MORNING SESSION
Senate Chamber, Olympia, Wednesday, April 13, 2011
The Senate was called to order at 10:00 a.m. by President Owen. The Secretary called the roll and announced to the President that all Senators were present with the exception of Senator Delvin.
INTRODUCTION OF SPECIAL GUESTS
The President welcomed and introduced former Secretary of State, Ralph Munro who was seated at the rostrum.
The Sergeant at Arms Color Guard consisting of United States Navy Fire Controlman 2nd Class Kevin Buckley and Damage Control Fireman Amanda Bragg, presented the Colors.
Navy Band Northwest solo vocalist musician 3rd Class Sarah Reasner performed the National Anthem.
Chaplain Captain Jim Puttler of the United States Navy offered the prayer
MOTION
On motion of Senator Eide, the reading of the Journal of the previous day was dispensed with and it was approved.
MOTION
On motion of Senator Eide, the Senate advanced to the fourth order of business.
MESSAGE FROM THE HOUSE
April 12, 2011
MR. PRESIDENT:
The Speaker has signed:
SENATE JOINT RESOLUTION NO. 8205.
and the same is herewith transmitted.
BARBARA BAKER, Chief Clerk
MESSAGE FROM THE HOUSE
April 12, 2011
MR. PRESIDENT:
The House has passed:
SENATE BILL NO. 5278.
and the same is herewith transmitted.
BARBARA BAKER, Chief Clerk
MESSAGE FROM THE HOUSE
April 12, 2011
MR. PRESIDENT:
The House has passed:
ENGROSSED SUBSTITUTE HOUSE BILL NO. 2026.
and the same is herewith transmitted.
BARBARA BAKER, Chief Clerk
MOTION
On motion of Senator Eide, the Senate advanced to the fifth order of business.
INTRODUCTION AND FIRST READING
SB 5933 by Senators Tom, Sheldon, Hobbs, Ericksen and Litzow
AN ACT Relating to enhancing state revenues by reforming laws regulating the distribution and sale of spirits and wine; amending RCW 66.24.360, 82.08.150, 66.08.050, 66.08.060, 66.20.010, 66.20.160, 66.24.310, 66.24.380, 66.28.030, 66.24.440, 66.24.540, 66.24.590, 66.28.040, 66.28.060, 66.28.070, 66.28.170, 66.28.180, 66.28.190, 66.28.280, 43.19.19054, 66.08.020, 66.08.026, 66.08.030, 66.24.145, 66.24.160, 66.28.060, 66.32.010, 66.44.120, 66.44.140, 66.44.150, 66.44.340, 19.126.010, and 19.126.040; reenacting and amending RCW 66.04.010 and 19.126.020; adding new sections to chapter 66.24 RCW; adding new sections to chapter 66.28 RCW; creating new sections; repealing RCW 66.08.070, 66.08.075, 66.08.160, 66.08.165, 66.08.166, 66.08.167, 66.08.220, 66.08.235, 66.16.010, 66.16.040, 66.16.041, 66.16.050, 66.16.060, 66.16.070, 66.16.100, 66.16.110, 66.16.120, and 66.28.045; providing an effective date; and declaring an emergency.
Referred to Committee on Labor, Commerce & Consumer Protection.
SB 5934 by Senators Rockefeller, Ranker, Chase, Fraser and Nelson
AN ACT Relating to funding and administering the processing of water rights permits and applications including limiting the review period in making tentative determinations and modifying relinquishment; amending RCW 90.03.260, 90.03.470, 90.03.650, 90.03.380, 90.03.380, 90.44.100, 90.44.100, and 90.14.140; reenacting and amending RCW 90.14.140; adding new sections to chapter 90.03 RCW; creating a new section; providing effective dates; and providing an expiration date.
Referred to Committee on Ways & Means.
INTRODUCTION AND FIRST READING OF HOUSE BILLS
E2SHB 1965 by House Committee on Ways & Means (originally sponsored by Representatives Kagi, Jinkins, Frockt and Kenney)
AN ACT Relating to public and private partnership in addressing adverse childhood experiences; amending RCW 13.40.462, 43.121.100, 43.215.146, 43.215.147, 43.70.555, 74.14A.060, and 70.190.040; adding a new section to chapter 28A.300 RCW; adding a new chapter to Title 70 RCW; creating a new section; recodifying RCW 70.190.040; repealing RCW 43.121.010, 43.121.015, 43.121.020, 43.121.030, 43.121.040, 43.121.050, 43.121.060, 43.121.070, 43.121.080, 43.121.110, 43.121.120, 43.121.130, 43.121.140, 43.121.150, 43.121.160, 43.121.185, 43.121.910, 70.190.005, 70.190.010, 70.190.020, 70.190.100, 70.190.110, 70.190.120, 70.190.130, 70.190.150, 70.190.920, and 74.14C.050; and providing effective dates.
Referred to Committee on Ways & Means.
MOTION
On motion of Senator Eide, all measures listed on the Introduction and First Reading report were referred to the committees as designated with the exception of Senate Bill No. 5934 which was referred to the Committee on Ways & Means.
REMARKS BY THE PRESIDENT
President Owen: “Ladies and Gentlemen of the Senate, as I had stated earlier, we have the great privilege of hosting the United State Navy with the men and women of the United States Navy here at the State Capital. Here with us today are a number of very distinguished individuals that have joined us but first, before I introduce the men and women that have joined us in the gallery, it would be a great privilege for the Senate to hear from Rear Admiral Douglas Biesel, Commander, Navy Region Northwest and so Ladies and Gentlemen please help me welcome Rear Admiral Biesel.”
