.5 of SB 58 revises the list of persons who may disseminate or make public such information and the circumstances under which the information may be released. Effective July 1, 2015 Senate Bill No. 148 NRS 432B.520 and NRS 432B.580 Senate Bill No. 148 Revises requirements concerning service of a summons to a hearing on a petition that a child is in need of protection. SB 148 amends NRS 432B.520 and NRS 432B.580. Existing law requires a court to hold an adjudicatory hearing within 30 days of the filing of a petition that a child who was removed from his or her home is in need of protection. (NRS 432B.530). Before such a hearing, the court is required to issue a summons to the person who has custody or control of the child. If this person is not the parent or guardian of the child, the summons must also be issued to the parent or guardian of the child. If the person summoned resides in this State, the summons must be served personally. If the person cannot be found in this State or does not reside in this State, the summons must be served by registered or certified mail. If the child is a newborn and was delivered to a provider of emergency services and the location of the parent is unknown, the summons must be served by publication. (NRS 432B.520). Except when a newborn child is delivered to a provider of emergency services and the location of the parent is unknown, this bill requires the summons to be served personally or by registered or certified mail, regardless of whether the person resides within or outside of this State Effective October 1, 2015 Senate Bill No. 262 NRS 432B.4665 Senate Bill No. 262 Revises provisions relating to guardians. SB No. 262 amends NRS 432B Section 6.3 of SB 262 eliminates existing limitations on the authority of a court to appoint a nonresident as a guardian for a minor ward. Effective July 1, 2015 Page 1

4 Senate Bill No. 303 NRS 432B.330 Senate Bill No. 303 Revises provisions relating to the circumstances under which a child is considered to be in need of protection. SB 303 amends 432B.330. Existing law sets forth the circumstances under which a child is or may be in need of protection. (NRS 432B.330). Those circumstances are considered, without limitation, by: (1) an agency which provides child welfare services to determine whether to file a petition in juvenile court alleging that a child is in need of protection; and (2) the juvenile court in an adjudicatory hearing to determine whether a child was in need of protection at the time the child was removed from the home. (NRS 62A.180, 432B.050, 432B.340, 432B.410, 432B.490, 432B.510, 432B.530) Under existing law, a child may be in need of protection if the person responsible for the welfare of the child is responsible for the abuse or neglect of another child who resided with that person. (NRS 432B.330). Section 1 of SB 303 provides that a child is, rather than may be, in need of protection if the child is in the care of a person responsible for the welfare of the child and another child has been subjected to abuse by that person, unless the person has successfully completed a plan for services that was recommended by an agency which provides child welfare services to address the abuse of the other child. Section 1 also provides that a child may be in need of protection if the child is in the care of a person responsible for the welfare of the child and another child has been subjected to abuse by that person, regardless of whether the person has successfully completed such a plan for services. Effective July 1, 2015 Assembly Bill No. 49 NRS 432B.140 Assembly Bill No. 49 Revises the definition of negligent treatment or maltreatment. AB 49 amends NRS 432B.140. Effective October 1, 2015 Assembly Bill No. 52 NRS 432B.130 Assembly Bill No. 52 Revises provisions concerning the persons responsible for a child s welfare. AB 52 amends NRS 432B.130. Existing law specifies when a person is responsible for a child s welfare. (NRS 432B.130) This bill clarifies that a public or private home, institution or facility is responsible for a child s welfare if the child resides or receives care at the home, institution or facility. Effective October 1, 2015 Assembly Bill No. 324 NRS 432B.165, NRS 432B.190, and NRS 432B.590 Assembly Bill No. 324 Revises provisions relating to child welfare. AB 324 amends NRS 432B.165, NRS 432B.190, and NRS 432B.590. Existing federal law requires a state agency that receives information concerning a missing or abducted child, who has been placed in the custody of the agency, to report the information immediately to the National Center for Missing and Exploited Children and the National Crime Information Center database established by the Federal Page 2

5 Bureau of Investigation. (Preventing Sex Trafficking and Strengthening Families Act, Pub. L. No , 104). Section 4 of AB 324, includes this requirement in state law. (NRS 432B.165). Existing federal law requires a state to develop and carry out specific protocols concerning children who have run away from foster care in order to receive certain federal funds. (42 U.S.C. 671(a)(35)). Section 5 of AB 324 requires the Division of Child and Family Services of the Department of Health and Human Services to adopt regulations to implement such protocols. (NRS 432B.190). Existing federal law that becomes effective on September 29, 2015, prohibits the placement of a child who is under 16 years of age in a permanent placement other than with the parent of the child, the adoption of the child or referral of the child for legal guardianship. (Preventing Sex Trafficking and Strengthening Families Act, Pub. L. No , 112). Section 6 of AB 324 authorizes an agency which provides child welfare services that has custody of a child who is 16 years of age or older to present evidence at a permanency hearing that there is a compelling reason for placing such a child in a different permanent living arrangement. (NRS 432B.590). Existing federal law requires a judge at a permanency hearing to: (1) ask the child about his or her desired permanency outcome; (2) if the judge determines that another permanency outcome is better for the child, to explain why; and (3) if the judge determines that it is not in the best interests of the child to return home, be placed for adoption or be placed with a legal guardian or relative, provide compelling reasons for that determination. (42 U.S.C. 675a(a)(2)). Existing state law requires a judge at a permanency hearing to prepare an explicit statement of the facts upon which he or she based his or her determination regarding the best interests of the child. Section 6 revises this requirement to meet the federal requirements. (NRS 432B.590). Effective July 1, 2015 Chapter 128 Termination of Parental Rights Senate Bill No. 303 NRS , NRS , and NRS Senate Bill No. 303 Revises provisions concerning proceedings related to the termination of parental rights. SB 303 amends , NRS , and NRS Existing law sets forth the grounds necessary to terminate parental rights, including, without limitation, conduct of a parent or parents that demonstrates a risk of serious physical, mental or emotional injury to the child if the child were returned to, or remains in, the home of his or her parent or parents. (NRS ). Section 3 of SB 303 requires a court to consider certain factors if the child has been out of the care of his or her parent or guardian for at least 12 consecutive months, before making a finding that parental conduct satisfies that provision. Section 4 revises the conditions a court is required to consider in determining neglect by or unfitness of a parent for the purpose of proceedings regarding the termination of parental rights. Effective July 1, Page 3

6 Assembly Bill No. 151 Chapter 127 Adoption of Children and Adults Assembly Bill No. 151 Revises provisions relating to the adoption of children. AB 151 amends NRS , NRS , and NRS Under existing law, certain restrictions relating to the respective ages of a child and a prospective adoptive parent for adoption purposes are imposed the adopting parent must be at least 10 years older than the person adopted. (NRS ). Section 1 of AB 151 provides that a court may disregard those age restrictions if the prospective adoptive parent is a certain family member of the child and it is in the best interest of the child and in the interest of the public. Existing law prohibits the grant of a petition for leave to adopt a child by a married person if the person s spouse does not consent to and join in the petition. (NRS ). Section 2 provides that a married person must obtain from his or her spouse consent to an adoption, but a spouse who consents will not have any parental rights or responsibilities or be named as an adoptive parent in an order or decree of adoption except under certain circumstances. Under existing law, a court is required to grant a petition for the adoption of a child if the court finds that it is in the best interest of the child. However, an order or decree of adoption may not be made until after the child has lived for 6 months in the home of the petitioners. (NRS ). Section 3 provides that the 6month requirement does not apply if one of the petitioners is the stepparent of the child or is related to the child within the third degree of consanguinity. Effective October 1, Senate Bill No. 262 Chapter 159 Guardianships Senate Bill No. 262 Revises provisions relating to guardians. SB No. 262 amends Chapter 159 of NRS. Existing law provides for the appointment, qualifications and duties of guardians for certain minor and adult wards. (Chapter 159 of NRS). Existing law prohibits a nonresident of Nevada from being appointed as a guardian for a minor or adult ward unless the person has associated a coguardian who is a resident of Nevada or a banking corporation whose principal place of business is in Nevada. (NRS ). Existing law also gives preference to certain persons to be appointed as a guardian for a minor ward but does not give preference to any persons to be appointed as a guardian for an adult ward. (NRS ) Sections 1 and 6.7 of SB 262 revise the circumstances under which a court is authorized to appoint a nonresident as a guardian for an adult ward. Section 6.3 eliminates existing limitations on the authority of a court to appoint a nonresident as a guardian for a minor ward. Section 1 also requires the court to give preference in appointing a guardian for an adult ward to the following persons in the following order, whether or not the person is a nonresident: (1) a nominated person, who is a person the adult ward specifically nominated or requested as a guardian in a will, trust or other written document executed by the adult ward while competent; or (2) a relative. If two or more nominated persons are qualified and suitable to be appointed as a guardian, section 1 authorizes the court to appoint two or more coguardians or generally requires the court to give preference to Page 4

7 the nominated person named in a will, trust or other written document that is part of the adult s established estate plan, but there are certain exceptions for extraordinary circumstances. In selecting a guardian, section 1 does not allow the court to give preference to a resident over a nonresident if the court determines that the nonresident would be a more qualified and suitable guardian and the adult would receive continuing care and supervision under the guardianship of the nonresident. If the court selects a nonresident guardian, section 1 requires the court to order the nonresident guardian to designate a registered agent in this State. Section 2.3 revises the existing list of persons who are preferred for appointment as a guardian to a minor to include any person recommended by: (1) an agency which provides child welfare services, an agency which provides child protective services or a similar agency; or (2) a guardian ad litem or court appointed special advocate who represents the minor. Sections and 6.3, make conforming changes to reflect the changes made by the other sections of this bill. Existing law provides that a ward is eligible to have a public guardian appointed as his or her permanent or general individual guardian if: (1) there is no relative or friend able and willing to be appointed as a guardian for the ward; or (2) the court removes a private professional guardian previously appointed for the ward. (NRS ) Section 3 provides for the appointment of a public guardian for an incompetent adult who failed to nominate a person for appointment as guardian while he or she was still competent or if the nominated person is not suitable or willing to serve as guardian. Effective July 1, 2015 Page 5

8 Senate Bill No. 58 Committee on Judiciary CHAPTER... AN ACT relating to children; revising provisions concerning the release of certain information relating to a child subject to the jurisdiction of the juvenile court; revising provisions concerning the release of certain information relating to child welfare services; providing a penalty; and providing other matters properly relating thereto. Legislative Counsel s Digest: Existing law authorizes directors of juvenile services and the Chief of the Youth Parole Bureau, or his or her designee, to release, upon written request and good cause shown, certain information concerning a child who is within the purview of the juvenile court to certain other persons involved in the juvenile justice system. (NRS 62H.025) Section 1 of this bill specifies that juvenile justice information is confidential and may only be released under certain circumstances. Section 1 also revises: (1) the information that may be released; (2) the list of persons to whom the information may be released; and (3) the circumstances under which the information may be released. Section 1 further eliminates the requirement that a request for such information be in writing and revises from 3 days to 5 business days the period in which a denial of a request for the release of the information must be made to the person who requested the information. Finally, section 1 makes it a gross misdemeanor for certain persons to disseminate or make public juvenile justice information. Existing law makes it a gross misdemeanor for certain persons to disseminate or make public information relating to child welfare services. (NRS 432B.290) Section 1.5 of this bill revises the list of persons who may disseminate or make public such information and the circumstances under which the information may be released. EXPLANATION Matter in bolded italics is new; matter between brackets [omitted material] is material to be omitted. THE PEOPLE OF THE STATE OF NEVADA, REPRESENTED IN SENATE AND ASSEMBLY, DO ENACT AS FOLLOWS: Section 1. NRS 62H.025 is hereby amended to read as follows: 62H Juvenile justice information [must be maintained in accordance with federal law, and any provision of federal law authorizing the release of juvenile justice information must be construed as broadly as possible in favor of the release of juvenile justice information.] is confidential and may only be released in accordance with the provisions of this section or as expressly authorized by other federal or state law. 2. For the purpose of ensuring the safety, permanent placement, rehabilitation, educational success and wellbeing of a child [,] or the safety of the public, a [director of] juvenile [services Page 6

9 2 or the Chief of the Youth Parole Bureau, or his or her designee,] justice agency may [, upon written request and good cause shown, share appropriate] release juvenile justice information [with:] to: (a) A director of juvenile services or his or her designee; (b) The Chief of the Youth Parole Bureau or his or her designee; (c) A district attorney or his or her designee; (d) An attorney representing the child; (e) The director of a state agency which administers juvenile justice or his or her designee; (f) A director of a state, regional or local facility for the detention of children or his or her designee; (g) The director of an agency which provides child welfare services or his or her designee; (h) A guardian ad litem or court appointed special advocate who represents the child; (i) A parent or guardian of the child ; [if the release of the information to the parent or guardian is consistent with the purposes of this section; or] (j) The child to whom the juvenile justice information pertains if the child has reached the age of majority [.], or a person who presents a release that is signed by the child who has reached the age of majority and which specifies the juvenile justice information to be released and the purpose for the release; (k) A school district, if the juvenile justice agency and the school district have entered into a written agreement to share juvenile justice information for a purpose consistent with the purposes of this section; (l) A person or organization who has entered into a written agreement with the juvenile justice agency to provide assessments or juvenile justice services; (m) A person engaged in bona fide research that may be used to improve juvenile justice services or secure additional funding for juvenile justice services if the juvenile justice information is provided in the aggregate and without any personal identifying information; or (n) A person who is authorized by a court order to receive the juvenile justice information, if the juvenile justice agency was provided with notice and opportunity to be heard before the issuance of the order. 3. [A written request for juvenile justice information pursuant to subsection 2 may be made only for the purpose of determining the appropriate placement of the child pursuant to the provisions of chapter 432B of NRS, the appropriate treatment or services to be Page 7

10 3 provided to the child or the appropriate conditions of probation or parole to be imposed on the child. The written request must state the reason that the juvenile justice information is requested. A written] A juvenile justice agency may deny a request for juvenile justice information [may be refused] if: (a) The request does not, in accordance with the purposes of this section, demonstrate good cause for the release of the information; or (b) The release of the information would cause material harm to the child or would prejudice any court proceeding to which the child is subject. A [refusal] denial pursuant to this subsection must be made in writing to the person [or entity] requesting the information not later than [3] 5 business days after receipt of the request. [, excluding Saturdays, Sundays and holidays. 4. Any juvenile justice information provided pursuant to this section is confidential, must be provided only to those persons listed in subsection 2 and must be maintained in accordance with any applicable laws and regulations. 5.] 4. Any juvenile justice information provided pursuant to this section may not be used to deny a child access to any service for which the child would otherwise be eligible, including, without limitation: (a) Educational services; (b) Social services; (c) Mental health services; (d) Medical services; or (e) Legal services. [6. A director of juvenile services or the Chief of the Youth Parole Bureau, or his or her designee, may release juvenile justice information: (a) In the aggregate and without personal identifying information included, to a person engaged in bona fide research that may be used to improve juvenile justice services or secure additional funding for juvenile justice services. (b) As deemed necessary by a legislative body of this State or a local government in this State to conduct an audit or proper oversight of any department, agency or office providing services related to juvenile justice. 7.] 5. Except as otherwise provided in this subsection, any person who is provided with juvenile justice information pursuant to this section and who further disseminates the information or Page 8

