BILL REQ. #: H-4656.2
| State of Washington | 61st Legislature | 2010 Regular Session |
READ FIRST TIME 01/27/10.
AN ACT Relating to implementing a guardianship program; amending RCW 13.34.232 and 13.34.234; reenacting and amending RCW 13.34.030 and 13.34.210; adding a new section to chapter 13.34 RCW; adding a new section to chapter 74.13 RCW; adding a new chapter to Title 13 RCW; creating a new section; and repealing RCW 13.34.230, 13.34.231, 13.34.236, and 13.34.238.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:
NEW SECTION. Sec. 1 The legislature finds that a guardianship is
an appropriate permanent plan for a child who has been found to be
dependent under chapter 13.34 RCW and who cannot safely be reunified
with his or her parents. The legislature intends to create a separate
guardianship chapter to establish permanency for children in foster
care through the appointment of a guardian and dismissal of the
dependency.
NEW SECTION. Sec. 2
(1) "Child" means any individual under the age of eighteen years.
(2) "Dependent child" means a child who has been found by a court
to be dependent in a proceeding under chapter 13.34 RCW.
(3) "Department" means the department of social and health
services.
(4) "Guardian" means a person who: (a) Has been appointed by the
court as the guardian of a child in a legal proceeding under this
chapter; and (b) has the legal right to custody of the child pursuant
to court order. The term "guardian" does not include a "dependency
guardian" appointed pursuant to a proceeding under chapter 13.34 RCW
for the purpose of assisting the court in supervising the dependency.
(5) "Relative" means a person related to the child in the following
ways: (a) Any blood relative, including those of half-blood, and
including first cousins, second cousins, nephews or nieces, and persons
of preceding generations as denoted by prefixes of grand, great, or
great-great; (b) stepfather, stepmother, stepbrother, and stepsister;
(c) 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;
(d) spouses of any persons named in (a), (b), or (c) of this
subsection, even after the marriage is terminated; (e) relatives, as
named in (a), (b), (c), or (d) of this subsection, of any half sibling
of the child; or (f) 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);
(6) "Suitable person" means a nonrelative with whom the child or
the child's family has a preexisting relationship; who has completed
all required criminal history background checks and otherwise appears
to be suitable and competent to provide care for the child; and with
whom the child has been placed pursuant to RCW 13.34.130.
(7) "Supervising agency" means an agency licensed by the state
under RCW 74.15.090, or licensed by a federally recognized Indian tribe
located in this state under RCW 74.15.190, that has entered into a
performance-based contract with the department to provide case
management for the delivery and documentation of child welfare services
as defined in RCW 74.13.020.
NEW SECTION. Sec. 3
(2) To be designated as a proposed guardian in a petition under
this chapter, a person must be age twenty-one or over and must meet the
minimum requirements to care for children as established by the
department under RCW 74.15.030, including but not limited to licensed
foster parents, relatives, and suitable persons.
(3) Every petition filed in proceedings under this chapter shall
contain: (a) 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; (b) a statement alleging whether
the federal servicemembers civil relief act of 2003, 50 U.S.C. Sec. 501
et seq. applies to the proceeding; and (c) a statement alleging whether
the Washington service members' civil relief act, chapter 38.42 RCW,
applies to the proceeding.
(4) Every order or decree entered in any proceeding under this
chapter shall contain: (a) 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; (b) a finding that the
federal servicemembers civil relief act of 2003 does or does not apply;
and (c) a finding that the Washington service members' civil relief
act, chapter 38.42 RCW, does or does not apply.
NEW SECTION. Sec. 4
(2) A guardianship shall be established if:
(a) The court finds by a preponderance of the evidence that it is
in the child's best interests to establish a guardianship, rather than
to terminate the parent-child relationship and proceed with adoption,
or to continue efforts to return custody of the child to the parent;
and
(b) All parties agree to entry of the guardianship order and the
proposed guardian is qualified, appropriate, and capable of performing
the duties of guardian under section 5 of this act; or
(c)(i) The child has been found to be a dependent child under RCW
13.34.030;
(ii) A dispositional order has been entered pursuant to RCW
13.34.130;
(iii) At the time of the hearing on the guardianship petition, the
child has or will have been removed from the custody of the parent for
at least six consecutive months following a finding of dependency under
RCW 13.34.030;
(iv) 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;
(v) There is little likelihood that conditions will be remedied so
that the child can be returned to the parent in the near future; and
(vi) The proposed guardian has signed a statement acknowledging the
guardian's rights and responsibilities toward the child and affirming
the guardian's understanding and acceptance that the guardianship is a
commitment to provide care for the child until the child reaches age
eighteen.