REMARKS BY REAR ADMIRAL DOUGLAS BIESEL
Admiral Douglas Biesel: “Good morning Mr. President, Ladies and Gentlemen of the Senate. Thank you for providing me the opportunity to speak to you today. It is a distinct honor and privilege. As Chaplain Putter mentioned the Navy has been operating in Puget Sound for one-hundred seventy years, more than a decade before Washington was even a territory. It was as obvious in 1841 as it is today in 2011, the Pacific Northwest connects the ‘United States to some of our nation’s greatest opportunities and some of our most difficult challenges and where the United States’ opportunities and challenges are, there too you will find the United States Navy. The Navy’s role in this state, founding, growth and defenses is a matter of record. That role continues today. We project power to keep the homeland secure, we protect the sea lanes to enable our nations international trade much of which transits through Washington State’s ports. We provide a total of 5.8 billion dollars to the economy, 3.9 billion of that is in our salaries, in pay and 1.9 billion is in goods and services. The state has a skilled and diverse populous, it values its military service and we’re very grateful for that. The support for the military is strong. Many of Washington’s best and brightest choose to serve in the United States Navy and many of the Navy’s best and brightest choose to serve in Washington. It’s our home too whether we’re here for one tour or many. That’s why those of us that take many of our responsibilities very seriously. As an example, in the area of environmental responsibility is part of our national defense. For instance, Environmental Protection Agency, the Governor of Washington, the Secretary of Navy, the Chief of Naval Operations and even the President have officially recognized Navy Region Northwest efforts with dozens of awards in environmental and energy initiatives in recent years. That’s also why, in addition to our service overseas. Navy sailors and civilians serve in our local communities. They give back to Washington State by donating their time and their money to countless civic, education and non-profit organizations in need. Through mutual aid agreements our Navy Region Northwest fire and emergency services personnel respond on an average of twice a day to directly help the civilian communities around their bases. As an example at up at Naval Air Station Whidbey Island we have a search and rescue crew with two Navy helicopters. They on average respond to more than twenty local calls for assistance annually throughout this region. Trained to rescue fellow service members from combat zones, stormy seas and alpine peaks, their skills and equipment are vital to saving lives when disasters strikes here at home. I’d like to introduce you to some of these special sailors today, part of this navy search and rescue crew have accomplished one of the most difficult and dangerous helicopter rescues in northwest history. So, if I could up to your left and as I call out your name could you please stand: Lt. Brandon Sheets; Lt. Scott Ziener; Chief Petty Officer Jeremiah Wilcons; Petty Officer Andrew Werth, Petty Officer Brian Kasey; Petty Officer Richmond Roy. Last August a young hiker fell from a cliff into a canyon of the Skokomish River. The canyons depth prevented retrieval by a local first aid teams. In fact, she fell about sixty feet into the water and broke her hip and ruptured her spleen. The canyon depth prevented retrieval by local first aid teams and the steel bridge above the girls location made air rescue seem impossible but the Mason County Sherriff called for the United States Navy. The helicopter crew of six from Whidbey Island were dispatched. After arrival on the scene and assessing the situation Lt. Sheets, the pilot and mission commander, maneuvered his Nighthawk helicopter under the steel bridge that spanned the canyon. Petty Officer Roy then repelled from the helicopter to the river bank below with Lt. Ziener keeping the helicopter steady. Petty Officer Roy then secured the injured girl and had her hoisted aboard the helo. But due to that narrow canyon Lt. Sheets was not able to turn that helicopter around. He literally had to back that helicopter out underneath the bridge into open air. Of course that’s all in a day’s work for these Navy Search and Rescue team. That young girl today I understand is experiencing a strong recovery. She was initially taken to Harborview Medical Center and I would like to applaud these great young sailors for their heroic aides that they do every day. Thank you very much, please be seated. Again to keep doing all that we do for this state and this nation the Navy relies on our integration with Washington’s transportation system, schools, and most of all, our importantly political leadership here in this state. From our relief operations in Japan to Haiti, to our anti piracy efforts in the Indian Ocean, to fight against terrorists in Afghanistan and of course our work here at home. We literally could not do it without all of your support. Again thank you for providing such great support to our Navy’s sailors, their families and as all of you know our great veterans that have served this nation. Again you have made Washington State a state of choice for many that have served this great nation. Again, thank you, God Bless you and God Bless the United States, the Navy and Washington state. Thank you.”
INTRODUCTION OF SPECIAL GUESTS
The President welcomed and introduced members of the Navy, Captain Mark Olson, Commanding Officer, Naval Base Kitsap; Captain Jay Johnson, Commanding Officer, Naval Air Station Whidbey Island; Captain Pete Dawson, Prospective Commanding Officer, Naval Base Kitsap; Captain Ron Reis, Commanding Officer, USS John C. Stennis; Captain Mark Brouker, Commanding Officer, Naval Hospital Bremerton; Captain Kim Dolan, Commanding Officer, Fleet Industrial Supply Center Puget Sound; Captain Steve Iwanowicz, Commanding Officer, Naval Undersea Warfare Center, Keyport; Commander Steve Richards, Commanding Officer, Naval Recruiting District Seattle and Command Master Chief Petty Officer Dave Bisson, Command Master Chief, Naval Region Northwest and the Navy Search and Rescue crew who were seated in the gallery.
PERSONAL PRIVILEGE
Senator Haugen: “Thank you Mr. President. Well I want to acknowledge this wonderful group of sailors who are here today. I will tell you that I am very proud to represent Whidbey Island Base and these young men, they’re extraordinary individuals. This is, was a really interesting story they told us on this rescue but I can tell you there are many stories that can be told time and time again. From the time I was a young girl I knew you always had the Navy there to help you when you was really stranded and, being surrounded by water, we saw many, many rescues. Nothing quite as exciting as this but certainly one that you knew you would be safe. I think we often forget how important our Navy neighbors are. In my area, they are the largest employer on the island. But more than anything else they are really good neighbors, their kids go to our schools, the parents are part of the volunteers. One of the things that people don’t realize that often time those sailors who are often a long ways from home will go out and work within the schools and work with community as community volunteers doing many major projects. I think the thing that’s really always amazing to me because I love Washington State but how many of them come here and find out what a wonderful state and then stay here and become our leaders in our community. We have several who have been elected at local levels in my area. They are truly an important part of the State of Washington. I think a lot of us fear what might happen when we have an earthquake but I can tell you, I feel very comfortable knowing that my military base is just across the pond from where I look at them and I know they are going to be a part of us helping us when that happens. I just want to say again how proud I am to represent the Whidbey Island Base. I think many of us in this family have had members of our family service as military. I have brothers who were sailors, every time I look at one of those young men, I always think that could have been my brother so I always try to treat them like I would my brother. I urge that all of us think about all the people out there protecting us at this time and the families left behind because I think that’s another part of the military that realizes that families that are left behind. When I visit the schools on Whidbey Island and see how many students that their fathers are gone. It’s really kind of, you think boy, you don’t realize how difficult it is for those parents who are left alone, single parent and often time it’s a man because the mother is deployed so they are special neighbors and I am proud to represent them.”
