BILL REQ. #:  S-3462.1 

Read first time 01/22/14.   Referred to Committee on Law & Justice.

     AN ACT Relating to parental rights and responsibilities of sexual assault perpetrators and survivors; amending RCW 26.09.191 and 26.33.170; reenacting and amending RCW 26.26.011; and adding new sections to chapter 26.26 RCW.

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

NEW SECTION.  Sec. 1   A new section is added to chapter 26.26 RCW to read as follows:
     The legislature finds that several studies estimate there are between twenty-five thousand and thirty-two thousand rape-related pregnancies in the United States annually. The legislature also finds that a substantial number of women who become pregnant as a result of sexual assault choose to give birth and raise their children. The legislature finds further that rape is one of the most under-reported and under-prosecuted serious crimes. The legislature also finds that rapists may use the threat of pursuing parental rights or custody to coerce survivors into not reporting or not assisting in the prosecution of the assault. The legislature finds that a rapist's pursuit of child custody or parental rights forces the survivor into an ongoing relationship with the rapist, effectively tethering the survivor to the perpetrator and potentially increasing power and control over the survivor. The legislature also finds that a survivor who is forced to co-parent a child with the rapist will likely suffer traumatic psychological stress, making recovery more difficult and potentially affecting the ability to parent the child and promote the child's best interests. The legislature intends, therefore, to establish a process whereby a survivor who becomes pregnant as a result of a sexual assault and who elects to raise the child can seek the court's assistance in avoiding continued forced interactions with the rapist, and the consequent inability to fully heal from the assault.

NEW SECTION.  Sec. 2   A new section is added to chapter 26.26 RCW to read as follows:
     (1) This section applies in cases when a person is alleged to have committed a sexual assault that results in a pregnancy.
     (2) For the purposes of this section, sexual assault may be proved by either:
     (a) Evidence that a person was convicted of or pleaded guilty to sexual assault; or
     (b) Clear, cogent, and convincing evidence that the person committed sexual assault.
     (3) An allegation that a pregnancy resulted from a sexual assault may be raised under this chapter:
     (a) In a petition to adjudicate parentage;
     (b) In response to a petition to adjudicate parentage; or
     (c) In a proceeding for rescission of an acknowledgement of paternity.
     (4)(a) If there is an allegation that a pregnancy resulted from sexual assault, the court must conduct a fact-finding hearing on the allegation. The court may not enter any temporary orders providing residential time or decision making to the alleged perpetrator prior to the fact-finding hearing on the allegation.
     (b) Prior to the fact-finding hearing, the court may order genetic testing to determine whether the alleged perpetrator is biologically related to the child. If genetic testing reveals that the alleged perpetrator is not biologically related to the child, the fact-finding hearing must be stricken.
     (c) During the fact-finding hearing, the prior sexual activity or the reputation of the alleged victim is inadmissible except:
     (i) As evidence concerning the past sexual conduct between the alleged victim and the alleged perpetrator, and only when such evidence is offered by the alleged perpetrator on the issue of whether the alleged victim consented to the sexual conduct that resulted in the pregnancy; or
     (ii) When constitutionally required to be admitted.
     (d) Evidence concerning the past sexual conduct between the alleged victim and alleged perpetrator may be introduced only if the court has ruled the evidence is admissible after an offer of proof has been made during an in camera hearing to determine whether the alleged perpetrator has evidence to impeach a witness when prior sexual conduct between the alleged perpetrator and alleged victim is denied. An offer of proof under this section includes reasonably specific information as to the date, time, and place of the past sexual conduct between the alleged victim and the alleged perpetrator.
     (e) Unless the court finds during the in camera hearing that reasonably specific information as to date, time, or place, or some combination thereof, has been offered as to the prior sexual conduct between the alleged perpetrator and alleged victim, the court shall order counsel for the alleged perpetrator to refrain from inquiring into prior sexual conduct between the alleged victim and the alleged perpetrator.
     (f) The court may not admit evidence under this subsection unless it determines at the in camera hearing that:
     (i) The evidence is relevant; and
     (ii) The probative value of the evidence outweighs the danger of unfair prejudice.
