BILL REQ. #: Z-0043.4
| State of Washington | 59th Legislature | 2005 Regular Session |
Read first time 02/15/2005. Referred to Committee on Children & Family Services.
AN ACT Relating to guardianship of dependent children; amending RCW 13.34.030, 13.34.110, 13.34.145, 13.34.230, 13.34.231, 13.34.232, 13.34.233, 13.34.234, 13.34.236, and 13.32A.030; reenacting and amending RCW 74.15.020; adding new sections to chapter 13.34 RCW; and creating a new section.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:
NEW SECTION. Sec. 1 The legislature finds that guardianship can
be an appropriate permanent plan for some children who have been found
to be dependent children under chapter 13.34 RCW and who cannot live
with their parents. The legislature intends to strengthen stability
and permanency for children by recognizing the value of a guardianship
placement with relatives or other long-term caregivers, dismissal of
dependencies, elimination of the need for continued governmental
intervention in family life, and provision of support to the
guardianship.
Sec. 2 RCW 13.34.030 and 2003 c 227 s 2 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) "Child" and "juvenile" means any individual under the age of
eighteen years.
(3) "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) (("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.)) "Dependent child" means any child who:
(5)
(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))) (5) "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))) (6) "Guardian" means the person or agency that: (a) Has
been appointed as the guardian of a child in a legal proceeding ((other
than)), including a guardian appointed in 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.)) (7) "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.
(8)
(((9))) (8) "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))) (9) "Guardianship" means a guardianship, established
pursuant to this chapter, appointing a person to serve as the legal
guardian and custodian of a child who has been a dependent child under
this chapter.
(10) "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) "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) "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) "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) "Sibling" means a child's birth brother, birth sister,
adoptive brother, adoptive sister, half-brother, or half-sister, or as
defined by the law or custom of the Indian child's tribe for an Indian
child as defined in 25 U.S.C. Sec. 1903(4).
(15) "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 including an
assessment of the child's relationship and emotional bond with any
siblings, and the agency's plan to provide ongoing contact between the
child and the child's siblings if appropriate; and
(f) Behavior that will be expected before determination that
supervision of the family or placement is no longer necessary.
NEW SECTION. Sec. 3 A new section is added to chapter 13.34 RCW
to read as follows:
(1) Any dependency guardianship established under RCW 13.34.232 and
in place on the effective date of this act shall remain in effect,
notwithstanding the provisions of this act.
(2) The department of social and health services is authorized to
review the child's situation with the dependency guardian to mutually
determine the need for continued department involvement in the
dependency guardianship and whether the dependency guardian is willing
to enter into a guardianship subsidy agreement as authorized under RCW
13.34.234.
(3) The dependency guardian and the department may move the court
to modify a dependency guardianship established prior to the effective
date of this act and convert it to a guardianship under this chapter.
If both the dependency guardian and the department agree that the
dependency guardianship should be converted, and the court finds that
it is in the best interests of the child, the court shall grant the
motion.
Sec. 4 RCW 13.34.110 and 2001 c 332 s 7 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: (a) Are related by
blood or marriage to the child in the following degrees: Parent,
grandparent, brother, sister, stepparent, stepbrother, stepsister,
uncle, or aunt; (b) are known to the department as having been in
contact with the family or child within the past twelve months; and (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.
Sec. 5 RCW 13.34.145 and 2003 c 227 s 6 are each amended to read
as follows:
(1) A permanency plan shall be developed no later than sixty days
from the time the supervising agency assumes responsibility for
providing services, including placing the child, or at the time of a
hearing under RCW 13.34.130, whichever occurs first. The permanency
planning process continues until a permanency planning goal is achieved
or dependency is dismissed. The planning process shall include
reasonable efforts to return the child to the parent's home.
(a) Whenever a child is placed in out-of-home care pursuant to RCW
13.34.130, the agency that has custody of the child shall provide the
court with a written permanency plan of care directed towards securing
a safe, stable, and permanent home for the child as soon as possible.
The plan shall identify one of the following outcomes as the primary
goal and may also identify additional outcomes as alternative goals:
Return of the child to the home of the child's parent, guardian, or
legal custodian; adoption; guardianship; permanent legal custody; long-term relative or foster care, until the child is age eighteen, with a
written agreement between the parties and the care provider; a
responsible living skills program; and independent living, if
appropriate and if the child is age sixteen or older and the provisions
of subsection (2) of this section are met.
(b) The identified outcomes and goals of the permanency plan may
change over time based upon the circumstances of the particular case.
(c) Permanency planning goals should be achieved at the earliest
possible date, preferably before the child has been in out-of-home care
for fifteen months. In cases where parental rights have been
terminated, the child is legally free for adoption, and adoption has
been identified as the primary permanency planning goal, it shall be a
goal to complete the adoption within six months following entry of the
termination order.
(d) For purposes related to permanency planning:
(i) "Guardianship" means ((a dependency)) guardianship((, a legal
guardianship pursuant to chapter 11.88 RCW)) pursuant to RCW 13.34.232,
or equivalent laws of another state or a federally recognized Indian
tribe.
