3008-S2

3008-S2.E AMS HSC S5186.3

E2SHB 3008 - S COMM AMD

By Committee on Human Services & Corrections

Strike everything after the enacting clause and insert the following:

"NEW SECTION. Sec. 1. The legislature finds that all children have the right to be born healthy and free of the consequences of the nonprescription use of controlled substances or alcohol abuse by the mother during pregnancy. Individuals who have a drug or alcohol addiction are unable to make reasoned decisions that help ensure the birth of a healthy infant. The availability of long-term pharmaceutical birth control, when combined with other treatment regimens, may allow women to regain control of their lives and make long-term decisions in the best interest of themselves and their children. The legislature further finds that a third or subsequent drug-affected infant being born to the same mother means it may be unreasonable to attempt to continue efforts to reunify the family and that all reasonable reunification efforts that have previously been made have proven futile and there is no likelihood that future efforts will produce a different outcome.

NEW SECTION. Sec. 2. A new section is added to chapter 13.34 RCW to read as follows:

(1) A physician licensed under chapter 18.71 RCW primarily responsible for the supervision of the birth of an infant who has reasonable cause to believe an infant has been exposed to nonprescription use of controlled substances or alcohol shall conduct appropriate tests to determine whether the infant is drug-affected, and, if the test is positive, notify the department of the name and address of the parents of an infant who is drug-affected. If a physician suspects that an infant is drug-affected from alcohol abuse, but has no available test to establish that the child is drug-affected, the physician need only notify the department.

(2) The physician shall, as soon as practical, inform the mother of a drug-affected infant of: (a) Her right to publicly funded tubal ligation surgery as provided under section 12 of this act; (b) available drug treatment and counseling; and (c) birth control counseling and education. The mother may accept the offer of a tubal ligation up to six months following its tender.

(3) A physician who makes any determination under this section shall not be liable in any cause of action as a result of his or her determination except for acts of gross negligence or intentional misconduct.

(4) This section expires June 30, 2002.

NEW SECTION. Sec. 3. A new section is added to chapter 13.34 RCW to read as follows:

(1) The department, upon receipt of a report under section 2 of this act, shall investigate and, in appropriate cases, file a dependency petition. If testing has established that an infant is drug-affected, the department shall seek a court order under RCW 13.34.050 to take the drug-affected infant into custody. Testing establishing an infant is drug-affected is evidence that meets the standard for issuance of an order under RCW 13.34.050. The department shall have the drug-affected infant remain in the birthing facility for medical treatment or have the infant placed into an appropriate pediatric interim care program for sufficient time for the infant to undergo withdrawal from the effects of the drug. The withdrawal must be under the supervision of appropriate medical professionals. If the department receives a report that an infant is believed to be drug-affected from alcohol abuse, the department must determine the risks to the child. If the department is unable to determine by testing that the child is drug-affected from alcohol abuse, the department may seek a court order under RCW 13.34.050 only if there is other evidence of abuse or neglect. In the event the department does not file a petition, it shall refer the mother to available chemical dependency treatment programs or a pilot project.

(2) The department and the mother may enter an agreement in which the mother agrees to chemical dependency treatment on an inpatient or outpatient basis or be referred to a pilot project created under section 9 of this act.

(3) If the department and mother enter an agreement under subsection (2) of this section, the department shall, if a dependency petition has been filed, request the court to defer the entry of an order of dependency for as long as the mother remains in treatment or enrolled in the pilot project, subject to the department's monitoring for compliance. As a condition of deferral of the order of dependency, the parents, if both are available and known, shall stipulate to facts sufficient to constitute a dependency and the court shall order treatment or enrollment in a pilot project and prohibit nonprescription use of controlled substances or alcohol abuse. In the event that an available parent unreasonably refuses to stipulate to facts constituting a dependency, the court may proceed with the hearing on the petition.

(4) This section expires June 30, 2002.

NEW SECTION. Sec. 4. A new section is added to chapter 13.34 RCW to read as follows:

(1) If the department receives a report under section 2 of this act of a mother who has given birth to a second drug-affected infant, the department:

(a) May request the court to proceed immediately with the entry of a dependency for the first drug-affected infant; and

(b) Shall investigate and, unless there are compelling reasons to the contrary, file a dependency petition on the second drug-affected infant. If the department does not file a petition, it shall refer the woman to available chemical dependency treatment programs or a pilot project.

