REPORT TITLE:
Child Protection


DESCRIPTION:
Protects children and youth from abuse and neglect. (HB274 HD1)

 


 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                        274
HOUSE OF REPRESENTATIVES                H.B. NO.           H.D. 1
TWENTIETH LEGISLATURE, 1999                                
STATE OF HAWAII                                            
                                                             
________________________________________________________________
________________________________________________________________


                   A  BILL  FOR  AN  ACT

RELATING TO FAMILIES.



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

 1      SECTION 1.  The legislature finds that child abuse and
 
 2 neglect are a root cause of many serious social problems,
 
 3 including emotional and mental health problems, alcohol and drug
 
 4 abuse and addiction, delinquency, and crime.  Child abuse
 
 5 continues to escalate with fifteen thousand reports and over five
 
 6 thousand cases investigated annually in Hawaii.  The most severe
 
 7 cases continue to be among the youngest, most vulnerable
 
 8 children.
 
 9      During the interim following the regular session of 1998,
 
10 child protection legislative roundtable discussions were convened
 
11 to suggest statutory, guideline, rule, regulation, and other
 
12 changes to improve Hawaii's child protective system.
 
13 Legislators, the departments of human services, health, and the
 
14 attorney general, the judiciary, private nonprofit child and
 
15 family serving agencies, and concerned individuals communicated
 
16 and collaborated with one another, on behalf of abused and
 
17 neglected children and their families, to develop formal and
 
18 informal mechanisms for working together.
 
19      As a coordinated response to prevent and treat child abuse,
 
20 the roundtable cohesively suggested that the following areas be
 
21 strengthened:
 


Page 2                                                     274
                                     H.B. NO.           H.D. 1
                                                        
                                                        

 
 1      (1)  Standards for guardian ad litems charged to protect the
 
 2           best interests of the child;
 
 3      (2)  Mandated training for foster parents of licensed foster
 
 4           homes;
 
 5      (3)  Protective custody of a child without court order;
 
 6      (4)  Required reporting of child abuse and neglect; and
 
 7      (5)  A medical case management procedure for the medical
 
 8           oversight of children in the child protective services
 
 9           system.
 
10      The purpose of this Act is to improve Hawaii's child
 
11 protection system.
 
12      SECTION 2.  Section 346-17, Hawaii Revised Statutes, is
 
13 amended to read as follows:
 
14      "346-17  Child placing organizations, child caring
 
15 institutions, and foster boarding homes; authority over and
 
16 investigation of.  No child placing organization shall engage in
 
17 the investigation, placement, and supervision of minor children
 
18 in foster care unless it meets with the standards of conditions,
 
19 management, and competence set by the department of human
 
20 services.
 
21      No child caring institution shall be allowed to receive
 
22 minor children for care and maintenance unless it meets with the
 
23 standards of conditions, management, and competence to care for
 
24 and train children set by the department.
 

 


Page 3                                                     274
                                     H.B. NO.           H.D. 1
                                                        
                                                        

 
 1      No foster boarding home shall receive for care and
 
 2 maintenance any child unless [it meets]:
 
 3      (1)  It meets with the standards of conditions, management,
 
 4           and competence set by the department[.]; and
 
 5      (2)  The applicant successfully completes foster parent
 
 6           training.
 
 7 Persons providing emergency foster home or relative foster home
 
 8 care shall successfully complete foster parent training within
 
 9 one year of the child's initial placement.
 
10      The department shall make rules relating to:
 
11      (1)  [standards] Standards for the organization and
 
12           administration of child placing organizations[,];
 
13      (2)  [standards] Standards of conditions, management, and
 
14           competence for the care and training of minor children
 
15           in child caring institutions and foster boarding homes
 
16           [,]; and
 
17      (3)  [standards] Standards of conditions and competence of
 
18           operation of foster boarding homes as may be necessary
 
19           to protect the welfare of children.
 
20      All rules of the department shall have the force and effect
 
21 of law, and any violation thereof or of this section shall be
 
22 punishable by a fine of not more than $200.
 

 


Page 4                                                     274
                                     H.B. NO.           H.D. 1
                                                        
                                                        

 
 1      As a condition for a certificate of approval, any
 
 2 organization, institution, or home shall meet the standards to
 
 3 assure the reputable and responsible character of its operators
 
 4 and employees by complying with the requirements of a criminal
 
 5 history record check under section 346-19.6.
 