(ii) (("Permanent custody order" means a custody order entered
pursuant to chapter 26.10 RCW.)) "Permanent legal custody" or "permanent custody order"
means legal custody pursuant to chapter 26.10 RCW or equivalent laws of
another state or of a federally recognized Indian tribe.
(iii)
(2) 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, 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.
(3) A permanency planning hearing shall be held in all cases where
the child has remained in out-of-home care for at least nine months and
an adoption decree, guardianship order, or permanent custody order has
not previously been entered. The hearing shall take place no later
than twelve months following commencement of the current placement
episode.
(4) Whenever a child is removed from the home of a ((dependency
guardian or)) long-term relative or foster care provider, and the child
is not returned to the home of the parent, guardian, or legal custodian
but is placed in out-of-home care, a permanency planning hearing shall
take place no later than twelve months, as provided in subsection (3)
of this section, following the date of removal unless, prior to the
hearing, the child returns to the home of the ((dependency guardian
or)) long-term care provider, the child is placed in the home of the
parent, guardian, or legal custodian, an adoption decree, guardianship
order, or a permanent custody order is entered, or the dependency is
dismissed.
(5) No later than ten working days prior to the permanency planning
hearing, the agency having custody of the child shall submit a written
permanency plan to the court and shall mail a copy of the plan to all
parties and their legal counsel, if any.
(6) At the permanency planning hearing, the court shall enter
findings as required by RCW 13.34.138 and shall review the permanency
plan prepared by the agency. If the child has resided in the home of
a foster parent or relative for more than six months prior to the
permanency planning hearing, the court shall also enter a finding
regarding whether the foster parent or relative was informed of the
hearing as required in RCW 74.13.280 and 13.34.138. If a goal of long-term foster or relative care has been achieved prior to the permanency
planning hearing, the court shall review the child's status to
determine whether the placement and the plan for the child's care
remain appropriate. In cases where the primary permanency planning
goal has not been achieved, the court shall inquire regarding the
reasons why the primary goal has not been achieved and determine what
needs to be done to make it possible to achieve the primary goal. In
all cases, the court shall:
(a)(i) Order the permanency plan prepared by the agency to be
implemented; or
(ii) Modify the permanency plan, and order implementation of the
modified plan; and
(b)(i) Order the child returned home only if the court finds that
a reason for removal as set forth in RCW 13.34.130 no longer exists; or
(ii) Order the child to remain in out-of-home care for a limited
specified time period while efforts are made to implement the
permanency plan.
(7) If the court orders the child returned home, casework
supervision shall continue for at least six months, at which time a
review hearing shall be held pursuant to RCW 13.34.138, and the court
shall determine the need for continued intervention.
(8) The juvenile court may hear a petition for permanent legal
custody when: (a) The court has ordered implementation of a permanency
plan that includes permanent legal custody; and (b) the party pursuing
the permanent legal custody is the party identified in the permanency
plan as the prospective legal custodian. During the pendency of such
proceeding, the court shall conduct review hearings and further
permanency planning hearings as provided in this chapter. ((At the
conclusion of the legal guardianship or permanent legal custody
proceeding, a juvenile court hearing shall be held for the purpose of
determining whether dependency should be dismissed.)) If a
((guardianship or)) permanent custody order has been entered, the
dependency shall be dismissed.
(9) Continued juvenile court jurisdiction under this chapter shall
not be a barrier to the entry of an order establishing a ((legal))
guardianship or permanent legal custody when the requirements of
subsection (8) of this section are met.
(10) Following the first permanency planning hearing, the court
shall hold a further permanency planning hearing in accordance with
this section at least once every twelve months until a permanency
planning goal is achieved or the dependency is dismissed, whichever
occurs first.
(11) Except as provided in RCW 13.34.235, the status of all
dependent children shall continue to be reviewed by the court at least
once every six months, in accordance with RCW 13.34.138, until the
dependency is dismissed. Prior to the second permanency planning
hearing, the agency that has custody of the child shall consider
whether to file a petition for termination of parental rights.
(12) Nothing in this chapter may be construed to limit the ability
of the agency that has custody of the child to file a petition for
termination of parental rights or a guardianship petition at any time
following the establishment of dependency. Upon the filing of such a
petition, a fact-finding hearing shall be scheduled and held in
accordance with this chapter unless the agency requests dismissal of
the petition prior to the hearing or unless the parties enter an agreed
order terminating parental rights, establishing a guardianship, or
otherwise resolving the matter.
(13) The approval of a permanency plan that does not contemplate
return of the child to the parent does not relieve the supervising
agency of its obligation to provide reasonable services, under this
chapter, intended to effectuate the return of the child to the parent,
including but not limited to, visitation rights. The court shall
consider the child's relationships with siblings in accordance with RCW
13.34.130.
(14) Nothing in this chapter may be construed to limit the
procedural due process rights of any party in a termination or
guardianship proceeding filed under this chapter.