11 4 makes the information public is guilty of a gross misdemeanor. This subsection does not apply to: (a) A district attorney who uses the information solely for the purpose of initiating legal proceedings; or (b) A person or organization described in subsection 2 who provides a report concerning juvenile justice information to a court or other party pursuant to this title or chapter 432B of NRS. 6. As used in this section [, juvenile] : (a) Juvenile justice agency means the Youth Parole Bureau or a director of juvenile services. (b) Juvenile justice information means any information [maintained by a director of juvenile services or the Chief of the Youth Parole Bureau, or his or her designee,] which is directly related to a child in need of supervision, a delinquent child or any other child who is otherwise subject to the jurisdiction of the juvenile court. Sec NRS 432B.290 is hereby amended to read as follows: 432B Information maintained by an agency which provides child welfare services must be maintained by the agency which provides child welfare services as required by federal law as a condition of the allocation of federal money to this State. 2. Except as otherwise provided in this section and NRS 432B.165, 432B.175 and 432B.513, information maintained by an agency which provides child welfare services may, at the discretion of the agency which provides child welfare services, be made available only to: (a) A physician, if the physician has before him or her a child who the physician has reasonable cause to believe has been abused or neglected; (b) A person authorized to place a child in protective custody, if the person has before him or her a child who the person has reasonable cause to believe has been abused or neglected and the person requires the information to determine whether to place the child in protective custody; (c) An agency, including, without limitation, an agency in another jurisdiction, responsible for or authorized to undertake the care, treatment or supervision of: (1) The child; or (2) The person responsible for the welfare of the child; (d) A district attorney or other law enforcement officer who requires the information in connection with an investigation or prosecution of the abuse or neglect of a child; Page 9

12 5 (e) Except as otherwise provided in paragraph (f), a court other than a juvenile court, for in camera inspection only, unless the court determines that public disclosure of the information is necessary for the determination of an issue before it; (f) A court as defined in NRS to determine whether a guardian or successor guardian of a child should be appointed pursuant to chapter 159 of NRS or NRS 432B.466 to 432B.468, inclusive; (g) A person engaged in bona fide research or an audit, but information identifying the subjects of a report must not be made available to the person; (h) The attorney and the guardian ad litem of the child, if the information is reasonably necessary to promote the safety, permanency and wellbeing of the child; (i) A person who files or intends to file a petition for the appointment of a guardian or successor guardian of a child pursuant to chapter 159 of NRS or NRS 432B.466 to 432B.468, inclusive, if the identity of the person responsible for reporting the abuse or neglect of the child to a public agency is kept confidential and the information is reasonably necessary to promote the safety, permanency and wellbeing of the child; (j) The proposed guardian or proposed successor guardian of a child over whom a guardianship is sought pursuant to chapter 159 of NRS or NRS 432B.466 to 432B.468, inclusive, if the identity of the person responsible for reporting the abuse or neglect of the child to a public agency is kept confidential and the information is reasonably necessary to promote the safety, permanency and wellbeing of the child; (k) A grand jury upon its determination that access to these records and the information is necessary in the conduct of its official business; (l) A federal, state or local governmental entity, or an agency of such an entity, or a juvenile court, that needs access to the information to carry out its legal responsibilities to protect children from abuse and neglect; (m) A person or an organization that has entered into a written agreement with an agency which provides child welfare services to provide assessments or services and that has been trained to make such assessments or provide such services; (n) A team organized pursuant to NRS 432B.350 for the protection of a child; (o) A team organized pursuant to NRS 432B.405 to review the death of a child; Page 10

13 6 (p) A parent or legal guardian of the child and an attorney of a parent or guardian of the child, including, without limitation, the parent or guardian of a child over whom a guardianship is sought pursuant to chapter 159 of NRS or NRS 432B.466 to 432B.468, inclusive, if the identity of the person responsible for reporting the abuse or neglect of the child to a public agency is kept confidential and the information is reasonably necessary to promote the safety, permanency and wellbeing of the child and is limited to information concerning that parent or guardian; (q) The child over whom a guardianship is sought pursuant to chapter 159 of NRS or NRS 432B.466 to 432B.468, inclusive, if: (1) The child is 14 years of age or older; and (2) The identity of the person responsible for reporting the abuse or neglect of the child to a public agency is kept confidential and the information is reasonably necessary to promote the safety, permanency and wellbeing of the child; (r) The persons or agent of the persons who are the subject of a report, if the information is reasonably necessary to promote the safety, permanency and wellbeing of the child and is limited to information concerning those persons; (s) An agency that is authorized by law to license foster homes or facilities for children or to investigate persons applying for approval to adopt a child, if the agency has before it an application for that license or is investigating an applicant to adopt a child; (t) Upon written consent of the parent, any officer of this State or a city or county thereof or Legislator authorized by the agency or department having jurisdiction or by the Legislature, acting within its jurisdiction, to investigate the activities or programs of an agency which provides child welfare services if: (1) The identity of the person making the report is kept confidential; and (2) The officer, Legislator or a member of the family of the officer or Legislator is not the person alleged to have committed the abuse or neglect; (u) The Division of Parole and Probation of the Department of Public Safety for use pursuant to NRS in making a presentence investigation and report to the district court or pursuant to NRS in making a general investigation and report; (v) Any person who is required pursuant to NRS 432B.220 to make a report to an agency which provides child welfare services or to a law enforcement agency; (w) The Rural Advisory Board to Expedite Proceedings for the Placement of Children created pursuant to NRS 432B.602 or a local Page 11

14 7 advisory board to expedite proceedings for the placement of children created pursuant to NRS 432B.604; (x) The panel established pursuant to NRS 432B.396 to evaluate agencies which provide child welfare services; (y) An employer in accordance with subsection 3 of NRS ; (z) A team organized or sponsored pursuant to NRS or to review the death of the victim of a crime that constitutes domestic violence; or (aa) The Committee to Review Suicide Fatalities created by NRS An agency investigating a report of the abuse or neglect of a child shall, upon request, provide to a person named in the report as allegedly causing the abuse or neglect of the child: (a) A copy of: (1) Any statement made in writing to an investigator for the agency by the person named in the report as allegedly causing the abuse or neglect of the child; or (2) Any recording made by the agency of any statement made orally to an investigator for the agency by the person named in the report as allegedly causing the abuse or neglect of the child; or (b) A written summary of the allegations made against the person who is named in the report as allegedly causing the abuse or neglect of the child. The summary must not identify the person responsible for reporting the alleged abuse or neglect or any collateral sources and reporting parties. 4. Except as otherwise provided by subsection 6, before releasing any information maintained by an agency which provides child welfare services pursuant to this section, an agency which provides child welfare services shall take whatever precautions it determines are reasonably necessary to protect the identity and safety of any person who reports child abuse or neglect and to protect any other person if the agency which provides child welfare services reasonably believes that disclosure of the information would cause a specific and material harm to an investigation of the alleged abuse or neglect of a child or the life or safety of any person. 5. The provisions of this section must not be construed to require an agency which provides child welfare services to disclose information maintained by the agency which provides child welfare services if, after consultation with the attorney who represents the agency, the agency determines that such disclosure would cause a specific and material harm to a criminal investigation. Page 12

15 8 6. A person who is the subject of an unsubstantiated report of child abuse or neglect made pursuant to this chapter and who believes that the report was made in bad faith or with malicious intent may petition a district court to order the agency which provides child welfare services to release information maintained by the agency which provides child welfare services. The petition must specifically set forth the reasons supporting the belief that the report was made in bad faith or with malicious intent. The petitioner shall provide notice to the agency which provides child welfare services so that the agency may participate in the action through its counsel. The district court shall review the information which the petitioner requests to be released and the petitioner shall be allowed to present evidence in support of the petition. If the court determines that there is a reasonable question of fact as to whether the report was made in bad faith or with malicious intent and that the disclosure of the identity of the person who made the report would not be likely to endanger the life or safety of the person who made the report, the court shall provide a copy of the information to the petitioner and the original information is subject to discovery in a subsequent civil action regarding the making of the report. 7. If an agency which provides child welfare services receives any information that is deemed confidential by law, the agency which provides child welfare services shall maintain the confidentiality of the information as prescribed by applicable law. 8. Pursuant to this section, a person may authorize the release of information maintained by an agency which provides child welfare services about himself or herself, but may not waive the confidentiality of such information concerning any other person. 9. An agency which provides child welfare services may provide a summary of the outcome of an investigation of the alleged abuse or neglect of a child to the person who reported the suspected abuse or neglect. 10. [Any] Except as otherwise provided in this subsection, any person [, except for:] who is provided with information maintained by an agency which provides child welfare services and who further disseminates the information or makes the information public is guilty of a gross misdemeanor. This subsection does not apply to: (a) A district attorney or other law enforcement officer who uses the information solely for the purpose of initiating legal proceedings; [or] (b) An employee of the Division of Parole and Probation of the Department of Public Safety making a presentence investigation and Page 13

16 9 report to the district court pursuant to NRS or making a general investigation and report pursuant to NRS [, who is provided with information maintained by an agency which provides child welfare services and further disseminates this information, or who makes this information public, is guilty of a gross misdemeanor.] ; or (c) An employee of a juvenile justice agency who provides the information to the juvenile court. 11. An agency which provides child welfare services may charge a fee for processing costs reasonably necessary to prepare information maintained by the agency which provides child welfare services for release pursuant to this section. 12. An agency which provides child welfare services shall adopt rules, policies or regulations to carry out the provisions of this section. 13. As used in this section, juvenile justice agency means the Youth Parole Bureau or a director of juvenile services. Sec. 2. (Deleted by amendment.) Sec. 3. This act becomes effective on July 1, ~~~~~ 15 Page 14

17 Senate Bill No. 148 Committee on Health and Human Services CHAPTER... AN ACT relating to child welfare; revising requirements concerning service of a summons to a hearing on a petition that a child is in need of protection; and providing other matters properly relating thereto. Legislative Counsel s Digest: Existing law requires a court to hold an adjudicatory hearing within 30 days of the filing of a petition that a child who was removed from his or her home is in need of protection. (NRS 432B.530) As a result of such a hearing, the court may return the child to the custody of his or her parent or guardian or place the child in the temporary custody of a relative, a fictive kin, another suitable person or certain public or private agencies or institutions. (NRS 432B.550) Before such a hearing, the court is required to issue a summons to the person who has custody or control of the child. If this person is not the parent or guardian of the child, the summons must also be issued to the parent or guardian of the child. If the person summoned resides in this State, the summons must be served personally. If the person cannot be found in this State or does not reside in this State, the summons must be served by registered or certified mail. If the child is a newborn and was delivered to a provider of emergency services and the location of the parent is unknown, the summons must be served by publication. (NRS 432B.520) Except when a newborn child is delivered to a provider of emergency services and the location of the parent is unknown, this bill requires the summons to be served personally or by registered or certified mail, regardless of whether the person resides within or outside of this State. EXPLANATION Matter in bolded italics is new; matter between brackets [omitted material] is material to be omitted. THE PEOPLE OF THE STATE OF NEVADA, REPRESENTED IN SENATE AND ASSEMBLY, DO ENACT AS FOLLOWS: Section 1. NRS 432B.520 is hereby amended to read as follows: 432B After a petition has been filed, the court shall direct the clerk to issue a summons requiring the person who has custody or control of the child to appear personally and bring the child before the court at a time and place stated in the summons. If the person so summoned is other than a parent or guardian of the child, then the parent or guardian, or both, must also be notified by a similar summons of the pendency of the hearing and of the time and place appointed. 2. Summons may be issued requiring the appearance of any other person whose presence, in the opinion of the court, is necessary. Page 15

18 2 3. Each summons must include notice of the right of parties to counsel at the adjudicatory hearing. A copy of the petition must be attached to each summons. 4. [If the:] Except as provided in subsection 5, the summons must be served by: (a) [Person summoned resides in this state, the summons must be served personally;] Personal service of a written notice; or (b) [Person summoned cannot be found within this state or does not reside in this state, the summons must be mailed by registered] Registered or certified mail to the last known address of the person. [; or (c) Child] 5. If the child was delivered to a provider of emergency services pursuant to NRS 432B.630 and the location of the parent is unknown, the summons must be served on the parent by publication at least once a week for 3 consecutive weeks in a newspaper published in the county and if no such newspaper is published, then a newspaper published in this state that has a general circulation in the county. The failure of the parent to appear in the action after the service of summons on the parent pursuant to this paragraph shall be deemed to constitute a waiver by the parent of any further notice of the proceedings that would otherwise be required pursuant to this chapter. [5.] 6. If it appears that the child is in such condition or surroundings that the welfare of the child requires that custody be immediately assumed by the court, the court may order, by endorsement upon the summons, that the person serving it shall at once deliver the child to an agency which provides child welfare services in whose custody the child must remain until the further order of the court. [6.] 7. If the summons cannot be served or the person who has custody or control of the child fails to obey it, or: (a) In the judge s opinion, the service will be ineffectual or the welfare of the child requires that the child be brought forthwith into the custody of the court; or (b) A person responsible for the child s welfare has absconded with the child or concealed the child from a representative of an agency which provides child welfare services, the court may issue a writ for the attachment of the child s person, commanding a law enforcement officer or a representative of an agency which provides child welfare services to place the child in protective custody. Page 16

19 3 Sec. 2. NRS 432B.580 is hereby amended to read as follows: 432B Except as otherwise provided in this section and NRS 432B.513, if a child is placed pursuant to NRS 432B.550 other than with a parent, the placement must be reviewed by the court at least semiannually, and within 90 days after a request by a party to any of the prior proceedings. Unless the parent, guardian or the custodian objects to the referral, the court may enter an order directing that the placement be reviewed by a panel appointed pursuant to NRS 432B An agency acting as the custodian of the child shall, before any hearing for review of the placement of a child, submit a report to the court, or to the panel if it has been designated to review the matter, which includes: (a) An evaluation of the progress of the child and the family of the child and any recommendations for further supervision, treatment or rehabilitation. (b) Information concerning the placement of the child in relation to the child s siblings, including, without limitation: (1) Whether the child was placed together with the siblings; (2) Any efforts made by the agency to have the child placed together with the siblings; (3) Any actions taken by the agency to ensure that the child has contact with the siblings; and (4) If the child is not placed together with the siblings: (I) The reasons why the child is not placed together with the siblings; and (II) A plan for the child to visit the siblings, which must be approved by the court. (c) A copy of an academic plan developed for the child pursuant to NRS , or (d) A copy of any explanations regarding medication that has been prescribed for the child that have been submitted by a foster home pursuant to NRS Except as otherwise provided in this subsection, a copy of the report submitted pursuant to subsection 2 must be given to the parents, the guardian ad litem and the attorney, if any, representing the parent or the child. If the child was delivered to a provider of emergency services pursuant to NRS 432B.630 and the parent has not appeared in the action, the report need not be sent to that parent. 4. After a plan for visitation between a child and the siblings of the child submitted pursuant to subparagraph (4) of paragraph (b) of subsection 2 has been approved by the court, the agency which provides child welfare services must request the court to issue an Page 17

