State of Washington | 62nd Legislature | 2011 Regular Session |
READ FIRST TIME 02/21/11.
AN ACT Relating to a state Indian child welfare act; amending RCW 13.32A.152, 13.34.040, 13.34.070, 13.34.105, 13.34.130, 13.34.132, 13.34.190, 26.10.034, 26.33.040, and 74.13.350; reenacting and amending RCW 13.34.030, 13.34.065, and 13.34.136; adding a new chapter to Title 13 RCW; and repealing RCW 13.34.250.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:
NEW SECTION. Sec. 1
NEW SECTION. Sec. 2
NEW SECTION. Sec. 3
It is the intent of the legislature that this chapter is a step in
clarifying existing laws and codifying existing policies and practices.
This chapter shall not be construed to reject or eliminate current
policies and practices that are not included in its provisions.
The legislature further intends that nothing in this chapter is
intended to interfere with policies and procedures that are derived
from agreements entered into between the department and a tribe or
tribes, as authorized by section 109 of the federal Indian child
welfare act. The legislature finds that this chapter specifies the
minimum requirements that must be applied in a child custody proceeding
and does not prevent the department from providing a higher standard of
protection to the right of any Indian child, parent, Indian custodian,
or Indian child's tribe.
It is also the legislature's intent that the department's policy
manual on Indian child welfare, the tribal-state agreement, and
relevant local agreements between individual federally recognized
tribes and the department should serve as persuasive guides in the
interpretation and implementation of the federal Indian child welfare
act, this chapter, and other relevant state laws.
NEW SECTION. Sec. 4
(1) "Active efforts" means the following:
(a) In any foster care placement or termination of parental rights
proceeding of an Indian child under chapter 13.34 RCW and this chapter
where the department or a supervising agency as defined in RCW
74.13.020 has a statutory or contractual duty to directly provide
services to, or procure services for, the parent or parents or Indian
custodian, or is providing services to a parent or parents or Indian
custodian pursuant to a disposition order entered pursuant to RCW
13.34.130, the department or supervising agency shall make timely and
affirmative efforts to provide or procure such services, including
engaging the parent or parents or Indian custodian in reasonably
available and culturally appropriate preventive, remedial, or
rehabilitative services. This shall include those services offered by
tribes and Indian organizations whenever possible. At a minimum
"active efforts" shall include:
(i) In any dependency proceeding under chapter 13.34 RCW seeking
out-of-home placement of an Indian child in which the department or
supervising agency provided voluntary services to the parent, parents,
or Indian custodian prior to filing the dependency petition, a showing
to the court that the department or supervising agency social workers
actively worked with the parent, parents, or Indian custodian to engage
them in remedial services and rehabilitation programs to prevent the
breakup of the family beyond simply providing referrals to such
services.
(ii) In any dependency proceeding under chapter 13.34 RCW, in which
the petitioner is seeking the continued out-of-home placement of an
Indian child, the department or supervising agency must show to the
court that it has actively worked with the parent, parents, or Indian
custodian in accordance with existing court orders and the individual
service plan to engage them in remedial services and rehabilitative
programs to prevent the breakup of the family beyond simply providing
referrals to such services.
(iii) In any termination of parental rights proceeding regarding an
Indian child under chapter 13.34 RCW in which the department or
supervising agency provided services to the parent, parents, or Indian
custodian, a showing to the court that the department or supervising
agency social workers actively worked with the parent, parents, or
Indian custodian to engage them in remedial services and rehabilitation
programs ordered by the court or identified in the department or
supervising agency's individual service and safety plan rather than
requiring that the plan or court order be performed on its own.
(b) In any foster care placement or termination of parental rights
proceeding in which the petitioner does not otherwise have a statutory
or contractual duty to directly provide services to, or procure
services for, the parent or Indian custodian, "active efforts" means a
documented, concerted, and good faith effort to facilitate the parent's
or Indian custodian's receipt of and engagement in services capable of
meeting the criteria set out in (a) of this subsection.
(2) "Best interests of the Indian child" means the use of practices
in accordance with the federal Indian child welfare act, this chapter,
and other applicable law, that are designed to accomplish the
following: (a) Protect the safety, well-being, development, and
stability of the Indian child; (b) prevent the unnecessary out-of-home
placement of the Indian child; (c) acknowledge the right of Indian
tribes to maintain their existence and integrity which will promote the
stability and security of their children and families; (d) recognize
the value to the Indian child of establishing, developing, or
maintaining a political, cultural, social, and spiritual relationship
with the Indian child's tribe and tribal community; and (e) in a
proceeding under this chapter where out-of-home placement is necessary,
to prioritize placement of the Indian child in accordance with the
placement preferences of this chapter.
(3) "Child custody proceeding" includes:
(a) "Foster care placement" which means any action removing an
Indian child from his or her parent or Indian custodian for temporary
placement in a foster home, institution, or with a relative, guardian,
conservator, or suitable other person where the parent or Indian
custodian cannot have the child returned upon demand, but where
parental rights have not been terminated;
(b) "Termination of parental rights" which means any action
resulting in the termination of the parent-child relationship;
(c) "Preadoptive placement" which means the temporary placement of
an Indian child in a foster home or institution after the termination
of parental rights but before or in lieu of adoptive placement; and
(d) "Adoptive placement" which means the permanent placement of an
Indian child for adoption, including any action resulting in a final
decree of adoption.
These terms shall not include a placement based upon an act which,
if committed by an adult, would be deemed a crime or upon an award, in
a dissolution proceeding of custody to one of the parents.
(4) "Court of competent jurisdiction" means a federal or state
court that entered an order in a child custody proceeding involving an
Indian child, as long as the state court had proper subject matter
jurisdiction in accordance with this chapter and the laws of that
state, or the tribal court that had or has exclusive or concurrent
jurisdiction pursuant to 25 U.S.C. Sec. 1911.
(5) "Department" means the department of social and health services
and any of its divisions. "Department" also includes supervising
agencies as defined in RCW 74.13.020(12) with which the department
entered into a contract to provide services, care, placement, case
management, contract monitoring, or supervision to children subject to
a petition filed under chapter 13.34 or 26.33 RCW.
(6) "Indian" means a person who is a member of an Indian tribe, or
who is an Alaska native and a member of a regional corporation as
defined in 43 U.S.C. Sec. 1606.
(7) "Indian child" means an unmarried and unemancipated Indian
person who is under eighteen years of age and is either: (a) A member
of an Indian tribe; or (b) eligible for membership in an Indian tribe
and is the biological child of a member of an Indian tribe.
(8) "Indian child's family" or "extended family member" means an
individual, defined by the law or custom of the child's tribe, as a
relative of the child. If the child's tribe does not identify such
individuals by law or custom, the term means an adult who is the Indian
child's grandparent, aunt, uncle, brother, sister, brother-in-law,
sister-in-law, niece, nephew, first or second cousin, or step-parent,
even following termination of the marriage.
(9) "Indian child's tribe" means a tribe in which an Indian child
is a member or eligible for membership.
(10) "Indian custodian" means an Indian person who under tribal
law, tribal custom, or state law, has legal or temporary physical
custody of an Indian child, or to whom the parent has transferred
temporary care, physical custody, and control of an Indian child.
(11) "Indian tribe" or "tribe" means any Indian tribe, band,
nation, or other organized group or community of Indians recognized as
eligible for the services provided to Indians by the secretary of the
interior because of their status as Indians, including any Alaska
native village as defined in 43 U.S.C. Sec. 1602(c).
(12) "Member" and "membership" means a determination by an Indian
tribe that a person is a member or eligible for membership in that
Indian tribe.
(13) "Parent" means a biological parent or parents of an Indian
child or a person who has lawfully adopted an Indian child, including
adoptions made under tribal law or custom. "Parent" does not include
an unwed father whose paternity has not been acknowledged or
established.
(14) "Secretary of the interior" means the secretary of the United
States department of the interior.