Sec. 6 RCW 13.34.230 and 1981 c 195 s 1 are each amended to read
as follows:
Any party to a dependency proceeding, including the supervising
agency, may file a petition in juvenile court requesting that a
guardianship be ((created)) established as to a dependent child. The
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 applicable requirements of RCW 13.34.231. The proposed
guardian and department of social and health services shall receive
notice of any guardianship proceedings and have the right to intervene
in the proceedings.
NEW SECTION. Sec. 7 A new section is added to chapter 13.34 RCW
to read as follows:
(1) Every guardianship petition filed in proceedings under RCW
13.34.231 shall contain a statement alleging whether the child is or
may be an Indian child as defined in 25 U.S.C. Sec. 1903. If the child
is an Indian child as defined under the Indian child welfare act, the
provisions of that act shall apply.
(2) Every order or decree entered in any proceeding under this
chapter shall contain a finding that the Indian child welfare act does
or does not apply. Where there is a finding that the Indian child
welfare act does apply, the decree or order must also contain a finding
that all notice requirements and evidentiary requirements under the
Indian child welfare act have been satisfied.
Sec. 8 RCW 13.34.231 and 2000 c 122 s 29 are each amended to read
as follows:
(1) At the hearing on a ((dependency)) guardianship petition, all
parties have the right to present evidence and cross examine witnesses.
The rules of evidence apply to the conduct of the hearing.
(2) A guardianship shall be established if the court finds by a
preponderance of the evidence that:
(((1))) (a) The child has been found to be a dependent child under
RCW 13.34.030;
(((2))) (b) A dispositional order has been entered pursuant to RCW
13.34.130;
(((3))) (c) 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 under RCW
13.34.030;
(((4))) (d) The services ordered under RCW 13.34.130 and 13.34.136
have been offered or provided and all necessary services, reasonably
available, capable of correcting the parental deficiencies within the
foreseeable future have been offered or provided;
(((5))) (e) There is little likelihood that conditions will be
remedied so that the child can be returned to the parent in the near
future; ((and)) (f) The child has been in the home of the proposed guardian
for a period of at least six months;
(6) A
(g) The proposed guardian has signed a statement acknowledging the
guardian's rights and responsibilities toward the child and the
guardian's understanding and acceptance that the guardianship is
commitment to care for the child until the child reaches age eighteen;
(h) Guardianship is a more reasonable or appropriate option for the
child than adoption, and guardianship, rather than termination of the
parent-child relationship or continuation of efforts to return the
child to the custody of the parent, would be in the best interest of
the child.
(3) In determining whether the guardianship is in the best interest
of the child, the court shall consider the following factors:
(a) The nature of the relationship between the child and the
child's parent or parents;
(b) The relationship of the proposed guardian to the child;
(c) The nature of the child's relationships with siblings and the
extent to which a guardianship will allow or facilitate maintaining
such relationships;
(d) The child's preference, if expressed, for the guardianship;
(e) The ability of the proposed guardian to meet the familial and
cultural needs of the child;
(f) The position of the child's tribe regarding the proposed
guardianship, if the child is an Indian child as defined in 25 U.S.C.
Sec. 1903.
(4)(a) The court may not establish a guardianship for a child who
is under the age of twelve years or who has no legal parent unless the
court, in addition to making the findings set forth in this section,
determines that exceptional circumstances exist. Exceptional
circumstances may include, but are not limited to:
(i) The child has special needs, and a suitable guardian is willing
to accept custody of the child under this chapter; or
(ii) Establishment of a guardianship will allow the child to be
placed with or maintain contact with siblings to an extent unlikely to
be achieved through other permanency options.
(b) A finding of exceptional circumstances is not required for such
child, in addition to the other requirements set forth in this section,
if the proposed guardian is a person who has made a commitment to
provide for the long-term care of the child and: (i) Is related to the
child as described in RCW 74.15.020(2); (ii) has been a long-term care
giver to the child and has acted as a parent figure to the child and is
viewed by the child as a parent figure; or (iii) has been identified by
the child's family and the child, if the child is age twelve years old,
or older, as the preferred guardian.
Sec. 9 RCW 13.34.232 and 1994 c 288 s 7 are each amended to read
as follows:
(1) If the court has made a finding under RCW 13.34.231, it shall
enter an order establishing a ((dependency)) guardianship for the child
and shall dismiss the dependency. The order shall:
(a) Appoint a person ((or agency)) to serve as ((dependency)) legal
guardian ((for the limited purpose of assisting the court to supervise
the dependency)) of the child;
(b) Specify the ((dependency)) guardian's rights and
responsibilities concerning the care, custody, and control of the
child((. A dependency guardian shall not have the authority to consent
to the child's adoption));
(c) Specify the ((dependency)) guardian's authority, if any, to
receive, invest, and expend funds, benefits, or property belonging to
the child; and
(d) Specify an appropriate frequency and type of ((visitation))
contact between the parent and the child((; and)) and
between the child and the child's siblings.