PERSONAL PRIVILEGE
Senator Sheldon: “Thank you Mr. President. It’s a great day to be here today and honor these young sailors and service men from all over. I want to especially thank the Search and Rescue team on behalf of the Mason County Commission which I serve as a member. I remember that day in August. I’ve been up to the high steel bridge, of course it’s one of the most narrow canyons and impressive places you see as you drive up into our Olympic National Forrest. But when we have an emergency in a thousand square miles in Mason County and our Sheriff’s Office, the average response time is forty-five minutes. Just to get to that spot and with our budget reductions and the equipment we have, we have to rely on you and you did the job. It was an event that was captured on film for our local television and transmitted all over the world. Everyone in the country had an opportunity that next morning to see the shots from a helicopter, a news helicopter above your helicopter looking down into that canyon and part of your helicopter was obstructed by the bridge that was between those two helicopters. It was an incredible feed, one that you probably know as routine because you do it all the time and my hats off to you. Everyone in this chamber appreciates your efforts and the risk you take to keep us safe. So, thank from all the people of Mason County as well that never know when they might need your help but you’re always ready to serve. Thank you.”
PERSONAL PRIVILEGE
Senator Rockefeller: “Thank you very much Mr. President. It’s an honor indeed to welcome and acknowledge representatives from the U. S. Navy here today. In Kitsap County where my legislative district is located we’re proud to be the home of the Bangor Station of Keyport and we also are close to and consider ourselves part of the larger community of Navy personnel who serve at the Puget Sound Naval Shipyard. All of which are now part of Naval Base Kitsap and we are grateful to be the state of choice of the U. S. Navy for one-hundred forty years and we trust that that will continue and be an enduring relationship. The Navy is a great neighbor, every member of the Navy is part of our community, we welcome them, we cherish them, we value what they do at home and abroad. The U. S. Navy probably carries out more multiple mission support in U. S. interests at home and abroad than any other brand of the military service and they provide and make sure that our ceilings open to international commerce, they engage in and support military operations around the world, they provide relief operations-most recently in Japan, they provide relief and assistance in rescue operations as we heard this morning here in our own state, the list goes on. They are the most versatile service I think in the United States of America and we’re grateful that they are a part of our community. I am pleased to stand here and honor them today. Thank you.”
PERSONAL PRIVILEGE
Senator Swecker: “Thank you Mr. President. Well, at the invitation, with Secretary Munro a few weeks ago I got to go to Bremerton and have dinner with Admiral Biesel and his wife Ruth. They live in a restored home at the Puget Sound Naval Shipyard and it’s important to note that the Navy is doing incredible things to restore many of these historic residence that exists there and that actually formed a private public partnership to go ahead and find the resources to restore these at little or no cost to the government. While we were there, he reminded me that the Navy is anticipating building a remissions loading dock or wharf at Kitsap Base and it’s about a five hundred million dollar project and would have huge benefits to our state in terms of employment and additional personnel from the military. One of the facts that he mentioned is, that they will be reimbursing the state in what the calls in lieu of mitigation which it means they will give us mitigation dollars and there will be discretion for the state about how these are used to restore Puget Sound and they will be forming partnerships with people for Puget Sound perhaps and other organizations to come up with plans so what the potential kinds of things that could be done is some of these dollars might be for example be used to clean up the septic tanks that are polluting Puget Sound. That is just an example the kinds of projects that could be done. I am enthusiastic about this project, I am enthusiastic about its potential beneficial impacts for the state of Washington and for construction employment and for future employment of the citizens so, I appreciate the Navy. I’m glad they are here. Thank you.”
MOTION
On motion of Senator Eide, the Senate advanced to the eighth order of business.
MOTION
Senator King moved adoption of the following resolution:
SENATE RESOLUTION
8654
By Senators King, Holmquist Newbry, and Honeyford
WHEREAS, In May 1911, there was an explosive outbreak of Typhoid fever in Yakima County; and
WHEREAS, A subsequent investigation into the cause of the outbreak by the Surgeon General of the United States Public Health Service and Marine-Hospital Service revealed that the illnesses were linked directly to poor sanitation and contamination of shallow wells; and
WHEREAS, In response to the findings, the federal agencies recommended the formation of a single agency to take on the issues of sanitation, sewage disposal and well location and construction throughout the entire county to prevent similar outbreaks in the future; and
WHEREAS, In June 1911, the Yakima County Health District was formed to serve that purpose; and
WHEREAS, The Yakima Health District's continuing mission is to provide prevention, education and disease control services, and to promote, protect, and enhance the health and safety of all in partnership with the people of Yakima County; and
WHEREAS, The Yakima Health District will celebrate its 100th anniversary in June of 2011, and is planning a centennial celebration to help promote healthy habits to combat current health challenges and look toward ways to shape a healthier, happier, and safer Yakima;
NOW, THEREFORE, BE IT RESOLVED, That the Washington State Senate honor the Yakima Health District for its century of service to the people of Yakima County and to Washington State, and let it be known that the men and women who work for the Yakima Health District truly live by their motto, "Prevention is our business"; and
BE IT FURTHER RESOLVED, That copies of this resolution be immediately transmitted by the Secretary of the Senate to the Yakima Health District and its employees, the offices of Yakima County, and the Yakima Herald Republic.
