REPORT TITLE:
Child protection


DESCRIPTION:
Brings Hawaii into compliance with the federal Adoption and Safe
Families Act of 1997. (SD1)

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                        1117
HOUSE OF REPRESENTATIVES                H.B. NO.           H.D. 3
TWENTIETH LEGISLATURE, 1999                                S.D. 1
STATE OF HAWAII                                            
                                                             
________________________________________________________________
________________________________________________________________


                   A  BILL  FOR  AN  ACT

RELATING TO THE CHILD PROTECTIVE ACT.



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

 1      SECTION 1.  Section 587-2, Hawaii Revised Statutes, is
 
 2 amended as follows:
 
 3      1.  By adding a new definition to be appropriately inserted
 
 4 and to read as follows:
 
 5      ""Abandoned infant" means a child who is three years old or
 
 6 younger and:
 
 7      (1)  Whose parent, regardless of any incidental contact or
 
 8           communication with the child, has demonstrated an
 
 9           extreme disinterest or lack of commitment for assuming
 
10           parental responsibility for the child;
 
11      (2)  Whose parent's identity or whereabouts is unknown to
 
12           the caretaker for no less than sixty days, and
 
13           reasonable efforts have been made to identify or locate
 
14           the parent; or
 
15      (3)  Whose presumed or alleged non-adjudicated father has
 
16           failed to assert a claim or interest as a parent for no
 
17           less than sixty days if he has knowledge of the birth
 
18           of the child and that he is the presumed or alleged
 
19           father."
 

 
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 1      2.  By amending the definition of "aggravated circumstances"
 
 2 to read as follows:
 
 3      ""Aggravated circumstances" means that:
 
 4      (1)  The parent has committed, or has aided or abetted,
 
 5           attempted, conspired, or solicited to commit murder or
 
 6           voluntary manslaughter of another child of the parent;
 
 7      (2)  The parent has committed a felony assault that results
 
 8           in serious bodily injury to the child or another child
 
 9           of the parent;
 
10      (3)  [The parental rights to a sibling have been terminated
 
11           involuntarily pursuant to chapter 571; or] The parental
 
12           rights have been judicially terminated or divested
 
13           regarding a sibling;
 
14      (4)  The parent has tortured the child;
 
15      (5)  The child is an abandoned infant; or
 
16     [(4)] (6)  A court has made a determination regarding a
 
17           sibling under section 587-73(a) of the presence of the
 
18           situation described under section 587-73(a)(1) [or] and
 
19           (2)[, or both]."
 
20      SECTION 2.  Section 587-33, Hawaii Revised Statutes, is
 
21 amended by amending subsection (a) to read as follows:
 
22      "(a)  Service of summons shall be made personally by
 
23 delivery of a certified copy thereof to the person or legal
 

 
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 1 entity summoned; provided that if the party to be served resides
 
 2 outside of the State of Hawaii, service shall be made by
 
 3 registered or certified mail addressed to the last known address
 
 4 or if the court is satisfied that it is impracticable to serve
 
 5 personally the summons provided for in the preceding section, the
 
 6 court may order service by registered or certified mail addressed
 
 7 to the last known address, or by publication thereof, or both.
 
 8 Service shall be effected at least twenty-four hours prior to the
 
 9 time fixed in the summons for a temporary foster custody hearing
 
10 or at least forty-eight hours prior to the time fixed in the
 
11 summons for any other hearing under this chapter, unless the
 
12 party otherwise was ordered by the court to appear at the
 
13 hearing.  Personal service of summons required under this chapter
 
14 shall be made by the sheriff or other authorized person and a
 
15 return must be made on the summons showing to whom, the date, and
 
16 time service was made."
 
17      SECTION 3.  Section 587-71, Hawaii Revised Statutes, is
 
18 amended to read as follows:
 
19      "587-71  Disposition hearing.(a)  The court may consider
 
20 the evidence which is relevant to disposition which is in the
 
21 best interests of the child; provided that the court shall
 
22 determine initially whether the child's family home is a safe
 
23 family home.  The court shall consider fully all relevant prior
 

 
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                                     H.B. NO.           H.D. 3
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 1 and current information pertaining to the safe family home
 
 2 guidelines, as set forth in section 587-25 and the report or
 
 3 reports submitted pursuant to section 587-40, in rendering such a
 
 4 determination.
 
 5      (b)  If the court determines that the child's family is
 
 6 presently willing and able to provide the child with a safe
 
 7 family home without the assistance of a service plan, the court
 
 8 shall terminate jurisdiction.
 