(e) Specify the need for any continued involvement of the
supervising agency and the nature of that involvement, if any
(2) ((Unless the court specifies otherwise in the guardianship
order,)) The ((dependency)) guardian shall maintain the physical and
legal custody of the child and have the following rights and duties:
(a) Protect, discipline, and educate the child;
(b) Provide food, clothing, shelter, education as required by
law((, and routine health care for the child));
(c) Consent to necessary health and surgical care and sign a
release of health care information to appropriate authorities, pursuant
to law;
(d) Consent to social and school activities of the child; ((and))
(e) If the child has independent funds or other valuable property
under the control of the guardian, the guardian shall provide an annual
written accounting to the court regarding receipt and expenditure by
the ((dependency)) guardian of any such funds((, benefits,)) or
property ((belonging to the child and expenditures made therefrom)).
However, the guardian shall not be required to account for any routine
benefit funds received on behalf of the child from a public social
service agency; and
(f) Notify the court of a change of address of the guardian or
child. However, unless specifically ordered by the court, the notice
requirements and standards for relocation set forth in chapter 26.09
RCW shall not apply to guardianships established pursuant to this
chapter.
(3) As used in this section, the term "health care" includes, but
is not limited to, medical, dental, psychological, and psychiatric care
and treatment.
(4) ((The child shall remain dependent for the duration of the
guardianship. While the guardianship remains in effect, the dependency
guardian shall be a party to any dependency proceedings pertaining to
the child.)) The guardianship shall remain in effect only until the child
is eighteen years of age or until the court terminates the guardianship
order, whichever occurs sooner.
(5)
(5) The court shall not have the authority, in a guardianship
proceeding, to order the department of social and health services to
supervise or to provide services to the guardian and/or the child.
(6) Letters of guardianship shall be issued to the guardian upon
the filing of the order appointing the guardian pursuant to this
chapter.
Sec. 10 RCW 13.34.233 and 2000 c 122 s 30 are each amended to
read as follows:
(1) Any party, including the guardian, may ((request)) apply to the
court ((under RCW 13.34.150)) to modify or terminate a ((dependency))
guardianship order. ((Notice of any motion to modify or terminate the
guardianship shall be served on all other parties, including any agency
that was responsible for supervising the child's placement at the time
the guardianship petition was filed. Notice in all cases shall be
served upon the department. If the department was not previously a
party to the guardianship proceeding, the department shall nevertheless
have the right to: (a) Initiate a proceeding to modify or terminate a
guardianship; and (b) intervene at any stage of such a proceeding)) If
the applicant is represented by counsel, counsel shall move for an
order to show cause why the relief should not be granted, pursuant to
this section. If the applicant is not represented by counsel, he or
she may move for an order to show cause, or may deliver a written
request to the clerk of the court. The written request must contain
the reasons that justify a modification or termination of the
guardianship order.
(2) By the next judicial day after receipt of an unrepresented
person's request to modify or terminate a guardianship order, the clerk
shall deliver the request to the court. The court may: (a) Direct the
clerk to schedule a hearing; (b) appoint a guardian ad litem to
investigate the issues raised by the application or take any emergency
action the court deems necessary to protect the juvenile who is the
subject of the guardianship until a hearing can be held; or (c) deny
the application without scheduling a hearing, if it appears, based on
documents in the court file, that the application is frivolous. Prior
to denying an application without a hearing, the court may request a
response from any party. Any denial of an application without a
hearing shall be in writing with the reasons for denial explained. A
copy of the order shall be mailed by the clerk to the applicant, to the
guardian, and to any other person or agency entitled to notice. Unless
within thirty days after receiving the request from the clerk the court
directs otherwise, the clerk shall schedule a hearing on the request
and mail notice to the guardian, the child if the child is age twelve
or older, the applicant, the department, and any other person entitled
to receive notice. The court shall hold a hearing on the motion before
modifying or terminating the guardianship.
(3) The terms of a guardianship order may be modified only if the
court finds, by a preponderance of the evidence and upon the basis of
facts that have arisen since the entry of the guardianship order, that
a substantial change in circumstances has occurred and that the
modification is in the best interest of the child.
(4) The guardianship may be ((modified or)) terminated ((upon the
motion of any party or the department)) only if the court finds, by a
preponderance of the evidence and upon the basis of facts that have
arisen since entry of the guardianship order, that ((there has been))
a substantial change ((of)) has occurred in the circumstances
((subsequent to the establishment of the guardianship)) of the child or
of the guardian and that ((it)) the termination is in the ((child's))
best interest ((to modify or terminate the guardianship. The court
shall hold a hearing on the motion before modifying or terminating a
guardianship)) of the child and is necessary to serve the best
interests of the child.
(((3) Upon entry of an order terminating the guardianship, the
dependency guardian shall not have any rights or responsibilities with
respect to the child and shall not have legal standing to participate
as a party in further dependency proceedings pertaining to the child.