20 4 order requiring the visitation set forth in the plan for visitation. If a person refuses to comply with or disobeys an order issued pursuant to this subsection, the person may be punished as for a contempt of court. 5. The court or the panel shall hold a hearing to review the placement, unless the parent, guardian or custodian files a motion with the court to dispense with the hearing. If the motion is granted, the court or panel may make its determination from any report, statement or other information submitted to it. 6. Except as otherwise provided in this subsection and [paragraph (c) of] subsection [4] 5 of NRS 432B.520, notice of the hearing must be given by registered or certified mail to: (a) All the parties to any of the prior proceedings; (b) Any persons planning to adopt the child; (c) A sibling of the child, if known, who has been granted a right to visitation of the child pursuant to NRS and his or her attorney, if any; and (d) Any other relatives of the child or providers of foster care who are currently providing care to the child. 7. The notice of the hearing required to be given pursuant to subsection 6: (a) Must include a statement indicating that if the child is placed for adoption the right to visitation of the child is subject to the provisions of NRS ; (b) Must not include any confidential information described in NRS ; and (c) Need not be given to a parent whose rights have been terminated pursuant to chapter 128 of NRS or who has voluntarily relinquished the child for adoption pursuant to NRS The court or panel may require the presence of the child at the hearing and shall provide to each person to whom notice was given pursuant to subsection 6 a right to be heard at the hearing. 9. The court or panel shall review: (a) The continuing necessity for and appropriateness of the placement; (b) The extent of compliance with the plan submitted pursuant to subsection 2 of NRS 432B.540; (c) Any progress which has been made in alleviating the problem which resulted in the placement of the child; and (d) The date the child may be returned to, and safely maintained in, the home or placed for adoption or under a legal guardianship. 10. The provision of notice and a right to be heard pursuant to this section does not cause any person planning to adopt the child, Page 18

21 5 any sibling of the child or any other relative, any adoptive parent of a sibling of the child or a provider of foster care to become a party to the hearing. 20 ~~~~~ 15 Page 19

22 * Senate Bill No. 262 Senators Harris, Farley, Denis; Goicoechea, Gustavson, Lipparelli, Manendo, Segerblom and Settelmeyer Joint Sponsors: Assemblymen Stewart, Nelson, Silberkraus, O Neill, Seaman; Elliot Anderson, Fiore, Gardner, Jones, Trowbridge and Woodbury CHAPTER... AN ACT relating to guardians; adding provisions governing the appointment of certain preferred persons as guardians for adult wards; revising provisions relating to the appointment of a guardian for a minor; revising requirements governing eligibility to utilize a public guardian; and providing other matters properly relating thereto. Legislative Counsel s Digest: Existing law provides for the appointment, qualifications and duties of guardians for certain minor and adult wards. (Chapter 159 of NRS) Existing law prohibits a nonresident of Nevada from being appointed as a guardian for a minor or adult ward unless the person has associated a coguardian who is a resident of Nevada or a banking corporation whose principal place of business is in Nevada. (NRS ) Existing law also gives preference to certain persons to be appointed as a guardian for a minor ward but does not give preference to any persons to be appointed as a guardian for an adult ward. (NRS ) Sections 1 and 6.7 of this bill revise the circumstances under which a court is authorized to appoint a nonresident as a guardian for an adult ward. Section 6.3 eliminates existing limitations on the authority of a court to appoint a nonresident as a guardian for a minor ward. Section 1 also requires the court to give preference in appointing a guardian for an adult ward to the following persons in the following order, whether or not the person is a nonresident: (1) a nominated person, who is a person the adult ward specifically nominated or requested as a guardian in a will, trust or other written document executed by the adult ward while competent; or (2) a relative. If two or more nominated persons are qualified and suitable to be appointed as a guardian, section 1 authorizes the court to appoint two or more coguardians or generally requires the court to give preference to the nominated person named in a will, trust or other written document that is part of the adult s established estate plan, but there are certain exceptions for extraordinary circumstances. In selecting a guardian, section 1 does not allow the court to give preference to a resident over a nonresident if the court determines that the nonresident would be a more qualified and suitable guardian and the adult would receive continuing care and supervision under the guardianship of the nonresident. If the court selects a nonresident guardian, section 1 requires the court to order the nonresident guardian to designate a registered agent in this State. Section 2.3 of this bill revises the existing list of persons who are preferred for appointment as a guardian to a minor to include any person recommended by: (1) an agency which provides child welfare services, an agency which provides child protective services or a similar agency; or (2) a guardian ad litem or court appointed special advocate who represents the minor. Page 20

23 2 Sections and 6.3 of this bill make conforming changes to reflect the changes made by the other sections of this bill. Existing law provides that a ward is eligible to have a public guardian appointed as his or her permanent or general individual guardian if: (1) there is no relative or friend able and willing to be appointed as a guardian for the ward; or (2) the court removes a private professional guardian previously appointed for the ward. (NRS ) Section 3 of this bill provides for the appointment of a public guardian for an incompetent adult who failed to nominate a person for appointment as guardian while he or she was still competent or if the nominated person is not suitable or willing to serve as guardian. EXPLANATION Matter in bolded italics is new; matter between brackets [omitted material] is material to be omitted. THE PEOPLE OF THE STATE OF NEVADA, REPRESENTED IN SENATE AND ASSEMBLY, DO ENACT AS FOLLOWS: Section 1. Chapter 159 of NRS is hereby amended by adding thereto a new section to read as follows: 1. Except as otherwise provided in subsection 3, in a proceeding to appoint a guardian for an adult, the court shall give preference to a nominated person or relative, in that order of preference: (a) Whether or not the nominated person or relative is a resident of this State; and (b) If the court determines that the nominated person or relative is qualified and suitable to be appointed as guardian for the adult. 2. In determining whether any nominated person, relative or other person listed in subsection 4 is qualified and suitable to be appointed as guardian for an adult, the court shall consider, if applicable and without limitation: (a) The ability of the nominated person, relative or other person to provide for the basic needs of the adult, including, without limitation, food, shelter, clothing and medical care; (b) Whether the nominated person, relative or other person has engaged in the habitual use of alcohol or any controlled substance during the previous 6 months, except the use of marijuana in accordance with the provisions of chapter 453A of NRS; (c) Whether the nominated person, relative or other person has been judicially determined to have committed abuse, neglect, exploitation, isolation or abandonment of a child, his or her spouse, his or her parent or any other adult, unless the court finds that it is in the best interests of the ward to appoint the person as guardian for the adult; Page 21

24 3 (d) Whether the nominated person, relative or other person is incompetent or has a disability; and (e) Whether the nominated person, relative or other person has been convicted in this State or any other jurisdiction of a felony, unless the court determines that any such conviction should not disqualify the person from serving as guardian for the adult. 3. If the court finds that two or more nominated persons are qualified and suitable to be appointed as guardian for an adult, the court may appoint two or more nominated persons as coguardians or shall give preference among them in the following order of preference: (a) A person whom the adult nominated for the appointment as guardian for the adult in a will, trust or other written instrument that is part of the adult s established estate plan and was executed by the adult while competent. (b) A person whom the adult requested for the appointment as guardian for the adult in a written instrument that is not part of the adult s established estate plan and was executed by the adult while competent. 4. Subject to the preferences set forth in subsections 1 and 3, the court shall appoint as guardian the qualified person who is most suitable and is willing to serve. In determining which qualified person is most suitable, the court shall, in addition to considering any applicable factors set forth in subsection 2, give consideration, among other factors, to: (a) Any nomination or request for the appointment as guardian by the adult. (b) Any nomination or request for the appointment as guardian by a relative. (c) The relationship by blood, adoption, marriage or domestic partnership of the proposed guardian to the adult. In considering preferences of appointment, the court may consider relatives of the half blood equally with those of the whole blood. The court may consider any relative in the following order of preference: (1) A spouse or domestic partner. (2) A child. (3) A parent. (4) Any relative with whom the adult has resided for more than 6 months before the filing of the petition or any relative who has a power of attorney executed by the adult while competent. (5) Any relative currently acting as agent. (6) A sibling. (7) A grandparent or grandchild. Page 22

25 4 (8) An uncle, aunt, niece, nephew or cousin. (9) Any other person recognized to be in a familial relationship with the adult. (d) Any recommendation made by a master of the court or special master pursuant to NRS (e) Any request for the appointment of any other interested person that the court deems appropriate, including, without limitation, a person who is not a relative and who has a power of attorney executed by the adult while competent. 5. The court may appoint as guardian any nominated person, relative or other person listed in subsection 4 who is not a resident of this State. The court shall not give preference to a resident of this State over a nonresident if the court determines that: (a) The nonresident is more qualified and suitable to serve as guardian; and (b) The distance from the proposed guardian s place of residence and the adult s place of residence will not affect the quality of the guardianship or the ability of the proposed guardian to make decisions and respond quickly to the needs of the adult because: (1) A person or care provider in this State is providing continuing care and supervision for the adult; (2) The adult is in a secured residential longterm care facility in this State; or (3) Within 30 days after the appointment of the proposed guardian, the proposed guardian will move to this State or the adult will move to the proposed guardian s state of residence. 6. If the court appoints a nonresident as guardian for the adult: (a) The jurisdictional requirements of NRS to , inclusive, must be met; (b) The court shall order the guardian to designate a registered agent in this State in the same manner as a represented entity pursuant to chapter 77 of NRS; and (c) The court may require the guardian to complete any available training concerning guardianships pursuant to NRS , in this State or in the state of residence of the guardian, regarding: (1) The legal duties and responsibilities of the guardian pursuant to this chapter; (2) The preparation of records and the filing of annual reports regarding the finances and wellbeing of the adult required pursuant to NRS ; Page 23

26 5 (3) The rights of the adult; (4) The availability of local resources to aid the adult; and (5) Any other matter the court deems necessary or prudent. 7. If the court finds that there is not any suitable nominated person, relative or other person listed in subsection 4 to appoint as guardian, the court may appoint as guardian: (a) The public guardian of the county where the adult resides if: (1) There is a public guardian in the county where the adult resides; and (2) The adult qualifies for a public guardian pursuant to chapter 253 of NRS; (b) A private fiduciary who may obtain a bond in this State and who is a resident of this State, if the court finds that the interests of the adult will be served appropriately by the appointment of a private fiduciary; or (c) A private professional guardian who meets the requirements of NRS A person is not qualified to be appointed as guardian for an adult if the person has been suspended for misconduct or disbarred from any of the professions listed in this subsection, but the disqualification applies only during the period of the suspension or disbarment. This subsection applies to: (a) The practice of law; (b) The practice of accounting; or (c) Any other profession that: (1) Involves or may involve the management or sale of money, investments, securities or real property; and (2) Requires licensure in this State or any other state in which the person practices his or her profession. 9. As used in this section: (a) Adult means a person who is a ward or a proposed ward and who is not a minor. (b) Domestic partner means a person in a domestic partnership. (c) Domestic partnership means: (1) A domestic partnership as defined in NRS 122A.040; or (2) A domestic partnership which was validly formed in another jurisdiction and which is substantially equivalent to a domestic partnership as defined in NRS 122A.040, regardless of whether it bears the name of a domestic partnership or is registered in this State. Page 24

27 6 (d) Nominated person means a person, whether or not a relative, whom an adult: (1) Nominates for the appointment as guardian for the adult in a will, trust or other written instrument that is part of the adult s established estate plan and was executed by the adult while competent. (2) Requests for the appointment as guardian for the adult in a written instrument that is not part of the adult s established estate plan and was executed by the adult while competent. (e) Relative means a person who is 18 years of age or older and who is related to the adult by blood, adoption, marriage or domestic partnership within the third degree of consanguinity or affinity. Sec. 2. (Deleted by amendment.) Sec NRS is hereby amended to read as follows: [A] In order for a person to serve as a private professional guardian, [if a person,] the person must be [qualified] : (a) Qualified to serve as a guardian pursuant to [NRS ] section 1 of this act if the ward is an adult or NRS if the ward is a minor; and [must be a] (b) A certified guardian. 2. [A] In order for an entity to serve as a private professional guardian, [if an entity,] the entity must [be] : (a) Be qualified to serve as a guardian pursuant to [NRS ] section 1 of this act if the ward is an adult; and [must have] (b) Have a certified guardian involved in the daytoday operation or management of the entity. 3. A private professional guardian shall, at his or her own cost and expense: (a) Undergo a background investigation which requires the submission of a complete set of his or her fingerprints to the Central Repository for Nevada Records of Criminal History and to the Federal Bureau of Investigation for their respective reports; and (b) Present the results of the background investigation to the court upon request. 4. As used in this section: (a) Certified guardian means a person who is certified by the Center for Guardianship Certification or any successor organization. (b) Entity includes, without limitation, a corporation, whether or not for profit, a limitedliability company and a partnership. (c) Person means a natural person. Page 25

28 7 Sec NRS is hereby amended to read as follows: The parents of a minor, or either parent, if qualified and suitable, are preferred over all others for appointment as guardian for the minor. The appointment of a parent as [a] guardian [of] for the [person] minor must not conflict with a valid order for custody of the minor. 2. In determining whether the parents of a minor, or either parent, or any other person who seeks appointment as guardian for the minor is qualified and suitable, the court shall consider, if applicable and without limitation: (a) Which parent has physical custody of the minor; (b) The ability of the parents, [or] parent or other person to provide for the basic needs of the [child,] minor, including, without limitation, food, shelter, clothing and medical care; (c) Whether the parents, [or] parent or other person has engaged in the habitual use of alcohol or any controlled substance during the previous 6 months, except the use of marijuana in accordance with the provisions of chapter 453A of NRS; [and] (d) Whether the parents, [or] parent or other person has been convicted of a crime of moral turpitude, a crime involving domestic violence or a crime involving the abuse, neglect, exploitation, isolation or abandonment of a child [.], his or her spouse, his or her parent or any other adult; and (e) Whether the parents, parent or other person has been convicted in this State or any other jurisdiction of a felony. [2.] 3. Subject to the preference set forth in subsection 1, the court shall appoint as guardian [for an incompetent, a person of limited capacity or minor] the qualified person who is most suitable and is willing to serve. [3.] 4. In determining [who] which qualified person is most suitable, the court shall, in addition to considering any applicable factors set forth in subsection 2, give consideration, among other factors, to: (a) [Any request for the appointment as guardian for an incompetent contained in a written instrument executed by the incompetent while competent. (b)] Any nomination of a guardian for [an incompetent,] the minor [or person of limited capacity] contained in a will or other written instrument executed by a parent [or spouse] of the [proposed ward. (c)] minor. Page 26

