S-1244

AN ACT Relating to drug-affected infants; amending RCW 13.34.030, 13.34.070, 13.34.132, 74.09.310, 18.71.950, 18.57.920, and 18.79.903; adding new sections to chapter 13.34 RCW; creating new sections; and repealing RCW 18.57.930, 18.71.960, 18.79.904, 70.96A.330, and 70.96A.340.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:

Sec. 1. RCW 13.34.030 and 2000 c 122 s 1 are each amended to read as follows:

For purposes of this chapter:

(1) "Abandoned" means when the child's parent, guardian, or other custodian has expressed, either by statement or conduct, an intent to forego, for an extended period, parental rights or responsibilities despite an ability to exercise such rights and responsibilities. If the court finds that the petitioner has exercised due diligence in attempting to locate the parent, no contact between the child and the child's parent, guardian, or other custodian for a period of three months creates a rebuttable presumption of abandonment, even if there is no expressed intent to abandon.

(2) "Chemical dependency treatment" means a service certified by the department as qualified in helping individuals successfully recover from the nonprescription use of controlled substances.

(3) "Child" and "juvenile" means any individual under the age of eighteen years.

((~~(3)~~)) (4) "Current placement episode" means the period of time that begins with the most recent date that the child was removed from the home of the parent, guardian, or legal custodian for purposes of placement in out-of-home care and continues until: (a) The child returns home; (b) an adoption decree, a permanent custody order, or guardianship order is entered; or (c) the dependency is dismissed, whichever occurs first.

((~~(4)~~)) (5) "Department" means the department of social and health services.

(6) "Dependency finding" means a determination by the court that a child is a dependent child.

(7) "Dependency guardian" means the person, nonprofit corporation, or Indian tribe appointed by the court pursuant to this chapter for the limited purpose of assisting the court in the supervision of the dependency.

((~~(5)~~)) (8) "Dependency petition" means a petition filed under this chapter.

(9) "Dependent child" means any child who:

(a) Has been abandoned;

(b) Is abused or neglected as defined in chapter 26.44 RCW by a person legally responsible for the care of the child; or

(c) Has no parent, guardian, or custodian capable of adequately caring for the child, such that the child is in circumstances which constitute a danger of substantial damage to the child's psychological or physical development.

((~~(6)~~)) (10) "Developmental disability" means a disability attributable to mental retardation, cerebral palsy, epilepsy, autism, or another neurological or other condition of an individual found by the secretary to be closely related to mental retardation or to require treatment similar to that required for individuals with mental retardation, which disability originates before the individual attains age eighteen, which has continued or can be expected to continue indefinitely, and which constitutes a substantial handicap to the individual.

((~~(7)~~)) (11) "Drug-affected infant" has the definition created by the department of health in conjunction with the department of social and health services under RCW 13.34.801 and the infant requires treatment for withdrawal from controlled substances the infant was exposed to from the mother's use of nonprescription controlled substances or the infant requires treatment and services related to conditions that extend beyond the point of withdrawal.

(12) "Family planning" means the process of limiting or spacing the birth of children, sexual abstinence education, counseling, information, and services. "Family planning" does not include pregnancy termination.

(13) "Guardian" means the person or agency that: (a) Has been appointed as the guardian of a child in a legal proceeding other than a proceeding under this chapter; and (b) has the legal right to custody of the child pursuant to such appointment. The term "guardian" shall not include a "dependency guardian" appointed pursuant to a proceeding under this chapter.

((~~(8)~~)) (14) "Guardian ad litem" means a person, appointed by the court to represent the best interests of a child in a proceeding under this chapter, or in any matter which may be consolidated with a proceeding under this chapter. A "court-appointed special advocate" appointed by the court to be the guardian ad litem for the child, or to perform substantially the same duties and functions as a guardian ad litem, shall be deemed to be guardian ad litem for all purposes and uses of this chapter.

((~~(9)~~)) (15) "Guardian ad litem program" means a court-authorized volunteer program, which is or may be established by the superior court of the county in which such proceeding is filed, to manage all aspects of volunteer guardian ad litem representation for children alleged or found to be dependent. Such management shall include but is not limited to: Recruitment, screening, training, supervision, assignment, and discharge of volunteers.

((~~(10)~~)) (16) "Indigent" means a person who, at any stage of a court proceeding, is:

(a) Receiving one of the following types of public assistance: Temporary assistance for needy families, general assistance, poverty-related veterans' benefits, food stamps or food stamp benefits transferred electronically, refugee resettlement benefits, medicaid, or supplemental security income; or

(b) Involuntarily committed to a public mental health facility; or

(c) Receiving an annual income, after taxes, of one hundred twenty-five percent or less of the federally established poverty level; or

(d) Unable to pay the anticipated cost of counsel for the matter before the court because his or her available funds are insufficient to pay any amount for the retention of counsel.