(15) "Tribal court" means a court or body vested by an Indian tribe
with jurisdiction over child custody proceedings, including but not
limited to a federal court of Indian offenses, a court established and
operated under the code or custom of an Indian tribe, or an
administrative body of an Indian tribe vested with authority over child
custody proceedings.
(16) "Tribal customary adoption" means adoption or other process
through the tribal custom, traditions, or laws of an Indian child's
tribe by which the Indian child is permanently placed with a nonparent
and through which the nonparent is vested with the rights, privileges,
and obligations of a legal parent. Termination of the parent-child
relationship between the Indian child and the biological parent is not
required to effect or recognize a tribal customary adoption.
NEW SECTION. Sec. 5
NEW SECTION. Sec. 6
(2) If an Indian child is already a ward of a tribal court at the
start of the child custody proceeding, the Indian tribe may retain
exclusive jurisdiction, notwithstanding the residence or domicile of
the child.
NEW SECTION. Sec. 7
(2) The determination of the Indian status of a child shall be made
as soon as practicable in order to serve the best interests of the
Indian child and protect the interests of the child's tribe.
(3)(a) A written determination by an Indian tribe that a child is
a member of or eligible for membership in that tribe, or testimony by
the tribe attesting to such status shall be conclusive that the child
is an Indian child;
(b) A written determination by an Indian tribe that a child is not
a member of or eligible for membership in that tribe, or testimony by
the tribe attesting to such status shall be conclusive that the child
is not a member or eligible for membership in that tribe. Such
determinations are presumptively those of the tribe where submitted in
the form of a tribal resolution, or signed by or testified to by the
person(s) authorized by the tribe's governing body to speak for the
tribe, or by the tribe's agent designated to receive notice under the
federal Indian child welfare act where such designation is published in
the federal register;
(c) Where a tribe provides no response to notice under section 7 of
this act, such nonresponse shall not constitute evidence that the child
is not a member or eligible for membership. Provided, however, that
under such circumstances the party asserting application of the federal
Indian child welfare act, or this chapter, will have the burden of
proving that the child is an Indian child.
(4) Where a child has been determined not to be an Indian child,
any party to the proceeding, or an Indian tribe that subsequently
determines the child is a member, may move the court for
redetermination of the child's Indian status at any time based upon new
evidence, redetermination by the child's tribe, or newly conferred
federal recognition of the tribe.
NEW SECTION. Sec. 8
(a) Either of the child's parents;
(b) The child's Indian custodian;
(c) The child's tribe; or
(d) The child, if age twelve or older.
The transfer shall be subject to declination by the tribe. The tribe
shall have seventy-five days to affirmatively respond to a motion or
order transferring jurisdiction to the tribal court. A failure of the
tribe to respond within the seventy-five day period shall be construed
as a declination to accept transfer of the case.
(2) If the child's tribe has not formally intervened, the moving
party shall serve a copy of the motion and all supporting documents on
the tribal court to which the moving party seeks transfer.
(3) If either of the Indian child's parents objects to transfer of
the proceeding to the Indian child's tribe, the court shall not
transfer the proceeding.
(4) Following entry of an order transferring jurisdiction to the
Indian child's tribe:
(a) Upon receipt of an order from a tribal court accepting
jurisdiction, the state court shall dismiss the child custody
proceeding without prejudice.
(b) Pending receipt of such tribal court order, the state court may
conduct additional hearings and enter orders which strictly comply with
the requirements of the federal Indian child welfare act and this
chapter. The state court shall not enter a final order in any child
custody proceeding, except an order dismissing the proceeding and
returning the Indian child to the care of the parent or Indian
custodian from whose care the child was removed, while awaiting receipt
of a tribal court order accepting jurisdiction, or in the absence of a
tribal court order or other formal written declination of jurisdiction.
(c) If the Indian child's tribe declines jurisdiction, the state
court shall enter an order vacating the order transferring jurisdiction
and proceed with adjudication of the child custody matter in strict
compliance with the federal Indian child welfare act, this chapter, and
any applicable tribal-state agreement.
NEW SECTION. Sec. 9
NEW SECTION. Sec. 10
NEW SECTION. Sec. 11
NEW SECTION. Sec. 12
NEW SECTION. Sec. 13
(2) No foster care placement may be ordered in a child custody
proceeding in the absence of a determination, supported by clear and
convincing evidence, including testimony of qualified expert witnesses,
that the continued custody of the child by the parent or Indian
custodian is likely to result in serious emotional or physical damage
to the child. For purposes of this subsection, any harm to the bond
between the foster parent and the child that could result from removing
the child from foster care shall not be the sole basis or primary
reason for continuing the child in foster care.
(3) No termination of parental rights may be ordered in a child
custody proceeding in the absence of a determination, supported by
evidence beyond a reasonable doubt, including testimony of qualified
expert witnesses, that the continued custody of the child by the parent
or Indian custodian is likely to result in serious emotional or
physical damage to the child.
(4)(a) For purposes of this section, "qualified expert witness"
means a person who provides testimony in a proceeding under this
chapter to assist a court in the determination of whether the continued
custody of the child by, or return of the child to, the parent,
parents, or Indian custodian, is likely to result in serious emotional
or physical damage to the child. In any proceeding in which the
child's Indian tribe has intervened pursuant to section 9 of this act
or, if the department is the petitioner and the Indian child's tribe
has entered into a local agreement with the department for the
provision of child welfare services, the petitioner shall contact the
tribe and ask the tribe to identify a tribal member or other person of
the tribe's choice who is recognized by the tribe as knowledgeable
regarding tribal customs as they pertain to family organization or
child rearing practices. The petitioner shall notify the child's
Indian tribe of the need to provide a "qualified expert witness" at
least twenty days prior to any evidentiary hearing in which the
testimony of the witness will be required. If the child's Indian tribe
does not identify a "qualified expert witness" for the proceeding on a
timely basis, the petitioner may proceed to identify such a witness
pursuant to (b) of this subsection.
(b) In any proceeding in which the child's Indian tribe has not
intervened or entered into a local agreement with the department for
the provision of child welfare services, or a child's Indian tribe has
not responded to a request to identify a "qualified expert witness" for
the proceeding on a timely basis, the petitioner shall provide a
"qualified expert witness" who meets one or more of the following
requirements in descending order of preference:
(i) A member of the child's Indian tribe or other person of the
tribe's choice who is recognized by the tribe as knowledgeable
regarding tribal customs as they pertain to family organization or
child rearing practices for this purpose;
(ii) Any person having substantial experience in the delivery of
child and family services to Indians, and extensive knowledge of
prevailing social and cultural standards and child rearing practices
within the Indian child's tribe;
(iii) Any person having substantial experience in the delivery of
child and family services to Indians, and knowledge of prevailing
social and cultural standards and child rearing practices in Indian
tribes with cultural similarities to the Indian child's tribe; or
(iv) A professional person having substantial education and
experience in the area of his or her specialty.
(c) When the petitioner is the department or a supervising agency,
the currently assigned department or agency caseworker or the
caseworker's supervisor may not testify as a "qualified expert witness"
for purposes of this section. Nothing in this section shall bar the
assigned department or agency caseworker or the caseworker's supervisor
from testifying as an expert witness for other purposes in a proceeding
under this chapter. Nothing in this section shall bar other department
or supervising agency employees with appropriate expert qualifications
or experience from testifying as a "qualified expert witness" in a
proceeding under this chapter. Nothing in this section shall bar the
petitioner or any other party in a proceeding under this chapter from
providing additional witnesses or expert testimony, subject to the
approval of the court, on any issue before the court including the
determination of whether the continued custody of the child by, or
return of the child to, the parent, parents, or Indian custodian, is
likely to result in serious emotional or physical damage to the child.
