Citations Affected: IC 29-3; IC 31-30-2-1; IC 31-34-21-7.7.
Synopsis: Guardianship of minors. Requires a court to notify the
department of child services (department) of a hearing regarding the
guardianship of a minor if the minor is or was a child in need of
services. Requires the department to evaluate a person who is filing a
petition to serve as a guardian of a minor if the department knows the
person has a history of mental health issues or substance abuse.
Requires a probate or juvenile court to include in its order creating a
guardianship of a minor any terms and conditions that a parent must
meet in order to seek modification or termination of the guardianship.
Provides that if the court has knowledge that the parent has a history of
mental health issues or substance abuse, the court shall require the
department to evaluate the parent and report the findings to the court.
Effective: July 1, 2013.
January 14, 2013, read first time and referred to Committee on Family, Children and
Human Affairs.
A BILL FOR AN ACT to amend the Indiana Code concerning
probate.
been appointed or is acting for the incapacitated person or minor
in any state.
(6) The residence and post office address of the proposed
guardian or person to carry out the protective order and the
relationship to the alleged incapacitated person of:
(A) the proposed guardian; or
(B) the person proposed to carry out the protective order.
(7) The names and addresses, as far as known or as can
reasonably be ascertained, of the persons most closely related by
blood or marriage to the person for whom the guardian is sought
to be appointed or the protective order is issued.
(8) The name and address of the person or institution having the
care and custody of the person for whom the guardian is sought
to be appointed or the protective order is issued.
(9) The names and addresses of any other incapacitated persons
or minors for whom the proposed guardian or person to carry out
the protective order is acting if the proposed guardian or person
is an individual.
(10) The reasons the appointment of a guardian or issuance of a
protective order is sought and the interest of the petitioner in the
appointment or issuance.
(11) The name and business address of the attorney who is to
represent the guardian or person to carry out the protective order.
(12) Whether a child in need of services petition or a program of
informal adjustment has been filed regarding the minor for whom
a guardianship is being sought, and, if so, whether the case
regarding the minor is open at the time the guardianship petition
is filed.
(b) Notice of a petition under this section for the appointment of a
guardian or the issuance of a protective order and the hearing on the
petition shall be given under IC 29-3-6.
(c) After the filing of a petition, the court shall set a date for a
hearing on the issues raised by the petition. Unless an alleged
incapacitated person is already represented by counsel, the court may
appoint an attorney to represent the incapacitated person.
(d) A person alleged to be an incapacitated person must be present
at the hearing on the issues raised by the petition and any response to
the petition unless the court determines by evidence that:
(1) it is impossible or impractical for the alleged incapacitated
person to be present due to the alleged incapacitated person's
disappearance, absence from the state, or similar circumstance;
(2) it is not in the alleged incapacitated person's best interest to be
present because of a threat to the health or safety of the alleged
incapacitated person as determined by the court;
(3) the incapacitated person has knowingly and voluntarily
consented to the appointment of a guardian or the issuance of a
protective order and at the time of such consent the incapacitated
person was not incapacitated as a result of a mental condition that
would prevent that person from knowingly and voluntarily
consenting; or
(4) the incapacitated person has knowingly and voluntarily
waived notice of the hearing and at the time of such waiver the
incapacitated person was not incapacitated as a result of a mental
condition that would prevent that person from making a knowing
and voluntary waiver of notice.
(e) A person alleged to be an incapacitated person may present
evidence and cross-examine witnesses at the hearing. The issues raised
by the petition and any response to the petition shall be determined by
a jury if a jury is requested no later than seventy-two (72) hours prior
to the original date and time set for the hearing on the petition.
However, in no event may a request for a jury trial be made after thirty
(30) days have passed following the service of notice of a petition.
(f) Any person may apply for permission to participate in the
proceeding, and the court may grant the request with or without hearing
upon determining that the best interest of the alleged incapacitated
person or minor will be served by permitting the applicant's
participation. The court may attach appropriate conditions to the
permission to participate.
(g) A court shall notify the department of child services of a hearing
regarding the guardianship of a minor under this section if: a:
(1) a child in need of services petition has been filed regarding
the minor; or
(2) the minor is or was a child in need of services; or
(2) (3) a program of informal adjustment involving the minor is
pending.
The department of child services may participate in a hearing regarding
the guardianship of a minor described in this subsection.
(h) The department of child services shall evaluate a person who
is petitioning to be a guardian under subsection (a) if the
department of child services has knowledge that the petitioner has
a history of mental health issues or substance abuse. The
department shall report its findings to the court hearing the
petition.
SECTION 8, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE
JULY 1, 2013]: Sec. 9. (a) A probate or juvenile court may include in
its order creating a guardianship of a minor the following
(1) a requirement that the minor must reside with the guardian
until the guardianship is terminated or modified.
(2) (b) A probate or juvenile court shall include in its order
creating a guardianship of a minor any terms and conditions that a
parent must meet in order to seek modification or termination of the
guardianship. If the court has knowledge that the parent has a
history of mental health issues or substance abuse, the court shall
require the department of child services to evaluate the parent and
report the findings to the court.
(b) (c) Except as provided in IC 29-3-12, if an order creating a
guardianship contains terms and conditions described in subsection
(a)(2), (b), the court may modify or terminate the guardianship only if
the parent:
(1) complies with the terms and conditions; and
(2) proves the parent's current fitness to assume all parental
obligations by a preponderance of the evidence.
(c) (d) If:
(1) a petition is filed for modification, resignation, or removal of
the guardian or termination of the guardianship before the parent
complies with the court ordered terms and conditions described
in subsection (a)(2); (b); and
(2) the minor:
(A) was the subject of a petition alleging the child to be a child
in need of services; or
(B) is participating in a program of informal adjustment;
the court shall refer the petition to the department of child services for
the department of child services to determine the placement of the child
in accordance with the best interests of the child.
(d) (e) A court shall notify the department of child services:
(1) if:
(A) the court appoints a guardian for a minor who:
(i) was the subject of a petition alleging the minor to be a
child in need of services; or
(ii) is or was a child in need of services; or
(ii) (iii) is participating in a program of informal adjustment;
and
(B) a petition to modify or terminate the guardianship of the
minor or a petition regarding the death, resignation, or removal
of the guardian is filed; and