((~~(11)~~)) (17) "Newborn infant" means an infant within seven days after birth.

(18) "Out-of-home care" means placement in a foster family home or group care facility licensed pursuant to chapter 74.15 RCW or placement in a home, other than that of the child's parent, guardian, or legal custodian, not required to be licensed pursuant to chapter 74.15 RCW.

((~~(12)~~)) (19) "Preventive services" means preservation services, as defined in chapter 74.14C RCW, and other reasonably available services, including housing services, capable of preventing the need for out-of-home placement while protecting the child. Housing services may include, but are not limited to, referrals to federal, state, local, or private agencies or organizations, assistance with forms and applications, or financial subsidies for housing.

((~~(13)~~)) (20) "Shelter care" means temporary physical care in a facility licensed pursuant to RCW 74.15.030 or in a home not required to be licensed pursuant to RCW 74.15.030.

((~~(14)~~)) (21) "Social study" means a written evaluation of matters relevant to the disposition of the case and shall contain the following information:

(a) A statement of the specific harm or harms to the child that intervention is designed to alleviate;

(b) A description of the specific services and activities, for both the parents and child, that are needed in order to prevent serious harm to the child; the reasons why such services and activities are likely to be useful; the availability of any proposed services; and the agency's overall plan for ensuring that the services will be delivered. The description shall identify the services chosen and approved by the parent;

(c) If removal is recommended, a full description of the reasons why the child cannot be protected adequately in the home, including a description of any previous efforts to work with the parents and the child in the home; the in-home treatment programs that have been considered and rejected; the preventive services that 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 the parents' attitude toward placement of the child;

(d) A statement of the likely harms the child will suffer as a result of removal;

(e) A description of the steps that will be taken to minimize the harm to the child that may result if separation occurs; and

(f) Behavior that will be expected before determination that supervision of the family or placement is no longer necessary.

(22) "Test" means use of a medically accepted standard of care for determining whether a newborn infant is a drug-affected infant.

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

In an effort to reduce the harmful effects of drug-affected infants:

(1)(a) A woman's primary health care provider shall:

(i) Screen pregnant and lactating women for nonprescription use of controlled substances while pregnant. Screening criteria may include, but is not limited to, the criteria developed by the department of health pursuant to chapter 70.83E RCW;

(ii) Convey to the infant's primary health care provider screening findings that would suggest the need for testing of the infant, or conduct the testing; and

(iii) Inform each woman identified by screening for testing of her infant that if her infant is born drug-affected she can have a tubal ligation at no cost to her within six months following the birth if she is eligible for support under RCW 74.09.310, and how to access appropriate chemical dependency treatment.

(b) The provider shall not be liable for a decision regarding testing or reporting unless the decision amounts to gross negligence or intentional misconduct.

(2)(a) The health care provider of a newborn infant shall:

(i) Test any infant the provider reasonably believes is drug-affected; and

(ii) Notify the department of the name and address of the parent or parents of a drug-affected infant.

(b) The provider shall not be liable for a decision regarding testing or reporting unless the decision amounts to gross negligence or intentional misconduct.

(3) The department shall investigate all reports received under this section.

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

When an infant is determined to be a first drug-affected infant, the department shall file a dependency petition in appropriate cases. The drug-affected status of an infant is not by itself sufficient to establish a finding that the drug-affected infant is dependent.

(1) The department and the mother may enter an agreement in which the mother agrees to chemical dependency treatment on an inpatient or outpatient basis. The mother must be offered education regarding family planning and medically appropriate pharmaceutical pregnancy prevention during the course of chemical dependency treatment with a preference for those methods administered not less than once every thirty days. In addition, the agreement shall:

(a) Specify completion dates for each of the conditions of treatment;

(b) Expire within twelve months of the date of execution; and

(c) Not be renegotiated or extended beyond twelve months of the date of execution unless the conditions, which were negotiated, cannot be fulfilled in twelve months and the reason the conditions cannot be fulfilled are completely beyond the control of the mother.

(2) If the department has filed a dependency petition and the department and the mother enter an agreement under subsection (1) of this section, the department shall request the court defer entry of a dependency finding for as long as the mother abides by the terms of the agreement subject to the department's monitoring compliance.

(3) As a condition of deferral of the dependency finding, the parties shall stipulate to facts sufficient to constitute a dependency. In the event a party unreasonably refuses to stipulate to facts sufficient to constitute a dependency, the court may proceed with hearings on the petition.