NEW SECTION. Sec. 14
(2) The department or law enforcement agency shall ensure that the
emergency removal or placement terminates immediately when such removal
or placement is no longer necessary to prevent imminent physical damage
or harm to the child and shall expeditiously initiate a child custody
proceeding subject to the provisions of the federal Indian child
welfare act and this chapter to transfer the child to the jurisdiction
of the appropriate Indian tribe or restore the child to the child's
parent or Indian custodian, if appropriate.
(3) When the nature of the emergency allows, the department must
notify the child's tribe before the removal has occurred. If prior
notification is not possible, the department shall notify the child's
tribe by the quickest means possible. The notice must contain the
basis for the Indian child's removal, the time, date, and place of the
initial hearing, and the tribe's right to intervene and participate in
the proceeding. This notice shall not constitute the notice required
under section 7 of this act for purposes of subsequent dependency,
termination of parental rights, or adoption proceedings.
NEW SECTION. Sec. 15
(2) An Indian child's parent or Indian custodian may withdraw
consent to a voluntary foster care placement at any time and, upon the
withdrawal of consent, the child shall be returned to the parent or
Indian custodian.
(3) In a voluntary proceeding for termination of parental rights
to, or adoptive placement of, an Indian child, the consent of the
parent may be withdrawn for any reason at any time prior to the entry
of an order terminating parental rights or a final decree of adoption,
and the child shall be returned to the parent.
(4) After the entry of a final decree of adoption of an Indian
child, the parent may withdraw consent to the adoption upon the grounds
that consent was obtained through fraud or duress. Upon a finding that
such consent was obtained through fraud or duress the court shall
vacate the decree and return the child to the parent. No adoption
which has been effective for at least two years may be invalidated
under this section unless otherwise allowed by state law.
NEW SECTION. Sec. 16
NEW SECTION. Sec. 17
(2) If an Indian child is removed from a foster care placement or
a preadoptive or adoptive home for the purpose of further foster care,
preadoptive, or adoptive placement, the placement shall be in
accordance with this chapter, except when an Indian child is being
returned to the parent or Indian custodian from whose custody the child
was originally removed.
NEW SECTION. Sec. 18
(a) In the least restrictive setting;
(b) Which most approximates a family situation;
(c) Which is in reasonable proximity to the Indian child's home;
and
(d) In which the Indian child's special needs, if any, will be met.
(2) In any foster care or preadoptive placement, a preference shall
be given, in absence of good cause to the contrary, to the child's
placement with one of the following:
(a) A member of the child's extended family.
(b) A foster home licensed, approved, or specified by the child's
tribe.
(c) An Indian foster home licensed or approved by an authorized
non-Indian licensing authority.
(d) A child foster care agency approved by an Indian tribe or
operated by an Indian organization which has a program suitable to meet
the Indian child's needs.
(e) A non-Indian child foster care agency approved by the child's
tribe.
(f) A non-Indian family that is committed to:
(i) Promoting and allowing appropriate extended family visitation;
(ii) Establishing, maintaining, and strengthening the child's
relationship with his or her tribe or tribes; and
(iii) Participating in the cultural and ceremonial events of the
child's tribe.
(3) In the absence of good cause to the contrary, any adoptive or
other permanent placement of an Indian child, preference shall be given
to a placement with one of the following, in descending priority order:
(a) Extended family members;
(b) An Indian family of the same tribe as the child;
(c) An Indian family that is of a similar culture to the child's
tribe;
(d) Another Indian family; or
(e) Any other family which can provide a suitable home for an
Indian child, such suitability to be determined in consultation with
the Indian child's tribe or, where the Indian child's tribe has not
intervened or participated, the local Indian child welfare advisory
committee.
(4) Notwithstanding the placement preferences listed in subsections
(2) and (3) of this section, if a different order of placement
preference is established by the child's tribe, the court or agency
effecting the placement shall follow the order of preference
established by the tribe so long as the placement is in the least
restrictive setting appropriate to the particular needs of the child.
Where appropriate, the preference of the Indian child or his or her
parent shall be considered.
(5) The standards to be applied in meeting the preference
requirements of this section shall be the prevailing social and
cultural standards of the Indian community in which the parent or
extended family members of an Indian child reside, or with which the
parent or extended family members maintain social and cultural ties.
(6) Nothing in this section shall prevent the department or the
court from placing the child with a parent to effectuate a permanent
plan regardless of the parent's relationship to the child's tribe.
NEW SECTION. Sec. 19
(2) Any Indian child who is the subject of any action for foster
care placement or termination of parental rights under chapter 13.34 or
26.33 RCW, any parent or Indian custodian from whose custody such child
was removed, and the Indian child's tribe may petition any court of
competent jurisdiction to invalidate such action upon a showing that
such action violated provisions of this chapter or the federal Indian
child welfare act.
NEW SECTION. Sec. 20
Sec. 21 RCW 13.32A.152 and 2004 c 64 s 5 are each amended to read
as follows:
(1) Whenever a child in need of services petition is filed by: (a)
A youth pursuant to RCW 13.32A.150; (b) the child or the child's parent
pursuant to RCW 13.32A.120; or (c) the department pursuant to RCW
13.32A.140, the filing party shall have a copy of the petition served
on the parents of the youth. Service shall first be attempted in
person and if unsuccessful, then by certified mail with return receipt.
(2) Whenever a child in need of services petition is filed by a
youth or parent pursuant to RCW 13.32A.150, the court shall immediately
notify the department that a petition has been filed.
(3)(((a) Whenever)) When a child in need of services petition is
filed by the department, and the court or the petitioning party knows
or has reason to know that an Indian child is involved, the
((petitioning party shall promptly provide notice to the child's parent
or Indian custodian and to the agent designated by the child's Indian
tribe to receive such notices. Notice shall be by certified mail with
return receipt requested. If the identity or location of the parent or
Indian custodian and the tribe cannot be determined, notice shall be
given to the secretary of the interior in the manner described in 25
C.F.R. 23.11. If the child may be a member of more than one tribe, the
petitioning party shall send notice to all tribes the petitioner has
reason to know may be affiliated with the child.)) provisions of chapter 13.--- RCW
(the new chapter created in section 34 of this act) apply.
(b) The notice shall: (i) Contain a statement notifying the parent
or custodian and the tribe of the pending proceeding; and (ii) notify
the tribe of the tribe's right to intervene and/or request that the
case be transferred to tribal court
Sec. 22 RCW 13.34.030 and 2010 1st sp.s. c 8 s 13, 2010 c 272 s
10, and 2010 c 94 s 6 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
intellectual disability, cerebral palsy, epilepsy, autism, or another
neurological or other condition of an individual found by the secretary
to be closely related to an intellectual disability or to require
treatment similar to that required for individuals with intellectual
disabilities, which disability originates before the individual attains
age eighteen, which has continued or can be expected to continue
indefinitely, and which constitutes a substantial limitation 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, including
a guardian appointed pursuant to chapter 13.36 RCW; and (b) has the
legal right to custody of the child pursuant to such appointment. The
term "guardian" 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, disability lifeline benefits,
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))) section 4 of this act.
(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 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.
Sec. 23 RCW 13.34.040 and 2004 c 64 s 3 are each amended to read
as follows:
(1) Any person may file with the clerk of the superior court a
petition showing that there is within the county, or residing within
the county, a dependent child and requesting that the superior court
deal with such child as provided in this chapter. There shall be no
fee for filing such petitions.
(2) In counties having paid probation officers, these officers
shall, to the extent possible, first determine if a petition is
reasonably justifiable. Each petition shall be verified and contain a
statement of facts constituting a dependency, and the names and
residence, if known to the petitioner, of the parents, guardian, or
custodian of the alleged dependent child.
(3) Every petition filed in proceedings under this chapter shall
contain a statement alleging whether the child is or may be an Indian
child as defined in ((25 U.S.C. Sec. 1903)) section 4 of this act. If
the child is an Indian child ((as defined under the Indian child
welfare act, the provisions of the act)) chapter 13.--- RCW (the new
chapter created in section 34 of this act) shall apply.