29 8 (b) Any request [for the appointment as guardian for a] made by the minor, if he or she is 14 years of age or older [made by], for the appointment of a person as guardian for the minor. [(d)] (c) The relationship by blood [,] or adoption [or marriage] of the proposed guardian to the [proposed ward.] minor. In considering preferences of appointment, the court may consider relatives of the half blood equally with those of the whole blood. The court may consider relatives in the following order of preference: (1) [Spouse. (2) Adult child. (3)] Parent. [(4)] (2) Adult sibling. [(5)] (3) Grandparent. [or adult grandchild.] [(6)] (4) Uncle [,] or aunt. [, adult niece or adult nephew.] [(e)] (d) Any recommendation made by a master of the court or special master pursuant to NRS [(f)] (e) Any recommendation made by: (1) An agency which provides child welfare services, an agency which provides child protective services or a similar agency; or (2) A guardian ad litem or court appointed special advocate who represents the minor. (f) Any request for the appointment of any other interested person that the court deems appropriate. [4. If the court finds that there is no suitable person to appoint as guardian pursuant to subsection 3, the court may appoint as guardian: (a) The public guardian of the county where the ward resides, if: (1) There is a public guardian in the county where the ward resides; and (2) The proposed ward qualifies for a public guardian pursuant to chapter 253 of NRS; (b) A private fiduciary who may obtain a bond in this State and who is a resident of this State, if the court finds that the interests of the ward will be served appropriately by the appointment of a private fiduciary; or (c) A private professional guardian who meets the requirements of NRS ] 5. As used in this section, agency which provides child welfare services has the meaning ascribed to it NRS 432B.030. Sec (Deleted by amendment.) Page 27

30 9 Sec NRS is hereby amended to read as follows: The court may remove a guardian if the court determines that: (a) The guardian has become mentally incompetent, unsuitable or otherwise incapable of exercising the authority and performing the duties of a guardian as provided by law; (b) The guardian is no longer qualified to act as a guardian pursuant to [NRS ;] section 1 of this act if the ward is an adult or NRS if the ward is a minor; (c) The guardian has filed for bankruptcy within the previous 5 years; (d) The guardian of the estate has mismanaged the estate of the ward; (e) The guardian has negligently failed to perform any duty as provided by law or by any order of the court and: (1) The negligence resulted in injury to the ward or the estate of the ward; or (2) There was a substantial likelihood that the negligence would result in injury to the ward or the estate of the ward; (f) The guardian has intentionally failed to perform any duty as provided by law or by any lawful order of the court, regardless of injury; (g) The best interests of the ward will be served by the appointment of another person as guardian; or (h) The guardian is a private professional guardian who is no longer qualified as a private professional guardian pursuant to NRS A guardian may not be removed if the sole reason for removal is the lack of money to pay the compensation and expenses of the guardian. Sec NRS is hereby amended to read as follows: To transfer jurisdiction of a guardianship or conservatorship to this State, the guardian, conservator or other interested party must petition the court of this State for guardianship pursuant to NRS to , inclusive, to accept guardianship in this State. The petition must include a certified copy of the other state s provisional order of transfer and proof that the ward is physically present in, or is reasonably expected to move permanently to, this State. 2. The court shall issue a provisional order granting a petition filed under subsection 1, unless: Page 28

31 10 (a) An objection is made and the objector establishes that transfer of the proceeding would be contrary to the interests of the ward; or (b) The guardian or petitioner is not qualified for appointment as a guardian in this State pursuant to [NRS ] section 1 of this act if the ward is an adult or NRS if the ward is a minor. 3. The court shall issue a final order granting guardianship upon filing of a final order issued by the other state terminating proceedings in that state and transferring the proceedings to this State. 4. Not later than 90 days after the issuance of a final order accepting transfer of a guardianship or conservatorship, the court shall determine whether the guardianship or conservatorship needs to be modified to conform to the laws of this State. 5. In granting a petition under this section, the court shall recognize a guardianship or conservatorship order from the other state, including the determination of the ward s incapacity and the appointment of the guardian or conservator. Sec. 3. NRS is hereby amended to read as follows: A resident of Nevada is eligible to have the public guardian of the county in which he or she resides appointed as his or her temporary individual guardian pursuant to NRS or A resident of Nevada is eligible to have the public guardian of a county appointed as his or her permanent or general individual guardian if the proposed ward is a resident of that county and: (a) The proposed ward has no nominated person, relative or friend suitable and willing to serve as his or her guardian; or (b) The proposed ward has a guardian who the court determines must be removed pursuant to NRS A person qualified pursuant to subsection 1 or 2, or anyone on his or her behalf, may petition the district court of the county in which he or she resides to make the appointment. 4. Before a petition for the appointment of the public guardian as a guardian may be filed pursuant to subsection 3, a copy of the petition and copies of all accompanying documents to be filed must be delivered to the public guardian or a deputy public guardian. 5. Any petition for the appointment of the public guardian as a guardian filed pursuant to subsection 3 must include a statement signed by the public guardian or deputy public guardian and in substantially the following form: Page 29

32 11 The undersigned is the Public Guardian or a Deputy Public Guardian of... County. The undersigned certifies that he or she has received a copy of this petition and all accompanying documents to be filed with the court. 6. A petition for the appointment of the public guardian as permanent or general guardian must be filed separately from a petition for the appointment of a temporary guardian. 7. If a person other than the public guardian served as temporary guardian before the appointment of the public guardian as permanent or general guardian, the temporary guardian must file an accounting and report with the court in which the petition for the appointment of a public guardian was filed within 30 days of the appointment of the public guardian as permanent or general guardian. 8. In addition to NRS , a county is not liable on any written or oral contract entered into by the public guardian of the county for or on behalf of a ward. 9. For the purposes of this section: (a) Except as otherwise provided in paragraph (b), the county of residence of a person is the county to which the person moved with the intent to reside for an indefinite period. (b) The county of residence of a person placed in institutional care is the county that was the county of residence of the person before the person was placed in institutional care by a guardian or agency or under power of attorney. 10. As used in this section, nominated person has the meaning ascribed to it in section 1 of this act. Secs. 46. (Deleted by amendment.) Sec NRS 432B.4665 is hereby amended to read as follows: 432B The court may, upon the filing of a petition pursuant to NRS 432B.466, appoint a person as a guardian for a child if: (a) The court finds: (1) That the proposed guardian is suitable and is not disqualified from guardianship pursuant to NRS [ ;] ; (2) That the child has been in the custody of the proposed guardian for 6 months or more pursuant to a determination by a court that the child was in need of protection, unless the court waives this requirement for good cause shown; Page 30

33 12 (3) [Except as otherwise provided in subsection 3, that] That the proposed guardian has complied with the requirements of chapter 159 of NRS; and (4) That the burden of proof set forth in chapter 159 of NRS for the appointment of a guardian for a child has been satisfied; (b) The child consents to the guardianship, if the child is 14 years of age or older; and (c) The court determines that the requirements for filing a petition pursuant to NRS 432B.466 have been satisfied. 2. A guardianship established pursuant to this section: (a) Provides the guardian with the powers and duties provided in NRS , and subjects the guardian to the limitations set forth in NRS ; (b) Is subject to the provisions of NRS to , inclusive, and to , inclusive; (c) Provides the guardian with sole legal and physical custody of the child; (d) Does not result in the termination of parental rights of a parent of the child; and (e) Does not affect any rights of the child to inheritance, a succession or any services or benefits provided by the Federal Government, this state or an agency or political subdivision of this state. [3. The court may appoint as a guardian for a child pursuant to this section for not more than 6 months a person who does not satisfy the residency requirement set forth in subsection 5 of NRS if the court determines that appointing such a person is necessary to facilitate the permanent placement of the child.] Sec NRS is hereby repealed. Sec. 7. This act becomes effective on July 1, ~~~~~ 15 Page 31

34 Senate Bill No. 303 Senator Hammond CHAPTER... AN ACT relating to the protection of children; revising provisions relating to the circumstances under which a child is considered to be in need of protection; revising provisions concerning proceedings related to the termination of parental rights; revising the powers and duties of the Legislative Committee on Child Welfare and Juvenile Justice; and providing other matters properly relating thereto. Legislative Counsel s Digest: Existing law sets forth the circumstances under which a child is or may be in need of protection. (NRS 432B.330) Those circumstances are considered, without limitation, by: (1) an agency which provides child welfare services to determine whether to file a petition in juvenile court alleging that a child is in need of protection; and (2) the juvenile court in an adjudicatory hearing to determine whether a child was in need of protection at the time the child was removed from the home. (NRS 62A.180, 432B.050, 432B.340, 432B.410, 432B.490, 432B.510, 432B.530) Under existing law, a child may be in need of protection if the person responsible for the welfare of the child is responsible for the abuse or neglect of another child who resided with that person. (NRS 432B.330) Section 1 of this bill provides that a child is, rather than may be, in need of protection if the child is in the care of a person responsible for the welfare of the child and another child has been subjected to abuse by that person, unless the person has successfully completed a plan for services that was recommended by an agency which provides child welfare services to address the abuse of the other child. Section 1 also provides that a child may be in need of protection if the child is in the care of a person responsible for the welfare of the child and another child has been subjected to abuse by that person, regardless of whether the person has successfully completed such a plan for services. Existing law sets forth the grounds necessary to terminate parental rights, including, without limitation, conduct of a parent or parents that demonstrates a risk of serious physical, mental or emotional injury to the child if the child were returned to, or remains in, the home of his or her parent or parents. (NRS ) Section 3 of this bill requires a court to consider certain factors if the child has been out of the care of his or her parent or guardian for at least 12 consecutive months, before making a finding that parental conduct satisfies that provision. Section 4 of this bill revises the conditions a court is required to consider in determining neglect by or unfitness of a parent for the purpose of proceedings regarding the termination of parental rights. Sections 4.3 and 4.5 of this bill add: (1) reviewing issues relating to the provision of foster care; and (2) proposing recommended legislation concerning that issue to the powers and duties of the Legislative Committee on Child Welfare and Juvenile Justice. Page 32

35 2 EXPLANATION Matter in bolded italics is new; matter between brackets [omitted material] is material to be omitted. THE PEOPLE OF THE STATE OF NEVADA, REPRESENTED IN SENATE AND ASSEMBLY, DO ENACT AS FOLLOWS: Section 1. NRS 432B.330 is hereby amended to read as follows: 432B A child is in need of protection if: (a) The child has been abandoned by a person responsible for the welfare of the child; (b) The child has been subjected to abuse or neglect by a person responsible for the welfare of the child; (c) The child is in the care of a person responsible for the welfare of the child and another child has [died] : (1) Died as a result of abuse or neglect by that person; or (2) Been subjected to abuse by that person, unless the person has successfully completed a plan for services that was recommended by an agency which provides child welfare services pursuant to NRS 432B.340 to address the abuse of the other child; (d) The child has been placed for care or adoption in violation of law; or (e) The child has been delivered to a provider of emergency services pursuant to NRS 432B A child may be in need of protection if the person responsible for the welfare of the child: (a) Is unable to discharge his or her responsibilities to and for the child because of incarceration, hospitalization, or other physical or mental incapacity; (b) Fails, although the person is financially able to do so or has been offered financial or other means to do so, to provide for the following needs of the child: (1) Food, clothing or shelter necessary for the child s health or safety; (2) Education as required by law; or (3) Adequate medical care; [or] (c) Has been responsible for the [abuse or] neglect of a child who has resided with that person [.] ; or (d) Has been responsible for the abuse of another child regardless of whether that person has successfully completed a plan for services that was recommended by an agency which provides child welfare services pursuant to NRS 432B.340 to address the abuse of the other child. Page 33

36 3 3. A child may be in need of protection if the death of a parent of the child is or may be the result of an act by the other parent that constitutes domestic violence pursuant to NRS A child may be in need of protection if the child is identified as being affected by prenatal illegal substance abuse or as having withdrawal symptoms resulting from prenatal drug exposure. 5. As used in this section: (a) Abuse means: (1) Physical or mental injury of a nonaccidental nature; or (2) Sexual abuse or sexual exploitation, of a child caused or allowed by a person responsible for the welfare of the child under circumstances which indicate that the child s health or welfare is harmed or threatened with harm. The term does not include the actions described in subsection 2 of NRS 432B.020. (b) Allow means to do nothing to prevent or stop the abuse or neglect of a child in circumstances where the person knows or has reason to know that a child is abused or neglected. (c) Neglect means abandonment or failure to: (1) Provide for the needs of a child set forth in paragraph (b) of subsection 2; or (2) Provide proper care, control and supervision of a child as necessary for the wellbeing of the child because of the faults or habits of the person responsible for the welfare of the child or the neglect or refusal of the person to provide them when able to do so. The term does not include the actions described in subsection 2 of NRS 432B.020. Sec. 2. (Deleted by amendment.) Sec. 3. NRS is hereby amended to read as follows: The primary consideration in any proceeding to terminate parental rights must be whether the best interests of the child will be served by the termination. An order of the court for the termination of parental rights must be made in light of the considerations set forth in this section and NRS to , inclusive, and based on evidence and include a finding that: [1.] (a) The best interests of the child would be served by the termination of parental rights; and [2.] (b) The conduct of the parent or parents was the basis for a finding made pursuant to subsection 3 of NRS 432B.393 or demonstrated at least one of the following: [(a)] (1) Abandonment of the child; [(b)] (2) Neglect of the child; Page 34

37 4 [(c)] (3) Unfitness of the parent; [(d)] (4) Failure of parental adjustment; [(e)] (5) Risk of serious physical, mental or emotional injury to the child if the child were returned to, or remains in, the home of his or her parent or parents; [(f)] (6) Only token efforts by the parent or parents: [(1)] (I) To support or communicate with the child; [(2)] (II) To prevent neglect of the child; [(3)] (III) To avoid being an unfit parent; or [(4)] (IV) To eliminate the risk of serious physical, mental or emotional injury to the child; or [(g)] (7) With respect to termination of the parental rights of one parent, the abandonment by that parent. 2. Before making a finding pursuant to subparagraph (5) of paragraph (b) of subsection 1, if the child has been out of the care of his or her parent or guardian for at least 12 consecutive months, the court shall consider, without limitation: (a) The placement options for the child; (b) The age of the child; and (c) The developmental, cognitive and psychological needs of the child. Sec. 4. NRS is hereby amended to read as follows: In determining neglect by or unfitness of a parent, the court shall consider, without limitation, the following conditions which may diminish suitability as a parent: 1. Emotional illness, mental illness or mental deficiency of the parent which renders the parent consistently unable to care for the immediate and continuing physical or psychological needs of the child for extended periods of time. The provisions contained in NRS apply to the case if the child has been placed outside his or her home pursuant to chapter 432B of NRS. 2. Conduct toward a child of a physically, emotionally or sexually cruel or abusive nature. 3. Conduct that violates any provision of NRS , , or Excessive use of intoxicating liquors, controlled substances or dangerous drugs which renders the parent consistently unable to care for the child. 5. Repeated or continuous failure by the parent, although physically and financially able, to provide the child with adequate food, clothing, shelter, education or other care and control necessary for the child s physical, mental and emotional health and development, but a person who, legitimately practicing his or her Page 35