(4) If the court orders deferral of the dependency finding, the court shall order performance of the agreement and shall prohibit nonprescription use of controlled substances.

(5) The department or any party to the petition may request the court dismiss a deferred finding at any time if the mother demonstrates by clear and convincing evidence that she has not used controlled substances for at least twelve consecutive months unless the court finds compelling reasons to shorten the time after consulting with the substance abuse provider, but under no circumstances less than six months, and she can safely provide for the child's welfare without continuing supervision by the department or court.

(6) In the event the department does not file a petition or enter an agreement, the department shall refer the mother to available chemical dependency treatment.

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

When an infant is determined to be a second drug-affected infant, the department shall file a dependency petition for the second drug-affected infant unless compelling reasons exist to the contrary. The department may proceed immediately with a dependency petition on the first drug-affected infant. The drug-affected status of an infant is not by itself sufficient to establish a finding that the drug-affected infant is dependent.

(1) The department and the mother may enter an agreement in which the mother agrees to inpatient chemical dependency treatment unless the department determines outpatient treatment is in the best interest of the child and participation in a model project developed under RCW 13.34.800 for aftercare services if the model project is available. The mother must be offered education regarding family planning and medically appropriate pharmaceutical pregnancy prevention during the course of chemical dependency treatment with a preference for those methods administered not less than once every thirty days. In addition, the agreement shall:

(a) Specify completion dates for each of the conditions of treatment;

(b) Expire within twelve months of the date of execution; and

(4) If the court orders deferral of the dependency finding, the court shall order performance of the agreement and shall prohibit nonprescription use of controlled substances.

(5) The department or the mother may request the court dismiss a deferred finding at any time if the mother demonstrates by clear and convincing evidence that she has not used controlled substances for at least twelve consecutive months unless the court finds compelling reasons to shorten the time after consulting with the substance abuse provider, but under no circumstances less than six months, and she can safely provide for the child's welfare without continuing supervision by the department or court.

(6) In the event the department does not file a petition or enter an agreement, the department shall refer the mother to available chemical dependency treatment programs.

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

Unless compelling reasons exist to the contrary, the department shall file a dependency petition when an infant is determined to be a third or subsequent drug-affected infant. Unless compelling reasons exist to the contrary, the department shall proceed with dependency petitions on all drug-affected children born before the third or subsequent birth. The drug-affected status of an infant is not by itself sufficient to establish a finding that the drug-affected infant is dependent.

(1) 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. If the mother enters chemical dependency treatment, the mother must be offered education regarding family planning and medically appropriate pharmaceutical pregnancy prevention during the course of chemical dependency treatment with a preference for those methods administered not less than once every thirty days.

(2) 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 chemical dependency treatment and an aftercare chemical dependency treatment program unless compelling reasons exist to the contrary. The mother must establish to the court that she can safely provide for the welfare of her child or children.

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

Nothing in sections 2 through 5 of this act may be interpreted to prohibit or compel action in the best interests of the child by the department independent from the drug-affected status of an infant.

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

Notwithstanding sections 2 through 5 of this act, no provider of chemical dependency treatment services may be required by law or contract in any circumstance to participate in the provision of family planning services if the provider objects to so doing for reasons of conscience or religion. Each provider of chemical dependency treatment that invokes the exemption provided under this section shall promptly provide written notice to persons admitted to treatment listing the family planning services the provider refuses to provide for the reason of conscience or religion and how a person admitted to treatment may access family planning in an expeditious manner. When negotiating contracts for chemical dependency treatment services, the department shall prioritize contracted services under sections 3 through 5 of this act for the purpose of maximizing the number of providers who can show effective measurable outcomes in reducing chemical dependency and the birth of drug-affected infants through effective treatment regardless of whether or not they provide family planning services.

Sec. 8. RCW 13.34.070 and 2000 c 122 s 8 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. When 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 cases of a drug-affected infant, exceptional reasons for a continuance exist if the mother and the department have executed an agreement 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 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 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 or her 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 or she 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 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 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 employee.