 9      (c)  If the court determines that the child's family home is
 
10 a safe family home with the assistance of a service plan, the
 
11 court shall place the child and the child's family members who
 
12 are parties under the family supervision of an authorized agency,
 
13 return the child to the child's family home, and enter further
 
14 orders, including[,] but not limited to[,] restrictions upon the
 
15 rights and duties of the authorized agency, as the court deems to
 
16 be in the best interests of the child.
 
17      (d)  If the court determines that the child's family home is
 
18 not a safe family home, even with the assistance of a service
 
19 plan, the court shall vest foster custody of the child in an
 
20 authorized agency and enter such further orders as the court
 
21 deems to be in the best interests of the child.
 
22      (e)  If the child's family home is determined not to be
 
23 safe, even with the assistance of a service plan pursuant to
 

 
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 1 subsection (d), the court may, and if the child has been residing
 
 2 without the family home for a period of [eighteen] twelve
 
 3 consecutive months shall, set the case for a show cause hearing
 
 4 as deemed appropriate by the court at which the child's family
 
 5 shall have the burden of presenting evidence to the court
 
 6 regarding such reasons and considerations as the family has to
 
 7 offer as to why the case should not be set for a permanent plan
 
 8 hearing.  Upon such show cause hearing as the court deems to be
 
 9 appropriate, the court shall consider the criteria set forth in
 
10 section 587-73(a)(1), (2), and (4), and:
 
11      (1)  Set the case for a permanent plan hearing and order
 
12           that the authorized agency submit a report pursuant to
 
13           section 587-40; or
 
14      (2)  Proceed pursuant to this section.
 
15      (f)  Except as provided in subsection (e)(1), if the court
 
16 does not terminate the court's jurisdiction, the court shall
 
17 order in every case that the authorized agency make every
 
18 reasonable effort, pursuant to section 587-40, to prepare a
 
19 written service plan, as set forth in section 587-26.
 
20      (g)  The court may continue the disposition hearing
 
21 concerning the terms and conditions of the proposed service plan
 
22 to a date within forty-five days from the date of the original
 
23 disposition hearing, unless the court deems a later date to be in
 

 
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 1 the best interests of the child; provided that if the court is
 
 2 convinced that a party has signed and fully understands and
 
 3 accepts the service plan, the court may order that the service
 
 4 plan shall constitute the service plan by court order concerning
 
 5 such party and that the service plan be entered into evidence
 
 6 with such party's presence being waived for good cause shown at
 
 7 the continued disposition hearing.
 
 8      (h)  Prior to ordering a service plan at the disposition or
 
 9 continued disposition hearing, the court shall make a finding
 
10 that each term, condition, and consequence of the service plan
 
11 has been thoroughly explained to and is understood by each party
 
12 or a party's guardian ad litem; provided that the court need not
 
13 [order a service plan and may proceed pursuant to 587-72(c)(7)]
 
14 enter the findings if the court finds that aggravated
 
15 circumstances are present.
 
16      (i)  After a hearing that the court deems to be appropriate,
 
17 the court may order terms, conditions, and consequences to
 
18 constitute a service plan as the court deems to be in the best
 
19 interests of the child; provided that a copy of the service plan
 
20 shall be incorporated as part of the order.  The court need not
 
21 order a service plan [and may proceed pursuant to 587-72(c)(7)]
 
22 if the court finds that aggravated circumstances are present.
 
23      (j)  If the court makes a determination that aggravated
 

 
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                                     H.B. NO.           H.D. 3
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 1 circumstances are present under this section, the court shall set
 
 2 the case for a show cause hearing as deemed appropriate by the
 
 3 court within thirty days.  At the show cause hearing, the child's
 
 4 family shall have the burden of presenting evidence to the court
 
 5 regarding the reasons and considerations as to why the case
 
 6 should not be set for a permanent plan hearing.
 
 7      [(j)] (k)  The court may order that any party participate
 
 8 in, complete, be liable for, and make every good faith effort to
 
 9 arrange payment for such services or treatment as are authorized
 
10 by law and are deemed to be in the best interests of the child.
 
11      [(k)] (l)  At any stage of the child protective proceedings,
 
12 the court may order that a child be examined by a physician,
 
13 surgeon, psychiatrist, or psychologist, and it may order
 
14 treatment by any of them of a child as is deemed to be in the
 
15 best interests of the child.  For either the examination or
 
16 treatment, the court may place the child in a hospital or other
 
17 suitable facility.
 
