SENATE BILL 5892
State of Washington
2019 Regular Session
BySenators Nguyen, Darneille, and Wilson, C.
AN ACT Relating to factors to be considered in a shelter care hearing; and amending RCW 13.34.065
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:
and 2018 c 284 s 4 are each 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, the department 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
(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 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 RCW 13.38.040
, whether the provisions of the federal Indian child welfare act or chapter 13.38
RCW apply, and whether there is compliance with the federal Indian child welfare act and chapter 13.38
RCW, 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
(C) The parent, guardian, or custodian to whom the child could be released has been charged with violating RCW 9A.40.060
(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. If such relative or other suitable person appears otherwise suitable and competent to provide care and treatment, the fingerprint-based background check need not be completed before placement, but as soon as possible after placement. 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 department's plan or is ordered by the court; and
(iii) Cooperate with the department 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 department 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 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.))In order to better facilitate the timely resolution of dependency cases, minimize further potential harm to families, and to ensure that the child's best interests are at the forefront, early identification of barriers is critical. No child may be placed in shelter care for longer than thirty days without an order, signed by the ((judge))court, authorizing continued shelter care, after considering the following:
(i) The names and current contact information for all parties and their representatives, including parents, the assigned social worker, the parents' attorneys, tribal representatives, and the guardian ad litem or attorney for the child;
(ii) The status of notices to parents, guardians, or legal custodians of the child pursuant to RCW 13.34.062;
(iii) The status and results of any paternity testing for any alleged genetic parents of the child;
(iv) An update as to whether there is reason to know the child is or may be an Indian child as defined in RCW 13.38.040 and whether the provisions of the federal Indian child welfare act and chapter 13.38 RCW apply;
(v) A determination as to whether all safety threats to the child can be managed or controlled and the child can be safely returned home;
(vi) Providing the names and information regarding any additional relatives or other suitable adults as described in RCW 13.34.130(1)(b)(ii). Information should include the type of assistance they are willing to provide including, but not limited to, serving as a placement, assistance with sibling or parental visitation, respite support for current or future caregivers, and transportation support;
(vii) The current status of any background checks or home studies referred or conducted regarding relatives or other suitable persons previously identified;
(viii) Any changes in placement since prior court orders; the number of placements that have occurred since removal; a determination of whether the current placement is the least disruptive, most familiar and most family like setting that meets the needs of the child; and any efforts of the child's current placement to maintain the child's connection to his or her parents or community of origin;
(ix) The current status of parental and sibling visitation, including the number of visits that have occurred, any missed or canceled visitations, and the reasons for the missed or canceled visitations. The court may also consider entering an updated visitation plan that includes visits in the least restrictive setting based on risk factors, existing danger, safety threats, and protective factors. Visitation plans must continue to be in the child's best interests and consider any stated interests of the child and identify what needs to be changed in order to increase visitation and reduce any restrictions on visitation;
(x) The current educational or child care enrollment status of the child, including whether there has been a change prior to coming into care, and efforts to maintain educational continuity for the child;
(xi) Any order for examination, evaluations, or immediate services that are needed for the child, including, if available, the results of the child's health and education tracking report or any other examinations, or recommendation of any of the parties, including any additional resources or supports for the proper care of the child;
(xii) A list of services or assessments offered to the parents and the status of referrals, as well as any voluntary services or programs the parents have participated in or wish to be referred to, including any specialty dependency court, court programs, or parent ally programs; and
(xiii) Other orders by court.
(b) 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 a change in circumstances.
(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.
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