(4) Every order or decree entered under this chapter shall contain
a finding that the federal Indian child welfare act or chapter 13.---
RCW (the new chapter created in section 34 of this act) does or does
not apply. Where there is a finding that the federal Indian child
welfare act or chapter 13.--- RCW (the new chapter created in section
34 of this act) does apply, the decree or order must also contain a
finding that all notice requirements and evidentiary requirements under
the federal Indian child welfare act and chapter 13.--- RCW (the new
chapter created in section 34 of this act) have been satisfied.
Sec. 24 RCW 13.34.065 and 2009 c 520 s 22, 2009 c 491 s 1, 2009
c 477 s 3, and 2009 c 397 s 2 are each reenacted and amended to read as
follows:
(1)(a) When a child is taken into custody, the court shall hold a
shelter care hearing within seventy-two hours, excluding Saturdays,
Sundays, and holidays. The primary purpose of the shelter care hearing
is to determine whether the child can be immediately and safely
returned home while the adjudication of the dependency is pending.
(b) Any parent, guardian, or legal custodian who for good cause is
unable to attend the shelter care hearing may request that a subsequent
shelter care hearing be scheduled. The request shall be made to the
clerk of the court where the petition is filed prior to the initial
shelter care hearing. Upon the request of the parent, the court shall
schedule the hearing within seventy-two hours of the request, excluding
Saturdays, Sundays, and holidays. The clerk shall notify all other
parties of the hearing by any reasonable means.
(2)(a) If it is likely that the child will remain in shelter care
longer than seventy-two hours, in those areas in which child welfare
services are being provided by a supervising agency, the supervising
agency shall assume case management responsibilities of the case. The
department or supervising agency shall submit a recommendation to the
court as to the further need for shelter care in all cases in which the
child will remain in shelter care longer than the seventy-two hour
period. In all other cases, the recommendation shall be submitted by
the juvenile court probation counselor.
(b) All parties have the right to present testimony to the court
regarding the need or lack of need for shelter care.
(c) Hearsay evidence before the court regarding the need or lack of
need for shelter care must be supported by sworn testimony, affidavit,
or declaration of the person offering such evidence.
(3)(a) At the commencement of the hearing, the court shall notify
the parent, guardian, or custodian of the following:
(i) The parent, guardian, or custodian has the right to a shelter
care hearing;
(ii) The nature of the shelter care hearing, the rights of the
parents, and the proceedings that will follow; and
(iii) If the parent, guardian, or custodian is not represented by
counsel, the right to be represented. If the parent, guardian, or
custodian is indigent, the court shall appoint counsel as provided in
RCW 13.34.090; and
(b) If a parent, guardian, or legal custodian desires to waive the
shelter care hearing, the court shall determine, on the record and with
the parties present, whether such waiver is knowing and voluntary. A
parent may not waive his or her right to the shelter care hearing
unless he or she appears in court and the court determines that the
waiver is knowing and voluntary. Regardless of whether the court
accepts the parental waiver of the shelter care hearing, the court must
provide notice to the parents of their rights required under (a) of
this subsection and make the finding required under subsection (4) of
this section.
(4) At the shelter care hearing the court shall examine the need
for shelter care and inquire into the status of the case. The
paramount consideration for the court shall be the health, welfare, and
safety of the child. At a minimum, the court shall inquire into the
following:
(a) Whether the notice required under RCW 13.34.062 was given to
all known parents, guardians, or legal custodians of the child. The
court shall make an express finding as to whether the notice required
under RCW 13.34.062 was given to the parent, guardian, or legal
custodian. If actual notice was not given to the parent, guardian, or
legal custodian and the whereabouts of such person is known or can be
ascertained, the court shall order the department to make reasonable
efforts to advise the parent, guardian, or legal custodian of the
status of the case, including the date and time of any subsequent
hearings, and their rights under RCW 13.34.090;
(b) Whether the child can be safely returned home while the
adjudication of the dependency is pending;
(c) What efforts have been made to place the child with a relative.
The court shall ask the parents whether the department discussed with
them the placement of the child with a relative or other suitable
person described in RCW 13.34.130(1)(b) and shall determine what
efforts have been made toward such a placement;
(d) What services were provided to the family to prevent or
eliminate the need for removal of the child from the child's home. If
the dependency petition or other information before the court alleges
that homelessness or the lack of suitable housing was a significant
factor contributing to the removal of the child, the court shall
inquire as to whether housing assistance was provided to the family to
prevent or eliminate the need for removal of the child or children;
(e) Is the placement proposed by the department or supervising
agency the least disruptive and most family-like setting that meets the
needs of the child;
(f) Whether it is in the best interest of the child to remain
enrolled in the school, developmental program, or child care the child
was in prior to placement and what efforts have been made to maintain
the child in the school, program, or child care if it would be in the
best interest of the child to remain in the same school, program, or
child care;
(g) Appointment of a guardian ad litem or attorney;
(h) Whether the child is or may be an Indian child as defined in
((25 U.S.C. Sec. 1903)) section 4 of this act, whether the provisions
of the federal Indian child welfare act or chapter 13.--- RCW (the new
chapter created in section 34 of this act) apply, and whether there is
compliance with the federal Indian child welfare act and chapter 13.---
RCW (the new chapter created in section 34 of this act), including
notice to the child's tribe;
(i) Whether, as provided in RCW 26.44.063, restraining orders, or
orders expelling an allegedly abusive household member from the home of
a nonabusive parent, guardian, or legal custodian, will allow the child
to safely remain in the home;
(j) Whether any orders for examinations, evaluations, or immediate
services are needed. The court may not order a parent to undergo
examinations, evaluation, or services at the shelter care hearing
unless the parent agrees to the examination, evaluation, or service;
(k) The terms and conditions for parental, sibling, and family
visitation.
(5)(a) The court shall release a child alleged to be dependent to
the care, custody, and control of the child's parent, guardian, or
legal custodian unless the court finds there is reasonable cause to
believe that:
(i) After consideration of the specific services that have been
provided, reasonable efforts have been made to prevent or eliminate the
need for removal of the child from the child's home and to make it
possible for the child to return home; and
(ii)(A) The child has no parent, guardian, or legal custodian to
provide supervision and care for such child; or
(B) The release of such child would present a serious threat of
substantial harm to such child, notwithstanding an order entered
pursuant to RCW 26.44.063; or
(C) The parent, guardian, or custodian to whom the child could be
released has been charged with violating RCW 9A.40.060 or 9A.40.070.
(b) If the court does not release the child to his or her parent,
guardian, or legal custodian, the court shall order placement with a
relative or other suitable person as described in RCW 13.34.130(1)(b),
unless there is reasonable cause to believe the health, safety, or
welfare of the child would be jeopardized or that the efforts to
reunite the parent and child will be hindered. The court must also
determine whether placement with the relative or other suitable person
is in the child's best interests. The relative or other suitable
person must be willing and available to:
(i) Care for the child and be able to meet any special needs of the
child;
(ii) Facilitate the child's visitation with siblings, if such
visitation is part of the supervising agency's plan or is ordered by
the court; and
(iii) Cooperate with the department or supervising agency in
providing necessary background checks and home studies.
(c) If the child was not initially placed with a relative or other
suitable person, and the court does not release the child to his or her
parent, guardian, or legal custodian, the supervising agency shall make
reasonable efforts to locate a relative or other suitable person
pursuant to RCW 13.34.060(1). In determining placement, the court
shall weigh the child's length of stay and attachment to the current
provider in determining what is in the best interest of the child.
(d) If a relative or other suitable person is not available, the
court shall order continued shelter care and shall set forth its
reasons for the order. If the court orders placement of the child with
a person not related to the child and not licensed to provide foster
care, the placement is subject to all terms and conditions of this
section that apply to relative placements.