18      [(l)] (m)  The court shall order reasonable supervised or
 
19 unsupervised visitation rights to the child's family and to any
 
20 person interested in the welfare of the child and that the
 
21 visitation shall be in the discretion of an authorized agency and
 
22 the child's guardian ad litem, unless it is shown that rights of
 
23 visitation may be detrimental to the best interests of the child;
 

 
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 1 provided that the court need not order any visitation if the
 
 2 court finds that aggravated circumstances are present.
 
 3      [(m)] (n)  In any case that a permanent plan hearing is not
 
 4 deemed to be appropriate, the court shall:
 
 5      (1)  Make a finding that each party understands that unless
 
 6           the family is willing and able to provide the child
 
 7           with a safe family home, even with the assistance of a
 
 8           service plan, within the reasonable period of time
 
 9           specified in the service plan, their respective
 
10           parental and custodial duties and rights shall be
 
11           subject to termination; and
 
12      (2)  Set the case for a review hearing within six months.
 
13      (o)  Nothing in this section shall prevent the court from
 
14 setting a show cause hearing or a permanent plan hearing at any
 
15 time the court determines such a hearing to be appropriate."
 
16      SECTION 4.  Section 587-72, Hawaii Revised Statutes, is
 
17 amended as follows:
 
18      "587-72  Review hearings.(a)  Except for good cause
 
19 shown, the court shall set each case for review hearing not later
 
20 than six months after the date that a service plan is ordered by
 
21 the court and, thereafter, the court shall set subsequent review
 
22 hearings at intervals of no longer than six months until the
 
23 court's jurisdiction has been terminated or the court has ordered
 

 
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                                     H.B. NO.           H.D. 3
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 1 a permanent plan and has set the case for a permanent plan review
 
 2 hearing; the court may set a case for a review hearing upon the
 
 3 motion of a party at any time if the hearing is deemed by the
 
 4 court to be in the best interests of the child.
 
 5      (b)  Notice of review hearings shall be served upon the
 
 6 parties and upon the present foster parent or parents, each of
 
 7 whom shall be entitled to participate in the proceedings as a
 
 8 party.  Notice of the review hearing shall be served by the
 
 9 department upon the present foster parent or parents no less than
 
10 forty-eight hours before the scheduled hearing.  No hearing shall
 
11 be held until the foster parent or parents are served.  For
 
12 purposes of this subsection, notice to foster parents may be
 
13 effected by hand delivery or by regular mail; and may consist of
 
14 the last court order, if it includes the date and time of the
 
15 hearing.
 
16      (c)  Upon each review hearing the court shall consider fully
 
17 all relevant prior and current information pertaining to the safe
 
18 family home guidelines, as set forth in section 587-25, including
 
19 but not limited to[,] the report submitted pursuant to section
 
20 587-40, and:
 
21      (1)  Determine whether the child's family is presently
 
22           willing and able to provide the child with a safe
 
23           family home without the assistance of a service plan
 

 
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                                     H.B. NO.           H.D. 3
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 1           and, if so, the court shall terminate jurisdiction;
 
 2      (2)  Determine whether the child's family is presently
 
 3           willing and able to provide the child with a safe
 
 4           family home with the assistance of a service plan and,
 
 5           if so, the court shall return the child or continue the
 
 6           placement of the child in the child's family home under
 
 7           the family supervision of the appropriate authorized
 
 8           agency;
 
 9      (3)  If the child's family home is determined, pursuant to
 
10           subsection (c)(2) not to be safe, even with the
 
11           assistance of a service plan, order that the child
 
12           remain or be placed under the foster custody of the
 
13           appropriate authorized agency; [if the child has been
 
14           residing without the family home for a period of twelve
 
15           months or if there has been a court ordered service
 
16           plan for a period of one year, the court may set the
 
17           case for a show cause hearing at which the child's
 
18           family shall have the burden of presenting evidence to
 
19           the court regarding the reasons and considerations as
 
20           the family has to offer as to why the case should not
 
21           be set for a permanent plan hearing. Upon a show cause
 
22           hearing that the court deems to be appropriate, the
 
23           court shall consider the criteria set forth in section
 

 
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                                     H.B. NO.           H.D. 3
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 1           587-73(a)(1), (2), and (4), or section 587-73(e), and:
 
 2           (A)  Set the case for a permanent plan hearing and
 
 3                order that the authorized agency submit a report
 
 4                pursuant to section 587-40; or
 
 5           (B)  Proceed pursuant to this section;]
 
 6      (4)  Determine whether the parties have complied with,
 
 7           performed, and completed every term and condition of
 
 8           the service plan that was previously court ordered;
 
 9      (5)  Order revisions to the existing service plan, after
 
10           satisfying section 587-71(h), as the court, upon a
 
11           hearing that the court deems to be appropriate,
 
12           determines to be in the best interests of the child;
 