(2) The department and the mother may enter an agreement in which the mother agrees to: (a) Enter chemical dependency inpatient treatment or a pilot project, together with an aftercare program that includes participation in a pilot project when feasible; and (b) medically appropriate pharmaceutical pregnancy prevention, such as Norplant or depo-provera, that is administered not less than once every thirty days. The selection of the pregnancy prevention method shall be based on an evaluation of the medical and physical consequences to the mother and shall remain in effect until the dependency petition is dismissed or the court determines it is no longer medically appropriate.

(3) If the department and the mother enter an agreement under subsection (2) of this section, the department shall request the court to defer the entry of an order of dependency on the second drug-affected infant for as long as the mother remains in treatment or enrolled in the pilot project, subject to the department's monitoring for compliance. As a condition of deferral of the order of dependency, the parents, if both are available and known, shall stipulate to facts sufficient to constitute a dependency and the court shall order treatment or enrollment in a pilot project and prohibit nonprescription use of controlled substances or alcohol abuse. In the event that an available parent unreasonably refuses to stipulate to facts constituting a dependency, the court may proceed with the hearing on the petition.

(4) This section expires June 30, 2002.

NEW SECTION. Sec. 5. A new section is added to chapter 13.34 RCW to read as follows:

(1) The department may request the court to dismiss the petition deferred under section 3 or 4 of this act at any time. No petition may be vacated or dismissed unless the mother demonstrates by clear and convincing evidence that she has not used controlled substances in a nonprescription manner or has not abused alcohol for at least twelve consecutive months and can safely provide for the child's welfare without continuing supervision by the department or court.

(2) This section expires June 30, 2002.

NEW SECTION. Sec. 6. A new section is added to chapter 13.34 RCW to read as follows:

(1) If the department receives a report under section 2 of this act of a mother who has given birth to a third or subsequent drug-affected infant, the department shall:

(a) Request the court to proceed immediately with the entry of a finding of dependency on all drug-affected children born before the third or subsequent birth unless an order of dependency has been vacated or dismissed; and

(b) File a dependency petition on any drug-affected infant subject to this section as well as any other child born before the third or subsequent birth of a drug-affected infant.

(2) This section expires June 30, 2002.

NEW SECTION. Sec. 7. A new section is added to chapter 13.34 RCW to read as follows:

(1) Following a filing of a petition under section 6 of this act:

(a) The court shall order evaluation by a designated chemical dependency specialist, as defined in RCW 70.96A.020 who shall undertake the processes described in RCW 70.96A.140.

(b) If the court has ordered removal of a child or children, the out-of-home placement order shall remain in effect until the petition is dismissed or the mother has successfully completed inpatient treatment and any aftercare program for controlled substances or alcohol ordered by the court.

(2) This section expires June 30, 2002.

NEW SECTION. Sec. 8. By July 1, 1999, the department of social and health services, in consultation with the department of health, shall adopt rules to implement this act, including a definition of "drug-affected infant," which shall be limited to infants who are affected by a mother's nonprescription use of controlled substances or alcohol abuse.

NEW SECTION. Sec. 9. To the extent funds are appropriated, the department shall operate a pilot project to provide services to women who give birth to infants exposed to the nonprescription use of controlled substances or alcohol abuse by the mother during pregnancy. Within available funds, the project may be offered in each of the department's administrative regions. The project shall accept women referred to it by the department following the birth of a drug-affected infant. The pilot project shall be concluded by July 1, 2001.

NEW SECTION. Sec. 10. To the extent funds are appropriated, the institute for public policy shall study the cost-effectiveness of this act and report to the governor and legislature not later than September 1, 2002. The study shall measure the reduction in the birth rate of drug-affected infants among women and shall compare the reduction with the rate of birth of drug-affected infants born to women referred to chemical dependency treatment programs. The study shall identify the factors that promote or discourage the ability of women to avoid giving birth to drug-affected infants.

NEW SECTION. Sec. 11. A new section is added to chapter 70.96A RCW to read as follows:

(1) Any treatment program or pilot project in which a mother is enrolled under sections 3 through 5 of this act shall provide family planning, education, counseling, information, and services other than pregnancy termination.

(2) This section expires June 30, 2002.

NEW SECTION. Sec. 12. A new section is added to chapter 70.96A RCW to read as follows:

The department may make available, or cause to be made available, pharmaceutical birth control services, information, and counseling to any person who enters chemical dependency treatment under section 3 or 4 of this act. Within available funds, the department may pay for any tubal ligations requested under section 2 of this act if the mother's income is less than two hundred percent of the federal poverty level. The department shall report by December 1st of each year to the governor and legislature: (1) The number of tubal ligations performed as a result of chapter . . ., Laws of 1998 (this act); (2) the number of women who decline to undergo the surgery; (3) the number of women who obtain pharmaceutical birth control, by type of birth control; and (4) the number of women who are reported to the department.

