19.8010.01000
Sixty-sixth
Legislative Assembly SENATE BILL NO. 2073
of North Dakota
Introduced by
Judiciary Committee
(At the request of the Supreme Court)
1 A BILL for an Act to create and enact chapter 27-20.1 of the North Dakota Century Code,
2 relating to guardianships of children; to amend and reenact subsection 11 of section 27-20-02,
3 section 27-20-03, subsection 1 of section 27-20-06, sections 27-20-46, 27-20-48.1, and
4 subsection 1 of section 27-20-49 of the North Dakota Century Code, relating to guardianships of
5 children; and to repeal sections 27-20-48.2, 27-20-48.3, and 27-20-48.4 of the North Dakota
6 Century Code, relating to guardianships of children.
7 BE IT ENACTED BY THE LEGISLATIVE ASSEMBLY OF NORTH DAKOTA:
8 SECTION 1. AMENDMENT. Subsection 11 of section 27-20-02 of the North Dakota Century
9 Code is amended and reenacted as follows:
10 11. "Fit and willing relative or other appropriate individual" means a relative or other
11 individual who has been determined, after consideration of an assessment that
12 includes a criminal history record investigation under chapter 50-11.3, to be a qualified
13 person under chapterchapters 27-20.1 and 30.1-27, and who consents in writing to act
14 as a legal guardian.
15 SECTION 2. AMENDMENT. Section 27-20-03 of the North Dakota Century Code is
16 amended and reenacted as follows:
17 27-20-03. Jurisdiction.
18 1. The juvenile court has exclusive original jurisdiction of the following proceedings,
19 which are governed by this chapter:
20 a. Proceedings in which a child is alleged to be delinquent, unruly, or deprived;
21 b. Proceedings for the termination of parental rights except when a part of an
22 adoption proceeding;
23 c. Proceedings arising under section 27-20-30.1; and
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1 d. Civil forfeiture proceedings arising under chapter 19-03.1 or section 29-31.1-04
2 for which a child is alleged to have possessed forfeitable property. The juvenile
3 court shall conduct the proceedings in accordance with the procedures provided
4 for under sections 19-03.1-36 through 19-03.1-37.
5 2. The juvenile court also has exclusive original jurisdiction of the following proceedings,
6 which are governed by the laws relating thereto without regard to the other provisions
7 of this chapter:
8 a. Proceedings to obtain judicial consent to the marriage, employment, or
9 enlistment in the armed services of a child, if consent is required by law;
10 b. Proceedings under the interstate compact on juveniles;
11 c. Proceedings under the interstate compact on the placement of children; and
12 d. Proceedings arising under section 50-06-06.13 to obtain a judicial determination
13 that the placement of a severely emotionally disturbed child in an out-of-home
14 treatment program is in the best interests of the child.
15 3. The juvenile court has concurrent jurisdiction with the district court of proceedings for
16 the appointment of a guardian for a minor which, if originated under this chapter, are
17 governed by this chapter and chapter 30.1-27.
18 SECTION 3. AMENDMENT. Subsection 1 of section 27-20-06 of the North Dakota Century
19 Code is amended and reenacted as follows:
20 1. For the purpose of carrying out the objectives and purposes of this chapter and
21 subject to the limitations of this chapter or imposed by the court, a director shall:
22 a. Make investigations, reports, and recommendations to the juvenile court.
23 b. Receive and examine complaints and charges of delinquency or unruly conduct
24 or deprivation of a child for the purpose of considering the commencement of
25 proceedings under this chapter.
26 c. Supervise and assist a child placed on probation for delinquency or unruly
27 conduct, or both.
28 d. Make appropriate referrals to other private or public agencies of the community if
29 their assistance appears to be needed or desirable.
30 e. Issue a temporary custody order concerning a child who is referred to the
31 director's supervision or care as a delinquent, unruly, or deprived child. Except as
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1 provided by this chapter, a director does not have the powers of a law
2 enforcement officer.
3 f. Administer oaths.
4 g. Take acknowledgments of instruments for the purpose of this chapter.
5 h. Make such temporary order not to exceed ninety-six hours for the custody and
6 control of a child alleged to be deprived as may be deemed appropriate. The
7 order must be reduced to writing within twenty-four hours, excluding holidays and
8 weekends.
9 i. Perform all other functions designated by this chapter or under section 27-05-30
10 or by order of the court pursuant thereto, including, if qualified, those of a referee.
11 j. Issue an order to a law enforcement authority to transport a child to and from a
12 specified location.