Senators King, Honeyford and Keiser spoke in favor of adoption of the resolution.
The President declared the question before the Senate to be the adoption of Senate Resolution No. 8654.
The motion by Senator King carried and the resolution was adopted by voice vote.
INTRODUCTION OF SPECIAL GUESTS
The President welcomed and introduced Dennis Klukan, Administrator, Yakima Public Health District and Mary Selecky, Secretary of the Department of Health, State of Washington who were seated in the gallery.
INTRODUCTION OF SPECIAL GUESTS
The President welcomed and introduced members of Frontier Communications Denise Baumbach President, West Region; Greg Stephens, Sr. Vice President and General Manager for WA and Steve Crosby, Sr. Vice President Government Affairs and Public Relations and Frontier Communications Washington State regional managers who were seated in the gallery.
MOTION
At 10:41 a.m., on motion of Senator Eide, the Senate was declared to be at ease subject to the call of the President.
AFTERNOON SESSION
The Senate was called to order at 12:03 p.m. by President Owen.
MOTION
On motion of Senator Eide, the Senate reverted to the fourth order of business.
MESSAGE FROM THE HOUSE
April 6, 2011
MR. PRESIDENT:
The House passed ENGROSSED SUBSTITUTE SENATE BILL NO. 5656 with the following amendment(s): 5656-S.E AMH ENGR H2383.E
Strike everything after the enacting clause and insert the following:
"NEW SECTION. Sec. 1. SHORT TITLE. This chapter shall be known and cited as the "Washington state Indian child welfare act."
NEW SECTION. Sec. 2. APPLICATION. This chapter shall apply in all child custody proceedings as that term is defined in this chapter. Whenever there is a conflict between chapter 13.32A, 13.34, 13.36, 26.10, or 26.33 RCW, the provisions of this chapter shall apply.
NEW SECTION. Sec. 3. INTENT. The legislature finds that the state is committed to protecting the essential tribal relations and best interests of Indian children by promoting practices designed to prevent out-of-home placement of Indian children that is inconsistent with the rights of the parents, the health, safety, or welfare of the children, or the interests of their tribe. Whenever out-of-home placement of an Indian child is necessary in a proceeding subject to the terms of the federal Indian child welfare act and in this chapter, the best interests of the Indian child may be served by placing the Indian child in accordance with the placement priorities expressed in this chapter. The legislature further finds that where placement away from the parent or Indian custodian is necessary for the child's safety, the state is committed to a placement that reflects and honors the unique values of the child's tribal culture and is best able to assist the Indian child in establishing, developing, and maintaining a political, cultural, social, and spiritual relationship with the child's tribe and tribal community.
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. DEFINITIONS. The definitions in this section apply throughout this chapter unless the context clearly requires otherwise.
(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 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 diligent 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 beyond simply providing referrals to such services.
(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 court, or a 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 a 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 under chapter 26.26 RCW or the applicable laws of other states.
(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. DETERMINATION OF INDIAN STATUS. Any party seeking the foster care placement of, termination of parental rights over, or the adoption of a child must make a good faith effort to determine whether the child is an Indian child. This shall be done by consultation with the child's parent or parents, any person who has custody of the child or with whom the child resides, and any other person that reasonably can be expected to have information regarding the child's possible membership or eligibility for membership in an Indian tribe to determine if the child is an Indian child, and by contacting any Indian tribe in which the child may be a member or may be eligible for membership. Preliminary contacts for the purpose of making a good faith effort to determine a child's possible Indian status, do not constitute legal notice as required by section 7 of this act.
NEW SECTION. Sec. 6. JURISDICTION. (1) An Indian tribe shall have exclusive jurisdiction over any child custody proceeding involving an Indian child who resides or is domiciled within the reservation of that tribe, unless the tribe has consented to the state's concurrent jurisdiction, the tribe has expressly declined to exercise its exclusive jurisdiction, or the state is exercising emergency jurisdiction in strict compliance with section 14 of this act.
(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. NOTICE. (1) In any involuntary child custody proceeding seeking the foster care placement of, or the termination of parental rights to, a child in which the petitioning party or the court knows, or has reason to know, that the child is or may be an Indian child as defined in this chapter, the petitioning party shall notify the parent or Indian custodian and the Indian child's tribe or tribes, by certified mail, return receipt requested, and by use of a mandatory Indian child welfare act notice. If the identity or location of the parent or Indian custodian and the tribe cannot be determined, such notice shall be given to the secretary of the interior by registered mail, return receipt requested, in accordance with the regulations of the bureau of Indian affairs. The secretary of the interior has fifteen days after receipt to provide the requisite notice to the parent or Indian custodian and the tribe. No foster care placement or termination of parental rights proceeding shall be held until at least ten days after receipt of notice by the parent or Indian custodian and the tribe. The parent or Indian custodian or the tribe shall, upon request, be granted up to twenty additional days to prepare for the proceeding.
(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 by a preponderance of the evidence that the child is an Indian child.
(4)(a) 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, during the pendency of any child custody proceeding to which this chapter or the federal Indian child welfare act applies, move the court for redetermination of the child's Indian status based upon new evidence, redetermination by the child's tribe, or newly conferred federal recognition of the tribe.
(b) This subsection (4) does not affect the rights afforded under 25 U.S.C. Sec. 1914.
NEW SECTION. Sec. 8. TRANSFER OF JURISDICTION. (1) In any proceeding for the foster care placement of, or termination of parental rights to, an Indian child who is not domiciled or residing within the reservation of the Indian child's tribe, the court shall, in the absence of good cause to the contrary, transfer the proceeding to the jurisdiction of the Indian child's tribe, upon the motion of any of the following persons:
(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. INTERVENTION. The Indian child, the Indian child's tribe or tribes, and the Indian custodian have the right to intervene at any point in any child custody proceeding involving the Indian child.
NEW SECTION. Sec. 10. FULL FAITH AND CREDIT. The state shall give full faith and credit to the public acts, records, judicial proceedings, and judgments of any Indian tribe applicable to Indian child custody proceedings.