NEW SECTION. Sec. 13. A new section is added to chapter 18.71 RCW to read as follows:

(1) Nothing in section 2 of this act imposes any additional duties or responsibilities on, or remove any duties or responsibilities from, a physician licensed under this chapter, except as specifically included in chapter 13.34 RCW and sections 11 and 12 of this act.

(2) This section expires June 30, 2002.

NEW SECTION. Sec. 14. Sections 1 through 7 and 9 through 11 of this act take effect July 1, 1999.

Sec. 15. RCW 13.34.070 and 1993 c 358 s 1 are each amended to read as follows:

(1) Upon the filing of the petition, the clerk of the court shall issue a summons, one directed to the child, if the child is twelve or more years of age, and another to the parents, guardian, or custodian, and such other persons as appear to the court to be proper or necessary parties to the proceedings, requiring them to appear personally before the court at the time fixed to hear the petition. If the child is developmentally disabled and not living at home, the notice shall be given to the child's custodian as well as to the child's parent. The developmentally disabled child shall not be required to appear unless requested by the court. Where the custodian is summoned, the parent or guardian or both shall also be served with a summons. The fact-finding hearing on the petition shall be held no later than seventy-five days after the filing of the petition, unless exceptional reasons for a continuance are found. In drug-affected infant cases, exceptional reasons for a continuance exist if the mother and the department have agreed to conditions that will take more than seventy-five days to fulfill. The party requesting the continuance shall have the burden of proving by a preponderance of the evidence that exceptional circumstances do exist. To ensure that the hearing on the petition occurs within the seventy-five day time limit, the court shall schedule and hear the matter on an expedited basis.

(2) A copy of the petition shall be attached to each summons.

(3) The summons shall advise the parties of the right to counsel. The summons shall also inform the child's parent, guardian, or legal custodian of his or ((~~[her]~~)) her right to appointed counsel, if indigent, and of the procedure to use to secure appointed counsel.

(4) The summons shall advise the parents that they may be held responsible for the support of the child if the child is placed in out-of-home care.

(5) The judge may endorse upon the summons an order directing any parent, guardian, or custodian having the custody or control of the child to bring the child to the hearing.

(6) If it appears from affidavit or sworn statement presented to the judge that there is probable cause for the issuance of a warrant of arrest or that the child needs to be taken into custody pursuant to RCW 13.34.050, the judge may endorse upon the summons an order that an officer serving the summons shall at once take the child into custody and take him to the place of shelter designated by the court.

(7) If the person summoned as provided in this section is subject to an order of the court pursuant to subsection (5) or (6) of this section, and if the person fails to abide by the order, he may be proceeded against as for contempt of court. The order endorsed upon the summons shall conspicuously display the following legend:

NOTICE:

VIOLATION OF THIS ORDER

IS SUBJECT TO PROCEEDING

FOR CONTEMPT OF COURT

PURSUANT TO RCW 13.34.070.

(8) If a party to be served with a summons can be found within the state, the summons shall be served upon the party personally as soon as possible following the filing of the petition, but in no case later than fifteen court days before the fact-finding hearing, or such time as set by the court. If the party is within the state and cannot be personally served, but the party's address is known or can with reasonable diligence be ascertained, the summons may be served upon the party by mailing a copy thereof by certified mail as soon as possible following the filing of the petition, but in no case later than fifteen court days before the hearing, or such time as set by the court. If a party other than the child is without the state but can be found or the address is known, or can with reasonable diligence be ascertained, service of the summons may be made either by delivering a copy thereof to the party personally or by mailing a copy thereof to the party by certified mail at least ten court days before the fact-finding hearing, or such time as set by the court.

(9) Service of summons may be made under the direction of the court by any person eighteen years of age or older who is not a party to the proceedings or by any law enforcement officer, probation counselor, or department of social and health services social worker.

(10) In any proceeding brought under this chapter where the court knows or has reason to know that the child involved is a member of an Indian tribe, notice of the pendency of the proceeding shall also be sent by registered mail, return receipt requested, to the child's tribe. If the identity or location of the tribe cannot be determined, such notice shall be transmitted to the secretary of the interior of the United States.