 6      Upon approval of any such organization, institution, or
 
 7 home, the department or its authorized agents shall issue a
 
 8 certificate of approval [which] that shall continue in force for
 
 9 one year or for two years if the organization, institution, or
 
10 home meets the criteria established by the department, unless
 
11 sooner revoked for cause.  The certificate shall be renewed by
 
12 the department or its authorized agents, after annual or biennial
 
13 investigation, if the investigation discloses that the
 
14 organization, institution, or home continues to meet with the
 
15 standards set by the department.  The certificate of approval
 
16 shall be a permit to operate the child placing organization,
 
17 child caring institution, or foster boarding home, and no person
 
18 or organization shall operate or maintain such organization,
 
19 institution, or home without the certificate.
 
20      Any child placing organization, child caring institution, or
 
21 foster boarding home shall be subject to investigation at any
 
22 time and in such manner, place, and form as may be prescribed by
 
23 the department or its authorized agents."
 

 


Page 5                                                     274
                                     H.B. NO.           H.D. 1
                                                        
                                                        

 
 1      SECTION 3.  Section 350-1.1, Hawaii Revised Statutes, is
 
 2 amended by amending subsection (a) to read as follows:
 
 3      "(a)  Notwithstanding any other state law concerning
 
 4 confidentiality to the contrary, the following persons who, in
 
 5 their professional or official capacity, have reason to believe
 
 6 that child abuse or neglect has occurred or that there exists a
 
 7 substantial risk that child abuse or neglect may occur in the
 
 8 reasonably foreseeable future, shall immediately report the
 
 9 matter orally to the department [or] and to the police
 
10 department:
 
11      (1)  Any licensed or registered professional of the healing
 
12           arts and any health-related occupation who examines,
 
13           attends, treats, or provides other professional or
 
14           specialized services including[,] but not limited to[,]
 
15           physicians, including physicians in training,
 
16           psychologists, dentists, nurses, osteopathic physicians
 
17           and surgeons, optometrists, chiropractors, podiatrists,
 
18           pharmacists, and other health-related professionals;
 
19      (2)  Employees or officers of any public or private school;
 
20      (3)  Employees or officers of any public or private agency
 
21           or institution, or other individuals, providing social,
 
22           medical, hospital, or mental health services, including
 
23           financial assistance;
 

 


Page 6                                                     274
                                     H.B. NO.           H.D. 1
                                                        
                                                        

 
 1      (4)  Employees or officers of any law enforcement agency
 
 2           including[,] but not limited to[,] the courts, police
 
 3           departments, correctional institutions, and parole or
 
 4           probation offices;
 
 5      (5)  Individual providers of child care, or employees or
 
 6           officers of any licensed or registered child care
 
 7           facility, foster home, or similar institution;
 
 8      (6)  Medical examiners or coroners; and
 
 9      (7)  Employees of any public or private agency providing
 
10           recreational or sports activities."
 
11      SECTION 4.  Section 587-22, Hawaii Revised Statutes, is
 
12 amended by amending subsection (a) to read as follows:
 
13      "(a)  A police officer [shall] may assume protective custody
 
14 of a child without a court order and without the consent of the
 
15 child's family regardless of whether the child's family is
 
16 absent, if in the discretion of such police officer, the child is
 
17 in such circumstance or condition that the child's continuing in
 
18 the custody or care of the child's family presents a situation
 
19 [of imminent harm to the child.]:
 
20      (1)  Of imminent harm to the child;
 
21      (2)  Where the child has no legal custodian who is willing
 
22           and able to provide a safe family home for the child;
 
23           or
 

 


Page 7                                                     274
                                     H.B. NO.           H.D. 1
                                                        
                                                        

 
 1      (3)  Where there is evidence that a parent or guardian of a
 
 2           child has subjected a child to harm or threatened harm
 
 3           and that parent or guardian is likely to flee the
 
 4           jurisdiction of the court with the child."
 
 5      SECTION 5.  Section 587-34, Hawaii Revised Statutes, is
 
 6 amended as follows:
 
 7      "587-34  Guardian ad litem; court appointed counsel.(a)
 
 8 The court shall appoint a guardian ad litem for the child to
 
 9 serve throughout the pendency of the child protective proceedings
 
10 under this chapter.  The court may appoint additional counsel for
 
11 the child pursuant to subsection (c) or independent counsel for
 
12 any other party if [the]: 
 
13      (1)  The party is an indigent[, counsel];
 
14      (2)  Counsel is necessary to protect the party's interests
 
15           adequately[,] and [the];
 
16      (3)  The interests are not represented adequately by another
 
17           party who is represented by counsel.
 