38 5 religious beliefs, does not provide specified medical treatment for a child is not for that reason alone a negligent parent. 6. Conviction of the parent for commission of a felony, if the facts of the crime are of such a nature as to indicate the unfitness of the parent to provide adequate care and control to the extent necessary for the child s physical, mental or emotional health and development. 7. [Unexplained injury or death of a] Whether the child, a sibling of the child [.] or another child in the care of the parent suffered a physical injury resulting in substantial bodily harm, a near fatality or fatality for which the parent has no reasonable explanation and for which there is evidence that such physical injury or death would not have occurred absent abuse or neglect of the child by the parent. 8. Inability of appropriate public or private agencies to reunite the family despite reasonable efforts on the part of the agencies. 9. As used in this section, near fatality has the meaning ascribed to it in NRS 432B.175. Sec NRS is hereby amended to read as follows: If a child has been placed outside of his or her home pursuant to chapter 432B of NRS, the following provisions must be applied to determine the conduct of the parent: (a) If the child has resided outside of his or her home pursuant to that placement for 14 months of any 20 consecutive months, it must be presumed that the parent or parents have demonstrated only token efforts to care for the child as set forth in subparagraph (6) of paragraph [(f)] (b) of subsection [2] 1 of NRS (b) If the parent or parents fail to comply substantially with the terms and conditions of a plan to reunite the family within 6 months after the date on which the child was placed or the plan was commenced, whichever occurs later, that failure to comply is evidence of failure of parental adjustment as set forth in subparagraph (4) of paragraph [(d)] (b) of subsection [2] 1 of NRS If a child has been placed outside of his or her home pursuant to chapter 432B of NRS and has resided outside of his or her home pursuant to that placement for 14 months of any 20 consecutive months, the best interests of the child must be presumed to be served by the termination of parental rights. 3. The presumptions specified in subsections 1 and 2 must not be overcome or otherwise affected by evidence of failure of the State to provide services to the family. Page 36

39 6 Sec NRS 218E.715 is hereby amended to read as follows: 218E.715 The Committee shall evaluate and review issues relating to: 1. The provision of child welfare services in this State, including, without limitation: (a) Programs for the provision of child welfare services; (b) Licensing and reimbursement of providers of foster care; (c) The provision of foster care, including, without limitation, reunification of foster children with a birth parent and adoption of foster children by a foster parent; (d) Mental health services; and [(d)] (e) Compliance with federal requirements regarding child welfare; and 2. Juvenile justice in this State, including, without limitation: (a) The coordinated continuum of care in which communitybased programs and services are combined to ensure that health services, substance abuse treatment, education, training and care are compatible with the needs of each juvenile in the juvenile justice system; (b) Individualized supervision, care and treatment to accommodate the individual needs and potential of the juvenile and the juvenile s family, and treatment programs which integrate the juvenile into situations of living and interacting that are compatible with a healthy, stable and familial environment; (c) Programs for aftercare and reintegration in which juveniles will continue to receive treatment after their active rehabilitation in a facility to prevent the relapse or regression of progress achieved during the recovery process; (d) Overrepresentation and disparate treatment of minorities in the juvenile justice system, including, without limitation, a review of the various places where bias may influence decisions concerning minorities; (e) Genderspecific services, including, without limitation, programs for female juvenile offenders which consider female development in their design and implementation and which address the needs of females, including issues relating to: (1) Victimization and abuse; (2) Substance abuse; (3) Mental health; (4) Education; and (5) Vocational and skills training; (f) The quality of care provided for juvenile offenders in state institutions and facilities, including, without limitation: Page 37

40 7 (1) The qualifications and training of staff; (2) The documentation of the performance of state institutions and facilities; (3) The coordination and collaboration of agencies; and (4) The availability of services relating to mental health, substance abuse, education, vocational training and treatment of sex offenders and violent offenders; (g) The feasibility and necessity for the independent monitoring of state institutions and facilities for the quality of care provided to juvenile offenders; and (h) Programs developed in other states which provide a system of communitybased programs that place juvenile offenders in more specialized programs according to the needs of the juveniles. Sec NRS 218E.720 is hereby amended to read as follows: 218E The Committee may: (a) Conduct investigations and hold hearings in connection with its duties pursuant to NRS 218E.715 and exercise any of the investigative powers set forth in NRS 218E.105 to 218E.140, inclusive; (b) Request that the Legislative Counsel Bureau assist in the research, investigations, hearings and reviews of the Committee; and (c) Propose recommended legislation concerning child welfare and juvenile justice to the Legislature [.] including, without limitation, recommended legislation concerning the provision of foster care as described in paragraph (c) of subsection 1 of NRS 218E The Committee shall, on or before January 15 of each oddnumbered year, submit to the Director for transmittal to the Legislature a report concerning the evaluation and review conducted pursuant to NRS 218E.715. Sec. 5. This act becomes effective on July 1, ~~~~~ 15 Page 38

41 Assembly Bill No. 49 Committee on Judiciary CHAPTER... AN ACT relating to crimes; establishing the crime of unlawful dissemination of an intimate image of a person; prohibiting certain acts relating to an intimate image of another person; revising provisions relating to sexual assault and the abuse of a child; setting forth provisions relating to expert testimony in a prosecution for pandering or sex trafficking; revising provisions concerning acts of open or gross lewdness, open and indecent or obscene exposure, lewdness with a child and statutory sexual seduction; setting forth various provisions relating to the admissibility of evidence and expert testimony in criminal and juvenile delinquency actions; prohibiting a court from ordering the victim of or a witness to a sexual offense to take or submit to a psychological or psychiatric examination in certain criminal or juvenile delinquency actions; authorizing the court to exclude in certain circumstances the testimony of a licensed psychologist, psychiatrist or clinical worker; providing penalties; and providing other matters properly relating thereto. Legislative Counsel s Digest: Sections 16.5 of this bill establish the crime of unlawful dissemination of an intimate image of a person. Section 3 defines the term intimate image generally as a photograph, film, videotape or other recorded image, or any reproduction thereof, which depicts: (1) the fully exposed nipple of the female breast of another person; or (2) one or more persons engaged in sexual conduct. Section 3 also provides that an image which would otherwise constitute an intimate image is not an intimate image if the person depicted in the image: (1) is not clearly identifiable; (2) voluntarily exposed himself or herself in a public or commercial setting; or (3) is a public figure. Section 5 provides that a person commits the crime of unlawful dissemination of an intimate image and is guilty of a category D felony when, with the intent to harass, harm or terrorize another person, the person electronically disseminates or sells an intimate image which depicts the other person and the other person: (1) did not give prior consent to the electronic dissemination or sale; (2) had a reasonable expectation that the intimate image would be kept private and would not be made visible to the public; and (3) was at least 18 years of age when the intimate image was created. Section 5 also sets forth certain exceptions regarding when an intimate image may be lawfully electronically disseminated. Under section 6, a person is guilty of a category D felony if he or she demands payment of money, property, services or anything else of value from a person in exchange for removing an intimate image from public view. Section 6.5 provides that the provisions of sections 16 must not be construed to impose liability on an interactive computer service, as that term is defined in federal law, for any content provided by another person. Existing law provides that a person who forces another person under certain circumstances to make a sexual penetration on himself or herself or another, or on a Page 39

42 2 beast, is guilty of sexual assault. (NRS ) Section 8 of this bill additionally provides that a person who commits a sexual penetration upon a child under the age of 14 years or causes a child under the age of 14 years to make a sexual penetration on himself or herself or another, or on a beast, is guilty of sexual assault. Section 8 further provides that, except in certain circumstances, such provisions do not apply to a person who commits any such act upon a child under the age of 14 years if the person committing the act is less than 18 years of age and is not more than 2 years older than the person upon whom the act is committed. Existing law also provides that a person who commits any act of open or gross lewdness or who makes any open and indecent or obscene exposure of his or her person, or of the person of another, is guilty of a gross misdemeanor for the first offense and a category D felony for any subsequent offense. (NRS , ) Under sections 13 and 14 of this bill, if a person commits any such offense and he or she has previously been convicted of a sexual offense, or if the person commits any such offense in the presence of a child under the age of 18 years or a vulnerable person, the person is guilty of a category D felony. Additionally, under existing law, a person who commits certain acts with a child under the age of 14 years is guilty of lewdness with a child and is guilty of a category A felony. (NRS ) Section 15 of this bill provides that a person is guilty of lewdness with a child if the person: (1) is 18 years of age or older and commits certain acts with a child under the age of 16 years; or (2) is under the age of 18 years and commits certain acts with a child under the age of 14 years. Section 15 also provides that if a person commits lewdness with: (1) a child under the age of 14, he or she is guilty of a category A felony; and (2) a child who is 14 or 15, he or she is guilty of a category B felony. Section 7 of this bill revises the definition of the term statutory sexual seduction, and section 8.5 of this bill revises the penalties imposed for the crime of statutory sexual seduction. Sections 12, 23 and 24 of this bill revise various provisions relating to the admissibility of expert testimony and evidence in certain criminal and juvenile delinquency cases. Section 12 provides that in a prosecution for pandering or sex trafficking, certain expert testimony that is offered by the prosecution or defense is admissible for any relevant purpose, but certain other expert testimony cannot be offered against the defendant to prove the occurrence of an act which forms the basis of a criminal charge against the defendant. Under section 23, expert testimony offered by the prosecution or defense which concerns the behavior of a defendant in preparing a child under the age of 18 or a vulnerable person for sexual abuse by the defendant is admissible for any purpose. Section 24 prohibits a court in a criminal or juvenile delinquency action relating to the commission of a sexual offense from ordering a victim of or witness to a sexual offense to take or submit to a psychological or psychiatric examination. Section 24 also authorizes the court to exclude the testimony of a licensed psychologist, psychiatrist or clinical worker who performed a psychological or psychiatric examination on a victim or witness in certain circumstances. Page 40

43 3 EXPLANATION Matter in bolded italics is new; matter between brackets [omitted material] is material to be omitted. THE PEOPLE OF THE STATE OF NEVADA, REPRESENTED IN SENATE AND ASSEMBLY, DO ENACT AS FOLLOWS: Section 1. Chapter 200 of NRS is hereby amended by adding thereto the provisions set forth as sections 2 to 6.5, inclusive, of this act. Sec. 2. As used in sections 2 to 6.5, inclusive, of this act, unless the context otherwise requires, the words and terms defined in sections 3 and 4 of this act have the meanings ascribed to them in those sections. Sec. 3. Intimate image : 1. Except as otherwise provided in subsection 2, includes, without limitation, a photograph, film, videotape or other recorded image which depicts: (a) The fully exposed nipple of the female breast of another person, including through transparent clothing; or (b) One or more persons engaged in sexual conduct. 2. Does not include an image which would otherwise constitute an intimate image pursuant to subsection 1, but in which the person depicted in the image: (a) Is not clearly identifiable; (b) Voluntarily exposed himself or herself in a public or commercial setting; or (c) Is a public figure. Sec. 4. Sexual conduct has the meaning ascribed to it in NRS Sec Except as otherwise provided in subsection 3, a person commits the crime of unlawful dissemination of an intimate image when, with the intent to harass, harm or terrorize another person, the person electronically disseminates or sells an intimate image which depicts the other person and the other person: (a) Did not give prior consent to the electronic dissemination or the sale of the intimate image; (b) Had a reasonable expectation that the intimate image would be kept private and would not be made visible to the public; and (c) Was at least 18 years of age when the intimate image was created. Page 41

44 4 2. A person who commits the crime of unlawful dissemination of an intimate image is guilty of a category D felony and shall be punished as provided in NRS The provisions of this section do not apply to the electronic dissemination of an intimate image for the purpose of: (a) A legitimate public interest; (b) Reporting unlawful conduct; (c) Any lawful law enforcement or correctional activity; (d) Investigation or prosecution of a violation of this section; or (e) Preparation for or use in any legal proceeding. 4. A person who commits the crime of unlawful dissemination of an intimate image is not considered a sex offender and is not subject to registration or community notification as a sex offender pursuant to NRS 179D.010 to 179D.550, inclusive. Sec. 6. Any person who demands payment of money, property, services or anything else of value from a person in exchange for removing an intimate image from public view is guilty of a category D felony and shall be punished as provided in NRS Sec The provisions of sections 2 to 6.5, inclusive, of this act must not be construed to impose liability on an interactive computer service for any content provided by another person. 2. As used in subsection 1, interactive computer service has the meaning ascribed to it in 47 U.S.C. 230(f)(2). Sec. 7. NRS is hereby amended to read as follows: As used in NRS to , inclusive, unless the context otherwise requires: 1. Offense involving a pupil means any of the following offenses: (a) Sexual conduct between certain employees of a school or volunteers at a school and a pupil pursuant to NRS (b) Sexual conduct between certain employees of a college or university and a student pursuant to NRS Perpetrator means a person who commits a sexual offense, an offense involving a pupil or sex trafficking. 3. Sex trafficking means a violation of subsection 2 of NRS Sexual offense means any of the following offenses: (a) Sexual assault pursuant to NRS (b) Statutory sexual seduction pursuant to NRS Page 42

45 5 5. Sexual penetration means cunnilingus, fellatio, or any intrusion, however slight, of any part of a person s body or any object manipulated or inserted by a person into the genital or anal openings of the body of another, including sexual intercourse in its ordinary meaning. The term does not include any such conduct for medical purposes. 6. Statutory sexual seduction means [: (a) Ordinary] ordinary sexual intercourse, anal intercourse, [cunnilingus or fellatio] or sexual penetration committed by a person 18 years of age or older with a person [under the age of 16 years; or (b) Any other sexual penetration committed by a person 18 years of age or older with a person under the age of 16 years with the intent of arousing, appealing to, or gratifying the lust or passions or sexual desires of either of the persons.] who is 14 or 15 years of age and who is at least 4 years younger than the perpetrator. 7. Victim means a person who is a victim of a sexual offense, an offense involving a pupil or sex trafficking. Sec. 8. NRS is hereby amended to read as follows: A person [who subjects] is guilty of sexual assault if he or she: (a) Subjects another person to sexual penetration, or [who] forces another person to make a sexual penetration on himself or herself or another, or on a beast, against the will of the victim or under conditions in which the perpetrator knows or should know that the victim is mentally or physically incapable of resisting or understanding the nature of his or her conduct [, is guilty of sexual assault.] ; or (b) Commits a sexual penetration upon a child under the age of 14 years or causes a child under the age of 14 years to make a sexual penetration on himself or herself or another, or on a beast. 2. Except as otherwise provided in subsections 3 and 4, a person who commits a sexual assault is guilty of a category A felony and shall be punished: (a) If substantial bodily harm to the victim results from the actions of the defendant committed in connection with or as a part of the sexual assault, by imprisonment in the state prison: (1) For life without the possibility of parole; or (2) For life with the possibility of parole, with eligibility for parole beginning when a minimum of 15 years has been served. (b) If no substantial bodily harm to the victim results, by imprisonment in the state prison for life with the possibility of Page 43

46 6 parole, with eligibility for parole beginning when a minimum of 10 years has been served. 3. Except as otherwise provided in subsection 4, a person who commits a sexual assault against a child under the age of 16 years is guilty of a category A felony and shall be punished: (a) If the crime results in substantial bodily harm to the child, by imprisonment in the state prison for life without the possibility of parole. (b) Except as otherwise provided in paragraph (c), if the crime does not result in substantial bodily harm to the child, by imprisonment in the state prison for life with the possibility of parole, with eligibility for parole beginning when a minimum of 25 years has been served. (c) If the crime is committed against a child under the age of 14 years and does not result in substantial bodily harm to the child, by imprisonment in the state prison for life with the possibility of parole, with eligibility for parole beginning when a minimum of 35 years has been served. 4. A person who commits a sexual assault against a child under the age of 16 years and who has been previously convicted of: (a) A sexual assault pursuant to this section or any other sexual offense against a child; or (b) An offense committed in another jurisdiction that, if committed in this State, would constitute a sexual assault pursuant to this section or any other sexual offense against a child, is guilty of a category A felony and shall be punished by imprisonment in the state prison for life without the possibility of parole. 5. The provisions of this section do not apply to a person who is less than 18 years of age and who commits any of the acts described in paragraph (b) of subsection 1 if the person is not more than 2 years older than the person upon whom the act was committed unless: (a) The person committing the act uses force or threatens the use of force; or (b) The person committing the act knows or should know that the victim is mentally or physically incapable of resisting or understanding the nature of his or her conduct. 6. For the purpose of this section, other sexual offense against a child means any act committed by an adult upon a child constituting: (a) Incest pursuant to NRS ; (b) Lewdness with a child pursuant to NRS ; Page 44