The court may allow the child's dependency guardian to attend
dependency review proceedings pertaining to the child for the sole
purpose of providing information about the child to the court.)) (5) The court may only terminate a guardianship on the
application of a parent who is seeking a return of custody of the
child, if it finds by a preponderance of the evidence and on the basis
of facts that have arisen since the guardianship was established that:
(4)
(a) The parent has substantially and successfully addressed the
parenting deficiencies identified by the court in the dependency
action, or the circumstances of the parent have changed, and the child
would no longer be at risk of harm to the child's health, welfare, and
safety if returned to the care and custody of the parent;
(b) A substantial change has occurred in the circumstances of the
guardian such that the guardian is unfit to care for the child or is no
longer able to provide care for the child;
(c) The child, if age twelve or older, agrees to the return to the
parent; and
(d) Termination of the guardianship and return of the child to the
care and custody of the parent is in the best interests of the child.
(6) The court may terminate a guardianship on the stipulation of
the child, if the child is age twelve or older, the child's guardian,
and a parent of the child who is seeking to regain custody of the child
if it finds by a preponderance of the evidence and on the basis of
facts that have arisen since the guardianship was established that:
(a) The parent has substantially and successfully addressed the
parenting deficiencies identified by the court in the dependency
action, or the circumstances of the parent have changed, and the child
would no longer be at risk of harm to the child's health, welfare, and
safety if returned to the care and custody of the parent;
(b) The guardian of the child agrees that the parent is presently
able to provide appropriate care for the child and agrees to the return
of the child to the parent's care and custody;
(c) The child if age twelve or older agrees to the return to the
parent; and
(d) Termination of the guardianship and return of the child to the
care and custody of the parent is in the best interests of the child.
(7) At any time during a proceeding for modification or termination
of a guardianship order, the court may, on its own motion or on the
motion of any party, appoint a guardian ad litem or attorney for the
child to represent and be an advocate for the best interests of the
child.
(8) Upon entry of an order terminating the guardianship, the
((child shall remain dependent and the)) court shall either return the
child to the child's parent or order the child into the custody,
control, and care of ((the department or a licensed child-placing
agency for placement in a foster home or group care facility licensed
pursuant to chapter 74.15 RCW or in a home not required to be licensed
pursuant to such chapter)) a substitute guardian. The court shall not
place a child in the custody of the child's parent unless the court
finds that reasons for removal as set forth in RCW 13.34.130 no longer
exist and that such placement is in the child's best interest. ((The
court shall thereafter conduct reviews as provided in RCW 13.34.138
and, where applicable, shall hold a permanency planning hearing in
accordance with RCW 13.34.145.)) The court shall have the authority to
place a child in shelter care or other out-of-home care licensed by the
department under chapter 74.15 RCW only if a dependency petition has
been filed pursuant to RCW 13.34.040 and is currently pending before
the court. The court may request that the department file a dependency
petition on behalf of the child.
Sec. 11 RCW 13.34.234 and 1994 c 288 s 9 are each amended to read
as follows:
((Establishment of a dependency guardianship under RCW 13.34.231
and 13.34.232 does not preclude the dependency guardian from receiving
foster care payments.))
(1) The department of social and health services may provide
subsidies for special needs children placed in guardianships approved
under RCW 13.34.232. It is the intent of the legislature that the
department model any guardianship subsidy program on the department's
adoption support program.
(2) The department shall, by rule, establish eligibility standards
for the guardianship subsidy. Children eligible for a subsidy shall
include special needs children whose guardian was receiving temporary
assistance for needy families or foster care payments from the
department, during the dependency, to meet the child's needs.
(3) The department, by rule, shall adopt maximum rates for
guardianship subsidies to assist the guardian to meet the child's
special needs.
(4) The department may, within available funds, establish benefits
that encourage and provide incentives for persons related to the child
to become the child's guardian pursuant to RCW 13.34.232.
(5) In accordance with rules adopted under this section, the
department may enter into a written agreement with the guardian, with
the agreement signed by the department and the guardian, to provide for
basic subsidy payments following the court's order establishing the
guardianship.
(6) An agreement for a guardianship subsidy, although subject to
review and adjustment through negotiation between the department and
the guardian, constitutes a contract within the meaning of Article I,
section 13, of the state Constitution. A decision of the state to
discontinue or reduce general appropriations made available for the
purpose of the subsidy shall not affect the state's obligation to
comply with the terms of existing guardianship subsidy agreements,
subject to such review and negotiated adjustment as provided in rule.
NEW SECTION. Sec. 12 A new section is added to chapter 13.34 RCW
to read as follows:
In deciding whether to grant a petition for guardianship of a
special needs child, the superior court shall consider any subsidy
agreement made or proposed to be made between the department and any
prospective guardian for any payment or payments which are to be
provided by the department in support of the guardianship. Before the
date of the hearing on the petition for guardianship, the department
shall file a copy of any initial agreement with the court. If the
court, in its judgment, finds the provision made in an agreement to be
inadequate, it may make any recommendation as it deems warranted with
respect to the agreement to the department. The court shall not,
however, solely by virtue of this section, be empowered to direct the
department to make payment. This section shall not be deemed to limit
any other power of the superior court with respect to the guardianship
or any related matter.