18      (b)  A guardian ad litem shall:
 
19      (1)  Be allowed access to the child by the caretakers of the
 
20           child whether caretakers are individuals, authorized
 
21           agencies, or health care providers;
 
22      (2)  Have the authority to inspect and receive copies of any
 
23           records, notes, and electronic recordings concerning
 

 


Page 8                                                     274
                                     H.B. NO.           H.D. 1
                                                        
                                                        

 
 1           the child that are relevant to the proceedings filed
 
 2           under this chapter without the consent of the child or
 
 3           individuals and authorized agencies who have control of
 
 4           the child; and
 
 5      (3)  Be given notice of all hearings and proceedings, civil
 
 6           or criminal, including[,] but not limited to[,] grand
 
 7           juries, involving the child and shall protect the best
 
 8           interests of the child therein, unless otherwise
 
 9           ordered by the court.
 
10      (c)  A guardian ad litem appointed pursuant to subsection
 
11 (a) shall report to the court and all parties in writing at six
 
12 month intervals, or as is otherwise ordered by the court,
 
13 regarding such guardian ad litem's activities on behalf of the
 
14 child and recommendations concerning the manner in which the
 
15 court should proceed in the best interests of the child; provided
 
16 that such guardian ad litem shall make [face to face] face-to-
 
17 face contact with the child in the child's family or foster home
 
18 at least once every three months.  A guardian ad litem shall
 
19 inform the court of the child's perceived interests if they
 
20 differ from those being advocated by the child's guardian ad
 
21 litem.  If the child and the child's guardian ad litem are not in
 
22 agreement, the court shall evaluate the necessity for appointing
 
23 special counsel for the child to serve as the child's legal
 

 


Page 9                                                     274
                                     H.B. NO.           H.D. 1
                                                        
                                                        

 
 1 advocate concerning such issues and during such proceedings as
 
 2 the court deems to be in the best interests of the child.
 
 3      (d)  When the court determines, after such hearing as the
 
 4 court deems to be appropriate, that a party is incapable of
 
 5 comprehending the legal significance of the issues or the nature
 
 6 of the child protective proceedings, the court may appoint a
 
 7 guardian ad litem to represent the interests of that party;
 
 8 provided that a guardian ad litem appointed pursuant to this
 
 9 section shall investigate and report to the court in writing at
 
10 [six month] six-month intervals, or as is otherwise ordered by
 
11 the court, regarding the current status of the party's
 
12 disability, including[,] but not limited to[,] a recommendation
 
13 as to available treatment, if any, for the disability and a
 
14 recommendation concerning the manner in which the court should
 
15 proceed in order to best protect the interests of the party in
 
16 conjunction with the court's determination as to the best
 
17 interests of the child.
 
18      (e)  A guardian ad litem or counsel appointed pursuant to
 
19 this section for the child or other party may be paid for by the
 
20 court, unless the party for whom counsel is appointed has an
 
21 independent estate sufficient to pay such costs.  The court may
 
22 order the appropriate parties to pay or reimburse the costs and
 
23 fees of the guardian ad litem and other counsel appointed for the
 
24 child.
 

 


Page 10                                                    274
                                     H.B. NO.           H.D. 1
                                                        
                                                        

 
 1      (f)  No guardian ad litem shall be appointed to represent
 
 2 any child unless the guardian ad litem:
 
 3      (1)  Meets the standards of licensing and competence set by
 
 4           the department of commerce and consumer affairs; and
 
 5      (2)  Has successfully completed guardian ad litem training
 
 6           or has equivalent experience as determined by the
 
 7           court.
 
 8      The department of commerce and consumer affairs shall adopt
 
 9 rules pursuant to chapter 91 relating to standards of training
 
10 and practice for the representation of minor children by a
 
11 guardian ad litem.
 
12      All rules of the department of commerce and consumer affairs
 
13 shall have the form and effect of law, and any violation thereof
 
14 or of this section shall be punishable by a fine of not more than
 
15 $200."
 