47 7 (c) Sadomasochistic abuse pursuant to NRS ; or (d) Luring a child using a computer, system or network pursuant to NRS , if punished as a felony. Sec NRS is hereby amended to read as follows: [Except under circumstances where a greater penalty is provided in NRS , a] A person who commits statutory sexual seduction shall be punished: 1. If the person is 21 years of age or older [, for a category C felony as provided in NRS ] at the time of the commission of the offense, for a category B felony by imprisonment in the state prison for a minimum term of not less than 1 year and a maximum term of not more than 10 years, and may be further punished by a fine of not more than $10, [If] Except as otherwise provided in subsection 3, if the person is under the age of 21 years, for a gross misdemeanor. 3. If the person is under the age of 21 years and has previously been convicted of a sexual offense, as defined in NRS 179D.097, for a category D felony as provided in NRS Sec. 9. NRS is hereby amended to read as follows: As used in this section: (a) Battery means any willful and unlawful use of force or violence upon the person of another. (b) Strangulation has the meaning ascribed to it in NRS A person who is convicted of battery with the intent to commit mayhem, robbery or grand larceny is guilty of a category B felony and shall be punished by imprisonment in the state prison for a minimum term of not less than 2 years and a maximum term of not more than 10 years, and may be further punished by a fine of not more than $10, A person who is convicted of battery with the intent to kill is guilty of a category B felony and shall be punished by imprisonment in the state prison for a minimum term of not less than 2 years and a maximum term of not more than 20 years. 4. A person who is convicted of battery with the intent to commit sexual assault shall be punished: (a) If the crime results in substantial bodily harm to the victim or is committed by strangulation, for a category A felony by imprisonment in the state prison: (1) For life without the possibility of parole; or (2) For life with the possibility of parole, with eligibility for parole beginning when a minimum of 10 years has been served. [, Page 45

48 8 as determined by the verdict of the jury, or the judgment of the court if there is no jury.] (b) If the crime does not result in substantial bodily harm to the victim and the victim is 16 years of age or older, for a category A felony by imprisonment in the state prison for a minimum term of not less than 2 years and a maximum term of life with the possibility of parole. (c) If the crime does not result in substantial bodily harm to the victim and the victim is a child under the age of 16, for a category A felony by imprisonment in the state prison for a minimum term of not less than 5 years and a maximum term of life with the possibility of parole. In addition to any other penalty, a person convicted pursuant to this subsection may be punished by a fine of not more than $10,000. Sec. 10. NRS is hereby amended to read as follows: A person who willfully causes a child who is less than 18 years of age to suffer unjustifiable physical pain or mental suffering as a result of abuse or neglect or to be placed in a situation where the child may suffer physical pain or mental suffering as the result of abuse or neglect: (a) If substantial bodily or mental harm results to the child: (1) If the child is less than 14 years of age and the harm is the result of sexual abuse or exploitation, is guilty of a category A felony and shall be punished by imprisonment in the state prison for life with the possibility of parole, with eligibility for parole beginning when a minimum of 15 years has been served; or (2) In all other such cases to which subparagraph (1) does not apply, is guilty of a category B felony and shall be punished by imprisonment in the state prison for a minimum term of not less than 2 years and a maximum term of not more than 20 years; or (b) If substantial bodily or mental harm does not result to the child: (1) If the person has not previously been convicted of a violation of this section or of a violation of the law of any other jurisdiction that prohibits the same or similar conduct, is guilty of a category B felony and shall be punished by imprisonment in the state prison for a minimum term of not less than 1 year and a maximum term of not more than 6 years; or (2) If the person has previously been convicted of a violation of this section or of a violation of the law of any other jurisdiction that prohibits the same or similar conduct, is guilty of a category B felony and shall be punished by imprisonment in the state prison for Page 46

49 9 a minimum term of not less than 2 years and a maximum term of not more than 15 years, unless a more severe penalty is prescribed by law for an act or omission that brings about the abuse or neglect. 2. A person who is responsible for the safety or welfare of a child pursuant to NRS 432B.130 and who permits or allows that child to suffer unjustifiable physical pain or mental suffering as a result of abuse or neglect or to be placed in a situation where the child may suffer physical pain or mental suffering as the result of abuse or neglect: (a) If substantial bodily or mental harm results to the child: (1) If the child is less than 14 years of age and the harm is the result of sexual abuse or exploitation, is guilty of a category A felony and shall be punished by imprisonment in the state prison for life with the possibility of parole, with eligibility for parole beginning when a minimum of 10 years has been served; or (2) In all other such cases to which subparagraph (1) does not apply, is guilty of a category B felony and shall be punished by imprisonment in the state prison for a minimum term of not less than 2 years and a maximum term of not more than 20 years; or (b) If substantial bodily or mental harm does not result to the child: (1) If the person has not previously been convicted of a violation of this section or of a violation of the law of any other jurisdiction that prohibits the same or similar conduct, is guilty of a gross misdemeanor; or (2) If the person has previously been convicted of a violation of this section or of a violation of the law of any other jurisdiction that prohibits the same or similar conduct, is guilty of a category C felony and shall be punished as provided in NRS , unless a more severe penalty is prescribed by law for an act or omission that brings about the abuse or neglect. 3. A person does not commit a violation of subsection 1 or 2 by virtue of the sole fact that the person delivers or allows the delivery of a child to a provider of emergency services pursuant to NRS 432B As used in this section: (a) Abuse or neglect means physical or mental injury of a nonaccidental nature, sexual abuse, sexual exploitation, negligent treatment or maltreatment of a child under the age of 18 years, as set forth in paragraph (d) and NRS 432B.070, 432B.100, 432B.110, 432B.140 and 432B.150, under circumstances which indicate that the child s health or welfare is harmed or threatened with harm. Page 47

50 10 (b) Allow means to do nothing to prevent or stop the abuse or neglect of a child in circumstances where the person knows or has reason to know that the child is abused or neglected. (c) Permit means permission that a reasonable person would not grant and which amounts to a neglect of responsibility attending the care, custody and control of a minor child. (d) Physical injury means: (1) Permanent or temporary disfigurement; or (2) Impairment of any bodily function or organ of the body. (e) Substantial mental harm means an injury to the intellectual or psychological capacity or the emotional condition of a child as evidenced by an observable and substantial impairment of the ability of the child to function within his or her normal range of performance or behavior. Sec. 11. NRS is hereby amended to read as follows: Except as otherwise provided in subsection 4, a person shall not knowingly and intentionally capture an image of the private area of another person: (a) Without the consent of the other person; and (b) Under circumstances in which the other person has a reasonable expectation of privacy. 2. Except as otherwise provided in subsection 4, a person shall not distribute, disclose, display, transmit or publish an image that the person knows or has reason to know was made in violation of subsection [A] Unless a greater penalty is provided pursuant to section 5 of this act, a person who violates this section: (a) For a first offense, is guilty of a gross misdemeanor. (b) For a second or subsequent offense, is guilty of a category E felony and shall be punished as provided in NRS This section does not prohibit any lawful law enforcement or correctional activity, including, without limitation, capturing, distributing, disclosing, displaying, transmitting or publishing an image for the purpose of investigating or prosecuting a violation of this section. 5. If a person is charged with a violation of this section, any image of the private area of a victim that is contained within: (a) Court records; (b) Intelligence or investigative data, reports of crime or incidents of criminal activity or other information; (c) Records of criminal history, as that term is defined in NRS 179A.070; and Page 48

51 11 (d) Records in the Central Repository for Nevada Records of Criminal History, is confidential and, except as otherwise provided in subsections 6 and 7, must not be inspected by or released to the general public. 6. An image that is confidential pursuant to subsection 5 may be inspected or released: (a) As necessary for the purposes of investigation and prosecution of the violation; (b) As necessary for the purpose of allowing a person charged with a violation of this section and his or her attorney to prepare a defense; and (c) Upon authorization by a court of competent jurisdiction as provided in subsection A court of competent jurisdiction may authorize the inspection or release of an image that is confidential pursuant to subsection 5, upon application, if the court determines that: (a) The person making the application has demonstrated to the satisfaction of the court that good cause exists for the inspection or release; and (b) Reasonable notice of the application and an opportunity to be heard have been given to the victim. 8. As used in this section: (a) Broadcast means to transmit electronically an image with the intent that the image be viewed by any other person. (b) Capture, with respect to an image, means to videotape, photograph, film, record by any means or broadcast. (c) Female breast means any portion of the female breast below the top of the areola. (d) Private area means the naked or undergarment clad genitals, pubic area, buttocks or female breast of a person. (e) Under circumstances in which the other person has a reasonable expectation of privacy means: (1) Circumstances in which a reasonable person would believe that he or she could disrobe in privacy, without being concerned that an image of his or her private area would be captured; or (2) Circumstances in which a reasonable person would believe that his or her private area would not be visible to the public, regardless of whether the person is in a public or private place. Sec. 12. Chapter 201 of NRS is hereby amended by adding thereto a new section to read as follows: In a prosecution for pandering or sex trafficking pursuant to NRS , expert testimony concerning: Page 49

52 12 1. The prostitution subculture, including, without limitation, the effect of physical, emotional or mental abuse on the beliefs, behavior and perception of the alleged victim of the pandering or sex trafficking that is offered by the prosecution or defense is admissible for any relevant purpose, including, without limitation, to demonstrate: (a) The dynamics of and the manipulation and psychological control measures used in the relationship between a prostitute and a person who engages in pandering or sex trafficking in violation of NRS ; and (b) The normal behavior and language used in the prostitution subculture. 2. The effect of pandering or sex trafficking may not be offered against a defendant pursuant to subsection 1 to prove the occurrence of an act which forms the basis of a criminal charge against the defendant. Sec. 13. NRS is hereby amended to read as follows: A person who commits any act of open or gross lewdness is guilty: (a) [For] Except as otherwise provided in this subsection, for the first offense, of a gross misdemeanor. (b) For any subsequent offense, or if the person has previously been convicted of a sexual offense as defined in NRS 179D.097, of a category D felony and shall be punished as provided in NRS (c) For an offense committed in the presence of a child under the age of 18 years or a vulnerable person as defined in paragraph (a) of subsection 7 of NRS , of a category D felony and shall be punished as provided in NRS For the purposes of this section, the breast feeding of a child by the mother of the child does not constitute an act of open or gross lewdness. Sec. 14. NRS is hereby amended to read as follows: A person who makes any open and indecent or obscene exposure of his or her person, or of the person of another, is guilty: (a) [For] Except as otherwise provided in this subsection, for the first offense, of a gross misdemeanor. (b) For any subsequent offense, or if the person has previously been convicted of a sexual offense as defined in NRS 179D.097, of a category D felony and shall be punished as provided in NRS Page 50

53 13 (c) For an offense committed in the presence of a child under the age of 18 years or a vulnerable person as defined in paragraph (a) of subsection 7 of NRS , of a category D felony and shall be punished as provided in NRS For the purposes of this section, the breast feeding of a child by the mother of the child does not constitute an act of open and indecent or obscene exposure of her body. Sec. 15. NRS is hereby amended to read as follows: A person [who] is guilty of lewdness with a child if he or she: (a) Is 18 years of age or older and willfully and lewdly commits any lewd or lascivious act, other than acts constituting the crime of sexual assault, upon or with the body, or any part or member thereof, of a child under the age of [14] 16 years, with the intent of arousing, appealing to, or gratifying the lust or passions or sexual desires of that person or of that child [, is guilty of lewdness with a child.] ; or (b) Is under the age of 18 years and willfully and lewdly commits any lewd or lascivious act, other than acts constituting the crime of sexual assault, upon or with the body, or any part or member thereof, of a child under the age of 14 years, with the intent of arousing, appealing to, or gratifying the lust or passions or sexual desires of that person or of that child. 2. Except as otherwise provided in [subsection 3,] subsections 4 and 5, a person who commits lewdness with a child under the age of 14 years is guilty of a category A felony and shall be punished by imprisonment in the state prison for life with the possibility of parole, with eligibility for parole beginning when a minimum of 10 years has been served, and may be further punished by a fine of not more than $10, Except as otherwise provided in subsection 4, a person who commits lewdness with a child who is 14 or 15 years of age is guilty of a category B felony and shall be punished by imprisonment in the state prison for a minimum term of not less than 1 year and a maximum term of not more than 10 years and may be further punished by a fine of not more than $10, [A] Except as otherwise provided in subsection 5, a person who commits lewdness with a child and who has been previously convicted of: (a) Lewdness with a child pursuant to this section or any other sexual offense against a child; or Page 51

54 14 (b) An offense committed in another jurisdiction that, if committed in this State, would constitute lewdness with a child pursuant to this section or any other sexual offense against a child, is guilty of a category A felony and shall be punished by imprisonment in the state prison for life without the possibility of parole. [4.] 5. A person who is under the age of 18 years and who commits lewdness with a child under the age of 14 years commits a delinquent act. 6. For the purpose of this section, other sexual offense against a child has the meaning ascribed to it in subsection [5] 6 of NRS Sec. 16. NRS is hereby amended to read as follows: As used in NRS to , inclusive, and section 12 of this act, unless the context otherwise requires: 1. Adult means a person 18 years of age or older. 2. Child means a person less than 18 years of age. 3. Induce means to persuade, encourage, inveigle or entice. 4. Prostitute means a male or female person who for a fee, monetary consideration or other thing of value engages in sexual intercourse, oralgenital contact or any touching of the sexual organs or other intimate parts of a person for the purpose of arousing or gratifying the sexual desire of either person. 5. Prostitution means engaging in sexual conduct with another person in return for a fee, monetary consideration or other thing of value. 6. Sexual conduct means any of the acts enumerated in subsection Transports means to transport or cause to be transported, by any means of conveyance, into, through or across this State, or to aid or assist in obtaining such transportation. Sec. 17. NRS is hereby amended to read as follows: Sexual conduct means: 1. Ordinary sexual intercourse; 2. Anal intercourse; 3. Fellatio, cunnilingus or other oralgenital contact; 4. Physical contact by a person with the unclothed genitals or pubic area of another person for the purpose of arousing or gratifying the sexual desire of either person; 5. Penetration, however slight, by a person of an object into the genital or anal opening of the body of another person for the purpose of arousing or gratifying the sexual desire of either person; Page 52