(e) Any placement with a relative, or other suitable person
approved by the court pursuant to this section, shall be contingent
upon cooperation with the department's or supervising agency's case
plan and compliance with court orders related to the care and
supervision of the child including, but not limited to, court orders
regarding parent-child contacts, sibling contacts, and any other
conditions imposed by the court. Noncompliance with the case plan or
court order is grounds for removal of the child from the home of the
relative or other suitable person, subject to review by the court.
(f) Uncertainty by a parent, guardian, legal custodian, relative,
or other suitable person that the alleged abuser has in fact abused the
child shall not, alone, be the basis upon which a child is removed from
the care of a parent, guardian, or legal custodian under (a) of this
subsection, nor shall it be a basis, alone, to preclude placement with
a relative or other suitable person under (b) of this subsection.
(6)(a) A shelter care order issued pursuant to this section shall
include the requirement for a case conference as provided in RCW
13.34.067. However, if the parent is not present at the shelter care
hearing, or does not agree to the case conference, the court shall not
include the requirement for the case conference in the shelter care
order.
(b) If the court orders a case conference, the shelter care order
shall include notice to all parties and establish the date, time, and
location of the case conference which shall be no later than thirty
days before the fact-finding hearing.
(c) The court may order another conference, case staffing, or
hearing as an alternative to the case conference required under RCW
13.34.067 so long as the conference, case staffing, or hearing ordered
by the court meets all requirements under RCW 13.34.067, including the
requirement of a written agreement specifying the services to be
provided to the parent.
(7)(a) A shelter care order issued pursuant to this section may be
amended at any time with notice and hearing thereon. The shelter care
decision of placement shall be modified only upon a showing of change
in circumstances. No child may be placed in shelter care for longer
than thirty days without an order, signed by the judge, authorizing
continued shelter care.
(b)(i) An order releasing the child on any conditions specified in
this section may at any time be amended, with notice and hearing
thereon, so as to return the child to shelter care for failure of the
parties to conform to the conditions originally imposed.
(ii) The court shall consider whether nonconformance with any
conditions resulted from circumstances beyond the control of the
parent, guardian, or legal custodian and give weight to that fact
before ordering return of the child to shelter care.
(8)(a) If a child is returned home from shelter care a second time
in the case, or if the supervisor of the caseworker deems it necessary,
the multidisciplinary team may be reconvened.
(b) If a child is returned home from shelter care a second time in
the case a law enforcement officer must be present and file a report to
the department.
Sec. 25 RCW 13.34.070 and 2004 c 64 s 4 are each amended to read
as follows:
(1) Upon the filing of the petition, the clerk of the court shall
issue a summons, one directed to the child, if the child is twelve or
more years of age, and another to the parents, guardian, or custodian,
and such other persons as appear to the court to be proper or necessary
parties to the proceedings, requiring them to appear personally before
the court at the time fixed to hear the petition. If the child is
developmentally disabled and not living at home, the notice shall be
given to the child's custodian as well as to the child's parent. The
developmentally disabled child shall not be required to appear unless
requested by the court. When the custodian is summoned, the parent or
guardian or both shall also be served with a summons. The fact-finding
hearing on the petition shall be held no later than seventy-five days
after the filing of the petition, unless exceptional reasons for a
continuance are found. The party requesting the continuance shall have
the burden of proving by a preponderance of the evidence that
exceptional circumstances exist. To ensure that the hearing on the
petition occurs within the seventy-five day time limit, the court shall
schedule and hear the matter on an expedited basis.
(2) A copy of the petition shall be attached to each summons.
(3) The summons shall advise the parties of the right to counsel.
The summons shall also inform the child's parent, guardian, or legal
custodian of his or her right to appointed counsel, if indigent, and of
the procedure to use to secure appointed counsel.
(4) The summons shall advise the parents that they may be held
responsible for the support of the child if the child is placed in out-of-home care.
(5) The judge may endorse upon the summons an order directing any
parent, guardian, or custodian having the custody or control of the
child to bring the child to the hearing.
(6) If it appears from affidavit or sworn statement presented to
the judge that there is probable cause for the issuance of a warrant of
arrest or that the child needs to be taken into custody pursuant to RCW
13.34.050, the judge may endorse upon the summons an order that an
officer serving the summons shall at once take the child into custody
and take him or her to the place of shelter designated by the court.
(7) If the person summoned as provided in this section is subject
to an order of the court pursuant to subsection (5) or (6) of this
section, and if the person fails to abide by the order, he or she may
be proceeded against as for contempt of court. The order endorsed upon
the summons shall conspicuously display the following legend:
Sec. 26 RCW 13.34.105 and 2010 c 180 s 3 are each amended to read
as follows:
(1) Unless otherwise directed by the court, the duties of the
guardian ad litem for a child subject to a proceeding under this
chapter, including an attorney specifically appointed by the court to
serve as a guardian ad litem, include but are not limited to the
following:
(a) To investigate, collect relevant information about the child's
situation, and report to the court factual information regarding the
best interests of the child;
(b) To meet with, interview, or observe the child, depending on the
child's age and developmental status, and report to the court any views
or positions expressed by the child on issues pending before the court;
(c) To monitor all court orders for compliance and to bring to the
court's attention any change in circumstances that may require a
modification of the court's order;
(d) To report to the court information on the legal status of a
child's membership in any Indian tribe or band;
(e) Court-appointed special advocates and guardians ad litem may
make recommendations based upon an independent investigation regarding
the best interests of the child, which the court may consider and weigh
in conjunction with the recommendations of all of the parties;
(f) To represent and be an advocate for the best interests of the
child; ((and))
(g) To inform the child, if the child is twelve years old or older,
of his or her right to request counsel and to ask the child whether he
or she wishes to have counsel, pursuant to RCW 13.34.100(6). The
guardian ad litem shall report to the court that the child was notified
of this right and indicate the child's position regarding appointment
of counsel. The guardian ad litem shall report to the court his or her
independent recommendation as to whether appointment of counsel is in
the best interest of the child; and
(h) In the case of an Indian child as defined in section 4 of this
act, know, understand, and advocate the best interests of the Indian
child.
(2) A guardian ad litem shall be deemed an officer of the court for
the purpose of immunity from civil liability.
(3) Except for information or records specified in RCW
13.50.100(7), the guardian ad litem shall have access to all
information available to the state or agency on the case. Upon
presentation of the order of appointment by the guardian ad litem, any
agency, hospital, school organization, division or department of the
state, doctor, nurse, or other health care provider, psychologist,
psychiatrist, police department, or mental health clinic shall permit
the guardian ad litem to inspect and copy any records relating to the
child or children involved in the case, without the consent of the
parent or guardian of the child, or of the child if the child is under
the age of thirteen years, unless such access is otherwise specifically
prohibited by law.
(4) A guardian ad litem may release confidential information,
records, and reports to the office of the family and children's
ombudsman for the purposes of carrying out its duties under chapter
43.06A RCW.
(5) The guardian ad litem shall release case information in
accordance with the provisions of RCW 13.50.100.
Sec. 27 RCW 13.34.130 and 2010 c 288 s 1 are each amended to read
as follows:
If, after a fact-finding hearing pursuant to RCW 13.34.110, it has
been proven by a preponderance of the evidence that the child is
dependent within the meaning of RCW 13.34.030 after consideration of
the social study prepared pursuant to RCW 13.34.110 and after a
disposition hearing has been held pursuant to RCW 13.34.110, the court
shall enter an order of disposition pursuant to this section.
(1) The court shall order one of the following dispositions of the
case:
(a) Order a disposition other than removal of the child from his or
her home, which shall provide a program designed to alleviate the
immediate danger to the child, to mitigate or cure any damage the child
has already suffered, and to aid the parents so that the child will not
be endangered in the future. In determining the disposition, the court
should choose services to assist the parents in maintaining the child
in the home, including housing assistance, if appropriate, that least
interfere with family autonomy and are adequate to protect the child.