     (g) Evidence determined admissible under this section is admissible at trial to the extent the court enters an order specifying:
     (i) The evidence that may be admitted; and
     (ii) The areas with respect to which the alleged victim may be examined or cross-examined.
     (5) In determining whether a pregnancy resulted from a sexual assault, a court may not draw any inferences or conclusions based on evidence that:
     (a) The alleged perpetrator was voluntarily intoxicated;
     (b) The alleged victim was voluntarily intoxicated;
     (c) The alleged victim engaged in limited consensual sexual touching; or
     (d) The alleged victim chose to give birth to and raise the child.
     (6) If the court finds by clear, cogent, and convincing evidence that a person has committed sexual assault that resulted in a pregnancy, the court must:
     (a) Enter an order holding that the person is not a parent of the child, if such an order is requested by the child's legal parent or guardian; or
     (b) Enter an order consistent with the relief requested by the child's legal parent or guardian, provided that the court determines that the relief requested is in the best interests of the child.
     (7) Absent the express written consent of the child's legal parent or guardian, a person who is found to have committed a sexual assault that resulted in pregnancy has:
     (a) No right to an allocation of parental rights, including residential time or decision-making responsibilities for the child;
     (b) No right to inheritance from the child; and
     (c) No right to notification of, or standing to object to, the adoption of a child.
     (8) If the court enters an order under subsection (6) of this section that is inconsistent with the information on the child's birth certificate, the court shall also order the birth certificate be amended in a manner that is consistent with the child's best interests and the wishes of the child's legal parent or guardian.
     (9) If a person is found to have committed a sexual assault that resulted in a pregnancy, the court must order the person to pay child support or birth-related costs or both, unless such relief is not sought by the child's legal parent or guardian.
     (10) The court may order an award of attorneys' fees under this section on the same basis as attorneys' fees are awarded under RCW 26.09.140.
     (11) Unless the parties and the court agree otherwise, the fact-finding hearing and any related proceedings under this section must be closed. The general public must be excluded and only those persons whom the court finds to have a direct interest in the case or in the work of the court may be admitted. Persons so admitted may not disclose any information obtained at the hearing which would identify the parties involved or the child. The court may require the presence of witnesses deemed necessary to the disposition of the case.

Sec. 3   RCW 26.26.011 and 2011 c 283 s 1 are each reenacted and amended to read as follows:
     The definitions in this section apply throughout this chapter unless the context clearly requires otherwise.
     (1) "Acknowledged father" means a man who has established a father-child relationship under RCW 26.26.300 through 26.26.375.
     (2) "Adjudicated parent" means a person who has been adjudicated by a court of competent jurisdiction to be the parent of a child.
     (3) "Alleged parent" means a person who alleges himself or herself to be, or is alleged to be, the genetic parent or a possible genetic parent of a child, but whose parentage has not been determined. The term does not include:
     (a) A presumed parent;
     (b) A person whose parental rights have been terminated or declared not to exist; or
     (c) A donor.
     (4) "Assisted reproduction" means a method of causing pregnancy other than sexual intercourse. The term includes:
     (a) Artificial insemination;
     (b) Donation of eggs;
     (c) Donation of embryos;
     (d) In vitro fertilization and transfer of embryos; and
     (e) Intracytoplasmic sperm injection.
     (5) "Child" means an individual of any age whose parentage may be determined under this chapter.
     (6) "Commence" means to file the petition seeking an adjudication of parentage in a superior court of this state or to serve a summons and the petition.
     (7) "Determination of parentage" means the establishment of the parent-child relationship by the signing of a valid acknowledgment of paternity under RCW 26.26.300 through 26.26.375 or adjudication by the court.
     (8) "Domestic partner" means a state registered domestic partner as defined in chapter 26.60 RCW.
     (9) "Donor" means an individual who contributes a gamete or gametes for assisted reproduction, whether or not for consideration. The term does not include:
     (a) A person who provides a gamete or gametes to be used for assisted reproduction with his or her spouse or domestic partner; or
     (b) A woman who gives birth to a child by means of assisted reproduction, except as otherwise provided in RCW 26.26.210 through 26.26.260 or 26.26.735.
     (10) "Ethnic or racial group" means, for purposes of genetic testing, a recognized group that an individual identifies as all or part of the individual's ancestry or that is so identified by other information.