Sec. 16. RCW 13.34.130 and 1997 c 280 s 1 are each amended to read as follows:

If, after a fact-finding hearing pursuant to RCW 13.34.110, it has been proven by a preponderance of the evidence that the child is dependent within the meaning of RCW 13.34.030; after consideration of the predisposition report prepared pursuant to RCW 13.34.110 and after a disposition hearing has been held pursuant to RCW 13.34.110, the court shall enter an order of disposition pursuant to this section.

(1) The court shall order one of the following dispositions of the case:

(a) Order a disposition other than removal of the child from his or her home, which shall provide a program designed to alleviate the immediate danger to the child, to mitigate or cure any damage the child has already suffered, and to aid the parents so that the child will not be endangered in the future. In selecting a program, the court should choose those services that least interfere with family autonomy, provided that the services are adequate to protect the child.

(b) Order that the child be removed from his or her home and ordered into the custody, control, and care of a relative or the department of social and health services or a licensed child placing agency for placement in a foster family home or group care facility licensed pursuant to chapter 74.15 RCW or in a home not required to be licensed pursuant to chapter 74.15 RCW. Unless there is reasonable cause to believe that the safety or welfare of the child would be jeopardized or that efforts to reunite the parent and child will be hindered, such child shall be placed with a person who is related to the child as defined in RCW 74.15.020(4)(a) and with whom the child has a relationship and is comfortable, and who is willing and available to care for the child. Placement of the child with a relative under this subsection shall be given preference by the court. An order for out-of-home placement may be made only if the court finds that reasonable efforts have been made to prevent or eliminate the need for removal of the child from the child's home and to make it possible for the child to return home, specifying the services that have been provided to the child and the child's parent, guardian, or legal custodian, and that preventive services have been offered or provided and have failed to prevent the need for out-of-home placement, unless the health, safety, and welfare of the child cannot be protected adequately in the home, and that:

(i) There is no parent or guardian available to care for such child;

(ii) The parent, guardian, or legal custodian is not willing to take custody of the child;

(iii) The court finds, by clear, cogent, and convincing evidence, a manifest danger exists that the child will suffer serious abuse or neglect if the child is not removed from the home and an order under RCW 26.44.063 would not protect the child from danger; or

(iv) The extent of the child's disability is such that the parent, guardian, or legal custodian is unable to provide the necessary care for the child and the parent, guardian, or legal custodian has determined that the child would benefit from placement outside of the home.

(2) If the court has ordered a child removed from his or her home pursuant to subsection (1)(b) of this section, the court may order that a petition seeking termination of the parent and child relationship be filed if the court finds it is recommended by the supervising agency, that it is in the best interests of the child and that it is not reasonable to provide further services to reunify the family because the existence of aggravated circumstances make it unlikely that services will effectuate the return of the child to the child's parents in the near future. In determining whether aggravated circumstances exist, the court shall consider one or more of the following:

(a) Conviction of the parent of rape of the child in the first, second, or third degree as defined in RCW 9A.44.073, 9A.44.076, and 9A.44.079;

(b) Conviction of the parent of criminal mistreatment of the child in the first or second degree as defined in RCW 9A.42.020 and 9A.42.030;

(c) Conviction of the parent of one of the following assault crimes, when the child is the victim: Assault in the first or second degree as defined in RCW 9A.36.011 and 9A.36.021 or assault of a child in the first or second degree as defined in RCW 9A.36.120 or 9A.36.130;

(d) Conviction of the parent of murder, manslaughter, or homicide by abuse of the child's other parent, sibling, or another child;

(e) A finding by a court that a parent is a sexually violent predator as defined in RCW 71.09.020;

(f) Failure of the parent to complete available treatment ordered under this chapter or the equivalent laws of another state, where such failure has resulted in a prior termination of parental rights to another child and the parent has failed to effect significant change in the interim;

(g) The mother has given birth to a third or subsequent drug-affected infant.

(3) Whenever a child is ordered removed from the child's home, the agency charged with his or her care shall provide the court with:

(a) A permanency plan of care that shall identify one of the following outcomes as a primary goal and may identify additional outcomes as alternative goals: Return of the child to the home of the child's parent, guardian, or legal custodian; adoption; guardianship; or long-term relative or foster care, until the child is age eighteen, with a written agreement between the parties and the care provider; and independent living, if appropriate and if the child is age sixteen or older. Whenever a permanency plan identifies independent living as a goal, the plan shall also specifically identify the services that will be provided to assist the child to make a successful transition from foster care to independent living. Before the court approves independent living as a permanency plan of care, the court shall make a finding that the provision of services to assist the child in making a transition from foster care to independent living will allow the child to manage his or her financial affairs and to manage his or her personal, social, educational, and nonfinancial affairs. The department shall not discharge a child to an independent living situation before the child is eighteen years of age unless the child becomes emancipated pursuant to chapter 13.64 RCW.