13           provided that a copy of the revised service plan shall
 
14           be incorporated as part of the order;
 
15      (6)  Enter further orders as the court deems to be in the
 
16           best interests of the child; [and]
 
17      (7)  Determine whether aggravated circumstances are present
 
18           and, if so, the court shall set the case for a show
 
19           cause hearing [at which] as the court deems appropriate
 
20           within thirty days.  At the show cause hearing, the
 
21           child's family shall have the burden of presenting
 
22           evidence to the court regarding the reasons and
 
23           considerations as to why the case should not be set for
 

 
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 1           a permanent plan hearing[.]; and
 
 2      (8)  If the child has been residing outside the family home
 
 3           for twelve consecutive months, set the case for a show
 
 4           cause hearing as deemed appropriate by the court.  At
 
 5           the show cause hearing, the child's family shall have
 
 6           the burden of presenting evidence to the court
 
 7           regarding the reasons and considerations as to why the
 
 8           case should not be set for a permanent plan hearing.
 
 9      (d)  In any case that a permanent plan hearing is not deemed
 
10 to be appropriate, the court shall:
 
11      (1)  Make a finding that the parties understand that unless
 
12           the family is willing and able to provide the child
 
13           with a safe family home, even with the assistance of a
 
14           service plan, within the reasonable period of time
 
15           specified in the service plan, their respective
 
16           parental and custodial duties and rights shall be
 
17           subject to termination; and
 
18      (2)  Set the case for a review hearing within six months.
 
19      (e)  If the child has been residing outside of the family
 
20 home for an aggregate of fifteen out of the most recent twenty-
 
21 two months, the department shall file a motion to set the matter
 
22 for a permanent plan hearing unless:
 
23      (1)  The department has documented in the safe family home
 

 
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                                     H.B. NO.           H.D. 3
                                                        S.D. 1
                                                        

 
 1           guidelines prepared pursuant to section 587-25(a) a
 
 2           compelling reason why it would not be in the best
 
 3           interests of the child to file a motion; or
 
 4      (2)  The State has not provided to the family of the child,
 
 5           consistent with the time period in the service plan,
 
 6           such services as the department deems necessary for the
 
 7           safe return of the child to the family home; provided
 
 8           that nothing in this section shall prevent the
 
 9           department from filing such a motion to set a permanent
 
10           plan hearing if the department has determined that the
 
11           criteria in section 587-73(a) are present."
 
12      SECTION 5.  Section 587-73, Hawaii Revised Statutes, is
 
13 amended by amending subsection (a) to read as follows:
 
14       "(a)  At the permanent plan hearing, the court shall
 
15 consider fully all relevant prior and current information
 
16 pertaining to the safe family home guidelines, as set forth in
 
17 section 587-25, including[,] but not limited to[,] the report or
 
18 reports submitted pursuant to section 587-40, and determine
 
19 whether there exists clear and convincing evidence that:
 
20      (1)  The child's legal mother, legal father, adjudicated,
 
21           presumed, or concerned natural father as defined under
 
22           chapter 578 are not presently willing and able to
 
23           provide the child with a safe family home, even with
 

 
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                                     H.B. NO.           H.D. 3
                                                        S.D. 1
                                                        

 
 1           the assistance of a service plan;
 
 2      (2)  It is not reasonably foreseeable that the child's legal
 
 3           mother, legal father, adjudicated, presumed, or
 
 4           concerned natural father as defined under chapter 578
 
 5           will become willing and able to provide the child with
 
 6           a safe family home, even with the assistance of a
 
 7           service plan, within a reasonable period of time which
 
 8           shall not exceed [three] two years from the date upon
 
 9           which the child was first placed under foster custody
 
10           by the court;
 
11      (3)  The proposed permanent plan will assist in achieving
 
12           the goal which is in the best interests of the child;
 
13           provided that the court shall presume that:
 
14           (A)  It is in the best interests of a child to be
 
15                promptly and permanently placed with responsible
 
16                and competent substitute parents and families in
 
17                safe and secure homes; and
 
18           (B)  The presumption increases in importance
 
19                proportionate to the youth of the child upon the
 
20                date that the child was first placed under foster
 
21                custody by the court; and
 
22      (4)  If the child has reached the age of fourteen, the child
 
23           is supportive of the permanent plan."
 

 
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                                     H.B. NO.           H.D. 3
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 1      SECTION 6.  Statutory material to be repealed is bracketed.
 
 2 New statutory material is underscored.
 
 3      SECTION 7.  This Act shall take effect on July 1, 1999.