     (11) "Fertility clinic" means a facility that provides assisted reproduction services or gametes to be used in assisted reproduction.
     (12) "Gamete" means either a sperm or an egg.
     (13) "Genetic parent" means a person who is the source of the egg or sperm that produced the child. The term does not include a donor.
     (14) "Genetic testing" means an analysis of genetic markers to exclude or identify a man as the father or a woman as the mother of a child. The term includes an analysis of one or a combination of the following:
     (a) Deoxyribonucleic acid; and
     (b) Blood-group antigens, red-cell antigens, human-leukocyte antigens, serum enzymes, serum proteins, or red-cell enzymes.
     (15) "Identifying information" includes, but is not limited to, the following information of the gamete donor:
     (a) The first and last name of the person; and
     (b) The age of the person at the time of the donation.
     (16) "Man" means a male individual of any age.
     (17) "Parent" means an individual who has established a parent-child relationship under RCW 26.26.101.
     (18) "Parent-child relationship" means the legal relationship between a child and a parent of the child. The term includes the mother-child relationship and the father-child relationship.
     (19) "Parentage index" means the likelihood of parentage calculated by computing the ratio between:
     (a) The likelihood that the tested person is the parent, based on the genetic markers of the tested person, genetic parent, and child, conditioned on the hypothesis that the tested person is the parent of the child; and
     (b) The likelihood that the tested person is not the parent, based on the genetic markers of the tested person, genetic parent, and child, conditioned on the hypothesis that the tested person is not the parent of the child and that the parent is of the same ethnic or racial group as the tested person.
     (20) "Physician" means a person licensed to practice medicine in a state.
     (21) "Presumed parent" means a person who, by operation of law under RCW 26.26.116, is recognized as the parent of a child until that status is rebutted or confirmed in a judicial proceeding.
     (22) "Probability of parentage" means the measure, for the ethnic or racial group to which the alleged parent belongs, of the probability that the individual in question is the parent of the child, compared with a random, unrelated person of the same ethnic or racial group, expressed as a percentage incorporating the parentage index and a prior probability.
     (23) "Record" means information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable form.
     (24) "Sexual assault" means any offense under chapter 9A.44 RCW capable of causing pregnancy.
     (25) "Signatory" means an individual who authenticates a record and is bound by its terms.
     (((25))) (26) "State" means a state of the United States, the District of Columbia, Puerto Rico, the United States Virgin Islands, any territory or insular possession subject to the jurisdiction of the United States, or an Indian tribe or band, or Alaskan native village, that is recognized by federal law or formally acknowledged by state law.
     (((26))) (27) "Support enforcement agency" means a public official or agency authorized to seek:
     (a) Enforcement of support orders or laws relating to the duty of support;
     (b) Establishment or modification of child support;
     (c) Determination of parentage; or
     (d) Location of child support obligors and their income and assets.

Sec. 4   RCW 26.09.191 and 2011 c 89 s 6 are each amended to read as follows:
     (1) The permanent parenting plan shall not require mutual decision-making or designation of a dispute resolution process other than court action if it is found that a parent has engaged in any of the following conduct: (a) Willful abandonment that continues for an extended period of time or substantial refusal to perform parenting functions; (b) physical, sexual, or a pattern of emotional abuse of a child; or (c) a history of acts of domestic violence as defined in RCW 26.50.010(1) or an assault or sexual assault ((which)) that causes grievous bodily harm or the fear of such harm or that results in a pregnancy.
     (2)(a) The parent's residential time with the child shall be limited if it is found that the parent has engaged in any of the following conduct: (i) Willful abandonment that continues for an extended period of time or substantial refusal to perform parenting functions; (ii) physical, sexual, or a pattern of emotional abuse of a child; (iii) a history of acts of domestic violence as defined in RCW 26.50.010(1) or an assault or sexual assault ((which)) that causes grievous bodily harm or the fear of such harm or that results in a pregnancy; or (iv) the parent has been convicted as an adult of a sex offense under:
     (A) RCW 9A.44.076 if, because of the difference in age between the offender and the victim, no rebuttable presumption exists under (d) of this subsection;
     (B) RCW 9A.44.079 if, because of the difference in age between the offender and the victim, no rebuttable presumption exists under (d) of this subsection;
     (C) RCW 9A.44.086 if, because of the difference in age between the offender and the victim, no rebuttable presumption exists under (d) of this subsection;
     (D) RCW 9A.44.089;
     (E) RCW 9A.44.093;
     (F) RCW 9A.44.096;
     (G) RCW 9A.64.020 (1) or (2) if, because of the difference in age between the offender and the victim, no rebuttable presumption exists under (d) of this subsection;
     (H) Chapter 9.68A RCW;
     (I) Any predecessor or antecedent statute for the offenses listed in (a)(iv)(A) through (H) of this subsection;
     (J) Any statute from any other jurisdiction that describes an offense analogous to the offenses listed in (a)(iv)(A) through (H) of this subsection.