(b) Unless the court has ordered, pursuant to subsection (2) of this section, that a termination petition be filed, a specific plan as to where the child will be placed, what steps will be taken to return the child home, and what actions the agency will take to maintain parent-child ties. All aspects of the plan shall include the goal of achieving permanence for the child.

(i) The agency plan shall specify what services the parents will be offered in order to enable them to resume custody, what requirements the parents must meet in order to resume custody, and a time limit for each service plan and parental requirement.

(ii) The agency shall be required to encourage the maximum parent-child contact possible, including regular visitation and participation by the parents in the care of the child while the child is in placement. Visitation may be limited or denied only if the court determines that such limitation or denial is necessary to protect the child's health, safety, or welfare.

(iii) A child shall be placed as close to the child's home as possible, preferably in the child's own neighborhood, unless the court finds that placement at a greater distance is necessary to promote the child's or parents' well-being.

(iv) The agency charged with supervising a child in placement shall provide all reasonable services that are available within the agency, or within the community, or those services which the department of social and health services has existing contracts to purchase. It shall report to the court if it is unable to provide such services.

(c) If the court has ordered, pursuant to subsection (2) of this section, that a termination petition be filed, a specific plan as to where the child will be placed, what steps will be taken to achieve permanency for the child, services to be offered or provided to the child, and, if visitation would be in the best interests of the child, a recommendation to the court regarding visitation between parent and child pending a fact-finding hearing on the termination petition. The agency shall not be required to develop a plan of services for the parents or provide services to the parents.

(4) If there is insufficient information at the time of the disposition hearing upon which to base a determination regarding the suitability of a proposed placement with a relative, the child shall remain in foster care and the court shall direct the supervising agency to conduct necessary background investigations as provided in chapter 74.15 RCW and report the results of such investigation to the court within thirty days. However, if such relative appears otherwise suitable and competent to provide care and treatment, the criminal history background check need not be completed before placement, but as soon as possible after placement. Any placements with relatives, pursuant to this section, shall be contingent upon cooperation by the relative with the agency case plan and compliance with court orders related to the care and supervision of the child including, but not limited to, court orders regarding parent-child contacts and any other conditions imposed by the court. Noncompliance with the case plan or court order shall be grounds for removal of the child from the relative's home, subject to review by the court.

(5) Except for children whose cases are reviewed by a citizen review board under chapter 13.70 RCW, the status of all children found to be dependent shall be reviewed by the court at least every six months from the beginning date of the placement episode or the date dependency is established, whichever is first, at a hearing in which it shall be determined whether court supervision should continue. The review shall include findings regarding the agency and parental completion of disposition plan requirements, and if necessary, revised permanency time limits.

(a) A child shall not be returned home at the review hearing unless the court finds that a reason for removal as set forth in this section no longer exists. The parents, guardian, or legal custodian shall report to the court the efforts they have made to correct the conditions which led to removal. If a child is returned, casework supervision shall continue for a period of six months, at which time there shall be a hearing on the need for continued intervention.

(b) If the child is not returned home, the court shall establish in writing:

(i) Whether reasonable services have been provided to or offered to the parties to facilitate reunion, specifying the services provided or offered;

(ii) Whether the child has been placed in the least-restrictive setting appropriate to the child's needs, including whether consideration and preference has been given to placement with the child's relatives;

(iii) Whether there is a continuing need for placement and whether the placement is appropriate;

(iv) Whether there has been compliance with the case plan by the child, the child's parents, and the agency supervising the placement;

(v) Whether progress has been made toward correcting the problems that necessitated the child's placement in out-of-home care;

(vi) Whether the parents have visited the child and any reasons why visitation has not occurred or has been infrequent;

(vii) Whether additional services are needed to facilitate the return of the child to the child's parents; if so, the court shall order that reasonable services be offered specifying such services; and

(viii) The projected date by which the child will be returned home or other permanent plan of care will be implemented.

(c) The court at the review hearing may order that a petition seeking termination of the parent and child relationship be filed."

E2SHB 3008 - S COMM AMD

By Committee on Human Services & Corrections

On page 1, line 2 of the title, after "addiction;" strike the remainder of the title and insert "amending RCW 13.34.070 and 13.34.130; adding new sections to chapter 13.34 RCW; adding new sections to chapter 70.96A RCW; adding a new section to chapter 18.71 RCW; creating new sections; providing an effective date; and providing expiration dates."