Report Title:

Child Protection Proceedings; Rights of Children and Parents

Description:

Expands jurisdiction of family court. Requires use of Ohana Conferencing in contested cases. Encourages use of voluntary service plans. Protects parents' rights. Requires necessary services to be provided to children placed in permanent custody of Department of Human Services. Appropriates funds. (HB1863 HD1)

HOUSE OF REPRESENTATIVES

H.B. NO.

1863

TWENTY-SECOND LEGISLATURE, 2004

H.D. 1

STATE OF HAWAII

 


 

A BILL FOR AN ACT

 

relating to families.

 

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

SECTION 1. The legislature finds that keiki are Hawaii's most precious resource. Their protection is the ultimate goal of the State and providing them with the basic necessities is critical to the future of Hawaii. Our keiki, however, also deserve to live with their parents whenever possible and should only be removed from the home and taken away from their ohana when a family is truly unable to care for their keiki and it is necessary for their protection.

The State is afforded extensive power to act in ways it deems necessary to protect children from harm. Some of these powers, however, may border upon a violation of the due process rights of parents. On a routine basis, parents accused of child abuse and neglect are asked to sign voluntary foster custody agreements whereby they relinquish their children to the State. No legal counsel or legal advice is provided to these parents before they waive their rights. By signing these agreements, parents admit to child abuse and neglect without the advice of legal counsel, and agree to participate in voluntary service plans that are supposed to promote family reunification. However, these waivers end up being used by the child protective services agency to gather evidence against parents so that a petition for custody of the children can be filed and granted.

In addition, evidence generated through reports by the department of human services and appropriate authorized agencies are routinely filed with the court and read by presiding judges prior to hearings without any requirement that the individual with personal knowledge of the information in the report be available to testify and for cross-examination. Making this information available to the court without adequate protections as to its veracity, coupled with the limited resources of parents even with appointed counsel, creates an uneven playing field that results in the unjust termination of parental rights and family relationships.

The legislature further finds that foster children in the permanent custody of the department of human services rarely receive services aimed at assisting them to recover from the trauma and experience of child abuse and neglect. For these children, the department of human services acts in loco parentis. However, all too often it seems that the department of human services' responsibility extends only as far as finding free services for these children from the departments of education or health. More and more, these free services prove to be inadequate to address each child's special needs.

The legislature finds that therapeutic foster homes can provide the special attention and assistance directed at dealing with not only practical skills, but also therapeutic needs due to the neglect and abuse that foster children have experienced, that will help them to succeed in life instead of re-tracing the same abusive steps as their parents. The provision of these services in therapeutic foster homes will increase the number of foster children who become successful and productive citizens and reduce the number of children who grow up to be abusive parents who will further burden the system.

The purpose of this Act is to:

(1) Extend the jurisdiction of family courts to protect children from harm not just by their families but by those given access to them by their families such as boyfriends or girlfriends who live outside the home;

(2) Require that ohana conferencing be held prior to the filing of a petition for custody and, if a petition is later filed, at appropriate times throughout the pendency of the case;

(3) To promote the use of voluntary service plans, short of formal legal proceedings, but to require the department of human services to advise parents of their rights when entering a voluntary service plan and to refer them for legal advice before they do so;

(4) Require that those who submit reports for consideration by the court be available for direct and cross-examination at hearings where those reports are to be used; and

(5) Require the provision of services in therapeutic foster homes for children in the permanent custody of the department of human services.

SECTION 2. Chapter 587, Hawaii Revised Statutes, is amended by adding a new section to be appropriately designated and to read as follows:

"§587-   Children in permanent custody of the department; services in therapeutic homes. Notwithstanding any other law to the contrary, whenever the court, pursuant to this chapter, vests permanent custody of a child in the department or in subsequent authorized agencies, as deemed to be in the best interests of the child, the department shall provide therapeutic services or placement in therapeutic homes, or both, for the child that are aimed at assisting the child to recover from the trauma and experience of child abuse and neglect. This section shall not interfere with or preclude the department from providing any other services that it may deem appropriate or necessary to assist any child in its permanent custody, whether those services are provided by the department or by any other department or agency.