(b)(i) Order the child to be removed from his or her home and into
the custody, control, and care of a relative or other suitable person,
the department, or a supervising agency for supervision of the child's
placement. The court may not order an Indian child, as defined in ((25
U.S.C. Sec. 1903)) section 4 of this act, to be removed from his or her
home unless the court finds, by clear and convincing evidence including
testimony of qualified expert witnesses, that the continued custody of
the child by the parent or Indian custodian is likely to result in
serious emotional or physical damage to the child.
(ii) The department or supervising agency has the authority to
place the child, subject to review and approval by the court (A) with
a relative as defined in RCW 74.15.020(2)(a), (B) in the home of
another suitable person if the child or family has a preexisting
relationship with that person, and the person has completed all
required criminal history background checks and otherwise appears to
the department or supervising agency to be suitable and competent to
provide care for the child, or (C) in a foster family home or group
care facility licensed pursuant to chapter 74.15 RCW. Absent good
cause, the department or supervising agency shall follow the wishes of
the natural parent regarding the placement of the child in accordance
with RCW 13.34.260. The department or supervising agency may only
place a child with a person not related to the child as defined in RCW
74.15.020(2)(a) when the court finds that such placement is in the best
interest of the child. Unless there is reasonable cause to believe
that the health, safety, or welfare of the child would be jeopardized
or that efforts to reunite the parent and child will be hindered, the
child shall be placed with a person who is willing, appropriate, and
available to care for the child, and who is: (I) Related to the child
as defined in RCW 74.15.020(2)(a) with whom the child has a
relationship and is comfortable; or (II) a suitable person as described
in this subsection (1)(b). The court shall consider the child's
existing relationships and attachments when determining placement.
(2) When placing an Indian child in out-of-home care, the
department or supervising agency shall follow the placement preference
characteristics in ((RCW 13.34.250 and in 25 U.S.C. Sec. 1915)) section
18 of this act.
(3) Placement of the child with a relative or other suitable person
as described in subsection (1)(b) of this section shall be given
preference by the court. An order for out-of-home placement may be
made only if the court finds that reasonable efforts have been made to
prevent or eliminate the need for removal of the child from the child's
home and to make it possible for the child to return home, specifying
the services, including housing assistance, that have been provided to
the child and the child's parent, guardian, or legal custodian, and
that preventive services have been offered or provided and have failed
to prevent the need for out-of-home placement, unless the health,
safety, and welfare of the child cannot be protected adequately in the
home, and that:
(a) There is no parent or guardian available to care for such
child;
(b) The parent, guardian, or legal custodian is not willing to take
custody of the child; or
(c) The court finds, by clear, cogent, and convincing evidence, a
manifest danger exists that the child will suffer serious abuse or
neglect if the child is not removed from the home and an order under
RCW 26.44.063 would not protect the child from danger.
(4) If the court has ordered a child removed from his or her home
pursuant to subsection (1)(b) of this section, the court shall consider
whether it is in a child's best interest to be placed with, have
contact with, or have visits with siblings.
(a) There shall be a presumption that such placement, contact, or
visits are in the best interests of the child provided that:
(i) The court has jurisdiction over all siblings subject to the
order of placement, contact, or visitation pursuant to petitions filed
under this chapter or the parents of a child for whom there is no
jurisdiction are willing to agree; and
(ii) There is no reasonable cause to believe that the health,
safety, or welfare of any child subject to the order of placement,
contact, or visitation would be jeopardized or that efforts to reunite
the parent and child would be hindered by such placement, contact, or
visitation. In no event shall parental visitation time be reduced in
order to provide sibling visitation.
(b) The court may also order placement, contact, or visitation of
a child with a step-brother or step-sister provided that in addition to
the factors in (a) of this subsection, the child has a relationship and
is comfortable with the step-sibling.
(5) If the court has ordered a child removed from his or her home
pursuant to subsection (1)(b) of this section and placed into
nonparental or nonrelative care, the court shall order a placement that
allows the child to remain in the same school he or she attended prior
to the initiation of the dependency proceeding when such a placement is
practical and in the child's best interest.
(6) If the court has ordered a child removed from his or her home
pursuant to subsection (1)(b) of this section, the court may order that
a petition seeking termination of the parent and child relationship be
filed if the requirements of RCW 13.34.132 are met.
(7) If there is insufficient information at the time of the
disposition hearing upon which to base a determination regarding the
suitability of a proposed placement with a relative or other suitable
person, the child shall remain in foster care and the court shall
direct the department or supervising agency to conduct necessary
background investigations as provided in chapter 74.15 RCW and report
the results of such investigation to the court within thirty days.
However, if such relative or other person appears otherwise suitable
and competent to provide care and treatment, the criminal history
background check need not be completed before placement, but as soon as
possible after placement. Any placements with relatives or other
suitable persons, pursuant to this section, shall be contingent upon
cooperation by the relative or other suitable person with the agency
case plan and compliance with court orders related to the care and
supervision of the child including, but not limited to, court orders
regarding parent-child contacts, sibling contacts, and any other
conditions imposed by the court. Noncompliance with the case plan or
court order shall be grounds for removal of the child from the
relative's or other suitable person's home, subject to review by the
court.
Sec. 28 RCW 13.34.132 and 2000 c 122 s 16 are each amended to
read as follows:
A court may order that a petition seeking termination of the parent
and child relationship be filed if the following requirements are met:
(1) The court has removed the child from his or her home pursuant
to RCW 13.34.130;
(2) Termination is recommended by the supervising agency;
(3) Termination is in the best interests of the child; and
(4) Because of the existence of aggravated circumstances,
reasonable efforts to unify the family are not required.
Notwithstanding the existence of aggravated circumstances, reasonable
efforts may be required if the court or department determines it is in
the best interests of the child. In determining whether aggravated
circumstances exist by clear, cogent, and convincing evidence, the
court shall consider one or more of the following:
(a) Conviction of the parent of rape of the child in the first,
second, or third degree as defined in RCW 9A.44.073, 9A.44.076, and
9A.44.079;
(b) Conviction of the parent of criminal mistreatment of the child
in the first or second degree as defined in RCW 9A.42.020 and
9A.42.030;
(c) Conviction of the parent of one of the following assault
crimes, when the child is the victim: Assault in the first or second
degree as defined in RCW 9A.36.011 and 9A.36.021 or assault of a child
in the first or second degree as defined in RCW 9A.36.120 or 9A.36.130;
(d) Conviction of the parent of murder, manslaughter, or homicide
by abuse of the child's other parent, sibling, or another child;
(e) Conviction of the parent of attempting, soliciting, or
conspiring to commit a crime listed in (a), (b), (c), or (d) of this
subsection;
(f) A finding by a court that a parent is a sexually violent
predator as defined in RCW 71.09.020;
(g) Failure of the parent to complete available treatment ordered
under this chapter or the equivalent laws of another state, where such
failure has resulted in a prior termination of parental rights to
another child and the parent has failed to effect significant change in
the interim. In the case of a parent of an Indian child, as defined in
((the Indian Child Welfare Act, P.L. 95-608 (25 U.S.C. Sec. 1903)))
section 4 of this act, the court shall also consider tribal efforts to
assist the parent in completing treatment and make it possible for the
child to return home;
(h) An infant under three years of age has been abandoned;
(i) Conviction of the parent, when a child has been born of the
offense, of: (A) A sex offense under chapter 9A.44 RCW; or (B) incest
under RCW 9A.64.020.
Sec. 29 RCW 13.34.136 and 2009 c 520 s 28 and 2009 c 234 s 5 are
each reenacted and amended to read as follows:
(1) Whenever a child is ordered removed from the home, 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.
(2) The agency supervising the dependency shall submit a written
permanency plan to all parties and the court not less than fourteen
days prior to the scheduled hearing. Responsive reports of parties not
in agreement with the department's or supervising agency's proposed
permanency plan must be provided to the department or supervising
agency, all other parties, and the court at least seven days prior to
the hearing.