NEW SECTION. Sec. 11. RIGHT TO COUNSEL. In any child custody proceeding under this chapter in which the court determines the Indian child's parent or Indian custodian is indigent, the parent or Indian custodian shall have the right to court-appointed counsel. The court may, in its discretion, appoint counsel for the Indian child upon a finding that the appointment is in the best interests of the Indian child.
NEW SECTION. Sec. 12. RIGHT TO ACCESS TO EVIDENCE. Each party to a child custody proceeding involving an Indian child shall have the right to examine all reports or other documents filed with the court upon which any decision with respect to the proceeding may be based.
NEW SECTION. Sec. 13. EVIDENTIARY REQUIREMENTS. (1) A party seeking to effect an involuntary foster care placement of or the involuntary termination of parental rights to an Indian child shall satisfy the court that active efforts have been made to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family and that these efforts have proved unsuccessful.
(2) No involuntary 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 that may result from interfering with the bond or attachment between the foster parent and the child shall not be the sole basis or primary reason for continuing the child in foster care.
(3) No involuntary 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. For the purposes of this subsection, any harm that may result from interfering with the bond or attachment that may have formed between the child and a foster care provider shall not be the sole basis or primary reason for termination of parental rights over an Indian 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. EMERGENCY REMOVAL OF AN INDIAN CHILD. (1) Notwithstanding any other provision of federal or state law, nothing shall be construed to prevent the department or law enforcement from the emergency removal of an Indian child who is a resident of or is domiciled on an Indian reservation, but is temporarily located off the reservation, from his or her parent or Indian custodian or the emergency placement of such child in a foster home, under applicable state law, to prevent imminent physical damage or harm to the child.
(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. CONSENT. (1) If an Indian child's parent or Indian custodian voluntarily consents to a foster care placement of the child or to termination of parental rights, the consent is not valid unless executed in writing and recorded before a judge of a court of competent jurisdiction and accompanied by the judge's certificate that the terms and consequences of the consent were fully explained in detail and were fully understood by the parent or Indian custodian. The court must also certify that either the parent or Indian custodian fully understood the explanation in English or that it was interpreted into a language that the parent or Indian custodian understood. Any consent for release of custody given prior to, or within ten days after, the birth of the Indian child shall not be valid.
(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. IMPROPER REMOVAL OF AN INDIAN CHILD. If a petitioner in a child custody proceeding under this chapter has improperly removed the child from the custody of the parent or Indian custodian or has improperly retained custody after a visit or other temporary relinquishment of custody, the court shall decline jurisdiction over the petition and shall immediately return the child to the child's parent or Indian custodian unless returning the child to the parent or Indian custodian would subject the child to substantial and immediate danger or threat of such danger.
NEW SECTION. Sec. 17. REMOVAL OF INDIAN CHILD FROM ADOPTIVE OR FOSTER CARE PLACEMENT. (1) If a final decree of adoption of an Indian child has been vacated or set aside or the adoptive parents voluntarily consent to the termination of their parental rights to the child, the biological parent or prior Indian custodian may petition to have the child returned to their custody and the court shall grant the request unless there is a showing by clear and convincing evidence that return of custody to the biological parent or prior Indian custodian is not in the best interests of the Indian child.
(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. PLACEMENT PREFERENCES. (1) When an emergency removal, foster care placement, or preadoptive placement of an Indian child is necessary, a good faith effort will be made to place the Indian child:
(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, in proceedings under chapter 13.34 RCW where the Indian child is in the custody of the department or a supervising agency and 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.
(5) Where appropriate, the preference of the Indian child or his or her parent shall be considered by the court. Where a consenting parent evidences a desire for anonymity, the court or agency shall give weight to such desire in applying the preferences.
(6) 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.
(7) 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. COMPLIANCE. The department, in consultation with Indian tribes, shall establish standards and procedures for the department's review of cases subject to this chapter and methods for monitoring the department's compliance with provisions of the federal Indian child welfare act and this chapter. These standards and procedures and the monitoring methods shall also be integrated into the department's child welfare contracting and contract monitoring process.
NEW SECTION. Sec. 20. SEVERABILITY. 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.
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.
(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)) provisions of chapter 13.--- RCW (the new chapter created
in section 35 of this act) apply.
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 35 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 35 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 35 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 35 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 35 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 35 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:
NOTICE:
VIOLATION OF THIS ORDER
IS SUBJECT TO PROCEEDING
FOR CONTEMPT OF COURT
PURSUANT TO RCW 13.34.070.
(8) If a party to be served with a summons can be found within the state, the summons shall be served upon the party personally as soon as possible following the filing of the petition, but in no case later than fifteen court days before the fact-finding hearing, or such time as set by the court. If the party is within the state and cannot be personally served, but the party's address is known or can with reasonable diligence be ascertained, the summons may be served upon the party by mailing a copy by certified mail as soon as possible following the filing of the petition, but in no case later than fifteen court days before the hearing, or such time as set by the court. If a party other than the child is without the state but can be found or the address is known, or can with reasonable diligence be ascertained, service of the summons may be made either by delivering a copy to the party personally or by mailing a copy thereof to the party by certified mail at least ten court days before the fact-finding hearing, or such time as set by the court.
(9) Service of summons may be made under the direction of the court by any person eighteen years of age or older who is not a party to the proceedings or by any law enforcement officer, probation counselor, or department employee.
(10)(((a)))
Whenever the court or the petitioning party in a proceeding under this chapter
knows or has reason to know that an Indian child as defined in section 4 of
this act 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.
(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)) comply with section 7 of this act.
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 department or 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 35 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 35 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 35 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 35 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 35 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 35 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 35 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 35 of this act) does
apply, the decree or order must also contain a finding that all notice,
consent, and evidentiary requirements ((and evidentiary requirements))
under the federal Indian child welfare act, chapter 13.--- RCW (the
new chapter created in section 35 of this act), and this section 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)) federal servicemembers civil relief
act of ((1940)) 2004, 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)) federal
servicemembers civil relief act of ((1940)) 2004
does or does not apply.
