REPORT TITLE:
Child Protection


DESCRIPTION:
Protects children and youth from abuse and neglect. (SD1)

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                        274
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 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,
 

 
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 1 the roundtable collectively suggested that the following
 
 2 provisions be added or strengthened:
 
 3      (1)  Mandated training for foster parents of licensed foster
 
 4           homes;
 
 5      (2)  Protective custody of a child without court order;
 
 6      (3)  Required reporting of child abuse and neglect; and
 
 7      (4)  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.  Chapter 587, Hawaii Revised Statutes, is amended
 
13 by adding a new section to part IX to be appropriately designated
 
14 and to read as follows:
 
15      "587-    Medical and health case management.  The
 
16 department shall establish a medical and health case management
 
17 procedure for the purpose of managing medical and health needs of
 
18 children in the foster care system.
 
19      The medical and health case management system procedure
 
20 shall:
 
21      (1)  Establish a system of services that provide timely
 
22           medical and health information to key providers of care
 
23           to foster children and an identified health care
 

 
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 1           manager for consistent follow-up to ensure that medical
 
 2           and health needs are met;
 
 3      (2)  Maintain a medical home as the constant for continuity
 
 4           of care;
 
 5      (3)  Maximize existing resources in the provision of medical
 
 6           and health services to foster children; and
 
 7      (4)  Research the enhancement of federal reimbursement for
 
 8           care coordination services provided to foster children
 
 9           from birth to age twenty."
 
10      SECTION 3.  Section 346-17, Hawaii Revised Statutes, is
 
11 amended to read as follows:
 
12      "346-17  Child placing organizations, child caring
 
13 institutions, and foster boarding homes; authority over and
 
14 investigation of.  (a)  No child placing organization shall
 
15 engage in the investigation, placement, and supervision of minor
 
16 children in foster care unless it meets with the standards of
 
17 conditions, management, and competence set by the department of
 
18 human services.
 
19      (b)  No child caring institution shall [be allowed to]
 
20 receive minor children for care and maintenance unless it meets
 
21 with the standards of conditions, management, and competence to
 
22 care for and train children set by the department.
 
23      (c)  No foster boarding home shall receive for care and
 

 
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 1 maintenance any child unless [it meets]:
 
 2      (1)  It meets with the standards of conditions, management,
 
 3           and competence set by the department[.]; and
 
 4      (2)  The foster boarding home applicant successfully
 
 5           completes foster parent training.
 
 6 Persons providing special licensed or relative foster home care
 
 7 shall successfully complete foster parent training within one
 
 8 year of the child's initial placement.
 
 9      (d)  The department shall [make] adopt rules pursuant to
 
10 chapter 91 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      (e)  All rules of the department shall have the force and
 
21 effect of law, and any violation thereof or of this section shall
 
22 be punishable by a fine of not more than $200.
 
23      (f)  As a condition for a certificate of approval, any
 

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

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

 
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 1           medical, hospital, or mental health services, including
 
 2           financial assistance;
 
 3      (4)  Employees or officers of any law enforcement agency,
 
 4           including[,] but not limited to[,] the courts, police
 
 5           departments, correctional institutions, and parole or
 
 6           probation offices;
 
 7      (5)  Individual providers of child care, or employees or
 
 8           officers of any licensed or registered child care
 
 9           facility, foster home, or similar institution;
 
10      (6)  Medical examiners or coroners; and
 
11      (7)  Employees of any public or private agency providing
 
12           recreational or sports activities."
 
13      SECTION 5.  Section 350-2, Hawaii Revised Statutes, is
 
14 amended to read as follows:
 
15      "350-2 Action on reporting.(a)  Upon receiving a report
 
16 concerning child abuse or neglect, the department shall proceed
 
17 pursuant to chapter 587 and the department's rules.
 
18      (b)  The department shall inform the appropriate police
 
19 department or office of the prosecuting attorney of all reports
 
20 received by the department concerning a case of child abuse or
 
21 neglect, including reports received under section 350-1.1;
 
22 provided that the name of a reporter, who requested that the
 
23 reporter's name be confidential, shall be released to a police
 

 
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 1 department or an office of the prosecuting attorney pursuant only
 
 2 to court order.
 