The permanency plan shall include:
(a) A permanency plan of care that shall identify one of the
following outcomes as a primary goal and may identify additional
outcomes as alternative goals: Return of the child to the home of the
child's parent, guardian, or legal custodian; adoption, including a
tribal customary adoption as defined in section 4 of this act;
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; successful completion of a
responsible living skills program; or independent living, if
appropriate and if the child is age sixteen or older. The department
or supervising agency shall not discharge a child to an independent
living situation before the child is eighteen years of age unless the
child becomes emancipated pursuant to chapter 13.64 RCW;
(b) Unless the court has ordered, pursuant to RCW 13.34.130(((5)))
(6), that a termination petition be filed, a specific plan as to where
the child will be placed, what steps will be taken to return the child
home, what steps the supervising agency or the department will take to
promote existing appropriate sibling relationships and/or facilitate
placement together or contact in accordance with the best interests of
each child, and what actions the department or supervising agency will
take to maintain parent-child ties. All aspects of the plan shall
include the goal of achieving permanence for the child.
(i) The department's or supervising agency's plan shall specify
what services the parents will be offered to enable them to resume
custody, what requirements the parents must meet to resume custody, and
a time limit for each service plan and parental requirement.
(ii) Visitation is the right of the family, including the child and
the parent, in cases in which visitation is in the best interest of the
child. Early, consistent, and frequent visitation is crucial for
maintaining parent-child relationships and making it possible for
parents and children to safely reunify. The supervising agency or
department shall encourage the maximum parent and child and sibling
contact possible, when it is in the best interest of the child,
including regular visitation and participation by the parents in the
care of the child while the child is in placement. Visitation shall
not be limited as a sanction for a parent's failure to comply with
court orders or services where the health, safety, or welfare of the
child is not at risk as a result of the visitation. Visitation may be
limited or denied only if the court determines that such limitation or
denial is necessary to protect the child's health, safety, or welfare.
The court and the department or supervising agency should rely upon
community resources, relatives, foster parents, and other appropriate
persons to provide transportation and supervision for visitation to the
extent that such resources are available, and appropriate, and the
child's safety would not be compromised.
(iii) A child shall be placed as close to the child's home as
possible, preferably in the child's own neighborhood, unless the court
finds that placement at a greater distance is necessary to promote the
child's or parents' well-being.
(iv) The plan shall state whether both in-state and, where
appropriate, out-of-state placement options have been considered by the
department or supervising agency.
(v) Unless it is not in the best interests of the child, whenever
practical, the plan should ensure the child remains enrolled in the
school the child was attending at the time the child entered foster
care.
(vi) The supervising agency or department shall provide all
reasonable services that are available within the department or
supervising agency, or within the community, or those services which
the department has existing contracts to purchase. It shall report to
the court if it is unable to provide such services; and
(c) If the court has ordered, pursuant to RCW 13.34.130(((5))) (6),
that a termination petition be filed, a specific plan as to where the
child will be placed, what steps will be taken to achieve permanency
for the child, services to be offered or provided to the child, and, if
visitation would be in the best interests of the child, a
recommendation to the court regarding visitation between parent and
child pending a fact-finding hearing on the termination petition. The
department or supervising agency shall not be required to develop a
plan of services for the parents or provide services to the parents if
the court orders a termination petition be filed. However, reasonable
efforts to ensure visitation and contact between siblings shall be made
unless there is reasonable cause to believe the best interests of the
child or siblings would be jeopardized.
(3) Permanency planning goals should be achieved at the earliest
possible date. If the child has been in out-of-home care for fifteen
of the most recent twenty-two months, the court shall require the
department or supervising agency to file a petition seeking termination
of parental rights in accordance with RCW 13.34.145(3)(b)(vi). 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.
(4) If the court determines that the continuation of reasonable
efforts to prevent or eliminate the need to remove the child from his
or her home or to safely return the child home should not be part of
the permanency plan of care for the child, reasonable efforts shall be
made to place the child in a timely manner and to complete whatever
steps are necessary to finalize the permanent placement of the child.
(5) The identified outcomes and goals of the permanency plan may
change over time based upon the circumstances of the particular case.
(6) The court shall consider the child's relationships with the
child's siblings in accordance with RCW 13.34.130(((3))) (4). Whenever
the permanency plan for a child is adoption, the court shall encourage
the prospective adoptive parents, birth parents, foster parents,
kinship caregivers, and the department or other supervising agency to
seriously consider the long-term benefits to the child adoptee and his
or her siblings of providing for and facilitating continuing
postadoption contact between the siblings. To the extent that it is
feasible, and when it is in the best interests of the child adoptee and
his or her siblings, contact between the siblings should be frequent
and of a similar nature as that which existed prior to the adoption.
If the child adoptee or his or her siblings are represented by an
attorney or guardian ad litem in a proceeding under this chapter or in
any other child custody proceeding, the court shall inquire of each
attorney and guardian ad litem regarding the potential benefits of
continuing contact between the siblings and the potential detriments of
severing contact. This section does not require the department of
social and health services or other supervising agency to agree to any
specific provisions in an open adoption agreement and does not create
a new obligation for the department to provide supervision or
transportation for visits between siblings separated by adoption from
foster care.
(7) For purposes related to permanency planning:
(a) "Guardianship" means a dependency guardianship or a legal
guardianship pursuant to chapter 11.88 RCW or equivalent laws of
another state or a federally recognized Indian tribe.
(b) "Permanent custody order" means a custody order entered
pursuant to chapter 26.10 RCW.
(c) "Permanent legal custody" means legal custody pursuant to
chapter 26.10 RCW or equivalent laws of another state or a federally
recognized Indian tribe.
Sec. 30 RCW 13.34.190 and 2010 c 288 s 2 are each amended to read
as follows:
(1) Except as provided in subsection (2) of this section, after
hearings pursuant to RCW 13.34.110 or 13.34.130, the court may enter an
order terminating all parental rights to a child only if the court
finds that:
(a)(i) The allegations contained in the petition as provided in RCW
13.34.180(1) are established by clear, cogent, and convincing evidence;
or
(ii) The provisions of RCW 13.34.180(1) (a), (b), (e), and (f) are
established beyond a reasonable doubt and if so, then RCW 13.34.180(1)
(c) and (d) may be waived. When an infant has been abandoned, as
defined in RCW 13.34.030, and the abandonment has been proved beyond a
reasonable doubt, then RCW 13.34.180(1) (c) and (d) may be waived; or
(iii) The allegation under RCW 13.34.180(2) is established beyond
a reasonable doubt. In determining whether RCW 13.34.180(1) (e) and
(f) are established beyond a reasonable doubt, the court shall consider
whether one or more of the aggravated circumstances listed in RCW
13.34.132 exist; or
(iv) The allegation under RCW 13.34.180(3) is established beyond a
reasonable doubt; and
(b) Such an order is in the best interests of the child.
(2) The provisions of chapter 13.--- RCW (the new chapter created
in section 34 of this act) must be followed in any proceeding under
this chapter for termination of the parent-child relationship of an
Indian child as defined in ((25 U.S.C. Sec. 1903, no termination of
parental rights may be ordered in such proceeding in the absence of a
determination, supported by evidence beyond a reasonable doubt,
including testimony of qualified expert witnesses, that the continued
custody of the child by the parent or Indian custodian is likely to
result in serious emotional or physical damage to the child)) section
4 of this act.
Sec. 31 RCW 26.10.034 and 2004 c 64 s 1 are each amended to read
as follows:
(1)(((a))) Every petition filed in proceedings under this chapter
shall contain a statement alleging whether the child is or may be an
Indian child as defined in ((25 U.S.C. Sec. 1903)) section 4 of this
act. If the child is an Indian child ((as defined under the Indian
child welfare act, the provisions of the act)), chapter 13.--- RCW (the
new chapter created in section 34 of this act) shall apply.