(3) The court may not establish a guardianship for a child who has
no legal parent unless the court, in addition to making the required
findings set forth in subsection (2) of this section, finds one or more
exceptional circumstances exist and the benefits for the child of
establishing the guardianship outweigh any potential disadvantage to
the child of having no legal parent. Exceptional circumstances may
include but are not limited to:
(a) The child has special needs and a suitable guardian is willing
to accept custody and able to meet the needs of the child to an extent
unlikely to be achieved through adoption; or
(b) The proposed guardian has demonstrated a commitment to provide
for the long-term care of the child and: (i) Is a relative of the
child; (ii) has been a long-term caregiver for the child and has acted
as a parent figure to the child and is viewed by the child as a parent
figure; or (iii) the child's family has identified the proposed
guardian as the preferred guardian, and, if the child is age twelve
years or older, the child also has identified the proposed guardian as
the preferred guardian.
(4) Upon the request of a dependency guardian appointed under
chapter 13.34 RCW and the department or supervising agency, the court
shall convert a dependency guardianship established under chapter 13.34
RCW to a guardianship under this chapter.
NEW SECTION. Sec. 5
(a) Appoint a person to be the guardian for the child;
(b) Specify the guardian's rights and responsibilities concerning
the care, custody, control, and nurturing of the child;
(c) Specify the guardian's authority, if any, to receive, invest,
and expend funds, benefits, or property belonging to the child;
(d) Specify an appropriate frequency and type of contact between
the parent or parents and the child, if applicable, and between the
child and his or her siblings, if applicable; and
(e) Specify the need for and scope of continued oversight by the
court, if any.
(2) The guardian shall maintain physical and legal custody of the
child and have the following rights and duties under the guardianship:
(a) Duty to protect, nurture, discipline, and educate the child;
(b) Duty to provide food, clothing, shelter, education as required
by law, and health care for the child, including but not limited to,
medical, dental, mental health, psychological, and psychiatric care and
treatment;
(c) Right to consent to health care for the child and sign a
release authorizing the sharing of health care information with
appropriate authorities, in accordance with state law;
(d) Right to consent to the child's participation in social and
school activities; and
(e) Duty to notify the court of a change of address of the guardian
and the child. Unless specifically ordered by the court, however, the
standards and requirements for relocation in chapter 26.09 RCW do not
apply to guardianships established under this chapter.
(3) If the child has independent funds or other valuable property
under the control of the guardian, the guardian shall provide an annual
written accounting, supported with appropriate documentation, to the
court regarding receipt and expenditure by the guardian of any such
funds or benefits. This subsection shall not be construed to require
a guardian to account for any routine funds or benefits received from
a public social service agency on behalf of the child.
(4) The guardianship shall remain in effect until the child reaches
the age of eighteen years or until the court terminates the
guardianship, whichever occurs sooner.
(5) Once the dependency has been dismissed pursuant to section 7 of
this act, the court shall not order the department or other supervising
agency to supervise or provide case management services to the guardian
or the child as part of the guardianship order.
(6) The court shall issue a letter of guardianship to the guardian
upon the entry of the court order establishing the guardianship under
this chapter.
NEW SECTION. Sec. 6
(a) Filing with the court a motion for modification and an
affidavit setting forth facts supporting the requested modification;
and
(b) Providing notice and a copy of the motion and affidavit to all
other parties. The nonmoving parties may file and serve opposing
affidavits.
(2) The court shall deny the motion unless it finds that adequate
cause for hearing the motion is established by the affidavits, in which
case it shall set a date for hearing on an order to show cause why the
requested modification should not be granted.
(3) If the court finds that a motion to modify a guardianship order
has been brought in bad faith, the court may assess attorney's fees and
court costs of the nonmoving party against the moving party.