     This subsection (2)(a) shall not apply when (c) or (d) of this subsection applies.
     (b) The parent's residential time with the child shall be limited if it is found that the parent resides with a person who has engaged in any of the following conduct: (i) Physical, sexual, or a pattern of emotional abuse of a child; (ii) a history of acts of domestic violence as defined in RCW 26.50.010(1) or an assault or sexual assault that causes grievous bodily harm or the fear of such harm; or (iii) the person has been convicted as an adult or as a juvenile has been adjudicated of a sex offense under:
     (A) RCW 9A.44.076 if, because of the difference in age between the offender and the victim, no rebuttable presumption exists under (e) of this subsection;
     (B) RCW 9A.44.079 if, because of the difference in age between the offender and the victim, no rebuttable presumption exists under (e) of this subsection;
     (C) RCW 9A.44.086 if, because of the difference in age between the offender and the victim, no rebuttable presumption exists under (e) of this subsection;
     (D) RCW 9A.44.089;
     (E) RCW 9A.44.093;
     (F) RCW 9A.44.096;
     (G) RCW 9A.64.020 (1) or (2) if, because of the difference in age between the offender and the victim, no rebuttable presumption exists under (e) of this subsection;
     (H) Chapter 9.68A RCW;
     (I) Any predecessor or antecedent statute for the offenses listed in (b)(iii)(A) through (H) of this subsection;
     (J) Any statute from any other jurisdiction that describes an offense analogous to the offenses listed in (b)(iii)(A) through (H) of this subsection.
     This subsection (2)(b) shall not apply when (c) or (e) of this subsection applies.
     (c) If a parent has been found to be a sexual predator under chapter 71.09 RCW or under an analogous statute of any other jurisdiction, the court shall restrain the parent from contact with a child that would otherwise be allowed under this chapter. If a parent resides with an adult or a juvenile who has been found to be a sexual predator under chapter 71.09 RCW or under an analogous statute of any other jurisdiction, the court shall restrain the parent from contact with the parent's child except contact that occurs outside that person's presence.
     (d) There is a rebuttable presumption that a parent who has been convicted as an adult of a sex offense listed in (d)(i) through (ix) of this subsection poses a present danger to a child. Unless the parent rebuts this presumption, the court shall restrain the parent from contact with a child that would otherwise be allowed under this chapter:
     (i) RCW 9A.64.020 (1) or (2), provided that the person convicted was at least five years older than the other person;
     (ii) RCW 9A.44.073;
     (iii) RCW 9A.44.076, provided that the person convicted was at least eight years older than the victim;
     (iv) RCW 9A.44.079, provided that the person convicted was at least eight years older than the victim;
     (v) RCW 9A.44.083;
     (vi) RCW 9A.44.086, provided that the person convicted was at least eight years older than the victim;
     (vii) RCW 9A.44.100;
     (viii) Any predecessor or antecedent statute for the offenses listed in (d)(i) through (vii) of this subsection;
     (ix) Any statute from any other jurisdiction that describes an offense analogous to the offenses listed in (d)(i) through (vii) of this subsection.