 3      [(b)] (c)  The department shall inform the appropriate
 
 4 police department or office of the prosecuting attorney of the
 
 5 relevant information concerning a case of child abuse or neglect
 
 6 when [such] the information is required by the police department
 
 7 or the office of the prosecuting attorney for the investigation
 
 8 or prosecution of that case; provided that the name of a
 
 9 reporter, who requested that the reporter's name be confidential,
 
10 shall only be released to a police department or an office of the
 
11 prosecuting attorney pursuant to court order.
 
12      [(c)] (d)  The department shall maintain a central registry
 
13 of reported child abuse or neglect cases and shall promptly
 
14 expunge the reports in cases if:
 
15      (1)  The department has found the reports to be
 
16           unsubstantiated; or
 
17      (2)  The petition arising from the report has been dismissed
 
18           by order of the family court after an adjudicatory
 
19           hearing on the merits pursuant to chapter 587.
 
20      For purposes of expungement under paragraph (1), a report is
 
21 unsubstantiated only when the department has found the
 
22 allegations to be frivolous or to have been made in bad faith.
 
23      However, the department may retain records and information
 

 
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 1 of alleged child abuse and neglect with respect to the child that
 
 2 is the subject of the alleged abuse.
 
 3      The department shall adopt rules as may be necessary in
 
 4 carrying out this section."
 
 5      SECTION 6.  Section 587-22, Hawaii Revised Statutes, is
 
 6 amended by amending subsection (a) to read as follows:
 
 7      "(a)  A police officer shall assume protective custody of a
 
 8 child without a court order and without the consent of the
 
 9 child's family regardless of whether the child's family is
 
10 absent, if in the discretion of such police officer, the child is
 
11 in such circumstance or condition that the child's continuing in
 
12 the custody or care of the child's family presents a situation of
 
13 imminent harm to the child.
 
14      A police officer may assume protective custody of a child
 
15 without a court order and without the consent of a child's family
 
16 regardless of whether the child's family is absent, if in the
 
17 discretion of such police officer:
 
18      (1)  The child has no legal custodian who is willing and
 
19           able to provide a safe family home for the child; or
 
20      (2)  There is evidence that a parent or guardian of a child
 
21           has subjected a child to harm or threatened harm and
 
22           that parent or guardian is likely to flee the
 
23           jurisdiction of the court with the child."
 

 
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 1      SECTION 7.  Section 587-34, Hawaii Revised Statutes, is
 
 2 amended as follows:
 
 3      "587-34  Guardian ad litem; court appointed counsel.(a)
 
 4 The court shall appoint a guardian ad litem for the child to
 
 5 serve throughout the pendency of the child protective proceedings
 
 6 under this chapter.  The court may appoint additional counsel for
 
 7 the child pursuant to subsection (c) or independent counsel for
 
 8 any other party if [the]: 
 
 9      (1)  The party is an indigent[, counsel];
 
10      (2)  Counsel is necessary to protect the party's interests
 
11           adequately[, and the]; and
 
12      (3)  The interests are not represented adequately by another
 
13           party who is represented by counsel.
 
14      (b)  A guardian ad litem shall:
 
15      (1)  Be allowed access to the child by the caretakers of the
 
16           child whether caretakers are individuals, authorized
 
17           agencies, or health care providers;
 
18      (2)  Have the authority to inspect and receive copies of any
 
19           records, notes, and electronic recordings concerning
 
20           the child that are relevant to the proceedings filed
 
21           under this chapter without the consent of the child or
 
22           individuals and authorized agencies who have control of
 
23           the child; and
 

 
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 1      (3)  Be given notice of all hearings and proceedings, civil
 
 2           or criminal, including[,] but not limited to[,] grand
 
 3           juries, involving the child and shall protect the best
 
 4           interests of the child [therein], unless otherwise
 
 5           ordered by the court.
 