Sec. 33. RCW 26.33.240 and 1987 c 170 s 8 are each amended to read as follows:
(1) After the reports required by RCW 26.33.190 and 26.33.200 have been filed, the court shall schedule a hearing on the petition for adoption upon request of the petitioner for adoption. Notice of the date, time, and place of hearing shall be given to the petitioner and any person or agency whose consent to adoption is required under RCW 26.33.160, unless the person or agency has waived in writing the right to receive notice of the hearing. If the child is an Indian child, notice shall also be given to the child's tribe. Notice shall be given in the manner prescribed by RCW 26.33.310.
(2) Notice of the adoption hearing shall also be given to any person who or agency which has prepared a preplacement report. The notice shall be given in the manner prescribed by RCW 26.33.230.
(3) If the court
determines, after review of the petition, preplacement and post-placement
reports, and other evidence introduced at the hearing, that all necessary
consents to adoption are valid or have been dispensed with pursuant to RCW
26.33.170 and that the adoption is in the best interest of the adoptee, and, in
the case of an adoption of an Indian child, that the adoptive parents are
within the placement preferences of ((25 U.S.C. Sec. 1915)) section
18 of this act or good cause to the contrary has been shown on the record,
the court shall enter a decree of adoption pursuant to RCW 26.33.250.
(4) If the court determines the petition should not be granted because the adoption is not in the best interest of the child, the court shall make appropriate provision for the care and custody of the child.
Sec. 34. 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. 35. Sections 1 through 20 of this act constitute a new chapter in Title 13 RCW.
NEW SECTION. Sec. 36. RCW 13.34.250 (Preference characteristics when placing Indian child in foster care home) and 1979 c 155 s 53 are each repealed."
Correct the title.
and the same are herewith transmitted.
BARBARA BAKER, Chief Clerk
MOTION
Senator Hargrove moved that the Senate refuse to concur in the House amendment(s) to Engrossed Substitute Senate Bill No. 5656 and ask the House to recede therefrom.
Senator Hargrove spoke in favor of the motion.
The President declared the question before the Senate to be the motion by Senator Hargrove that the Senate refuse to concur in the House amendment(s) to Engrossed Substitute Senate Bill No. 5656 and ask the House to recede therefrom.
The motion by Senator Hargrove carried and the Senate refused to concur in the House amendment(s) to Engrossed Substitute Senate Bill No. 5656 and asked the House to recede therefrom.
MESSAGE FROM THE HOUSE
April 5, 2011
MR. PRESIDENT:
The House passed SECOND SUBSTITUTE SENATE BILL NO. 5662 with the following amendment(s): 5662-S2 AMH DUNS H2558.1
Strike everything after the enacting clause and insert the following:
"NEW SECTION. Sec. 1. A new section is added to chapter 39.04 RCW to read as follows:
(1) The department of general administration must conduct a survey to determine which states provide a preference for its resident contractors bidding on public works projects, and provide details on the type of preference, the amount of the preference, and how the preference is applied. The survey must be completed by November 1, 2011, and by December 1, 2011, the department must submit a report to the appropriate committees of the legislature on the results of the survey. The report must also include recommendations necessary to implement the intent of this section and section 2 of this act.
(2) The department of general administration must distribute the results of the survey, along with the requirements of this section and section 2 of this act, to all state and local agencies with the authority to procure public works. The department may adopt rules and procedures to implement the reciprocity requirements in subsection (3) of this section or may determine that such rules and procedures are not necessary to implement the intent of this section and section 2 of this act.
(3) In any bidding process for public works in which a bid is received from a nonresident contractor from a state that provides a percentage bidding preference, a comparable percentage disadvantage must be applied to the bid of that nonresident contractor. This subsection does not take effect until the department of general administration has adopted the rules and procedures for reciprocity under subsection (2) of this section.
(4) A nonresident contractor from a state that provides a percentage bid preference means a contractor that:
(a) Is from a state with a percentage bid preference; and
(b) At the time of bidding on a public works project, does not have a physical office located in Washington.
(5) The state of residence for a nonresident contractor shall be the state in which the contractor was incorporated or, if not a corporation, the state where the contractor's business entity was formed.
(6) This section does not apply to public works procured pursuant to RCW 39.04.155 or 39.04.280, or any other procurement where competitive bidding is exempt.
NEW SECTION. Sec. 2. If any part of this act is found to be in conflict with federal requirements that are a prescribed condition to the allocation of federal funds to the state, the conflicting part of this act is inoperative solely to the extent of the conflict and with respect to the agencies directly affected, and this finding does not affect the operation of the remainder of this act in its application to the agencies concerned. Rules adopted under this act must meet federal requirements that are a necessary condition to the receipt of federal funds by the state."
Correct the title.
and the same are herewith transmitted.
BARBARA BAKER, Chief Clerk
MOTION
Senator Kohl-Welles moved that the Senate refuse to concur in the House amendment(s) to Second Substitute Senate Bill No. 5662 and ask the House to recede therefrom.
Senator Kohl-Welles spoke in favor of the motion.
The President declared the question before the Senate to be the motion by Senator Kohl-Welles that the Senate refuse to concur in the House amendment(s) to Second Substitute Senate Bill No. 5662 and ask the House to recede therefrom.
The motion by Senator Kohl-Welles carried and the Senate refused to concur in the House amendment(s) to Second Substitute Senate Bill No. 5662 and asked the House to recede therefrom.
