Hawaii-2016-HB2282-Amended

SECTION 1. Prior to the termination of parental rights of a child conceived as a result of a rape or sexual assault, Hawaii requires that the natural parent has been convicted in a court of competent jurisdiction in any state of the rape or sexual assault. A "clear and convincing evidence standard" is being sought in the termination of parental rights to allow a judge to terminate the alleged perpetrator's rights to the child in a civil proceeding with a lower burden of proof than the "beyond a reasonable doubt" standard required in criminal court. In May 2015, President Obama signed the Rape Survivor Child Custody Act (Act), Public Law No. 114-22, that boosts funding for states that allow women to petition for the termination of parental rights based on clear and convincing evidence that a child was conceived through rape. The reasons cited for the passage of the Act included: rape is one of the most under-prosecuted serious crimes, with estimates of criminal conviction occurring in less than five per cent of rapes; the Supreme Court established that the clear and convincing evidence standard satisfies due process for allegations to terminate or restrict parental rights in Santosky v. Kramer, 455 U.S. 745 (1982); the clear and convincing evidence standard is the most common standard for termination of parental rights among the fifty States, the territories, and the District of Columbia; and the rapist may use the threat of pursuing custody or parental rights to coerce survivors into not prosecuting rape, or otherwise harass, intimidate, or manipulate them.

SECTION 2. Section 571-61, Hawaii Revised Statutes, is amended by amending subsection (b) to read as follows:

"(b) Involuntary termination.

(1) The family courts may terminate the parental rights in respect to any child as to any legal parent:

(A) Who has deserted the child without affording means of identification for a period of at least ninety days;

(B) Who has voluntarily surrendered the care and custody of the child to another for a period of at least two years;

(C) Who, when the child is in the custody of another, has failed to communicate with the child when able to do so for a period of at least one year;

(D) Who, when the child is in the custody of another, has failed to provide for care and support of the child when able to do so for a period of at least one year;

(E) Whose child has been removed from the parent's physical custody pursuant to legally authorized judicial action under section 571-11(9), and who is found to be unable to provide now and in the foreseeable future the care necessary for the well-being of the child;

(F) Who is found by the court to be mentally ill or intellectually disabled and incapacitated from giving consent to the adoption of or from providing now and in the foreseeable future the care necessary for the well-being of the child; or

(G) Who is found not to be the child's natural or adoptive father.

(2) The family courts may terminate the parental rights in respect to any minor of any natural but not legal father who is an adjudicated, presumed or concerned father under chapter 578, or who is named as the father on the child's birth certificate:

(A) Who falls within subparagraph (A), (B), (C), (D), (E), or (F) of paragraph (1);

(B) Whose child is sought to be adopted by the child's stepfather and the stepfather has lived with the child and the child's legal mother for a period of at least one year;

(C) Who is only a concerned father who has failed to file a petition for the adoption of the child or whose petition for the adoption of the child has been denied; or

(D) Who is found to be an unfit or improper parent or to be financially or otherwise unable to give the child a proper home and education.

(3) In respect to any proceedings under paragraphs (1) and (2), the authority to terminate parental rights may be exercised by the court only when a verified petition, substantially in the form above prescribed, has been filed by some responsible adult person on behalf of the child in the family court of the circuit in which the parent resides or the child resides or was born and the court has conducted a hearing of the petition. A copy of the petition, together with notice of the time and place of the hearing thereof, shall be personally served at least twenty days prior to the hearing upon the parent whose rights are sought to be terminated. If personal service cannot be effected within the State, service of the notice may be made as provided in section 634-23 or 634-24.

(4) The family courts may terminate the parental rights in respect to any child as to any natural father who is not the child's legal, adjudicated, presumed or concerned father under chapter 578.

(5) The family courts may terminate the parental rights in respect to any child of any natural parent upon a finding by clear and convincing evidence that the natural parent [~~has been convicted in a court of competent jurisdiction in any state of~~] committed rape or sexual assault or pursuant to a similar law of another state, territory, possession, or Native American tribe where the offense occurred and the child was conceived as a result of the rape or sexual assault perpetrated by the parent whose rights are sought to be terminated; provided that:

(A) The court shall accept a guilty plea or conviction of the child's natural parent for the rape or sexual assault or as pursuant to similar laws in another state, territory, possession, or Native American tribe where the offense occurred as conclusive proof that the child was conceived by rape or sexual assault;

[~~(A)~~] (B) The termination of parental rights shall not affect the obligation of the [~~convicted~~] child's natural parent to support the child;

[~~(B)~~] (C) The court may order the [~~convicted~~] child's natural parent to pay child support;

(D) It is presumed that termination of parental rights is in the best interest of the child if the child was conceived as a result of the sexual assault or rape;

[~~(C)~~] (E) This paragraph shall not apply if subsequent to the date of conviction, the [~~convicted~~] child's natural parent and custodial natural parent cohabitate and establish a mutual custodial environment for the child; and

[~~(D)~~] (F) The custodial natural parent may petition the court to reinstate the convicted natural parent's parental rights terminated pursuant to this paragraph.

Such authority may be exercised under this chapter only when a verified petition, substantially in the form above prescribed, has been filed by some responsible adult person on behalf of the child in the family court of the circuit in which the parent resides or the child resides or was born, and the court has conducted a hearing of the petition.

If the mother of the child files with the petition an affidavit representing that the identity or whereabouts of the child's father is unknown to her or not ascertainable by her or that other good cause exists why notice cannot or should not be given to the father, the court shall conduct a hearing to determine whether notice is required.

If the court finds that good cause exists why notice cannot or should not be given to the child's father, and that the father is neither the legal nor adjudicated nor presumed father of the child, nor has he demonstrated a reasonable degree of interest, concern, or responsibility as to the existence or welfare of the child, the court may enter an order authorizing the termination of the father's parental rights and the subsequent adoption of the child without notice to the father."

SECTION 3. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.

SECTION 4. This Act shall take effect upon its approval.

HOUSE OF REPRESENTATIVES	H.B. NO.	2282
TWENTY-EIGHTH LEGISLATURE, 2016		H.D. 1
STATE OF HAWAII