     (e) There is a rebuttable presumption that a parent who resides with a person who, as an adult, has been convicted, or as a juvenile has been adjudicated, of the sex offenses listed in (e)(i) through (ix) of this subsection places a child at risk of abuse or harm when that parent exercises residential time in the presence of the convicted or adjudicated person. Unless the parent rebuts the presumption, the court shall restrain the parent from contact with the parent's child except for contact that occurs outside of the convicted or adjudicated person's presence:
     (i) RCW 9A.64.020 (1) or (2), provided that the person convicted was at least five years older than the other person;
     (ii) RCW 9A.44.073;
     (iii) RCW 9A.44.076, provided that the person convicted was at least eight years older than the victim;
     (iv) RCW 9A.44.079, provided that the person convicted was at least eight years older than the victim;
     (v) RCW 9A.44.083;
     (vi) RCW 9A.44.086, provided that the person convicted was at least eight years older than the victim;
     (vii) RCW 9A.44.100;
     (viii) Any predecessor or antecedent statute for the offenses listed in (e)(i) through (vii) of this subsection;
     (ix) Any statute from any other jurisdiction that describes an offense analogous to the offenses listed in (e)(i) through (vii) of this subsection.
     (f) The presumption established in (d) of this subsection may be rebutted only after a written finding that:
     (i) If the child was not the victim of the sex offense committed by the parent requesting residential time, (A) contact between the child and the offending parent is appropriate and poses minimal risk to the child, and (B) the offending parent has successfully engaged in treatment for sex offenders or is engaged in and making progress in such treatment, if any was ordered by a court, and the treatment provider believes such contact is appropriate and poses minimal risk to the child; or
     (ii) If the child was the victim of the sex offense committed by the parent requesting residential time, (A) contact between the child and the offending parent is appropriate and poses minimal risk to the child, (B) if the child is in or has been in therapy for victims of sexual abuse, the child's counselor believes such contact between the child and the offending parent is in the child's best interest, and (C) the offending parent has successfully engaged in treatment for sex offenders or is engaged in and making progress in such treatment, if any was ordered by a court, and the treatment provider believes such contact is appropriate and poses minimal risk to the child.
     (g) The presumption established in (e) of this subsection may be rebutted only after a written finding that:
     (i) If the child was not the victim of the sex offense committed by the person who is residing with the parent requesting residential time, (A) contact between the child and the parent residing with the convicted or adjudicated person is appropriate and that parent is able to protect the child in the presence of the convicted or adjudicated person, and (B) the convicted or adjudicated person has successfully engaged in treatment for sex offenders or is engaged in and making progress in such treatment, if any was ordered by a court, and the treatment provider believes such contact is appropriate and poses minimal risk to the child; or
     (ii) If the child was the victim of the sex offense committed by the person who is residing with the parent requesting residential time, (A) contact between the child and the parent in the presence of the convicted or adjudicated person is appropriate and poses minimal risk to the child, (B) if the child is in or has been in therapy for victims of sexual abuse, the child's counselor believes such contact between the child and the parent residing with the convicted or adjudicated person in the presence of the convicted or adjudicated person is in the child's best interest, and (C) the convicted or adjudicated person has successfully engaged in treatment for sex offenders or is engaged in and making progress in such treatment, if any was ordered by a court, and the treatment provider believes contact between the parent and child in the presence of the convicted or adjudicated person is appropriate and poses minimal risk to the child.
     (h) If the court finds that the parent has met the burden of rebutting the presumption under (f) of this subsection, the court may allow a parent who has been convicted as an adult of a sex offense listed in (d)(i) through (ix) of this subsection to have residential time with the child supervised by a neutral and independent adult and pursuant to an adequate plan for supervision of such residential time. The court shall not approve of a supervisor for contact between the child and the parent unless the court finds, based on the evidence, that the supervisor is willing and capable of protecting the child from harm. The court shall revoke court approval of the supervisor upon finding, based on the evidence, that the supervisor has failed to protect the child or is no longer willing or capable of protecting the child.
     (i) If the court finds that the parent has met the burden of rebutting the presumption under (g) of this subsection, the court may allow a parent residing with a person who has been adjudicated as a juvenile of a sex offense listed in (e)(i) through (ix) of this subsection to have residential time with the child in the presence of the person adjudicated as a juvenile, supervised by a neutral and independent adult and pursuant to an adequate plan for supervision of such residential time. The court shall not approve of a supervisor for contact between the child and the parent unless the court finds, based on the evidence, that the supervisor is willing and capable of protecting the child from harm. The court shall revoke court approval of the supervisor upon finding, based on the evidence, that the supervisor has failed to protect the child or is no longer willing or capable of protecting the child.