MESSAGE FROM THE HOUSE
April 6, 2011
MR. PRESIDENT:
The House passed SUBSTITUTE SENATE BILL NO. 5836 with the following amendment(s): 5836-S AMH TR H2488.1
Strike everything after the enacting clause and insert the following:
"Sec. 1. RCW 46.61.165 and 1999 c 206 s 1 are each amended to read as follows:
(1) The state department of transportation and the local
authorities are authorized to reserve all or any portion of any highway under
their respective jurisdictions, including any designated lane or ramp, for the
exclusive or preferential use of one or more of the following: (a) Public
transportation vehicles ((or)); (b) private motor vehicles
carrying no fewer than a specified number of passengers; or (c) the
following private transportation provider vehicles if the vehicle has the
capacity to carry eight or more passengers, regardless of the number of
passengers in the vehicle, and if such use does not interfere with the
efficiency, reliability, and safety of public transportation operations: (i)
Auto transportation company vehicles regulated under chapter 81.68 RCW; (ii)
passenger charter carrier vehicles regulated under chapter 81.70 RCW, except
marked or unmarked stretch limousines and stretch sport utility vehicles as
defined under department of licensing rules; (iii) private nonprofit
transportation provider vehicles regulated under chapter 81.66 RCW; and (iv)
private employer transportation service vehicles, when such limitation will
increase the efficient utilization of the highway or will aid in the
conservation of energy resources.
(2) Any transit-only lanes that allow other vehicles to access
abutting businesses that are authorized pursuant to subsection (1) of this
section may not be authorized for the use of private transportation provider
vehicles as described under subsection (1) of this section.
(3) The state department of transportation and the local authorities
authorized to reserve all or any portion of any highway under their respective
jurisdictions, for exclusive or preferential use, may prohibit the use of a
high occupancy vehicle lane by the following private transportation provider
vehicles: (a) Auto transportation company vehicles regulated under chapter
81.68 RCW; (b) passenger charter carrier vehicles regulated under chapter 81.70
RCW, and marked or unmarked limousines and stretch sport utility vehicles as
defined under department of licensing rules; (c) private nonprofit
transportation provider vehicles regulated under chapter 81.66 RCW; and (d)
private employer transportation service vehicles, when the average transit
speed in the high occupancy vehicle lane fails to meet department of
transportation standards and falls below forty-five miles per hour at least
ninety percent of the time during the peak hours, as determined by the
department of transportation or the local authority, whichever operates the
facility.
(4) Regulations authorizing such exclusive or preferential use of
a highway facility may be declared to be effective at all times or at specified
times of day or on specified days. Violation of a restriction of highway usage
prescribed by the appropriate authority under this section is a traffic
infraction.
(5) Local authorities are
encouraged to establish a process for private transportation providers, as
described under subsections (1) and (3) of this section, to apply for the use
of public transportation facilities reserved for the exclusive or preferential
use of public transportation vehicles. The application and review processes
should be uniform and should provide for an expeditious response by the local
authority. Whenever practicable, local authorities should enter into
agreements with such private transportation providers to allow for the
reasonable use of these facilities.
(6) For the purposes of this section, "private employer
transportation service" means regularly scheduled, fixed-route
transportation service that is similarly marked or identified to display the
business name or logo on the driver and passenger sides of the vehicle, meets
the annual certification requirements of the department of transportation, and
is offered by an employer for the benefit of its employees.
Sec. 2. RCW 47.04.290 and 2008 c 257 s 1 are each amended to read as follows:
(1) Any local transit
agency that has received state funding for a park and ride lot shall make
reasonable accommodation for use of that lot by: Auto transportation
companies regulated under chapter 81.68 RCW ((and)); passenger
charter carriers regulated under chapter 81.70 RCW, except marked or unmarked
stretch limousines and stretch sport utility vehicles as defined under
department of licensing rules; private, nonprofit transportation providers
regulated under chapter 81.66 RCW((, that intend to provide or already
provide regularly scheduled service at that lot)); and private employer
transportation service vehicles, provided that such use does not interfere with
the efficiency, reliability, and safety of public transportation operations.
The accommodation must be in the form of an agreement between the applicable
local transit agency and the private ((transit)) transportation
provider ((regulated under chapter 81.68 or 81.66 RCW)). The transit
agency may require that the agreement include provisions to recover actual
costs and fair market value for the use of the lot and its related facilities
and to provide adequate insurance and indemnification of the transit agency,
and other reasonable provisions to ensure that the private ((transit)) transportation
provider's use does not unduly burden the transit agency. The transit
agency may consider benefits to its public transportation system when
establishing an amount to charge for the use of the park and ride lot and its
related facilities. If the agreement includes provisions to recover actual
costs, the private transportation provider is responsible to remit the full
actual costs of park and ride lot use to the appropriate transit agency.
No accommodation is required, and any agreement may be terminated, if the park
and ride lot is at or exceeds ninety percent capacity between the hours of
6:00 a.m. and 4:00 p.m., Monday through Friday for two consecutive months.
Additionally, any agreement may be terminated if the private transportation
provider violates any policies guiding the terms of use of the park and ride
lot. The transit agency may reserve the authority to designate which pick-up
and drop-off zones of the park and ride lot may be used by the private
transportation provider.
(2) A local transit agency described under subsection (1) of this section may enter into a cooperative agreement with a taxicab company regulated under chapter 81.72 RCW in order to accommodate the taxicab company at the agency's park and ride lot, provided the taxicab company must agree to provide service with reasonable availability, subject to schedule coordination provisions as agreed to by the parties.
(3) For the purposes of
this section, "private employer transportation service" means regularly
scheduled, fixed-route transportation service that is similarly marked or
identified to display the business name or logo on the driver and passenger
sides of the vehicle, meets the annual certification requirements of the
department, and is offered by an employer for the benefit of its employees.
(4) For the purposes of this section, "private transportation
provider" means:
(a) A company regulated under chapter 81.68 RCW; chapter 81.70 RCW,
except marked or unmarked stretch limousines and stretch sport utility vehicles
as defined under department of licensing rules; and chapter 81.66 RCW; and
(b) An entity providing private employer transportation service.