NEW SECTION. Sec. 7
(2) Except as provided in subsection (3) of this section, the court
shall not terminate a guardianship unless it finds, upon the basis of
facts that have arisen since the guardianship was established or that
were unknown to the court at the time the guardianship was established,
that a substantial change has occurred in the circumstances of the
child or the guardian and that termination of the guardianship is
necessary to serve the best interests of the child. The effect of a
guardian's duties while serving in the military potentially impacting
guardianship functions shall not, by itself, be a substantial change of
circumstances justifying termination of a guardianship.
(3) The court may terminate a guardianship on the agreement of the
guardian, the child, if the child is age twelve years or older, and a
parent seeking to regain custody of the child if the court 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 successfully corrected the parenting
deficiencies identified by the court in the dependency action, and the
circumstances of the parent have changed to such a degree that
returning the child to the custody of the parent no longer creates a
risk of harm to the child's health, welfare, and safety;
(b) The guardian agrees that the parent is presently able and
willing 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 years or older, agrees to termination
of the guardianship the return of custody to the parent; and
(d) Termination of the guardianship and return of custody of the
child to the parent is in the child's best interests.
(4) Upon the entry of an order terminating a guardianship, the
court shall enter an order:
(a) Granting the child's parent with legal and physical custody of
the child;
(b) Granting a substitute guardian with legal and physical custody
of the child; or
(c) Directing the child to be temporarily placed in the custody of
the department for placement with a relative or other suitable person
as defined in RCW 13.34.130(1)(b), if available, or in an appropriate
licensed out-of-home placement, and directing that the department file
a dependency petition on behalf of the child.
NEW SECTION. Sec. 8
NEW SECTION. Sec. 9
(2) Within amounts appropriated for this specific purpose, a
guardian who is a licensed foster parent at the time a guardianship is
established under this chapter and who has been the child's foster
parent for a minimum of six consecutive months preceding entry of the
guardianship order is eligible for a guardianship subsidy on behalf of
the child.
Sec. 10 RCW 13.34.030 and 2009 c 520 s 21 and 2009 c 397 s 1 are
each reenacted and 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) "Department" means the department of social and health
services.
(5) "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.
(6) "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.
(7) "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.
(8) "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)), including a guardian appointed
pursuant to chapter 13.-- RCW (the new chapter created in section 17 of
this act); and (b) has the legal right to custody of the child pursuant
to such appointment. The term "guardian" ((shall)) does not include a
"dependency guardian" appointed pursuant to a proceeding under this
chapter.
(9) "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.
(10) "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.
(11) "Housing assistance" means appropriate referrals by the
department or other supervising agencies to federal, state, local, or
private agencies or organizations, assistance with forms, applications,
or financial subsidies or other monetary assistance for housing. For
purposes of this chapter, "housing assistance" is not a remedial
service or time-limited family reunification service as described in
RCW 13.34.025(2).
(12) "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.
(13) "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.
(14) "Preventive services" means preservation services, as defined
in chapter 74.14C RCW, and other reasonably available services,
including housing assistance, capable of preventing the need for out-of-home placement while protecting the child.
(15) "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.
(16) "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).
(17) "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, including housing
assistance, 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.
(18) "Supervising agency" means an agency licensed by the state
under RCW 74.15.090, or ((an)) licensed by a federally recognized
Indian tribe located in this state under RCW 74.15.190 ((with whom the
department)), that has entered into a performance-based contract with
the department to provide case management for the delivery and
documentation of child welfare services as defined in RCW 74.13.020.
NEW SECTION. Sec. 11 A new section is added to chapter 13.34 RCW
to read as follows:
(1) Notwithstanding the provisions of chapter 13.-- RCW (the new
chapter created in section 17 of this act), a dependency guardianship
established by court order under this chapter and in force on the
effective date of this section shall remain subject to the provisions
of this chapter unless: (a) The dependency guardianship is modified or
terminated under the provisions of this chapter; or (b) the dependency
guardianship is converted by court order to a guardianship pursuant to
a petition filed under section 3 of this act.
(2) A dependency guardian or the department or supervising agency
may request the juvenile court to convert a dependency guardianship
established under this chapter to a guardianship under chapter 13.--RCW (the new chapter created in section 17 of this act) by filing a
petition under section 3 of this act. If both the dependency guardian
and the department or supervising agency agree that the dependency
guardianship should be converted to a guardianship under this chapter,
and if the court finds that such conversion is in the child's best
interests, the court shall grant the petition and enter an order of
guardianship in accordance with section 5 of this act.