(10) In any proceeding brought under this chapter where the court knows or has reason to know that the child involved is a member or is eligible to be 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. 9. RCW 13.34.132 and 2000 c 122 s 16 are each amended to read as follows:

A court may order that a petition seeking termination of the parent and child relationship be filed if the following requirements are met:

(1) The court has removed the child from his or her home pursuant to RCW 13.34.130;

(2) Termination is recommended by the supervising agency;

(3) Termination is in the best interests of the child; and

(4) Because of the existence of aggravated circumstances, reasonable efforts to unify the family are not required. Notwithstanding the existence of aggravated circumstances, reasonable efforts may be required if the court or department determines it is in the best interests of the child. In determining whether aggravated circumstances exist by clear, cogent, and convincing evidence, 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) Conviction of the parent of attempting, soliciting, or conspiring to commit a crime listed in (a), (b), (c), or (d) of this subsection;

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

(g) 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. In the case of a parent of an Indian child, as defined in the Indian Child Welfare Act, P.L. 95-608 (25 U.S.C. Sec. 1903), the court shall also consider tribal efforts to assist the parent in completing treatment and make it possible for the child to return home;

(h) An infant under three years of age has been abandoned;

(i) The mother has given birth to three or more drug-affected infants, resulting in the department filing a petition under section 5 of this act;

(j) Conviction of the parent, when a child has been born of the offense, of: (A) A sex offense under chapter 9A.44 RCW; or (B) incest under RCW 9A.64.020.

Sec. 10. RCW 74.09.310 and 1998 c 314 s 34 are each amended 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 20 or 21 of this act~~)) sections 3 through 5 of this act. Within available funds, the department may pay for any tubal ligations requested under ((~~section 19 of this act~~)) 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 314, 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.

Sec. 11. RCW 18.71.950 and 1998 c 314 s 36 are each amended to read as follows:

((~~(1)~~)) Nothing in ((~~section 19 of this act~~)) sections 2 through 5 of this act imposes any additional duties or responsibilities on, or removes any duties or responsibilities from, a physician licensed under this chapter, except as specifically included in chapter 13.34 RCW ((~~and RCW 70.96A.330~~)) and RCW 74.09.310.

((~~(2) This section expires June 30, 2002.~~))

Sec. 12. RCW 18.57.920 and 1998 c 314 s 37 are each amended to read as follows:

((~~(1)~~)) Nothing in ((~~section 19 of this act~~)) sections 2 through 5 of this act imposes any additional duties or responsibilities on, or removes any duties or responsibilities from, an osteopath licensed under this chapter, except as specifically included in chapter 13.34 RCW ((~~and RCW 70.96A.330~~)) and RCW 74.09.310.

((~~(2) This section expires June 30, 2002.~~))

Sec. 13. RCW 18.79.903 and 1998 c 314 s 38 are each amended to read as follows:

((~~(1)~~)) Nothing in ((~~section 19 of this act~~)) sections 2 through 5 of this act imposes any additional duties or responsibilities on, or removes any duties or responsibilities from, an advanced registered nurse practitioner licensed under this chapter, except as specifically included in chapter 13.34 RCW ((~~and RCW 70.96A.330~~)) and RCW 74.09.310.

((~~(2) This section expires June 30, 2002.~~))

NEW SECTION. Sec. 14. The following acts or parts of acts are each repealed:

(1) RCW 18.57.930 (Application--1998 c 314) and 1998 c 314 s 43;

(2) RCW 18.71.960 (Application--1998 c 314) and 1998 c 314 s 42;

(3) RCW 18.79.904 (Application--1998 c 314) and 1998 c 314 s 44;

(4) RCW 70.96A.330 (Treatment programs and model projects--Provision of family planning) and 1998 c 314 s 33; and

(5) RCW 70.96A.340 (Treatment programs and model projects--Provision of family planning) and 1998 c 314 s 41.

NEW SECTION. Sec. 15. This act applies only to drug-affected infants born on or after the effective date of this act.

NEW SECTION. Sec. 16. If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected.

NEW SECTION. Sec. 17. The Washington institute for public policy shall evaluate the outcomes of this act and report its findings to the legislature and governor not later than December 1, 2003. The evaluation shall include:

(1) The number of women who use nonprescription controlled substances during pregnancy and give birth to drug-affected infants;

(2) The number of women who use nonprescription controlled substances during pregnancy and give birth to subsequent drug-affected infants;

(3) The number of women who accept pharmaceutical pregnancy prevention while in chemical dependency treatment;

(4) The number of women who continue to engage in pharmaceutical pregnancy prevention or other reliable pregnancy prevention methods after concluding chemical dependency treatment;

(5) The number of women who accept the offer of free tubal ligation;

(6) The rate of successful completion of chemical dependency treatment among women who enter treatment under this act;

(7) The number of dependencies filed and deferred under this act and outcomes of the deferrals;

(8) A description of the mother's chemical dependency including identification of the drugs and/or alcohol abused;

(9) Identification of the number of days of institutional care required for the child to withdraw;

(10) Whether the child returns to his or her biological parents, foster care, adoption, or other placement; and

(11) Identification of the source for payment for medical services related to the infant's drug-affected condition.