Sec. 13 RCW 13.34.236 and 1994 c 288 s 10 are each amended to
read as follows:
(1) Any suitable person over the age of twenty-one years who is not
otherwise disqualified by this section((, any nonprofit corporation, or
any Indian tribe)) may be appointed the ((dependency)) guardian of a
child under RCW 13.34.232. ((No person is qualified to serve as a
dependency guardian unless the person meets the minimum requirements to
care for children as provided in RCW 74.15.030.))
(2) Before the court may establish a guardianship of a child, the
department, a private agency licensed under the provisions of chapter
74.15 RCW or other state's licensing authority, or the child's tribe if
the child is an Indian child, shall have available in its files or
shall complete a home study approving the proposed guardian. The home
study shall include a criminal history background check under RCW
74.15.030 of those persons age sixteen and older residing in the
proposed guardian's home. The department shall be required to complete
the home study only if the department currently is providing services
to the child.
(3) The court shall not approve a guardianship until the child has
resided with the proposed guardian for a minimum of six months and the
department or supervising private agency has recommended that the
guardianship be established and, if the child is an Indian child, the
child's tribe does not object to the establishment of the guardianship.
(4) If the preferences of a child's parent were not considered
under RCW 13.34.260 as they relate to the proposed ((dependency))
guardian, the court shall consider such preferences before appointing
the ((dependency)) guardian.
Sec. 14 RCW 13.32A.030 and 2000 c 123 s 2 are each amended to
read as follows:
As used in this chapter the following terms have the meanings
indicated unless the context clearly requires otherwise:
(1) "Abuse or neglect" means the injury, sexual abuse, sexual
exploitation, negligent treatment, or maltreatment of a child by any
person under circumstances which indicate that the child's health,
welfare, and safety is harmed, excluding conduct permitted under RCW
9A.16.100. An abused child is a child who has been subjected to child
abuse or neglect as defined in this section.
(2) "Administrator" means the individual who has the daily
administrative responsibility of a crisis residential center, or his or
her designee.
(3) "At-risk youth" means a juvenile:
(a) Who is absent from home for at least seventy-two consecutive
hours without consent of his or her parent;
(b) Who is beyond the control of his or her parent such that the
child's behavior endangers the health, safety, or welfare of the child
or any other person; or
(c) Who has a substance abuse problem for which there are no
pending criminal charges related to the substance abuse.
(4) "Child," "juvenile," and "youth" mean any unemancipated
individual who is under the chronological age of eighteen years.
(5) "Child in need of services" means a juvenile:
(a) Who is beyond the control of his or her parent such that the
child's behavior endangers the health, safety, or welfare of the child
or other person;
(b) Who has been reported to law enforcement as absent without
consent for at least twenty-four consecutive hours on two or more
separate occasions from the home of either parent, a crisis residential
center, an out-of-home placement, or a court-ordered placement; and
(i) Has exhibited a serious substance abuse problem; or
(ii) Has exhibited behaviors that create a serious risk of harm to
the health, safety, or welfare of the child or any other person; or
(c)(i) Who is in need of: (A) Necessary services, including food,
shelter, health care, clothing, or education; or (B) services designed
to maintain or reunite the family;
(ii) Who lacks access to, or has declined to utilize, these
services; and
(iii) Whose parents have evidenced continuing but unsuccessful
efforts to maintain the family structure or are unable or unwilling to
continue efforts to maintain the family structure.
(6) "Child in need of services petition" means a petition filed in
juvenile court by a parent, child, or the department seeking
adjudication of placement of the child.
(7) "Crisis residential center" means a secure or semi-secure
facility established pursuant to chapter 74.13 RCW.
(8) "Custodian" means the person or entity who has the legal right
to the custody of the child.
(9) "Department" means the department of social and health
services.
(10) "Extended family member" means an adult who is a grandparent,
brother, sister, stepbrother, stepsister, uncle, aunt, or first cousin
with whom the child has a relationship and is comfortable, and who is
willing and available to care for the child.
(11) "Guardian" means that person or agency that (a) has been
appointed as the guardian of a child in a legal proceeding ((other than
a proceeding under chapter 13.34 RCW)), and (b) has the right to legal
custody of the child pursuant to such appointment. ((The term
"guardian" does not include a "dependency guardian" appointed pursuant
to a proceeding under chapter 13.34 RCW.))
(12) "Multidisciplinary team" means a group formed to provide
assistance and support to a child who is an at-risk youth or a child in
need of services and his or her parent. The team shall include the
parent, a department case worker, a local government representative
when authorized by the local government, and when appropriate, members
from the mental health and substance abuse disciplines. The team may
also include, but is not limited to, the following persons: Educators,
law enforcement personnel, probation officers, employers, church
persons, tribal members, therapists, medical personnel, social service
providers, placement providers, and extended family members. The team
members shall be volunteers who do not receive compensation while
acting in a capacity as a team member, unless the member's employer
chooses to provide compensation or the member is a state employee.
(13) "Out-of-home placement" means a 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.
(14) "Parent" means the parent or parents who have the legal right
to custody of the child. "Parent" includes custodian or guardian.