     (j) If the court finds that the parent has met the burden of rebutting the presumption under (g) of this subsection, the court may allow a parent residing with a person who, as an adult, has been convicted of a sex offense listed in (e)(i) through (ix) of this subsection to have residential time with the child in the presence of the convicted person supervised by a neutral and independent adult and pursuant to an adequate plan for supervision of such residential time. The court shall not approve of a supervisor for contact between the child and the parent unless the court finds, based on the evidence, that the supervisor is willing and capable of protecting the child from harm. The court shall revoke court approval of the supervisor upon finding, based on the evidence, that the supervisor has failed to protect the child or is no longer willing or capable of protecting the child.
     (k) A court shall not order unsupervised contact between the offending parent and a child of the offending parent who was sexually abused by that parent. A court may order unsupervised contact between the offending parent and a child who was not sexually abused by the parent after the presumption under (d) of this subsection has been rebutted and supervised residential time has occurred for at least two years with no further arrests or convictions of sex offenses involving children under chapter 9A.44 RCW, RCW 9A.64.020, or chapter 9.68A RCW and (i) the sex offense of the offending parent was not committed against a child of the offending parent, and (ii) the court finds that unsupervised contact between the child and the offending parent is appropriate and poses minimal risk to the child, after consideration of the testimony of a state-certified therapist, mental health counselor, or social worker with expertise in treating child sexual abuse victims who has supervised at least one period of residential time between the parent and the child, and after consideration of evidence of the offending parent's compliance with community supervision requirements, if any. If the offending parent was not ordered by a court to participate in treatment for sex offenders, then the parent shall obtain a psychosexual evaluation conducted by a certified sex offender treatment provider or a certified affiliate sex offender treatment provider indicating that the offender has the lowest likelihood of risk to reoffend before the court grants unsupervised contact between the parent and a child.
     (l) A court may order unsupervised contact between the parent and a child which may occur in the presence of a juvenile adjudicated of a sex offense listed in (e)(i) through (ix) of this subsection who resides with the parent after the presumption under (e) of this subsection has been rebutted and supervised residential time has occurred for at least two years during which time the adjudicated juvenile has had no further arrests, adjudications, or convictions of sex offenses involving children under chapter 9A.44 RCW, RCW 9A.64.020, or chapter 9.68A RCW, and (i) the court finds that unsupervised contact between the child and the parent that may occur in the presence of the adjudicated juvenile is appropriate and poses minimal risk to the child, after consideration of the testimony of a state-certified therapist, mental health counselor, or social worker with expertise in treatment of child sexual abuse victims who has supervised at least one period of residential time between the parent and the child in the presence of the adjudicated juvenile, and after consideration of evidence of the adjudicated juvenile's compliance with community supervision or parole requirements, if any. If the adjudicated juvenile was not ordered by a court to participate in treatment for sex offenders, then the adjudicated juvenile shall obtain a psychosexual evaluation conducted by a certified sex offender treatment provider or a certified affiliate sex offender treatment provider indicating that the adjudicated juvenile has the lowest likelihood of risk to reoffend before the court grants unsupervised contact between the parent and a child which may occur in the presence of the adjudicated juvenile who is residing with the parent.
     (m)(i) The limitations imposed by the court under (a) or (b) of this subsection shall be reasonably calculated to protect the child from the physical, sexual, or emotional abuse or harm that could result if the child has contact with the parent requesting residential time. The limitations shall also be reasonably calculated to provide for the safety of the parent who may be at risk of physical, sexual, or emotional abuse or harm that could result if the parent has contact with the parent requesting residential time. The limitations the court may impose include, but are not limited to: Supervised contact between the child and the parent or completion of relevant counseling or treatment. If the court expressly finds based on the evidence that limitations on the residential time with the child will not adequately protect the child from the harm or abuse that could result if the child has contact with the parent requesting residential time, the court shall restrain the parent requesting residential time from all contact with the child.
     (ii) The court shall not enter an order under (a) of this subsection allowing a parent to have contact with a child if the parent has been found by clear and convincing evidence in a civil action or by a preponderance of the evidence in a dependency action to have sexually abused the child, except upon recommendation by an evaluator or therapist for the child that the child is ready for contact with the parent and will not be harmed by the contact. The court shall not enter an order allowing a parent to have contact with the child in the offender's presence if the parent resides with a person who has been found by clear and convincing evidence in a civil action or by a preponderance of the evidence in a dependency action to have sexually abused a child, unless the court finds that the parent accepts that the person engaged in the harmful conduct and the parent is willing to and capable of protecting the child from harm from the person.