16      SECTION 6.  Section 587-72, Hawaii Revised Statutes, is
 
17 amended by amending subsection (c) to read as follows:
 
18      "(c)  Upon each review hearing, the court shall consider
 
19 fully all relevant prior and current information pertaining to
 
20 the safe family home guidelines, as set forth in section 587-25,
 
21 including[,] but not limited to[,] the report submitted pursuant
 
22 to section 587-40, and:
 

 


Page 11                                                    274
                                     H.B. NO.           H.D. 1
                                                        
                                                        

 
 1      (1)  Determine whether the child's family is presently
 
 2           willing and able to provide the child with a safe
 
 3           family home without the assistance of a service plan
 
 4           and, if so, the court shall terminate jurisdiction;
 
 5      (2)  Determine whether the child's family is presently
 
 6           willing and able to provide the child with a safe
 
 7           family home with the assistance of a service plan and,
 
 8           if so, the court shall return the child or continue the
 
 9           placement of the child in the child's family home under
 
10           the family supervision of the appropriate authorized
 
11           agency;
 
12      (3)  If the child's family home is determined, pursuant to
 
13           subsection (c)(2), not to be safe, even with the
 
14           assistance of a service plan, order that the child
 
15           remain or be placed under the foster custody of the
 
16           appropriate authorized agency; if the child has been
 
17           residing without the family home for a period of twelve
 
18           months or if there has been a [court ordered] court-
 
19           ordered service plan for a period of one year, the
 
20           court [may] shall set the case for a show cause hearing
 
21           at which the child's family shall have the burden of
 
22           presenting evidence to the court regarding the reasons
 
23           and considerations as the family has to offer as to why
 

 


Page 12                                                    274
                                     H.B. NO.           H.D. 1
                                                        
                                                        

 
 1           the case should not be set for a permanent plan
 
 2           hearing.  Upon a show cause hearing that the court
 
 3           deems to be appropriate, the court shall consider the
 
 4           criteria set forth in section 587-73(a)(1), (2), and
 
 5           (4), or section 587-73(e), and:
 
 6           (A)  Set the case for a permanent plan hearing and
 
 7                order that the authorized agency submit a report
 
 8                pursuant to section 587-40; or
 
 9           (B)  Proceed pursuant to this section;
 
10      (4)  Determine whether the parties have complied with,
 
11           performed, and completed every term and condition of
 
12           the service plan that was previously court ordered;
 
13      (5)  Order revisions to the existing service plan, after
 
14           satisfying section 587-71(h), as the court, upon a
 
15           hearing that the court deems to be appropriate,
 
16           determines to be in the best interests of the child;
 
17           provided that a copy of the revised service plan shall
 
18           be incorporated as part of the order;
 
19      (6)  Enter further orders as the court deems to be in the
 
20           best interests of the child; and
 
21      (7)  Determine whether aggravated circumstances are present
 
22           and, if so, the court shall set the case for a show
 
23           cause hearing at which the child's family shall have
 

 


Page 13                                                    274
                                     H.B. NO.           H.D. 1
                                                        
                                                        

 
 1           the burden of presenting evidence to the court
 
 2           regarding the reasons and considerations as to why the
 
 3           case should not be set for a permanent plan hearing."
 
 4      SECTION 7.  (a)  The department of human services shall
 
 5 establish a medical/health case management procedure for the
 
 6 purpose of managing medical and health needs of children in the
 
 7 foster care system.
 
 8      (b)  The medical/health case management procedure shall:
 
 9      (1)  Establish a system of services providing timely medical
 
10           and health information to key providers of care to
 
11           foster children and an identified health care manager
 
12           for consistent follow-up to ensure that medical and
 
13           health needs are met;
 
14      (2)  Maintain a medical home as the constant for continuity
 
15           of care;
 
16      (3)  Maximize existing resources in the provision of medical
 
17           and health services to foster children; and
 
18      (4)  Research enhancement of federal reimbursement for care
 
19           coordination services provided to foster children from
 
20           birth to age twenty.
 
21      SECTION 8.  If any provision of this Act, or the application
 
22 thereof to any person or circumstance is held invalid, the
 
23 invalidity does not affect other provisions or applications of
 

 


Page 14                                                    274
                                     H.B. NO.           H.D. 1
                                                        
                                                        

 
 1 the Act which can be given effect without the invalid provision
 
 2 or application, and to this end the provisions of this Act are
 
 3 severable.
 
 4      SECTION 9.  Statutory material to be repealed is bracketed.
 
 5 New statutory material is underscored.
 
 6      SECTION 10.  This Act shall take effect upon its approval.