(15) "Secure facility" means a crisis residential center, or
portion thereof, that has locking doors, locking windows, or a secured
perimeter, designed and operated to prevent a child from leaving
without permission of the facility staff.
(16) "Semi-secure facility" means any facility, including but not
limited to crisis residential centers or specialized foster family
homes, operated in a manner to reasonably assure that youth placed
there will not run away. Pursuant to rules established by the
department, the facility administrator shall establish reasonable hours
for residents to come and go from the facility such that no residents
are free to come and go at all hours of the day and night. To prevent
residents from taking unreasonable actions, the facility administrator,
where appropriate, may condition a resident's leaving the facility upon
the resident being accompanied by the administrator or the
administrator's designee and the resident may be required to notify the
administrator or the administrator's designee of any intent to leave,
his or her intended destination, and the probable time of his or her
return to the center.
(17) "Staff secure facility" means a structured group care facility
licensed under rules adopted by the department with a ratio of at least
one adult staff member to every two children.
(18) "Temporary out-of-home placement" means an out-of-home
placement of not more than fourteen days ordered by the court at a
fact-finding hearing on a child in need of services petition.
Sec. 15 RCW 74.15.020 and 2001 c 230 s 1, 2001 c 144 s 1, and
2001 c 137 s 3 are each reenacted and amended to read as follows:
For the purpose of chapter 74.15 RCW and RCW 74.13.031, and unless
otherwise clearly indicated by the context thereof, the following terms
shall mean:
(1) "Agency" means any person, firm, partnership, association,
corporation, or facility which receives children, expectant mothers, or
persons with developmental disabilities for control, care, or
maintenance outside their own homes, or which places, arranges the
placement of, or assists in the placement of children, expectant
mothers, or persons with developmental disabilities for foster care or
placement of children for adoption, and shall include the following
irrespective of whether there is compensation to the agency or to the
children, expectant mothers or persons with developmental disabilities
for services rendered:
(a) "Child day-care center" means an agency which regularly
provides care for a group of children for periods of less than twenty-four hours;
(b) "Child-placing agency" means an agency which places a child or
children for temporary care, continued care, or for adoption;
(c) "Community facility" means a group care facility operated for
the care of juveniles committed to the department under RCW 13.40.185.
A county detention facility that houses juveniles committed to the
department under RCW 13.40.185 pursuant to a contract with the
department is not a community facility;
(d) "Crisis residential center" means an agency which is a
temporary protective residential facility operated to perform the
duties specified in chapter 13.32A RCW, in the manner provided in RCW
74.13.032 through 74.13.036;
(e) "Emergency respite center" is an agency that may be commonly
known as a crisis nursery, that provides emergency and crisis care for
up to seventy-two hours to children who have been admitted by their
parents or guardians to prevent abuse or neglect. Emergency respite
centers may operate for up to twenty-four hours a day, and for up to
seven days a week. Emergency respite centers may provide care for
children ages birth through seventeen, and for persons eighteen through
twenty with developmental disabilities who are admitted with a sibling
or siblings through age seventeen. Emergency respite centers may not
substitute for crisis residential centers or HOPE centers, or any other
services defined under this section, and may not substitute for
services which are required under chapter 13.32A or 13.34 RCW;
(f) "Family day-care provider" means a child day-care provider who
regularly provides child day care for not more than twelve children in
the provider's home in the family living quarters;
(g) "Foster-family home" means an agency which regularly provides
care on a twenty-four hour basis to one or more children, expectant
mothers, or persons with developmental disabilities in the family abode
of the person or persons under whose direct care and supervision the
child, expectant mother, or person with a developmental disability is
placed;
(h) "Group-care facility" means an agency, other than a foster-family home, which is maintained and operated for the care of a group
of children on a twenty-four hour basis;
(i) "HOPE center" means an agency licensed by the secretary to
provide temporary residential placement and other services to street
youth. A street youth may remain in a HOPE center for thirty days
while services are arranged and permanent placement is coordinated. No
street youth may stay longer than thirty days unless approved by the
department and any additional days approved by the department must be
based on the unavailability of a long-term placement option. A street
youth whose parent wants him or her returned to home may remain in a
HOPE center until his or her parent arranges return of the youth, not
longer. All other street youth must have court approval under chapter
13.34 or 13.32A RCW to remain in a HOPE center up to thirty days;
(j) "Maternity service" means an agency which provides or arranges
for care or services to expectant mothers, before or during
confinement, or which provides care as needed to mothers and their
infants after confinement;
(k) "Responsible living skills program" means an agency licensed by
the secretary that provides residential and transitional living
services to persons ages sixteen to eighteen who are dependent under
chapter 13.34 RCW and who have been unable to live in his or her
legally authorized residence and, as a result, the minor lived outdoors
or in another unsafe location not intended for occupancy by the minor.
Dependent minors ages fourteen and fifteen may be eligible if no other
placement alternative is available and the department approves the
placement;
(l) "Service provider" means the entity that operates a community
facility.