13 k. Receive and examine petitions to establish, modify, or terminate a guardianship
14 of a minor under chapter 27-20.1.
15 SECTION 4. AMENDMENT. Section 27-20-46 of the North Dakota Century Code is
16 amended and reenacted as follows:
17 27-20-46. Effect of order terminating parental rights or appointing a legal guardian.
18 1. An order terminating parental rights of a parent terminates all the parent's rights and
19 obligations with respect to the child and of the child to or through the parent arising from the
20 parental relationship. The parent is not thereafter entitled to notice of proceedings for the
21 adoption of the child by another nor has the parent any right to object to the adoption or
22 otherwise to participate in the proceedings.
23 2. An order appointing a legal guardian terminates any authority of a parent that is
24 granted to the legal guardian under that order. A parent subject to such an order is
25 entitled to treatment as a party at any subsequent juvenile court proceeding regarding
26 the child.
27 SECTION 5. AMENDMENT. Section 27-20-48.1 of the North Dakota Century Code is
28 amended and reenacted as follows:
29 27-20-48.1. Appointment of legal guardian of a child.
30 The court may establish a guardianship under chapter 27-20.1 as a dispositional alternative
31 if a child has been adjudicated as deprived, unruly, or delinquent.
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1 SECTION 6. AMENDMENT. Subsection 1 of section 27-20-49 of the North Dakota Century
2 Code is amended and reenacted as follows:
3 1. The following expenses are a charge upon the funds of the county upon certification
4 thereof by the court:
5 a. The cost of medical and other examinations and treatment of a child ordered by
6 the court.
7 b. The cost of care and support of a child committed by the court to the legal
8 custody of a public agency other than an institution for delinquent children or to a
9 private agency or individual other than a parent.
10 c. The cost of any necessary transportation for medical and other examinations and
11 treatment of a child ordered by the court unless the child is in the legal custody of
12 a state agency.
13 d. The cost of an attorney guardian ad litem under subsection 5 of section
14 27-20.1-16 or subsection 1 of section 30.1-27-06 or the cost of an attorney under
15 subsection 6 of section 27-20.1-16 if the court finds the parent's or child's estate
16 is insufficient to meet the cost.
17 SECTION 7. Chapter 27-20.1 of the North Dakota Century Code is created and enacted as
18 follows:
19 27-20.1-01. Definitions.
20 The definitions set forth in section 27-20-02 are applicable to this chapter.
21 27-20.1-02. Jurisdiction.
22 The juvenile court has exclusive original jurisdiction of proceedings to grant, modify, or
23 terminate guardianship for a child, except the testamentary appointment of a guardian for a
24 minor governed by chapter 30.1-27.
25 27-20.1-03. Transfer from district court.
26 If a court does not approve acceptance of a testamentary guardian of a minor under chapter
27 30.1-27, the court shall immediately transfer the guardianship portion of the case to the juvenile
28 court and order the child be taken to the juvenile court immediately or to a place of shelter care
29 designated by the juvenile court, or release the child to the custody of the child's custodian,
30 relative, or other responsible adult able and willing to assume custody of the child, to be brought
31 to the juvenile court at a time designated by the court. The juvenile court shall immediately
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1 reappoint the attorney guardian ad litem who served in the probate case whenever possible, or
2 shall immediately appoint a lay guardian ad litem.
3 27-20.1-04. Venue.
4 Except as otherwise provided by this section, a proceeding under this chapter must be
5 commenced in the county in which the child resides. If deprivation is alleged, the proceeding
6 may be brought in the county in which the child is present when it is commenced, the county in
7 which the child has resided for the majority of the thirty days prior to the date of the alleged
8 deprivation, or the county where the alleged deprivation has occurred. The court shall determine
9 the appropriate venue for a deprivation action based on the best interest of the child.
10 27-20.1-05. Petition - Who may file.
11 A petition to establish, modify, or terminate a guardianship order, other than one that has
12 been transferred by the district court under chapter 30.1-27, may be filed by any person
13 interested in the welfare of the child who has knowledge of the facts alleged or has information
14 and belief that the facts are true.
15 27-20.1-06. Contents of petition to appoint guardian of a child.
16 1. The petition must state that an order to appoint a guardian of a child is requested and
17 the effect will be as stated in section 27-20.1-13.