55 15 6. Masturbation or the lewd exhibition of unclothed genitals; [or] 7. Sadomasochistic abuse [.] ; or 8. Any lewd or lascivious act upon or with the body, or any part or member thereof, of another person. Sec. 18. NRS is hereby amended to read as follows: Except as otherwise provided in subsection [4,] 3, a person who: (a) Is 21 years of age or older; (b) Is or was employed in a position of authority by a public school or private school or is or was volunteering in a position of authority at a public or private school; and (c) Engages in sexual conduct with a pupil who is 16 or 17 years of age and: (1) Who is or was enrolled in or attending the public school or private school at which the person is or was employed or volunteering; or (2) With whom the person has had contact in the course of performing his or her duties as an employee or volunteer, is guilty of a category C felony and shall be punished as provided in NRS [Except as otherwise provided in subsection 4, a person who: (a) Is 21 years of age or older; (b) Is or was employed in a position of authority by a public school or private school or is or was volunteering in a position of authority at a public or private school; and (c) Engages in sexual conduct with a pupil who is 14 or 15 years of age and: (1) Who is or was enrolled in or attending the public school or private school at which the person is or was employed or volunteering; or (2) With whom the person has had contact in the course of performing his or her duties as an employee or volunteer, is guilty of a category B felony and shall be punished by imprisonment in the state prison for a minimum term of not less than 1 year and a maximum term of not more than 6 years, and may be further punished by a fine of not more than $5, ] For the purposes of [subsections] subsection 1, [and 2,] a person shall be deemed to be or have been employed in a position of authority by a public school or private school or deemed to be or have been volunteering in a position of authority at a public or private school if the person is or was employed or volunteering as: Page 53

56 16 (a) A teacher or instructor; (b) An administrator; (c) A head or assistant coach; or (d) A teacher s aide or an auxiliary, nonprofessional employee who assists licensed personnel in the instruction or supervision of pupils pursuant to NRS [4.] 3. The provisions of this section do not apply to a person who is married to the pupil. Secs. 19 and 20. (Deleted by amendment.) Sec. 21. NRS is hereby amended to read as follows: Evidence of a person s character or a trait of his or her character is not admissible for the purpose of proving that the person acted in conformity therewith on a particular occasion, except: (a) Evidence of a person s character or a trait of his or her character offered by an accused, and similar evidence offered by the prosecution to rebut such evidence; (b) Evidence of the character or a trait of character of the victim of the crime offered by an accused, subject to the procedural requirements of NRS where applicable, and similar evidence offered by the prosecution to rebut such evidence; and (c) Unless excluded by NRS , evidence of the character of a witness, offered to attack or support his or her credibility, within the limits provided by NRS Evidence of other crimes, wrongs or acts is not admissible to prove the character of a person in order to show that the person acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. 3. Nothing in this section shall be construed to prohibit the admission of evidence in a criminal prosecution for a sexual offense that a person committed another crime, wrong or act that constitutes a separate sexual offense. As used in this subsection, sexual offense has the meaning ascribed to it in NRS 179D.097. Sec. 22. Chapter 50 of NRS is hereby amended by adding thereto the provisions set forth as sections 23 and 24 of this act. Sec In any criminal or juvenile delinquency action, expert testimony offered by the prosecution or defense which concerns the behavior of a defendant in preparing a child under the age of 18 years or a vulnerable person as defined in NRS for sexual abuse by the defendant is admissible for any Page 54

57 17 relevant purpose. Such expert testimony may concern, without limitation: (a) The effect on the victim from the defendant creating a physical or emotional relationship with the victim before the sexual abuse; and (b) Any behavior of the defendant that was intended to reduce the resistance of the victim to the sexual abuse or reduce the likelihood that the victim would report the sexual abuse. 2. As used in this section, sexual abuse has the meaning ascribed to it in NRS 432B.100. Sec In any criminal or juvenile delinquency action relating to the commission of a sexual offense, a court may not order the victim of or a witness to the sexual offense to take or submit to a psychological or psychiatric examination. 2. The court may exclude the testimony of a licensed psychologist, psychiatrist or clinical worker who performed a psychological or psychiatric examination on the victim or witness if: (a) There is a prima facie showing of a compelling need for an additional psychological or psychiatric examination of the victim or witness by a licensed psychologist, psychiatrist or clinical worker; and (b) The victim or witness refuses to submit to an additional psychological or psychiatric examination by a licensed psychologist, psychiatrist or clinical worker. 3. In determining whether there is a prima facie showing of a compelling need for an additional psychological or psychiatric examination of the victim or witness pursuant to subsection 2, the court must consider whether: (a) There is a reasonable basis for believing that the mental or emotional state of the victim or witness may have affected his or her ability to perceive and relate events relevant to the criminal prosecution; and (b) Any corroboration of the offense exists beyond the testimony of the victim or witness. 4. If the court determines there is a prima facie showing of a compelling need for an additional psychological or psychiatric examination of the victim or witness, the court shall issue a factual finding that details with particularity the reasons why an additional psychological or psychiatric examination of the victim or witness is warranted. 5. If the court issues a factual finding pursuant to subsection 4 and the victim or witness consents to an additional psychological Page 55

58 18 or psychiatric examination, the court shall set the parameters for the examination consistent with the purpose of determining the ability of the victim or witness to perceive and relate events relevant to the criminal prosecution. 6. As used in this section, sexual offense includes, without limitation: (a) Sexual assault pursuant to NRS ; (b) Statutory sexual seduction pursuant to NRS ; (c) Battery with intent to commit sexual assault pursuant to NRS ; (d) Abuse of a child pursuant to NRS , if the abuse involved sexual abuse or sexual exploitation; (e) An offense involving pornography and a minor pursuant to NRS to , inclusive; (f) Incest pursuant to NRS ; (g) Open or gross lewdness pursuant to NRS ; (h) Indecent or obscene exposure pursuant to NRS ; (i) Lewdness with a child pursuant to NRS ; (j) Sexual penetration of a dead human body pursuant to NRS ; (k) An offense involving the administration of a drug to another person with the intent to enable or assist the commission of a felony pursuant to NRS , if the felony is an offense listed in this section; (l) An offense involving the administration of a controlled substance to another person with the intent to enable or assist the commission of a crime of violence pursuant to NRS , if the crime of violence is an offense listed in this section; (m) Luring a child or a person with mental illness pursuant to NRS ; (n) An offense that is found to be sexually motivated pursuant to NRS or ; (o) Pandering of a child pursuant to NRS ; (p) Any other offense that has an element involving a sexual act or sexual conduct with another person; or (q) Any attempt or conspiracy to commit an offense listed in this subsection. Sec. 25. NRS is hereby amended to read as follows: As used in NRS to , inclusive, and section 23 of this act, unless the context otherwise requires, prohibited substance has the meaning ascribed to it in NRS 484C.080. Page 56

59 19 Sec. 26. NRS 432B.140 is hereby amended to read as follows: 432B.140 Negligent treatment or maltreatment of a child occurs if a child has been subjected to harmful behavior that is terrorizing, degrading, painful or emotionally traumatic, has been abandoned, is without proper care, control [and] or supervision or lacks the subsistence, education, shelter, medical care or other care necessary for the wellbeing of the child because of the faults or habits of the person responsible for the welfare of the child or the neglect or refusal of the person to provide them when able to do so. Sec The amendatory provisions of sections 1 to 5, inclusive, 6.5 and 11 of this act apply to an intimate image that is electronically disseminated or sold on or after October 1, The amendatory provisions of section 6 of this act apply to an intimate image that is electronically disseminated or sold before, on or after October 1, 2015, if, on or after October 1, 2015, a person: (a) Demands payment of money, property, services or anything else of value from a person in exchange for removing the intimate image from public view; or (b) Directly or indirectly counsels, hires, commands, induces or otherwise procures another person to demand payment of money, property, services or anything else of value from a person in exchange for removing the intimate image from public view. 3. The amendatory provisions of sections 7 to 10, inclusive, 13, 14, 15, 17, 18, 19 and 26 of this act apply to an offense that is committed on or after October 1, The amendatory provisions of sections 12, 16 and 20 to 25, inclusive, of this act apply to a court proceeding that is commenced on or after October 1, As used in this section, intimate image has the meaning ascribed to it in section 3 of this act. Sec. 28. (Deleted by amendment.) 20 ~~~~~ 15 Page 57

60 Assembly Bill No. 52 Committee on Health and Human Services CHAPTER... AN ACT relating to child welfare; revising provisions concerning the persons responsible for a child s welfare; and providing other matters properly relating thereto. Legislative Counsel s Digest: Existing law specifies when a person is responsible for a child s welfare. (NRS 432B.130) This bill clarifies that a public or private home, institution or facility is responsible for a child s welfare if the child resides or receives care at the home, institution or facility. EXPLANATION Matter in bolded italics is new; matter between brackets [omitted material] is material to be omitted. THE PEOPLE OF THE STATE OF NEVADA, REPRESENTED IN SENATE AND ASSEMBLY, DO ENACT AS FOLLOWS: Section 1. NRS 432B.130 is hereby amended to read as follows: 432B.130 A person is responsible for a child s welfare under the provisions of this chapter if the person is the child s parent, guardian, a stepparent with whom the child lives, an adult person continually or regularly found in the same household as the child, [or a person directly responsible or serving as a volunteer for or employed in] a public or private home, institution or facility where the child actually resides or is receiving [child] care outside of the home for all or a portion of the day [.], or a person directly responsible or serving as a volunteer for or employed by such a home, institution or facility. 20 ~~~~~ 15 Page 58

61 Assembly Bill No. 324 Assemblyman Sprinkle CHAPTER... AN ACT relating to child welfare; revising provisions concerning required requests for the credit report of a child in the custody of an agency which provides child welfare services; revising provisions concerning missing and runaway children; requiring an agency which provides child welfare services that receives information concerning a missing child in the custody of the agency to report such information to a law enforcement agency; requiring the Division of Child and Family Services of the Department of Health and Human Services to adopt certain procedures concerning children who have run away from a foster home; revising requirements concerning permanency hearings; and providing other matters properly relating thereto. Legislative Counsel s Digest: Existing federal law that becomes effective on September 29, 2015, requires each child in foster care under the responsibility of the State who is at least 14 years of age to receive a copy of his or her credit report each year until the child is discharged from care. (Preventing Sex Trafficking and Strengthening Families Act, Pub. L. No , 113) Section 1 of this bill lowers the age of a child for whom an agency which provides child welfare services is required to obtain a credit report under state law from 16 years of age to 14 years of age to conform to this federal requirement. Existing state law requires a law enforcement agency to request certain identifying information from the parent or guardian of a missing child who is less than 16 years of age or has not been located within 30 days after being reported missing. (NRS ) Existing law also requires a law enforcement agency that receives and verifies a report of a missing child, other than a child who has run away, to immediately transmit the report to the program established by the Attorney General to coordinate activities and information in this State concerning missing or exploited children. (NRS ) Sections 2 and 3 of this bill instead require a law enforcement agency to request such information and transmit such a report for any child who has been reported missing. Existing federal law requires a state agency that receives information concerning a missing or abducted child who has been placed in the custody of the agency to report the information immediately to the National Center for Missing and Exploited Children and the National Crime Information Center database established by the Federal Bureau of Investigation. (Preventing Sex Trafficking and Strengthening Families Act, Pub. L. No , 104) Section 4 of this bill includes this requirement in state law. Existing federal law requires a state to develop and carry out specific protocols concerning children who have run away from foster care in order to receive certain federal funds. (42 U.S.C. 671(a)(35)) Section 5 of this bill requires the Division of Child and Family Services of the Department of Health and Human Services to adopt regulations to implement such protocols. Existing federal law that becomes effective on September 29, 2015, prohibits the placement of a child who is under 16 years of age in a permanent placement other than with the parent of the child, the adoption of the child or referral of the Page 59

62 2 child for legal guardianship. (Preventing Sex Trafficking and Strengthening Families Act, Pub. L. No , 112) Section 6 of this bill authorizes an agency which provides child welfare services that has custody of a child who is 16 years of age or older to present evidence at a permanency hearing that there is a compelling reason for placing such a child in a different permanent living arrangement. Existing federal law requires a judge at a permanency hearing to: (1) ask the child about his or her desired permanency outcome; (2) if the judge determines that another permanency outcome is better for the child, to explain why; and (3) if the judge determines that it is not in the best interests of the child to return home, be placed for adoption or be placed with a legal guardian or relative, provide compelling reasons for that determination. (42 U.S.C. 675a(a)(2)) Existing state law requires a judge at a permanency hearing to prepare an explicit statement of the facts upon which he or she based his or her determination regarding the best interests of the child. Section 6 revises this requirement to meet the federal requirements. EXPLANATION Matter in bolded italics is new; matter between brackets [omitted material] is material to be omitted. THE PEOPLE OF THE STATE OF NEVADA, REPRESENTED IN SENATE AND ASSEMBLY, DO ENACT AS FOLLOWS: Section 1. NRS is hereby amended to read as follows: Before an agency which provides child welfare services requests and examines a copy of any credit report pursuant to subsection 2, the agency which provides child welfare services shall, to the greatest extent practicable: (a) Inform the child of the requirement to request and examine a copy of any credit report that may exist for the child; (b) Explain to the child the process for resolving any inaccuracy discovered on any such credit report; and (c) Explain to the child the possible consequences of an inaccuracy on a credit report of the child. 2. An agency which provides child welfare services shall request and examine a copy of any credit report that may exist for each child who remains in the custody of the agency which provides child welfare services for 60 or more consecutive days: (a) When the child reaches the age of [16] 14 years, and then at least once annually thereafter as required pursuant to 42 U.S.C. 675(5)(I); or (b) If the child has reached the age of [16] 14 years before the child is placed in the custody of the agency which provides child welfare services, within 90 days after the placement of the child in the custody of the agency which provides child welfare services, and Page 60

63 3 then at least once annually thereafter as required pursuant to 42 U.S.C. 675(5)(I). 3. An agency which provides child welfare services shall determine from the examination of a credit report pursuant to this section whether the credit report contains inaccurate information and whether the credit report indicates that identity theft or any other crime has been committed against the child. 4. If the agency which provides child welfare services determines that an inaccuracy exists in the credit report of a child, the agency which provides child welfare services must: (a) Report any information which may indicate identity theft or other crime to the Attorney General; (b) Make a diligent effort to resolve the inaccuracy as soon as practicable; and (c) If an inaccuracy remains unresolved after the child has left the custody of the agency which provides child welfare services, notify the child or, if the child has not attained the age of majority, the person responsible for the child s welfare: (1) That an inaccuracy exists in the credit report of the child; (2) Of the manner in which to correct the inaccuracy; and (3) Of any services that may be available in the community to provide assistance in correcting the inaccuracy. 5. An agency which provides child welfare services may, upon consent of a child who remains under the jurisdiction of a court pursuant to NRS 432B.594, continue to request and examine a credit report of the child and provide assistance to the child if an inaccuracy is discovered. 6. The Attorney General may investigate each potential instance of identity theft or crime reported pursuant to subsection 4 and prosecute in accordance with law each person responsible for any identity theft identified in the investigation. Sec. 2. NRS is hereby amended to read as follows: A law enforcement agency shall accept every report of a missing child which is submitted to the agency, including, but not limited to, a report made by telephone. Upon receipt of such a report, the agency shall immediately conduct a preliminary investigation and classify the cause of the disappearance of the child as runaway, abducted by the parent of the child, abducted by a stranger or cause of disappearance unknown, and shall: (a) Transmit all available information about the child to the Clearinghouse within 36 hours after the report is received; Page 61