For the purposes of this section:

"Therapeutic foster home" means a foster home in which therapeutic services are provided to foster children by parents trained to provide such services, and by the department of health.

"Therapeutic services" means services aimed at assisting children in recovering from the trauma of abuse and from being separated from their birth parents, including but not limited to psychotherapy, social services, medical treatment, education, and counseling."

SECTION 3. Section 587-2, Hawaii Revised Statutes, is amended by adding two new definitions to be appropriately inserted and to read as follows:

""Voluntary foster custody" means the legal status created by section 587-21(b)(2), where a parent or other person having legal and physical custody of a child voluntarily agrees to place the child in foster custody without the filing of a petition in court.

"Voluntary service plan" means a specific written service plan and agreement prepared pursuant to sections 587-21(b)(2) and 587-26, where a parent or legal and physical custodian voluntarily agrees to place the child in foster custody without the filing of a petition in court."

SECTION 4. Section 587-11, Hawaii Revised Statutes, is amended to read as follows:

"§587-11 Jurisdiction. Pursuant to [[]section[]] 571-11(9), the court shall have exclusive original jurisdiction in a child protective proceeding concerning any child who was or is found within the State at the time the facts and circumstances occurred, are discovered, or are reported to the department, which facts and circumstances constitute the basis for the finding that the child is a child whose physical or psychological health or welfare is subject to imminent harm, has been harmed, or is subject to threatened harm by the acts or omissions of the child's family[.] or by the acts or omissions of other persons with access to the child that the child's family allowed or about which they knew or should have known."

SECTION 5. Section 587-21, Hawaii Revised Statutes, is amended to read as follows:

"§587-21 Investigation. (a) Upon receiving a report that a child is subject to imminent harm, has been harmed, or is subject to threatened harm, the department shall cause [such] an investigation to be made as it deems to be appropriate. In conducting the investigation the department may:

(1) Enlist the cooperation of appropriate law enforcement authorities for phases of the investigation for which they are better equipped, and the law enforcement authority may conduct and provide to the department the results of a criminal history record check concerning an alleged perpetrator of imminent harm, harm, or threatened harm to a child; and

(2) Interview a child who is the subject of an investigation without the prior approval of and without the presence of the child's family, including temporarily assuming protective custody of the child for the purpose of conducting the interview, if the action is deemed necessary and appropriate under the circumstances by the department and a police officer.

(b) If the department undertakes an investigation, it shall, upon initial contact, provide every family with the informational pamphlet developed by the department containing information on how to obtain a family advocate or a court-appointed attorney, recourse procedures, and a parent's due process rights.

[(b)](c) Upon satisfying itself as to the course of action that should be pursued to best accord with the purpose of this chapter, the department shall[:] ensure that an orientation regarding ohana conferencing is provided to all parties in contested cases. This orientation shall ensure that the most complete information about the value of ohana conferencing and encouragement to participate in ohana conferencing will be provided to all parties potentially subject to contested court proceedings.

(d) Following the ohana conferencing orientation held pursuant to subsection (c), or upon determination that an ohana conference is not appropriate, the department shall:

(1) Resolve the matter in an informal fashion appropriate under the circumstances;

(2) Seek to enter into a voluntary service plan, without filing a petition in court, with members of the child's family and other authorized agency as the department deems necessary to the success of the voluntary service plan, including but not limited to[,] the member or members of the child's family who have legal custody of the child. The voluntary service plan may include an agreement with the child's family to [voluntarily] place the child in the voluntary foster custody of the department or other authorized agency, or to place the child and the necessary members of the child's family under the family supervision of the department or other authorized agency; provided that if a voluntary service plan is not successfully completed within six months, the department shall file a petition or ensure that a petition is filed by another appropriate authorized agency in court under this chapter and the case shall be reviewed as is required by federal law[;]. Before entering into a voluntary service plan, the department shall:

(A) Advise the member or members of the child's family who have legal custody of the child that failure to comply with the voluntary service plan may result in the filing of a petition and that any information gathered during participation in the voluntary service plan may be used as evidence in the petition or subsequent proceedings; and

(B) Inform the member or members of the child's family as to their right to counsel and refer them to a legal services agency for counsel and information as to their legal rights.