18 2. The petition must also contain information required by rule 3 of the North Dakota
19 Rules of Juvenile Procedure and include:
20 a. The name, address, and telephone number of the petitioner and the petitioner's
21 relationship to the child;
22 b. The full legal name and date of birth of the child, accompanied by a certified copy
23 of the child's birth certificate unless the petitioner shows good cause for why the
24 child's birth certificate is unavailable;
25 c. The name, last known address, and telephone number of the mother and the
26 name, last known address, and telephone number of the father, alleged father, or
27 presumed father;
28 d. If the name, last known address, or telephone number of the parents is not
29 included, detailed information concerning the efforts made to locate the parents;
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1 e. The name, last known address, and telephone number of the persons having
2 parental rights or visitation rights and the name, address, and telephone number
3 of the persons or entity having the care, custody, or control of the child;
4 f. The names, current addresses, and telephone numbers of the persons with
5 whom the child currently lives;
6 g. The names, addresses, and telephone numbers of the persons with whom the
7 child has lived during the last five years;
8 h. The names of any siblings or half-siblings of the child and with whom each sibling
9 and half-sibling currently lives;
10 i. The name and address of the proposed guardian, if different from the petitioner;
11 j. The occupation and qualifications of the proposed guardian;
12 k. The names, addresses, and telephone numbers of the spouse, parents, adult
13 children, any adult siblings of the proposed guardian, and any adult who resides
14 with or may reside with the proposed guardian;
15 l. A brief description and the approximate value of the real and personal property
16 and income of the child, so far as they are known to the petitioner;
17 m. A brief description and the approximate value of any anticipated income of the
18 child;
19 n. A statement regarding each parent that:
20 (1) The parent is deceased, accompanied by a copy of the death certificate;
21 (2) The parent consents to the guardianship, accompanied by an affidavit of the
22 parent indicating consent and any limitations on the guardian's duties under
23 section 27-20.1-15;
24 (3) The parent's rights have been previously terminated, accompanied by a
25 certified copy of the court order terminating parental rights; or
26 (4) The parent has deprived the child as that term is defined under section
27 27-20-02.
28 o. A statement whether the petitioner:
29 (1) Has participated, as a party, a witness, or in any other capacity, in any other
30 proceeding concerning the custody of or visitation with the child and, if so,
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1 identify the court, the case number, and the date of the child custody
2 determination, if any; and
3 (2) Knows of any proceeding that could affect the current proceeding, including
4 proceedings for child support enforcement and proceedings relating to
5 domestic violence protective orders, termination of parental rights, and
6 adoptions and, if so, identify the court, the case number, and the nature of
7 the proceeding.
8 p. A statement setting forth the reasons why the petition is in the child's best
9 interests; and
10 q. A statement of whether the child is an Indian child as defined under Public
11 Law 95-608 [92 Stat. 3069; 25 U.S.C.1903]. If the child is an Indian child, the
12 petition must comply with the requirements of Public Law 95-608 [92 Stat. 3071;
13 25 U.S.C. 1911 et seq.].
14 27-20.1-07. Procedure upon filing of petition.
15 1. A supporting affidavit establishing the basis for the guardianship under subdivision n of
16 subsection 2 of section 27-20.1-06, and that the guardianship is in the best interest of
17 the child, must be filed with the petition. Where deprivation is alleged under
18 paragraph 4 of subdivision n of subsection 2 of section 27-20.1-06, the petition must
19 contain sufficient statements to establish deprivation unless the child has resided in
20 the home of the proposed guardian for at least one year before the filing date of the
21 petition.
22 2. A petition under this chapter must be reviewed by the court to determine whether the
23 contents of the petition comply with section 27-20.1-06.
24 3. If a petition alleges deprivation, the petition will be reviewed by the court to determine
25 whether there has been a sufficient showing of deprivation.
26 4. If the petitioner has made an insufficient showing of deprivation, the court, without oral
27 argument or an evidentiary hearing shall issue an order denying the petition. If the
28 petitioner has made a sufficient showing of deprivation justifying a guardianship, the
29 court shall set a date for an evidentiary hearing.
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1 27-20.1-08. Procedure upon approval of petition.
2 1. The court shall issue a summons in accordance with rule 5 of the North Dakota Rules
3 of Juvenile Procedure and appoint a lay guardian ad litem upon the approval of the
4 petition.
5 2. An initial hearing must be set in accordance with rule 2 of the North Dakota Rules of
6 Juvenile Procedure.
7 3. For a petition filed under paragraphs 1, 2, or 3 of subdivision n of subsection 2 of
8 section 27-20.1-06:
9 a. The petitioner may request the court waive the hearing requirement.
10 b. The petition must state any person int