Sec. 3. RCW 47.52.025 and 1974 ex.s. c 133 s 1 are each amended to read as follows:
(1) Highway authorities of the state, counties, and
incorporated cities and towns, in addition to the specific powers granted in
this chapter, shall also have, and may exercise, relative to limited access
facilities, any and all additional authority, now or hereafter vested in them
relative to highways or streets within their respective jurisdictions, and may
regulate, restrict, or prohibit the use of such limited access facilities by
various classes of vehicles or traffic. Such highway authorities may reserve
any limited access facility or portions thereof, including designated lanes or
ramps for the exclusive or preferential use of (a) public transportation
vehicles, (b) privately owned buses, ((or)) (c) private
motor vehicles carrying not less than a specified number of passengers, or
(d) the following private transportation provider vehicles if the vehicle has
the capacity to carry eight or more passengers, regardless of the number of
passengers in the vehicle, and if such use does not interfere with the
efficiency, reliability, and safety of public transportation operations: (i)
Auto transportation company vehicles regulated under chapter 81.68 RCW; (ii)
passenger charter carrier vehicles regulated under chapter 81.70 RCW, except marked
or unmarked stretch limousines and stretch sport utility vehicles as defined
under department of licensing rules; (iii) private nonprofit transportation
provider vehicles regulated under chapter 81.66 RCW; and (iv) private employer
transportation service vehicles, when such limitation will increase the
efficient utilization of the highway facility or will aid in the conservation
of energy resources. Regulations authorizing such exclusive or preferential
use of a highway facility may be declared to be effective at all time or at
specified times of day or on specified days.
(2) Any transit-only
lanes that allow other vehicles to access abutting businesses that are reserved
pursuant to subsection (1) of this section may not be authorized for the use of
private transportation provider vehicles as described under subsection (1) of
this section.
(3) Highway authorities of the state, counties, or incorporated cities
and towns may prohibit the use of limited access facilities by the following
private transportation provider vehicles: (a) Auto transportation company
vehicles regulated under chapter 81.68 RCW; (b) passenger charter carrier
vehicles regulated under chapter 81.70 RCW, and marked or unmarked limousines
and stretch sport utility vehicles as defined under department of licensing
rules; (c) private nonprofit transportation provider vehicles regulated under
chapter 81.66 RCW; and (d) private employer transportation service vehicles,
when the average transit speed in the high occupancy vehicle travel lane fails
to meet department standards and falls below forty-five miles per hour at least
ninety percent of the time during the peak hours for two consecutive months.
(4)(a) Local authorities are encouraged to establish a process for
private transportation providers, described under subsections (1) and (3) of
this section, to apply for the use of limited access facilities that are
reserved for the exclusive or preferential use of public transportation
vehicles.
(b) The process must provide a list of facilities that the local
authority determines to be unavailable for use by the private transportation
provider and must provide the criteria used to reach that determination.
(c) The application and review processes must be uniform and should
provide for an expeditious response by the authority.
(5) The department must convene a stakeholder process that includes
interested public and private transportation providers, which must develop
standard permit forms, clear explanations of permit rate calculations, and standard
indemnification provisions that may be used by all local authorities.
(6) For the purposes of this section, "private employer
transportation service" means regularly scheduled, fixed-route
transportation service that is similarly marked or identified to display the
business name or logo on the driver and passenger sides of the vehicle, meets
the annual certification requirements of the department, and is offered by an
employer for the benefit of its employees.
NEW SECTION. Sec. 4. A new section is added to chapter 47.04 RCW to read as follows:
When designing portions of a highway that are intended to be used as portions reserved for the exclusive or preferential use of public transportation vehicles, state and local jurisdictions shall consider whether the design will safely accommodate private transportation provider vehicles that may be authorized to use the reserved portions under RCW 46.61.165 and 47.52.025 without interfering with the efficiency, reliability, and safety of public transportation operations.
NEW SECTION. Sec. 5. If any part of this act is found to be in conflict with mitigation requirements under the state environmental policy act (chapter 43.21C RCW) or the national environmental policy act (42 U.S.C. Secs. 4321 through 4347) or in any other way conflicts with federal requirements that are a condition or part of the allocation of federal funds to the state or local facilities, the conflicting part of this act is inoperative solely to the extent of the conflict and with respect to the agencies directly affected, and this finding does not affect the operation of the remainder of this act in its application to the agencies concerned. Rules adopted under this act must meet federal requirements that are a necessary condition to the receipt of federal funds by the state or local authorities."
Correct the title.
and the same are herewith transmitted.
BARBARA BAKER, Chief Clerk
MOTION
Senator Haugen moved that the Senate refuse to concur in the House amendment(s) to Substitute Senate Bill No. 5836 and ask the House to recede therefrom.
Senator Haugen spoke in favor of the motion.
The President declared the question before the Senate to be the motion by Senator Haugen that the Senate refuse to concur in the House amendment(s) to Substitute Senate Bill No. 5836 and ask the House to recede therefrom.
The motion by Senator Haugen carried and the Senate refused to concur in the House amendment(s) to Substitute Senate Bill No. 5836 and asked the House to recede therefrom.
MOTION
At 12:08 p.m., on motion of Senator Eide, the Senate adjourned until 10:00 a.m. Thursday, April 14, 2011.
BRAD OWEN, President of the Senate
THOMAS HOEMANN, Secretary of the Senate
1965-S2
Introduction & 1st Reading..................................................... 1
2026-S
Messages................................................................................ 1
5278
Messages................................................................................ 1
5656-S
Messages................................................................................ 4
5662-S2
Messages.............................................................................. 17
5836-S
Messages.............................................................................. 18
5933
Introduction & 1st Reading..................................................... 1
5934
Introduction & 1st Reading..................................................... 1
Other Action.......................................................................... 2
8205
Speaker Signed....................................................................... 1
8654
Adopted................................................................................. 4
Introduced.............................................................................. 4
PRESIDENT OF THE SENATE
Intro. Special Guest, former Secretary of State, Ralph Munro........ 1
Intro. Special Guest, Frontier Communications guests......... 4
Intro. Special Guests, Department of Health........................ 4
Remarks by the President...................................................... 2
WASHINGTON STATE SENATE
Personal Privilege, Senator Haugen........................................ 3
Personal Privilege, Senator Rockefeller.................................. 3
Personal Privilege, Senator Sheldon....................................... 3
Personal Privilege, Senator Swecker....................................... 3