 6      (c)  A guardian ad litem appointed pursuant to subsection
 
 7 (a) shall report to the court and all parties in writing at six
 
 8 month intervals, or as is otherwise ordered by the court,
 
 9 regarding [such] the guardian ad litem's activities on behalf of
 
10 the child and recommendations concerning the manner in which the
 
11 court should proceed in the best interests of the child; provided
 
12 that [such] the guardian ad litem shall make face to face contact
 
13 with the child in the child's family or foster home at least once
 
14 every three months.  A guardian ad litem shall inform the court
 
15 of the child's perceived interests if they differ from those
 
16 being advocated by the child's guardian ad litem.  If the child
 
17 and the child's guardian ad litem are not in agreement, the court
 
18 shall evaluate the necessity for appointing special counsel for
 
19 the child to serve as the child's legal advocate concerning
 
20 [such] issues and during [such] proceedings [as] that the court
 
21 deems to be in the best interests of the child.
 
22      (d)  [When] If the court determines, after [such] any
 
23 hearing [as] that the court deems [to be] appropriate, that a
 

 
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 1 party is incapable of comprehending the legal significance of the
 
 2 issues or the nature of the child protective proceedings, the
 
 3 court may appoint a guardian ad litem to represent the interests
 
 4 of that party; provided that a guardian ad litem appointed
 
 5 pursuant to this section shall investigate and report to the
 
 6 court in writing at six month intervals, or as is otherwise
 
 7 ordered by the court, regarding the current status of the party's
 
 8 disability, including[,] but not limited to[,] a recommendation
 
 9 as to available treatment, if any, for the disability and a
 
10 recommendation concerning the manner in which the court should
 
11 proceed in order to best protect the interests of the party in
 
12 conjunction with the court's determination as to the best
 
13 interests of the child.
 
14      (e)  A guardian ad litem or counsel appointed pursuant to
 
15 this section for the child or other party may be paid [for] by
 
16 the court, unless the party for whom counsel is appointed has an
 
17 independent estate sufficient to pay [such] the costs.  The court
 
18 may order the appropriate parties to pay or reimburse the costs
 
19 and fees of the guardian ad litem and other counsel appointed for
 
20 the child.
 
21      (f)  No guardian ad litem shall be appointed to represent
 
22 any child unless the guardian ad litem has successfully completed
 
23 guardian ad litem training or has equivalent experience as
 

 
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 1 determined by the senior family court judge.
 
 2      The judiciary shall issue orders or rules relating to
 
 3 standards of training and practice for the representation of
 
 4 minor children by a guardian ad litem.
 
 5      All orders or rules of the judiciary shall have the force
 
 6 and effect of law, and any violation of the orders or rules or of
 
 7 this section shall be punishable by a fine of not more than
 
 8 $200."
 
 9      SECTION 8.  Section 587-72, Hawaii Revised Statutes, is
 
10 amended as follows:
 
11      "587-72  Review hearings.(a)  Except for good cause
 
12 shown, the court shall set each case for review hearing not later
 
13 than six months after the date that a service plan is ordered by
 
14 the court and, thereafter, the court shall set subsequent review
 
15 hearings at intervals of no longer than six months until the
 
16 court's jurisdiction has been terminated or the court has ordered
 
17 a permanent plan and has set the case for a permanent plan review
 
18 hearing; the court may set a case for a review hearing upon the
 
19 motion of a party at any time if the hearing is deemed by the
 
20 court to be in the best interests of the child.
 
21      (b)  Notice of review hearings shall be served upon the
 
22 parties and upon the present foster parent or parents, each of
 
23 whom shall be entitled to participate in the proceedings as a
 

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

 
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 1           agency;
 
 2      (3)  If the child's family home is determined, pursuant to
 
 3           subsection (c)(2) not to be safe, even with the
 
 4           assistance of a service plan, order that the child
 
 5           remain or be placed under the foster custody of the
 
 6           appropriate authorized agency; [if the child has been
 
 7           residing without the family home for a period of twelve
 
 8           months or if there has been a court ordered service
 
 9           plan for a period of one year, the court may set the
 
10           case for a show cause hearing at which the child's
 
11           family shall have the burden of presenting evidence to
 
12           the court regarding the reasons and considerations as
 
13           the family has to offer as to why the case should not
 
14           be set for a permanent plan hearing. Upon a show cause
 
15           hearing that the court deems to be appropriate, the
 
16           court shall consider the criteria set forth in section
 
17           587-73(a)(1), (2), and (4), or section 587-73(e), and:
 