After this has been explained to and is understood by each member of the child's family, a form of acknowledgement shall be signed by each family member and a copy shall be provided to each family member who signed the form;

(3) Assume temporary foster custody of the child pursuant to section 587-24(a) and file a petition with the court under this chapter within three working days, excluding Saturdays, Sundays, and holidays, after the date of the department's assumption of temporary foster custody of the child; or

(4) File a petition or ensure that a petition is filed by another appropriate authorized agency in court under this chapter."

SECTION 6. Section 587-25, Hawaii Revised Statutes, is amended by amending subsection (a) to read as follows:

"(a) The following guidelines shall be fully considered when determining whether the child's family is willing and able to provide the child with a safe family home:

(1) The current facts relating to the child which include:

(A) Age and vulnerability;

(B) Psychological, medical and dental needs;

(C) Peer and family relationships and bonding abilities;

(D) Developmental growth and schooling;

(E) Current living situation;

(F) Fear of being in the family home; and

(G) Services recommended for and provided to the child;

(2) The initial and any subsequent reports of harm and/or threatened harm suffered by the child;

(3) Date(s) and reason for the child's placement out of the home, description, appropriateness, and location of the placement and who has placement responsibility;

(4) Historical facts relating to the alleged perpetrator and other appropriate family members who are parties, which include:

(A) Birthplace and family of origin;

(B) How they were parented;

(C) Marital/relationship history; and

(D) Prior involvement in services;

(5) The results of psychiatric/psychological/developmental evaluations of the child, the alleged perpetrator, and other appropriate family members who are parties;

(6) Whether there is a history of abusive or assaultive conduct by the child's family or others who have access to the family home;

(7) Whether there is a history of substance abuse by the child's family or others who have access to the family home;

(8) Whether the alleged perpetrator(s) has acknowledged and apologized for the harm;

(9) Whether the non-perpetrator(s) who resides in the family home has demonstrated the ability to protect the child from further harm and to [insure] ensure that any current protective orders are enforced;

(10) Whether there is a support system of extended family and/or friends available to the child's family;

(11) Whether the child's family has demonstrated an understanding and utilization of the recommended/court ordered services designated to effectuate a safe home for the child;

(12) Whether the child's family has resolved or can resolve the identified safety issues in the family home within a reasonable period of time;

(13) Whether the child's family has demonstrated the ability to understand and adequately parent the child, especially in the areas of communication, nurturing, child development, perception of the child, and meeting the child's physical and emotional needs; and

(14) Assessment (to include the demonstrated ability of the child's family to provide a safe family home for the child) and recommendation."

SECTION 7. Section 587-26, Hawaii Revised Statutes, is amended to read as follows:

"§587-26 Service plan. (a) A service plan is a specific written plan prepared by an authorized agency and child's family and presented to such members of the child's family as the appropriate authorized agency deems to be necessary to the success of the plan, including[,] but not limited to[,] the member or members of the child's family who have legal custody, guardianship, or permanent custody of the child at the time that the service plan is being formulated or revised under this chapter.

(b) The service plan should set forth:

(1) The steps that will be necessary to facilitate the return of the child to a safe family home, if the proposed placement of the child is in foster care under foster custody;

(2) The steps that will be necessary for the child to remain in a safe family home with the assistance of a service plan, if the proposed placement of the child is in a family home under family supervision; and

(3) The steps that will be necessary to make the family home a safe family home and to terminate the appropriate authorized agency's intervention into the family and eliminate, if possible, the necessity for the filing of a petition with the court under this chapter.

(c) The service plan should also include[,] but not necessarily be limited to:

(1) The consideration given to the use of ohana conferences for family decision making;

(2) The specific, measurable, behavioral changes that must be achieved by the parties; the specific services or treatment that the parties will be provided and the specific actions the parties must take or specific responsibilities that the parties must assume; the time frames during which the services will be provided and such actions must be completed and responsibilities must be assumed; provided that[,] services and assistance should be presented in a manner that does not confuse or overwhelm the parties;

(3) The specific consequences that may be reasonably anticipated to result from the parties' success or failure in making the family home a safe family home, including[,] but not limited to[,] the consequence that, unless the family is willing and able to provide the child with a safe family home within the reasonable period of time specified in the service plan, their respective parental and custodial duties and rights shall be subject to termination by award of permanent custody; and

(4) Such other terms and conditions as the appropriate authorized agency deems to be necessary to the success of the service plan.

(d) The service plan should include steps that are structured and presented in a manner [which] that reflects careful consideration and balancing the priority, intensity, and quantity of the services [which] that are needed with the family's ability to benefit from those services.

(e) The service plan shall identify the assessments and services that will be provided to the child by the department or appropriate authorized agency to ensure that the child's medical, psychological, and emotional well-being is met.

[(e)] (f) After each term and condition of the service plan has been thoroughly explained to and is understood by each member of the child's family whom the appropriate authorized agency deems to be necessary to the success of the service plan, the service plan shall be agreed to and signed by each family member. Thereafter, a copy of the service plan shall be provided to each family member who signed the service plan.

[(f)] (g) If a member of a child's family whom the appropriate authorized agency deems to be necessary to the success of the service plan cannot or does not understand or agree to the terms and conditions set forth in the service plan, the authorized agency shall proceed pursuant to section 587-21(b)."

SECTION 8. Section 587-40, Hawaii Revised Statutes, is amended by amending subsection (c) to read as follows:

"(c) A written report pertaining to cases pending before the family court submitted by the department pursuant to subsection (a) shall be submitted to the court in its entirety[, and shall include the following:

(1) Any report, or medical or mental health consultation, generated by a child protective services multidisciplinary team or consultant in its entirety; and

(2) All other relevant information on placement of the child].

Any reports or information relied upon by the department, including but not limited to random urinalysis results, substance abuse assessments, psychological assessments, medical reports, and parent education reports, shall be provided to all parties to the case. The reports shall be admissible and may be relied upon to the extent of their probative value in any proceeding under this chapter; provided that the person or persons who prepared the report are made available for direct and cross-examination as to any matter in the report."

SECTION 9. Section 587-53, Hawaii Revised Statutes, is amended by amending subsection (d) to read as follows:

"(d) During a continuance period ordered pursuant to subsection (c) or at any other time during the pendency of a child protective proceeding, the court may further order that:

(1) Any party undergo a physical, developmental, psychological, or psychiatric evaluation and that a written or oral report be submitted to the court and all parties prior to or upon the date of the continued or next hearing;

(2) The child's family members who are parties provide the department or other appropriate authorized agency with the names and addresses of other family and friends who may be potential visitation supervisors or foster parents for the child and that they arrange for the persons to appear in court upon the date of the continued or next hearing;

(3) The child's family members who are parties be permitted reasonable supervised or unsupervised visitation with the child at the discretion of the department or other appropriate authorized agency and the child's guardian ad litem;

(4) The parties, subject to their agreement unless jurisdiction has been established, meet with appropriate expert witnesses to discuss the alleged harm to the child;

(5) The court and the parties view a visual recording or listen to an oral recording of the child's statement at such time and in such manner as the court deems to be appropriate;

(6) The child and the child's family members who are parties, subject to their agreement unless jurisdiction has been established, arrange and commence participation in such counseling or therapy for themselves and the child as the court deems to be appropriate and consistent with the best interests of the child;

(7) An appropriate order of protection be entered;

(8) A criminal history record check be conducted by the department or other appropriate authorized agency concerning a party who is an alleged perpetrator of imminent harm, harm, or threatened harm to the child, and that the results be submitted to the court and other parties in such manner as the court deems to be appropriate prior to or upon the date of the continued or next hearing;

(9) The department or other appropriate authorized agency prepare a written or oral supplemental report pursuant to section 587-40 and submit the report to the court, the guardian ad litem, and all parties prior to or upon the date of the continued or next hearing; [or]

(10) The child's guardian ad litem visit the child's family home and foster home, be present during a supervised visitation, and prepare a written or oral report, including specific recommendations concerning services and assistance, to be submitted to the court and all parties prior to or upon the date of the continued or next hearing[.]; or

(11) An ohana conference be held. The court may excuse a family member from an ohana conference upon finding that it is in the best interest of the child, the family, or the family member for the family member to be excused. The court may forego an ohana conference altogether upon finding that an ohana conference is not appropriate for the particular case."

SECTION 10. Section 587-72, Hawaii Revised Statutes, is amended by amending subsection (c) to read as follows:

"(c) Upon each review hearing the court shall consider fully all relevant prior and current information pertaining to the safe family home guidelines, as set forth in section 587-25, including but not limited to the report submitted pursuant to section 587-40, and:

(1) Determine whether the child's family is presently willing and able to provide the child with a safe family home without the assistance of a service plan and, if so, the court shall terminate jurisdiction;

(2) Determine whether the child's family is presently willing and able to provide the child with a safe family home with the assistance of a service plan and, if so, the court shall return the child or continue the placement of the child in the child's family home under the family supervision of the appropriate authorized agency;

(3) If the child's family home is determined, pursuant to subsection (c)(2) not to be safe, even with the assistance of a service plan, order that the child remain or be placed under the foster custody of the appropriate authorized agency;

(4) Determine whether the parties have complied with, performed, and completed every term and condition of the service plan that was previously court ordered;

(5) Determine whether the department has conducted a health assessment for the child and provided or caused to be provided the services recommended for the child in the assessment;

[(5)] (6) Order revisions to the existing service plan, after satisfying section 587-71(h), as the court, upon a hearing that the court deems to be appropriate, determines to be in the best interests of the child; provided that a copy of the revised service plan shall be incorporated as part of the order;

[(6)] (7) Enter further orders as the court deems to be in the best interests of the child;

[(7)] (8) Determine whether aggravated circumstances are present and, if so, the court shall set the case for a show cause hearing as the court deems appropriate within thirty days. At the show cause hearing, the child's family shall have the burden of presenting evidence to the court regarding the reasons and considerations as to why the case should not be set for a permanent plan hearing; and

[(8)] (9) If the child has been residing outside the family home for twelve consecutive months from the initial date of entry into out-of-home care, set the case for a show cause hearing as deemed appropriate by the court. At the show cause hearing, the child's family shall have the burden of presenting evidence to the court regarding the reasons and considerations as to why the case should not be set for a permanent plan hearing."

SECTION 11. Section 587-86, Hawaii Revised Statutes, is amended to read as follows:

"[[]§587-86[]] Health assessment[.] and health services. The department shall ensure the provision of a comprehensive health assessment including but not limited to medical, dental, and psychological assessments, for each child in out-of-home placement forty-five days before or after an initial placement. The department shall further ensure that all services recommended by the assessments are provided for each child in a timely manner to the extent that funds and resources are available. If funds and resources are unavailable within the department, the department shall take all necessary steps to ensure that the child receives the recommended services from other service providers."

SECTION 12. There is appropriated out of the general revenues of the State of Hawaii the sum of $ or so much thereof as may be necessary for fiscal year 2004-2005 to:

(1) Provide legal services to indigent persons prior to entering into voluntary service plans pursuant to section 587-21; and

(2) Provide health services, when not available through departments other than the department of human services, to children placed in the permanent custody of the department of human services.

The sum appropriated shall be expended by the judiciary for the purposes of this Act.

SECTION 13. This Act does not affect rights and duties that matured, penalties that were incurred, and proceedings that were begun, before its effective date.

SECTION 14. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.

SECTION 15. This Act shall take effect upon its approval; provided that section 12 shall take effect on July 1, 2004.