(3) The court shall dismiss the dependency established under this
chapter upon the entry of a guardianship order under chapter 13.-- RCW
(the new chapter created in section 17 of this act).
NEW SECTION. Sec. 12 A new section is added to chapter 74.13 RCW
to read as follows:
(1) The department shall adopt rules consistent with federal
regulations for the receipt and expenditure of federal funds and
implement a subsidy program for eligible relatives appointed by the
court as a guardian under section 5 of this act.
(2) For the purpose of licensing a relative seeking to be appointed
as a guardian and eligible for a guardianship subsidy under this
section, the department shall, on a case-by-case basis, and when
determined to be in the best interests of the child:
(a) Waive nonsafety licensing standards; and
(b) Apply the list of disqualifying crimes in the adoption and safe
families act, rather than the secretary's list of disqualifying crimes,
unless doing so would compromise the child's safety, or would adversely
affect the state's ability to continue to obtain federal funding for
child welfare related functions.
(3) Relative guardianship subsidy agreements shall be designed to
promote long-term permanency for the child, and may include provisions
for periodic review of the subsidy amount and the needs of the child.
Sec. 13 RCW 13.34.210 and 2009 c 520 s 35 and 2009 c 152 s 2 are
each reenacted and amended to read as follows:
If, upon entering an order terminating the parental rights of a
parent, there remains no parent having parental rights, the court shall
commit the child to the custody of the department or a supervising
agency willing to accept custody for the purpose of placing the child
for adoption. If an adoptive home has not been identified, the
department or supervising agency shall place the child in a licensed
foster home, or take other suitable measures for the care and welfare
of the child. The custodian shall have authority to consent to the
adoption of the child consistent with chapter 26.33 RCW, the marriage
of the child, the enlistment of the child in the armed forces of the
United States, necessary surgical and other medical treatment for the
child, and to consent to such other matters as might normally be
required of the parent of the child.
If a child has not been adopted within six months after the date of
the order and a guardianship of the child under ((RCW 13.34.231))
chapter 13.-- RCW (the new chapter created in section 17 of this act)
or chapter 11.88 RCW, or a permanent custody order under chapter 26.10
RCW, has not been entered by the court, the court shall review the case
every six months until a decree of adoption is entered. The
supervising agency shall take reasonable steps to ensure that the child
maintains relationships with siblings as provided in RCW 13.34.130(3)
and shall report to the court the status and extent of such
relationships.
Sec. 14 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. The order)) shall:
(a) Appoint a person or agency to serve as dependency guardian for
the limited purpose of assisting the court to supervise the dependency;
(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;
(d) Specify an appropriate frequency of visitation between the
parent and the child; and
(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 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) Provide an annual written accounting to the court regarding
receipt by the dependency guardian of any funds, benefits, or property
belonging to the child and expenditures made therefrom.
(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.
(5) 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.
Sec. 15 RCW 13.34.234 and 2009 c 235 s 6 are each amended to read
as follows:
A dependency guardian who is a licensed foster parent at the time
the guardianship is established under ((RCW 13.34.231 and 13.34.232))
this chapter and who has been the child's foster parent for a minimum
of six consecutive months preceding entry of the guardianship order
((is)) may be eligible for a guardianship subsidy on behalf of the
child. ((The department may establish rules setting eligibility,
application, and program standards consistent with applicable federal
guidelines.))
NEW SECTION. Sec. 16 The following acts or parts of acts are
each repealed:
(1) RCW 13.34.230 (Guardianship for dependent child -- Petition for--Notice to, intervention by, department or supervising agency) and 2009
c 520 s 37, 1981 c 195 s 1, & 1979 c 155 s 51;
(2) RCW 13.34.231 (Guardianship for dependent child -- Hearing--Rights of parties -- Rules of evidence -- Guardianship established, when)
and 2000 c 122 s 29, 1994 c 288 s 6, & 1981 c 195 s 2;
(3) RCW 13.34.236 (Guardianship for dependent child -- Qualifications
for dependency guardian -- Consideration of preferences of parent) and
1994 c 288 s 10 & 1981 c 195 s 7; and
(4) RCW 13.34.238 (Guardianship for dependent child -- Relative
guardianship subsidies) and 2009 c 235 s 5.
NEW SECTION. Sec. 17 Sections 2 through 9 of this act constitute
a new chapter in Title