18           (A)  Set the case for a permanent plan hearing and
 
19                order that the authorized agency submit a report
 
20                pursuant to section 587-40; or
 
21           (B)  Proceed pursuant to this section;]
 
22      (4)  Determine whether the parties have complied with,
 
23           performed, and completed every term and condition of
 

 
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 1           the service plan that was previously court ordered;
 
 2      (5)  Order revisions to the existing service plan, after
 
 3           satisfying section 587-71(h), as the court, upon a
 
 4           hearing that the court deems to be appropriate,
 
 5           determines to be in the best interests of the child;
 
 6           provided that a copy of the revised service plan shall
 
 7           be incorporated as part of the order;
 
 8      (6)  Enter further orders as the court deems to be in the
 
 9           best interests of the child; [and]
 
10      (7)  Determine whether aggravated circumstances are present
 
11           and, if so, the court shall set the case for a show
 
12           cause hearing [at which] within thirty days.  At the
 
13           show cause hearing, the child's family shall have the
 
14           burden of presenting evidence to the court regarding
 
15           the reasons and considerations as to why the case
 
16           should not be set for a permanent plan hearing[.]; and
 
17      (8)  If the child has been residing outside the family home
 
18           for twelve consecutive months, set the case for a show
 
19           cause hearing.  At the show cause hearing, the child's
 
20           family shall have the burden of presenting evidence to
 
21           the court regarding the reasons and considerations as
 
22           to why the case should not be set for a permanent plan
 
23           hearing.
 

 
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 1      (d)  In any case that a permanent plan hearing is not deemed
 
 2 to be appropriate, the court shall:
 
 3      (1)  Make a finding that the parties understand that unless
 
 4           the family is willing and able to provide the child
 
 5           with a safe family home, even with the assistance of a
 
 6           service plan, within the reasonable period of time
 
 7           specified in the service plan, their respective
 
 8           parental and custodial duties and rights shall be
 
 9           subject to termination; and
 
10      (2)  Set the case for a review hearing within six months.
 
11      (e)  If the child has been residing outside of the family
 
12 home for an aggregate of fifteen out of the most recent
 
13 twenty-two months, the department shall file a motion to set the
 
14 matter for a permanent plan hearing unless:
 
15      (1)  The department has documented in the safe family home
 
16           guidelines prepared pursuant to section 587-25(a) a
 
17           compelling reason why it would not be in the best
 
18           interests of the child to file a motion; or
 
19      (2)  The State has not provided to the family of the child,
 
20           consistent with the time period in the service plan,
 
21           such services as the department deems necessary for the
 
22           safe return of the child to the family home; provided
 
23           that nothing in this section shall prevent the
 

 
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 1           department from filing such a motion to set a permanent
 
 2           plan hearing if the department has determined that the
 
 3           criteria in section 587-73(a) are present."
 
 4      SECTION 9.  There is appropriated out of the general
 
 5 revenues of the State of Hawaii the sum of $          , or so
 
 6 much thereof as may be necessary for fiscal year 1999-2000, and
 
 7 the sum of $          , or so much thereof as may be necessary
 
 8 for fiscal year 2000-2001, for foster parent training.
 
 9      The sums appropriated shall be expended by the department of
 
10 human services for the purposes of this Act.
 
11      SECTION 10.  If any provision of this Act, or the
 
12 application thereof to any person or circumstance is held
 
13 invalid, the invalidity does not affect other provisions or
 
14 applications of the Act which can be given effect without the
 
15 invalid provision or application, and to this end the provisions
 
16 of this Act are severable.
 
17      SECTION 11.  Statutory material to be repealed is bracketed.
 
18 New statutory material is underscored.
 
19      SECTION 12.  This Act shall take effect upon its approval;
 
20 provided that section 9 shall take effect on July 1, 1999.