     (iii) If the court limits residential time under (a) or (b) of this subsection to require supervised contact between the child and the parent, the court shall not approve of a supervisor for contact between a child and a parent who has engaged in physical, sexual, or a pattern of emotional abuse of the child unless the court finds based upon the evidence that the supervisor accepts that the harmful conduct occurred and is willing to and capable of protecting the child from harm. The court shall revoke court approval of the supervisor upon finding, based on the evidence, that the supervisor has failed to protect the child or is no longer willing to or capable of protecting the child.
      (n) If the court expressly finds based on the evidence that contact between the parent and the child will not cause physical, sexual, or emotional abuse or harm to the child and that the probability that the parent's or other person's harmful or abusive conduct will recur is so remote that it would not be in the child's best interests to apply the limitations of (a), (b), and (m)(i) and (iii) of this subsection, or if the court expressly finds that the parent's conduct did not have an impact on the child, then the court need not apply the limitations of (a), (b), and (m)(i) and (iii) of this subsection. The weight given to the existence of a protection order issued under chapter 26.50 RCW as to domestic violence is within the discretion of the court. This subsection shall not apply when (c), (d), (e), (f), (g), (h), (i), (j), (k), (l), and (m)(ii) of this subsection apply.
     (3) A parent's involvement or conduct may have an adverse effect on the child's best interests, and the court may preclude or limit any provisions of the parenting plan, if any of the following factors exist:
     (a) A parent's neglect or substantial nonperformance of parenting functions;
     (b) A long-term emotional or physical impairment which interferes with the parent's performance of parenting functions as defined in RCW 26.09.004;
     (c) A long-term impairment resulting from drug, alcohol, or other substance abuse that interferes with the performance of parenting functions;
     (d) The absence or substantial impairment of emotional ties between the parent and the child;
     (e) The abusive use of conflict by the parent which creates the danger of serious damage to the child's psychological development;
     (f) A parent has withheld from the other parent access to the child for a protracted period without good cause; or
     (g) Such other factors or conduct as the court expressly finds adverse to the best interests of the child.
     (4) In cases involving allegations of limiting factors under subsection (2)(a)(ii) and (iii) of this section, both parties shall be screened to determine the appropriateness of a comprehensive assessment regarding the impact of the limiting factor on the child and the parties.
     (5) In entering a permanent parenting plan, the court shall not draw any presumptions from the provisions of the temporary parenting plan.
     (6) In determining whether any of the conduct described in this section has occurred, the court shall apply the civil rules of evidence, proof, and procedure.
     (7) For the purposes of this section:
     (a) "A parent's child" means that parent's natural child, adopted child, or stepchild; and
     (b) "Social worker" means a person with a master's or further advanced degree from a social work educational program accredited and approved as provided in RCW 18.320.010.

Sec. 5   RCW 26.33.170 and 1999 c 173 s 1 are each amended to read as follows:
     (1) An agency's, the department's, or a legal guardian's consent to adoption may be dispensed with if the court determines by clear, cogent and convincing evidence that the proposed adoption is in the best interests of the adoptee.
     (2) An alleged father's, birth parent's, or parent's consent to adoption may be dispensed with if the court finds that the proposed adoption is in the best interests of the adoptee and:
     (a) The alleged father, birth parent, or parent has been found guilty of rape under chapter 9A.44 RCW or incest under RCW 9A.64.020, where the adoptee was the victim of the rape or incest; or
     (b) The alleged father, birth parent, or parent has been found guilty of rape under chapter 9A.44 RCW or incest under RCW 9A.64.020, or has been found by clear, cogent, and convincing evidence to have committed a sexual assault where the other parent of the adoptee was the victim of the ((rape)) sexual assault or incest and the adoptee was conceived as a result of the ((rape or incest)) sexual assault.
     (3) Nothing in this section shall be construed to eliminate the notice provisions of this chapter.

NEW SECTION.  Sec. 6   If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected.