AN
ACT Relating to provisions to improve accountability in child dependency cases;
amending RCW 13.34.062, 13.34.065, 13.34.180, 13.34.138, and 13.34.110; and
adding new sections to chapter 13.34 RCW.
BE IT
ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:
NEW
SECTION. Sec. 1. A
new section is added to chapter 13.34 RCW to read as follows:
(1)
Following shelter care and no later than twenty-five days prior to
fact-finding, the department, upon the parent's request or counsel for the
parent's request, shall facilitate a conference to develop and specify in a
written service agreement the expectations of both the department and the
parent regarding the care and placement of the child.
The
department shall invite to the conference the parent, counsel for the parent,
the foster parent or other out-of-home care provider, caseworker, guardian ad
litem, counselor, or other relevant health care provider, and any other person
connected to the development and well-being of the child.
The
initial written service agreement expectations must correlate with the court's
findings at the shelter care hearing. The written service agreement must set
forth specific criteria that enables the court to measure the performance of
both the department and the parent, and must be updated throughout the
dependency process to reflect changes in expectations. The service agreement
must serve as the unifying document for all expectations established in the
department's various case planning and case management documents and the
findings and orders of the court during dependency proceedings.
The
court shall review the written service agreement at each stage of the
dependency proceedings and evaluate the performance of both the department and
the parent for consistent, measurable progress in complying with the
expectations identified in the agreement.
The
case conference agreement must be agreed to and signed by the parties. The
court shall not consider the content of the discussions at the case conference
at the time of the fact-finding hearing for the purposes of establishing that
the child is a dependent child, and the court shall not consider any documents
or written materials presented at the case conference but not incorporated into
the case conference agreement, unless the documents or written materials were
prepared for purposes other than or as a result of the case conference and are
otherwise admissible under the rules of evidence.
(2)
At any other stage in a dependency proceeding, the department, upon the
parent's request, shall facilitate a case conference.
Sec.
2. RCW
13.34.062 and 2000 c 122 s 5 are each amended to read as follows:
(1)
The written notice of custody and rights required by RCW 13.34.060 shall be in
substantially the following form:
"NOTICE
Your
child has been placed in temporary custody under the supervision of Child
Protective Services (or other person or agency). You have important legal
rights and you must take steps to protect your interests.
1.
A court hearing will be held before a judge within 72 hours of the time your
child is taken into custody excluding Saturdays, Sundays, and holidays. You
should call the court at (insert
appropriate phone number here) for
specific information about the date, time, and location of the court hearing.
2.
You have the right to have a lawyer represent you at the hearing. Your
right to representation continues after the shelter care hearing. You have
the right to records the department intends to rely upon. A lawyer can look at
the files in your case, talk to child protective services and other agencies,
tell you about the law, help you understand your rights, and help you at
hearings. If you cannot afford a lawyer, the court will appoint one to
represent you. To get a court-appointed lawyer you must contact: (explain
local procedure) .
3.
At the hearing, you have the right to speak on your own behalf, to introduce
evidence, to examine witnesses, and to receive a decision based solely on the
evidence presented to the judge.
4.
If your hearing occurs before a court commissioner, you have the right to have
the decision of the court commissioner reviewed by a superior court judge. To obtain
that review, you must, within ten days after the entry of the decision of the
court commissioner, file with the court a motion for revision of the decision,
as provided in RCW 2.24.050.
You
should be present at any shelter care hearing. If you do not come, the judge
will not hear what you have to say.
You
may call the Child Protective Services' caseworker for more information about
your child. The caseworker's name and telephone number are: (insert
name and telephone number) .
5.
You may request that the department facilitate a case conference to develop a
written service agreement following the shelter care hearing. The service
agreement may not conflict with the court's order of shelter care. You may
request that a multidisciplinary team, family group conference, prognostic
staffing, or case conference be convened for your child's case. You may
participate in these processes with your counsel present."
Upon
receipt of the written notice, the parent, guardian, or legal custodian shall
acknowledge such notice by signing a receipt prepared by child protective
services. If the parent, guardian, or legal custodian does not sign the
receipt, the reason for lack of a signature shall be written on the receipt.
The receipt shall be made a part of the court's file in the dependency action.
If
after making reasonable efforts to provide notification, child protective
services is unable to determine the whereabouts of the parents, guardian, or
legal custodian, the notice shall be delivered or sent to the last known
address of the parent, guardian, or legal custodian.
(2)
If child protective services is not required to give notice under RCW
13.34.060(2) and subsection (1) of this section, the juvenile court counselor
assigned to the matter shall make all reasonable efforts to advise the parents,
guardian, or legal custodian of the time and place of any shelter care hearing,
request that they be present, and inform them of their basic rights as provided
in RCW 13.34.090.
(3)
Reasonable efforts to advise and to give notice, as required in RCW
13.34.060(2) and subsections (1) and (2) of this section, shall include, at a
minimum, investigation of the whereabouts of the parent, guardian, or legal
custodian. If such reasonable efforts are not successful, or the parent,
guardian, or legal custodian does not appear at the shelter care hearing, the
petitioner shall testify at the hearing or state in a declaration:
(a)
The efforts made to investigate the whereabouts of, and to advise, the parent,
guardian, or legal custodian; and
(b)
Whether actual advice of rights was made, to whom it was made, and how it was
made, including the substance of any oral communication or copies of written
materials used.
(4)
The court shall hear evidence regarding notice given to, and efforts to notify,
the parent, guardian, or legal custodian and shall examine the need for shelter
care. The court shall hear evidence regarding the efforts made to place the
child with a relative. The court shall make an express finding as to whether
the notice required under RCW 13.34.060(2) and subsections (1) and (2) of this
section was given to the parent, guardian, or legal custodian. All parties
have the right to present testimony to the court regarding the need or lack of
need for shelter care. Hearsay evidence before the court regarding the need or
lack of need for shelter care must be supported by sworn testimony, affidavit,
or declaration of the person offering such evidence.
(5)
A shelter care order issued pursuant to RCW 13.34.065 may be amended at any
time with notice and hearing thereon. The shelter care decision of placement
shall be modified only upon a showing of change in circumstances. No child may
be placed in shelter care for longer than thirty days without an order, signed
by the judge, authorizing continued shelter care.
(6)
Any parent, guardian, or legal custodian who for good cause is unable to attend
the initial shelter care hearing may request that a subsequent shelter care
hearing be scheduled. The request shall be made to the clerk of the court
where the petition is filed prior to the initial shelter care hearing. Upon
the request of the parent, the court shall schedule the hearing within
seventy-two hours of the request, excluding Saturdays, Sundays, and holidays.
The clerk shall notify all other parties of the hearing by any reasonable
means.
Sec.
3. RCW
13.34.065 and 2000 c 122 s 7 are each amended to read as follows:
(1)
The juvenile court probation counselor shall submit a recommendation to the
court as to the further need for shelter care unless the petition has been
filed by the department, in which case the recommendation shall be submitted by
the department.
(2)
The court shall release a child alleged to be dependent to the care, custody,
and control of the child's parent, guardian, or legal custodian unless the
court finds there is reasonable cause to believe that:
(a)
After consideration of the specific services that have been provided,
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; and
(b)(i)
The child has no parent, guardian, or legal custodian to provide supervision
and care for such child; or
(ii)
The release of such child would present a serious threat of substantial harm to
such child; or
(iii)
The parent, guardian, or custodian to whom the child could be released has been
charged with violating RCW 9A.40.060 or 9A.40.070.
If
the court does not release the child to his or her parent, guardian, or legal
custodian, and the child was initially placed with a relative pursuant to RCW
13.34.060(1), the court shall order continued placement with a relative, unless
there is reasonable cause to believe the health, safety, or welfare of the
child would be jeopardized. If the child was not initially placed with a
relative, and the court does not release the child to his or her parent,
guardian, or legal custodian, the supervising agency shall make reasonable
efforts to locate a relative pursuant to RCW 13.34.060(1). If a relative is
not available, the court shall order continued shelter care or order placement
with another suitable person, and the court shall set forth its reasons for the
order. The court shall enter a finding as to whether RCW 13.34.060(2) and
subsections (1) and (2) of this section have been complied with. If actual
notice was not given to the parent, guardian, or legal custodian and the
whereabouts of such person is known or can be ascertained, the court shall
order the supervising agency or the department of social and health services to
make reasonable efforts to advise the parent, guardian, or legal custodian of
the status of the case, including the date and time of any subsequent hearings,
and their rights under RCW 13.34.090.
(3)
An order releasing the child on any conditions specified in this section may at
any time be amended, with notice and hearing thereon, so as to return the child
to shelter care for failure of the parties to conform to the conditions
originally imposed.
The
court shall consider whether nonconformance with any conditions resulted from
circumstances beyond the control of the parent and give weight to that fact
before ordering return of the child to shelter care.
(4)
If a child is returned home from shelter care a second time in the case, or if
the supervisor of the caseworker deems it necessary, the multidisciplinary team
may be reconvened.
(5)
If a child is returned home from shelter care a second time in the case a law
enforcement officer must be present and file a report to the department.
Sec.
4. RCW
13.34.180 and 2000 c 122 s 25 are each amended to read as follows:
(1)
A petition seeking termination of a parent and child relationship may be filed
in juvenile court by any party to the dependency proceedings concerning that
child. Such petition shall conform to the requirements of RCW 13.34.040, shall
be served upon the parties as provided in RCW 13.34.070(8), and shall allege
all of the following unless subsection (2) or (3) of this section applies:
(a)
That the child has been found to be a dependent child;
(b)
That the court has entered a dispositional order pursuant to RCW 13.34.130;
(c)
That the child has been removed or will, at the time of the hearing, have been
removed from the custody of the parent for a period of at least six months
pursuant to a finding of dependency;
(d)
That the services ordered under RCW 13.34.136 have been expressly and
understandably offered or provided and all necessary services, reasonably
available, capable of correcting the parental deficiencies within the
foreseeable future have been expressly and understandably offered or provided;
(e)
That there is little likelihood that conditions will be remedied so that the
child can be returned to the parent in the near future. A parent's failure to
substantially improve parental deficiencies within twelve months following
entry of the dispositional order shall give rise to a rebuttable presumption
that there is little likelihood that conditions will be remedied so that the
child can be returned to the parent in the near future. The presumption shall
not arise unless the petitioner makes a showing that all necessary services
reasonably capable of correcting the parental deficiencies within the
foreseeable future have been clearly offered or provided. In determining
whether the conditions will be remedied the court may consider, but is not
limited to, the following factors:
(i)
Use of intoxicating or controlled substances so as to render the parent
incapable of providing proper care for the child for extended periods of time or
for periods of time that present a risk of imminent harm to the child, and
documented unwillingness of the parent to receive and complete treatment or
documented multiple failed treatment attempts; or
(ii)
Psychological incapacity or mental deficiency of the parent that is so severe
and chronic as to render the parent incapable of providing proper care for the
child for extended periods of time or for periods of time that present a
risk of imminent harm to the child, and documented unwillingness of the
parent to receive and complete treatment or documentation that there is no
treatment that can render the parent capable of providing proper care for the
child in the near future; and
(f)
That continuation of the parent and child relationship clearly diminishes the
child's prospects for early integration into a stable and permanent home.
(2)
In lieu of the allegations in subsection (1) of this section, the petition may
allege that the child was found under such circumstances that the whereabouts
of the child's parent are unknown and no person has acknowledged paternity or
maternity and requested custody of the child within two months after the child
was found.
(3)
In lieu of the allegations in subsection (1)(b) through (f) of this section,
the petition may allege that the parent has been convicted of:
(a)
Murder in the first degree, murder in the second degree, or homicide by abuse
as defined in chapter 9A.32 RCW against another child of the parent;
(b)
Manslaughter in the first degree or manslaughter in the second degree, as
defined in chapter 9A.32 RCW against another child of the parent;
(c)
Attempting, conspiring, or soliciting another to commit one or more of the
crimes listed in (a) or (b) of this subsection; or
(d)
Assault in the first or second degree, as defined in chapter 9A.36 RCW, against
the surviving child or another child of the parent.
(4)
Notice of rights shall be served upon the parent, guardian, or legal custodian
with the petition and shall be in substantially the following form:
"NOTICE
A petition for termination of parental rights has been
filed against you. You have important legal rights and you must take steps to
protect your interests. This petition could result in permanent loss of your
parental rights.
1. You have the right to a fact-finding hearing
before a judge.
2. You have the right to have a lawyer represent you
at the hearing. A lawyer can look at the files in your case, talk to the
department of social and health services and other agencies, tell you about the
law, help you understand your rights, and help you at hearings. If you cannot
afford a lawyer, the court will appoint one to represent you. To get a
court-appointed lawyer you must contact: (explain
local procedure) .
3. At the hearing, you have the right to speak on
your own behalf, to introduce evidence, to examine witnesses, and to receive a
decision based solely on the evidence presented to the judge.
You should be present at this hearing.
You may call (insert
agency) for more information about
your child. The agency's name and telephone number are (insert
name and telephone number) ."
Sec.
5. RCW
13.34.138 and 2000 c 122 s 19 are each amended to read as follows:
(1)
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 initial review hearing shall be an in-court review and shall
be set six months from the beginning date of the placement episode or no more
than ninety days from the entry of the disposition order, whichever comes
first. The initial review hearing may be a permanency planning hearing when
necessary to meet the time frames set forth in RCW 13.34.145(3) or 13.34.134.
The review shall include findings regarding the agency and parental completion
of disposition plan requirements, and if necessary, revised permanency time
limits. This review shall consider both the agency's and parent's efforts
that demonstrate consistent measurable progress over time in meeting the
disposition plan requirements. The requirements for the initial review
hearing, including the in-court requirement, shall be accomplished within
existing resources. The supervising agency shall provide a foster parent,
preadoptive parent, or relative with notice of, and their right to an
opportunity to be heard in, a review hearing pertaining to the child, but only
if that person is currently providing care to that child at the time of the
hearing. This section shall not be construed to grant party status to any
person who has been provided an opportunity to be heard.
(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 RCW 13.34.130 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, including housing assistance, 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.
(2)
The court's ability to order housing assistance under RCW 13.34.130 and this
section is: (a) Limited to cases in which homelessness or the lack of adequate
and safe housing is the primary reason for an out-of-home placement; and (b)
subject to the availability of funds appropriated for this specific purpose.
NEW
SECTION. Sec. 6. A
new section is added to chapter 13.34 RCW to read as follows:
The
department shall, within existing resources, provide to parents requesting a
multidisciplinary team, family group conference, prognostic staffing, or case
conference, information that describes these processes prior to the processes
being undertaken.
Sec.
7. RCW
13.34.110 and 2000 c 122 s 11 are each amended to read as follows:
(1)
The court shall hold a fact-finding hearing on the petition and, unless the
court dismisses the petition, shall make written findings of fact, stating the
reasons therefor. The rules of evidence shall apply at the fact-finding
hearing and the parent, guardian, or legal custodian of the child shall have
all of the rights provided in RCW 13.34.090(1). The petitioner shall have the
burden of establishing by a preponderance of the evidence that the child is
dependent within the meaning of RCW 13.34.030.
(2)(a)
The parent, guardian, or legal custodian of the child may waive his or her
right to a fact-finding hearing by stipulating or agreeing to the entry of an
order of dependency establishing that the child is dependent within the meaning
of RCW 13.34.030. The parent, guardian, or legal custodian may also stipulate
or agree to an order of disposition pursuant to RCW 13.34.130 at the same
time. Any stipulated or agreed order of dependency or disposition must be
signed by the parent, guardian, or legal custodian and his or her attorney,
unless the parent, guardian, or legal custodian has waived his or her right to
an attorney in open court, and by the petitioner and the attorney, guardian ad
litem, or court-appointed special advocate for the child, if any. If the
department of social and health services is not the petitioner and is required
by the order to supervise the placement of the child or provide services to any
party, the department must also agree to and sign the order.
(b)
Entry of any stipulated or agreed order of dependency or disposition is subject
to approval by the court. The court shall receive and review a social study
before entering a stipulated or agreed order and shall consider whether the
order is consistent with the allegations of the dependency petition and the
problems that necessitated the child's placement in out-of-home care. No
social file or social study may be considered by the court in connection with
the fact-finding hearing or prior to factual determination, except as otherwise
admissible under the rules of evidence.
(c)
Prior to the entry of any stipulated or agreed order of dependency, the parent,
guardian, or legal custodian of the child and his or her attorney must appear
before the court and the court within available resources must inquire and
establish on the record that:
(i)
The parent, guardian, or legal custodian understands the terms of the order or
orders he or she has signed, including his or her responsibility to participate
in remedial services as provided in any disposition order;
(ii)
The parent, guardian, or legal custodian understands that entry of the order
starts a process that could result in the filing of a petition to terminate his
or her relationship with the child within the time frames required by state and
federal law if he or she fails to comply with the terms of the dependency or
disposition orders or fails to substantially remedy the problems that
necessitated the child's placement in out-of-home care;
(iii)
The parent, guardian, or legal custodian understands that the entry of the
stipulated or agreed order of dependency is an admission that the child is
dependent within the meaning of RCW 13.34.030 and shall have the same legal
effect as a finding by the court that the child is dependent by at least a
preponderance of the evidence, and that the parent, guardian, or legal
custodian shall not have the right in any subsequent proceeding for termination
of parental rights or dependency guardianship pursuant to this chapter or
nonparental custody pursuant to chapter 26.10 RCW to challenge or dispute the
fact that the child was found to be dependent; and
(iv)
The parent, guardian, or legal custodian knowingly and willingly stipulated and
agreed to and signed the order or orders, without duress, and without
misrepresentation or fraud by any other party.
If
a parent, guardian, or legal custodian fails to appear before the court after
stipulating or agreeing to entry of an order of dependency, the court may enter
the order upon a finding that the parent, guardian, or legal custodian had
actual notice of the right to appear before the court and chose not to do so.
The court may require other parties to the order, including the attorney for
the parent, guardian, or legal custodian, to appear and advise the court of the
parent's, guardian's, or legal custodian's notice of the right to appear and
understanding of the factors specified in this subsection. A parent, guardian,
or legal custodian may choose to waive his or her presence at the in-court
hearing for entry of the stipulated or agreed order of dependency by submitting
to the court through counsel a completed stipulated or agreed dependency
fact-finding/disposition statement in a form determined by the Washington state
supreme court pursuant to General Rule GR 9.
(3)
Immediately after the entry of the findings of fact, the court shall hold a
disposition hearing, unless there is good cause for continuing the matter for
up to fourteen days. If good cause is shown, the case may be continued for
longer than fourteen days. Notice of the time and place of the continued
hearing may be given in open court. If notice in open court is not given to a
party, that party shall be notified by certified mail of the time and place of
any continued hearing. Unless there is reasonable cause to believe the health,
safety, or welfare of the child would be jeopardized or efforts to reunite the
parent and child would be hindered, the court shall direct the department to
notify those adult persons who: (((1))) (a) Are related by blood
or marriage to the child in the following degrees: Parent, grandparent,
brother, sister, stepparent, stepbrother, stepsister, uncle, or aunt; (((2)))
(b) are known to the department as having been in contact with the
family or child within the past twelve months; and (((3))) (c)
would be an appropriate placement for the child. Reasonable cause to dispense
with notification to a parent under this section must be proved by clear,
cogent, and convincing evidence.
The
parties need not appear at the fact-finding or dispositional hearing if the
parties, their attorneys, the guardian ad litem, and court-appointed special
advocates, if any, are all in agreement. ((The court shall receive and
review a social study before entering an order based on agreement. No social
file or social study may be considered by the court in connection with the
fact-finding hearing or prior to factual determination, except as otherwise
admissible under the rules of evidence.))
NEW
SECTION. Sec. 8. A
new section is added to chapter 13.34 RCW to read as follows:
The
department of social and health services shall promulgate rules that create
good cause exceptions to the establishment and enforcement of child support
from parents of children in out-of-home placement under chapter 13.34 or 13.32A
RCW that do not violate federal funding requirements. The department shall
present the rules and the department's plan for implementation of the rules to
the appropriate committees of the legislature prior to the 2002 legislative
session.