64 4 (b) Immediately notify such persons and make such inquiries concerning the missing child as the agency deems necessary; (c) Fully comply with the requirements of the National Child Search Assistance Act of 1990, [Title XXXVII of Public Law , 104 Stat. 4966;] 42 U.S.C and 5780; and (d) Enter into the National Crime Information Center s Missing Person File, as miscellaneous information, any person reasonably believed to have unlawfully abducted or detained the missing child, or aided or abetted the unlawful abduction or detention. 2. A law enforcement agency which has jurisdiction over the investigation of an abducted child and which has obtained a warrant for the arrest of a person suspected in the child s disappearance or concealment shall immediately notify the National Crime Information Center for the entry into the Center s Wanted Person File of identifying and descriptive information concerning: (a) The suspect; and (b) As miscellaneous information, the missing child. The agency shall crossreference information entered pursuant to this section with the National Crime Information Center s Missing Person File. 3. [If a missing child is less than 16 years of age or has not been located within 30 days after] After a report is filed, the law enforcement agency that received the initial report shall: (a) Send to the child s parent or guardian a request for certain identifying information regarding the child that the National Crime Information Center recommends be provided; and (b) Ask the child s parent or guardian to provide such identifying information regarding the child. This subsection does not preclude the voluntary release of identifying information about the missing child by the parent or guardian of the child at any time. 4. The parent or guardian of a child reported as missing shall promptly notify the appropriate law enforcement agency if the child is found or returned. The law enforcement agency shall then transmit that fact to the National Crime Information Center and the Clearinghouse. 5. Nothing in this section requires a law enforcement agency to activate the Statewide Alert System for the Safe Return of Abducted Children created by NRS Sec. 3. NRS is hereby amended to read as follows: A law enforcement agency, upon receiving and verifying a report of a missing child, [other than a child who has run Page 62

65 5 away,] shall immediately transmit the full contents of the report by the fastest means available to the Clearinghouse. 2. The Clearinghouse shall, upon receipt of the report, immediately notify any governmental agency in possession of the birth certificate of the child and the superintendent of schools of the school district in possession of the educational records of the child that the child is missing. 3. Upon receiving such notification, the agency or superintendent shall: (a) Maintain the birth certificate or educational records in such a manner as to ensure that the Clearinghouse is notified immediately if a request is made for the birth certificate or educational records. (b) Immediately notify the Clearinghouse upon receiving any such request before releasing the birth certificate or educational records, including notification of the identity and location or address of the person making the request. (c) Not disclose to the person making the request any communication with the Clearinghouse or the fact that a communication must be made. Sec. 4. NRS 432B.165 is hereby amended to read as follows: 432B For purposes of assisting in locating a missing child who is the subject of an investigation of abuse or neglect and who is in the protective custody of an agency which provides child welfare services or in the custody of another entity pursuant to an order of the juvenile court, an agency which provides child welfare services may provide the following information to a federal, state or local governmental entity, or an agency of such an entity, that needs access to the information to carry out its legal responsibilities to protect children from abuse or neglect: (a) The name of the child; (b) The age of the child; (c) A physical description of the child; and (d) A photograph of the child. 2. Information provided pursuant to subsection 1 is not confidential and may be disclosed to any member of the general public upon request. 3. An agency which provides child welfare services that receives information concerning a child who has been placed in the custody of the agency who is missing, including, without limitation, a child who has run away or has been abducted, shall report the information to the appropriate law enforcement agency as soon as practicable, but not later than 24 hours after receiving such information, for investigation pursuant to NRS Page 63

66 6 Sec. 5. NRS 432B.190 is hereby amended to read as follows: 432B.190 The Division of Child and Family Services shall, in consultation with each agency which provides child welfare services, adopt: 1. Regulations establishing reasonable and uniform standards for: (a) Child welfare services provided in this State; (b) Programs for the prevention of abuse or neglect of a child and the achievement of the permanent placement of a child; (c) The development of local councils involving public and private organizations; (d) Reports of abuse or neglect, records of these reports and the response to these reports; (e) Carrying out the provisions of NRS 432B.260, including, without limitation, the qualifications of persons with whom agencies which provide child welfare services enter into agreements to provide services to children and families; (f) The management and assessment of reported cases of abuse or neglect; (g) The protection of the legal rights of parents and children; (h) Emergency shelter for a child; (i) The prevention, identification and correction of abuse or neglect of a child in residential institutions; (j) Developing and distributing to persons who are responsible for a child s welfare a pamphlet that is written in language which is easy to understand, is available in English and in any other language the Division determines is appropriate based on the demographic characteristics of this State and sets forth: (1) Contact information regarding persons and governmental entities which provide assistance to persons who are responsible for the welfare of children, including, without limitation, persons and entities which provide assistance to persons who are being investigated for allegedly abusing or neglecting a child; (2) The procedures for taking a child for placement in protective custody; and (3) The state and federal legal rights of: (I) A person who is responsible for a child s welfare and who is the subject of an investigation of alleged abuse or neglect of a child, including, without limitation, the legal rights of such a person at the time an agency which provides child welfare services makes initial contact with the person in the course of the investigation and at the time the agency takes the child for placement in protective custody, and the legal right of such a person Page 64

67 7 to be informed of any allegation of abuse or neglect of a child which is made against the person at the initial time of contact with the person by the agency; and (II) Persons who are parties to a proceeding held pursuant to NRS 432B.410 to 432B.590, inclusive, during all stages of the proceeding; and (k) Making the necessary inquiries required pursuant to NRS 432B.397 to determine whether a child is an Indian child. 2. Regulations, which are applicable to any person who is authorized to place a child in protective custody without the consent of the person responsible for the child s welfare, setting forth reasonable and uniform standards for establishing whether immediate action is necessary to protect the child from injury, abuse or neglect for the purposes of determining whether to place the child into protective custody pursuant to NRS 432B.390. Such standards must consider the potential harm to the child in remaining in his or her home, including, without limitation: (a) Circumstances in which a threat of harm suggests that a child is in imminent danger of serious harm. (b) The conditions or behaviors of the child s family which threaten the safety of the child who is unable to protect himself or herself and who is dependent on others for protection, including, without limitation, conditions or behaviors that are beyond the control of the caregiver of the child and create an imminent threat of serious harm to the child. The Division of Child and Family Services shall ensure that the appropriate persons or entities to whom the regulations adopted pursuant to this subsection apply are provided with a copy of such regulations. As used in this subsection, serious harm includes the threat or evidence of serious physical injury, sexual abuse, significant pain or mental suffering, extreme fear or terror, extreme impairment or disability, death, substantial impairment or risk of substantial impairment to the child s mental or physical health or development. 3. Regulations establishing procedures for: (a) Expeditiously locating any missing child who has been placed in the custody of an agency which provides child welfare services; (b) Determining the primary factors that contributed to a child who has been placed in the custody of an agency which provides child welfare services running away or otherwise being absent from foster care, and to the extent possible and appropriate, Page 65

68 8 responding to those factors in current and subsequent placements; and (c) Determining the experiences of a child who has been placed in the custody of an agency which provides child welfare services during any period the child was missing, including, without limitation, determining whether the child may be a victim of sexual abuse or sexual exploitation. 4. Such other regulations as are necessary for the administration of NRS 432B.010 to 432B.606, inclusive. Sec. 6. NRS 432B.590 is hereby amended to read as follows: 432B Except as otherwise provided in NRS 432B.513, the court shall hold a hearing concerning the permanent placement of a child: (a) Not later than 12 months after the initial removal of the child from the home of the child and annually thereafter. (b) Within 30 days after making any of the findings set forth in subsection 3 of NRS 432B.393. Notice of this hearing must be given by registered or certified mail to all the persons to whom notice must be given pursuant to subsection 6 of NRS 432B The court may require the presence of the child at the hearing and shall provide to each person to whom notice was given pursuant to subsection 1 a right to be heard at the hearing. 3. At the hearing, the court shall review any plan for the permanent placement of the child adopted pursuant to NRS 432B.553 and, if the goal of the plan is a permanent living arrangement other than reunification with his or her parents, placement for adoption, placement with a legal guardian or placement with a relative, ask the child about his or her desired permanent [and determine:] living arrangement. After doing so, the court must determine: (a) Whether the agency with legal custody of the child has made the reasonable efforts required by subsection 1 of NRS 432B.553; (b) Whether, and if applicable when: (1) The child should be returned to the parents of the child or placed with other relatives; (2) It is in the best interests of the child to: (I) Initiate proceedings to terminate parental rights pursuant to chapter 128 of NRS so that the child can be placed for adoption; (II) Initiate proceedings to establish a guardianship pursuant to chapter 159 of NRS; or Page 66

69 9 (III) Establish a guardianship in accordance with NRS 432B.466 to 432B.468, inclusive; or (3) The agency with legal custody of the child has produced documentation of its conclusion that there is a compelling reason for the placement of [the] a child who has attained the age of 16 years in another permanent living arrangement; (c) If the child will not be returned to the parents of the child, whether the agency with legal custody of the child fully considered placement options both within and outside of this State; (d) If the child has attained the age of [16] 14 years, whether the child will receive the services needed to assist the child in transitioning to independent living; and (e) If the child has been placed outside of this State, whether the placement outside of this State continues to be appropriate for and in the best interests of the child. [ ] 4. The court shall prepare an explicit statement of the facts upon which each of its determinations is based [.] pursuant to subsection 3. If the court determines that it is not in the best interests of the child to be returned to his or her parents, or to be placed for adoption, with a legal guardian or with a relative, the court must include compelling reasons for this determination and an explanation of those reasons in its statement of the facts. 5. If the court determines that it is in the best interests of the child to terminate parental rights, the court shall use its best efforts to ensure that the procedures required by chapter 128 of NRS are completed within 6 months after the date the court makes that determination, including, without limitation, appointing a private attorney to expedite the completion of the procedures. 6. The provisions of this [subsection] section do not limit the jurisdiction of the court to review any decisions of the agency with legal custody of the child regarding the permanent placement of the child. [4.] 7. If a child has been placed outside of the home and has resided outside of the home pursuant to that placement for 14 months of any 20 consecutive months, the best interests of the child must be presumed to be served by the termination of parental rights. [5.] 8. This hearing may take the place of the hearing for review required by NRS 432B.580. [6.] 9. The provision of notice and a right to be heard pursuant to this section does not cause any person planning to adopt the child, any sibling of the child or any other relative, any adoptive parent of Page 67

70 10 a sibling of the child or a provider of foster care to become a party to the hearing. Sec. 7. This act becomes effective on July 1, ~~~~~ 15 Page 68

71 Assembly Bill No. 151 Assemblymen Araujo, BenitezThompson; Bustamante Adams, Flores and Neal Joint Sponsor: Senator Denis CHAPTER... AN ACT relating to the adoption of children; revising provisions restricting adoptions based on the ages of a child and a prospective adoptive parent; revising provisions relating to the adoption of a child by married persons; revising provisions concerning orders and decrees of adoption; and providing other matters properly relating thereto. Legislative Counsel s Digest: Existing law governs the adoption of children. (NRS ) Under existing law, certain restrictions relating to the respective ages of a child and a prospective adoptive parent for adoption purposes are imposed. (NRS ) Section 1 of this bill provides that a court may disregard those age restrictions if the prospective adoptive parent is a certain family member of the child and it is in the best interest of the child and in the interest of the public. Existing law prohibits the grant of a petition for leave to adopt a child by a married person if the person s spouse does not consent to and join in the petition. (NRS ) Section 2 of this bill provides that a married person must obtain from his or her spouse consent to an adoption, but a spouse who consents will not have any parental rights or responsibilities or be named as an adoptive parent in an order or decree of adoption except under certain circumstances. Under existing law, a court is required to grant a petition for the adoption of a child if the court finds that it is in the best interest of the child. However, an order or decree of adoption may not be made until after the child has lived for 6 months in the home of the petitioners. (NRS ) Section 3 of this bill provides that the 6month requirement does not apply if one of the petitioners is the stepparent of the child or is related to the child within the third degree of consanguinity. EXPLANATION Matter in bolded italics is new; matter between brackets [omitted material] is material to be omitted. THE PEOPLE OF THE STATE OF NEVADA, REPRESENTED IN SENATE AND ASSEMBLY, DO ENACT AS FOLLOWS: Section 1. NRS is hereby amended to read as follows: [A] 1. Except as otherwise provided in subsection 2: (a) A minor child may be adopted by an adult person in the cases and subject to the rules prescribed in this chapter. [The] (b) A person adopting a child must be at least 10 years older than the person adopted, and the consent of the child, if over the age of 14 years, is necessary to its adoption. Page 69

72 2 2. A court may approve the adoption of a child without regard to the age of the child and the ages of the prospective adoptive parents if: (a) The child is being adopted by a stepparent, sister, brother, aunt, uncle or first cousin and, if the prospective adoptive parent is married, also by the spouse of the prospective adoptive parent; and (b) The court is satisfied that it is in the best interest of the child and in the interest of the public. Sec. 2. NRS is hereby amended to read as follows: Any adult person or any two persons married to each other may petition the district court of any county in this state for leave to adopt a child. [The petition by a person having a husband or wife shall not be granted unless the husband or wife consents thereto and joins therein.] 2. Except as otherwise provided in subsection 5, a married person not lawfully separated from his or her spouse may not adopt a child without the consent of his or her spouse, if such spouse is capable of giving such consent. 3. If a spouse consents to an adoption as described in subsection 2, such consent does not establish any parental rights or responsibilities on the part of the spouse unless he or she: (a) Has, in a writing filed with the court, specifically consented to: (1) Adopting the child; and (2) Establishing parental rights and responsibilities; and (b) Is named as an adoptive parent in the order or decree of adoption. 4. The court shall not name a spouse who consents to an adoption as described in subsection 2 as an adoptive parent in an order or decree of adoption unless: (a) The spouse has filed a writing with the court as described in paragraph (a) of subsection 3; and (b) The home of the spouse is suitable for the child as determined by an investigation conducted pursuant to NRS or The court may dispense with the requirement for the consent of a spouse who cannot be located after a diligent search or who is determined by the court to lack the capacity to consent. A spouse for whom the requirement was dispensed pursuant to this subsection must not be named as an adoptive parent in an order or decree of adoption. Page 70

73 3 Sec. 3. NRS is hereby amended to read as follows: If the court finds that the best interests of the child warrant the granting of the petition, an order or decree of adoption must be made and filed, ordering that henceforth the child is the child of the petitioners. When determining whether the best interests of the child warrant the granting of a petition that is filed by a foster parent, the court shall give strong consideration to the emotional bond between the child and the foster parent. A copy of the order or decree must be sent to the nearest office of the agency which provides child welfare services by the petitioners within 7 days after the order or decree is issued. In the decree the court may change the name of the child, if desired. [No] 2. Except as otherwise provided in this subsection, an order or decree of adoption may not be made until after the child has lived for 6 months in the home of the petitioners. [2.] This subsection does not apply if one of the petitioners is the stepparent of the child or is related to the child within the third degree of consanguinity. 3. If the court is not satisfied that the proposed adoption is in the best interests of the child, the court shall deny the petition and may order the child returned to the custody of the person or agency legally vested with custody. [3.] 4. After a petition for adoption has been granted, there is a presumption that remaining in the home of the adopting parent is in the child s best interest. 20 ~~~~~ 15 Page 71