(((b) Whenever the court or the petitioning party in a proceeding
under this chapter knows or has reason to know that an Indian child is
involved, the petitioning party shall promptly provide notice to the
child's parent or Indian custodian and to the agent designated by the
child's Indian tribe to receive such notices. Notice shall be by
certified mail with return receipt requested. If the identity or
location of the parent or Indian custodian and the tribe cannot be
determined, notice shall be given to the secretary of the interior in
the manner described in 25 C.F.R. 23.11. If the child may be a member
of more than one tribe, the petitioning party shall send notice to all
tribes the petitioner has reason to know may be affiliated with the
child.))
(c) The notice shall: (i) Contain a statement notifying the parent
or custodian and the tribe of the pending proceeding; and (ii) notify
the tribe of the tribe's right to intervene and/or request that the
case be transferred to tribal court.
(2) Every order or decree entered in any proceeding under this
chapter shall contain a finding that the federal Indian child welfare
act or chapter 13.--- RCW (the new chapter created in section 34 of
this act) does or does not apply. Where there is a finding that the
federal Indian child welfare act or chapter 13.--- RCW (the new chapter
created in section 34 of this act) does apply, the decree or order must
also contain a finding that all notice ((requirements)) and evidentiary
requirements under the federal Indian child welfare act and chapter
13.--- RCW (the new chapter created in section 34 of this act) have
been satisfied.
Sec. 32 RCW 26.33.040 and 2004 c 64 s 2 are each amended to read
as follows:
(1)(a) Every petition filed in proceedings under this chapter shall
contain a statement alleging whether the child is or may be an Indian
child as defined in ((25 U.S.C. Sec. 1903)) section 4 of this act. If
the child is an Indian child ((as defined under the Indian child
welfare act, the provisions of the act)), chapter 13.--- RCW (the new
chapter created in section 34 of this act) shall apply.
(b) Every order or decree entered in any proceeding under this
chapter shall contain a finding that the federal Indian child welfare
act or chapter 13.--- RCW (the new chapter created in section 34 of
this act) does or does not apply. Where there is a finding that the
federal Indian child welfare act or chapter 13.--- RCW (the new chapter
created in section 34 of this act) does apply, the decree or order must
also contain a finding that all notice requirements and evidentiary
requirements under the federal Indian child welfare act and chapter
13.--- RCW (the new chapter created in section 34 of this act) have
been satisfied.
(c) In proceedings under this chapter, the adoption facilitator
shall file a sworn statement documenting efforts to determine whether
an Indian child ((as defined under the Indian child welfare act, 25
U.S.C. Sec. 1903,)) is involved.
(d) Whenever the court or the petitioning party knows or has reason
to know that an Indian child is involved in any termination,
relinquishment, or placement proceeding under this chapter, the
petitioning party shall promptly provide notice to the child's parent
or Indian custodian and to the agent designated by the child's Indian
tribe to receive such notices. Notice shall be by certified mail with
return receipt requested. If the identity or location of the parent or
Indian custodian and the tribe cannot be determined, notice shall be
given to the secretary of the interior in the manner described in 25
C.F.R. 23.11. If the child may be a member of more than one tribe, the
petitioning party shall send notice to all tribes the petitioner has
reason to know may be affiliated with the child.
(e) The notice shall: (i) Contain a statement notifying the parent
or custodian and the tribe of the pending proceeding; and (ii) notify
the tribe of the tribe's right to intervene and/or request that the
case be transferred to tribal court.
(f) No termination, relinquishment, or placement proceeding shall
be held until at least ten days after receipt of notice by the tribe.
If the tribe requests, the court shall grant the tribe up to twenty
additional days to prepare for such proceeding.
(2) Every petition filed in proceedings under this chapter shall
contain a statement alleging whether the Soldiers and Sailors Civil
Relief Act of 1940, 50 U.S.C. Sec. 501 et seq. applies to the
proceeding. Every order or decree entered in any proceeding under this
chapter shall contain a finding that the Soldiers and Sailors Civil
Relief Act of 1940 does or does not apply.
Sec. 33 RCW 74.13.350 and 2004 c 183 s 4 are each amended to read
as follows:
It is the intent of the legislature that parents are responsible
for the care and support of children with developmental disabilities.
The legislature recognizes that, because of the intense support
required to care for a child with developmental disabilities, the help
of an out-of-home placement may be needed. It is the intent of the
legislature that, when the sole reason for the out-of-home placement is
the child's developmental disability, such services be offered by the
department to these children and their families through a voluntary
placement agreement. In these cases, the parents shall retain legal
custody of the child.
As used in this section, "voluntary placement agreement" means a
written agreement between the department and a child's parent or legal
guardian authorizing the department to place the child in a licensed
facility. Under the terms of this agreement, the parent or legal
guardian shall retain legal custody and the department shall be
responsible for the child's placement and care. The agreement shall at
a minimum specify the legal status of the child and the rights and
obligations of the parent or legal guardian, the child, and the
department while the child is in placement. The agreement must be
signed by the child's parent or legal guardian and the department to be
in effect, except that an agreement regarding an Indian child shall not
be valid unless executed ((in writing before the court and filed with
the court as provided in RCW 13.34.245)) in accordance with section 15
of this act. Any party to a voluntary placement agreement may
terminate the agreement at any time. Upon termination of the
agreement, the child shall be returned to the care of the child's
parent or legal guardian unless the child has been taken into custody
pursuant to RCW 13.34.050 or 26.44.050, placed in shelter care pursuant
to RCW 13.34.060, or placed in foster care pursuant to RCW 13.34.130.
As used in this section, "out-of-home placement" and "out-of-home
care" mean the placement of a child in a foster family home or group
care facility licensed under chapter 74.15 RCW.
Whenever the department places a child in out-of-home care under a
voluntary placement pursuant to this section, the department shall have
the responsibility for the child's placement and care. The department
shall develop a permanency plan of care for the child no later than
sixty days from the date that the department assumes responsibility for
the child's placement and care. Within the first one hundred eighty
days of the placement, the department shall obtain a judicial
determination pursuant to RCW 13.04.030(1)(j) and 13.34.270 that the
placement is in the best interests of the child. If the child's out-of-home placement ends before one hundred eighty days have elapsed, no
judicial determination under RCW 13.04.030(1)(b) is required. The
permanency planning hearings shall review whether the child's best
interests are served by continued out-of-home placement and determine
the future legal status of the child.
The department shall provide for periodic administrative reviews as
required by federal law. A review may be called at any time by either
the department, the parent, or the legal guardian.
Nothing in this section shall prevent the department from filing a
dependency petition if there is reason to believe that the child is a
dependent child as defined in RCW 13.34.030.
The department shall adopt rules providing for the implementation
of chapter 386, Laws of 1997 and the transfer of responsibility for
out-of-home placements from the dependency process under chapter 13.34
RCW to the process under this chapter.
It is the intent of the legislature that the department undertake
voluntary out-of-home placement in cases where the child's
developmental disability is such that the parent, guardian, or legal
custodian is unable to provide the necessary care for the child, and
the parent, guardian, or legal custodian has determined that the child
would benefit from placement outside of the home. If the department
does not accept a voluntary placement agreement signed by the parent,
a petition may be filed and an action pursued under chapter 13.34 RCW.
The department shall inform the parent, guardian, or legal custodian in
writing of their right to civil action under chapter 13.34 RCW.
Nothing in this section prohibits the department from seeking
support from parents of a child, including a child with a developmental
disability if the child has been placed into care as a result of an
action under chapter 13.34 RCW, when state or federal funds are
expended for the care and maintenance of that child or when the
department receives an application for services from the physical
custodian of the child, unless the department finds that there is good
cause not to pursue collection of child support against the parent or
parents.
NEW SECTION. Sec. 34 Sections 1 through 20 of this act
constitute a new chapter in Title
NEW SECTION. Sec. 35 RCW 13.34.250 (Preference characteristics
when placing Indian child in foster care home) and 1979 c 155 s 53 are
each repealed.