(2) "Agency" shall not include the following:
(a) Persons related to the child, expectant mother, or person with
developmental disability in the following ways:
(i) Any blood relative, including those of half-blood, and
including first cousins, nephews or nieces, and persons of preceding
generations as denoted by prefixes of grand, great, or great-great;
(ii) Stepfather, stepmother, stepbrother, and stepsister;
(iii) A person who legally adopts a child or the child's parent as
well as the natural and other legally adopted children of such persons,
and other relatives of the adoptive parents in accordance with state
law;
(iv) Spouses of any persons named in (i), (ii), or (iii) of this
subsection (2)(a), even after the marriage is terminated; or
(v) Extended family members, as defined by the law or custom of the
Indian child's tribe or, in the absence of such law or custom, a person
who has reached the age of eighteen and who is the Indian child's
grandparent, aunt or uncle, brother or sister, brother-in-law or
sister-in-law, niece or nephew, first or second cousin, or stepparent
who provides care in the family abode on a twenty-four-hour basis to an
Indian child as defined in 25 U.S.C. Sec. 1903(4);
(b) Persons who are legal guardians, including guardians appointed
under the provisions of RCW 13.34.232, of the child, expectant mother,
or persons with developmental disabilities;
(c) Persons who care for a neighbor's or friend's child or
children, with or without compensation, where: (i) The person
providing care for periods of less than twenty-four hours does not
conduct such activity on an ongoing, regularly scheduled basis for the
purpose of engaging in business, which includes, but is not limited to,
advertising such care; or (ii) the parent and person providing care on
a twenty-four-hour basis have agreed to the placement in writing and
the state is not providing any payment for the care;
(d) Parents on a mutually cooperative basis exchange care of one
another's children;
(e) A person, partnership, corporation, or other entity that
provides placement or similar services to exchange students or
international student exchange visitors or persons who have the care of
an exchange student in their home;
(f) A person, partnership, corporation, or other entity that
provides placement or similar services to international children who
have entered the country by obtaining visas that meet the criteria for
medical care as established by the United States immigration and
naturalization service, or persons who have the care of such an
international child in their home;
(g) Nursery schools or kindergartens which are engaged primarily in
educational work with preschool children and in which no child is
enrolled on a regular basis for more than four hours per day;
(h) Schools, including boarding schools, which are engaged
primarily in education, operate on a definite school year schedule,
follow a stated academic curriculum, accept only school-age children
and do not accept custody of children;
(i) Seasonal camps of three months' or less duration engaged
primarily in recreational or educational activities;
(j) Hospitals licensed pursuant to chapter 70.41 RCW when
performing functions defined in chapter 70.41 RCW, nursing homes
licensed under chapter 18.51 RCW and boarding homes licensed under
chapter 18.20 RCW;
(k) Licensed physicians or lawyers;
(l) Facilities providing care to children for periods of less than
twenty-four hours whose parents remain on the premises to participate
in activities other than employment;
(m) Facilities approved and certified under chapter 71A.22 RCW;
(n) Any agency having been in operation in this state ten years
prior to June 8, 1967, and not seeking or accepting moneys or
assistance from any state or federal agency, and is supported in part
by an endowment or trust fund;
(o) Persons who have a child in their home for purposes of
adoption, if the child was placed in such home by a licensed child-placing agency, an authorized public or tribal agency or court or if a
replacement report has been filed under chapter 26.33 RCW and the
placement has been approved by the court;
(p) An agency operated by any unit of local, state, or federal
government or an agency, located within the boundaries of a federally
recognized Indian reservation, licensed by the Indian tribe;
(q) A maximum or medium security program for juvenile offenders
operated by or under contract with the department;
(r) An agency located on a federal military reservation, except
where the military authorities request that such agency be subject to
the licensing requirements of this chapter.
(3) "Department" means the state department of social and health
services.
(4) "Juvenile" means a person under the age of twenty-one who has
been sentenced to a term of confinement under the supervision of the
department under RCW 13.40.185.
(5) "Probationary license" means a license issued as a disciplinary
measure to an agency that has previously been issued a full license but
is out of compliance with licensing standards.
(6) "Requirement" means any rule, regulation, or standard of care
to be maintained by an agency.
(7) "Secretary" means the secretary of social and health services.
(8) "Street youth" means a person under the age of eighteen who
lives outdoors or in another unsafe location not intended for occupancy
by the minor and who is not residing with his or her parent or at his
or her legally authorized residence.
(9) "Transitional living services" means at a minimum, to the
extent funds are available, the following:
(a) Educational services, including basic literacy and
computational skills training, either in local alternative or public
high schools or in a high school equivalency program that leads to
obtaining a high school equivalency degree;
(b) Assistance and counseling related to obtaining vocational
training or higher education, job readiness, job search assistance, and
placement programs;
(c) Counseling and instruction in life skills such as money
management, home management, consumer skills, parenting, health care,
access to community resources, and transportation and housing options;
(d) Individual and group counseling; and
(e) Establishing networks with federal agencies and state and local
organizations such as the United States department of labor, employment
and training administration programs including the job training
partnership act which administers private industry councils and the job
corps; vocational rehabilitation; and volunteer programs.