May 2, 2008
By: Susan Price, Principal Legislative Analyst
You asked us to summarize sections two through seven of LCO 5373, a strike-all amendment to sHB 5908, An Act Concerning Proceedings and Operations of the Department of Children and Families (File 481).
This amendment requires courts to look for suitable caretaker relatives in the early stages of cases where children have been, or are at risk for being, removed from their homes due to allegations of abuse or neglect. It allows a parent who is the subject of the abuse or neglect charges to ask the Department of Children and Families (DCF) commissioner to investigate placing the child with relatives and, where practicable, requires the commissioner to provide a report on a relative's suitability at the first court hearing in the case. It establishes court procedures for making placement decisions when a relative seeks custody and creates a rebuttable presumption that placing a child with a relative is in the child's best interests.
The amendment also:
1. prohibits DCF and courts from taking into account a parent's application for, or receipt of, DCF voluntary behavioral health services for his or her child when making certain decisions about that person's suitability to care for a child; and
2. requires DCF employees to notify the commissioner when they suspect a co-worker of illegally disclosing confidential information and specifies that they have whistleblower protections for such reports.
The provisions concerning relative caregivers are effective on passage; all others are effective October 1, 2008.
RELATIVES AS PREFERRED CAREGIVERS – ABUSE AND NEGLECT CASES IN SUPERIOR COURT
Notice to Parents at Outset of Case
When DCF files an abuse or neglect petition and the court finds that there is reasonable cause to believe that removing a child from home is necessary, it must hold a preliminary hearing within 10 days and give the child's parents certain information in clear and simple language about the case and their legal rights before the hearing. The amendment requires this information to include that they can request the DCF commissioner to investigate placing the child with a person who is related to the child by blood or marriage and who might serve as a licensed foster parent, certified relative caregiver, or temporary custodian.
Identifying Relatives at Preliminary Hearings
At preliminary hearings, the amendment requires courts to order DCF to investigate and determine, within 30 days after the hearing, the appropriateness of placing a child with identified relatives living in Connecticut who might serve as licensed foster parents, certified relative caregivers, or temporary custodians. If out-of-state relatives are identified at the hearing, the amendment requires DCF to complete its investigation and made a determination within a reasonable time, following the procedures in the Interstate Compact on the Placement of Children.
Granting Temporary Custody to Relatives on Request
When DCF determines that there is no suitable relative in accordance with the procedures described above and the court has not granted temporary custody to a relative, the amendment allows any person related to the child by blood or marriage to file a motion to intervene for the limited purpose of seeking an award of temporary custody. The court must grant intervenor status when motions are filed within 90 days of the permanency hearing date, unless it finds good cause for not doing so. It generally has discretion to grant intervenor status when motions are filed after that period, except when the child's most recent placement has disrupted or is about to disrupt, in which case the motion must be granted unless there is good cause for not doing so.
The amendment eliminates a provision in current law that requires courts to grant grandparents' motions to intervene unless they find good cause for not doing so. Instead, grandparents will be subject to the provisions described above.
Under the amendment, relatives who are granted intervenor status must appear personally in court, with or without an attorney. They are not entitled to free representation by attorneys appointed by the court or assigned by the chief child protection attorney unless a judge authorizes appointment of counsel to appeal the court's child custody decision.
The court may terminate a relative's intervenor status if, after notice and hearing, it determines that the relative's participation in the case is no longer warranted or necessary. This issue can be raised by any party or the court.
Investigating the Suitability of Intervening Relatives. When the court grants a relative intervenor status, the amendment requires the judge to issue an order directing the DCF commissioner to conduct a home study and file a written report with the court within 40 days of the order if the relative lives in-state; for out-of-state relatives the order must be issued in accordance with the Interstate Compact on the Placement of Children.
The amendment also permits the court to ask relatives to release their medical records, including psychiatric or psychological treatment records. It may order relatives who refuse to release medical records to submit to a physical or mental examination, with the expenses paid in the same manner as they are paid as costs of commitment.
Once the court receives the home study, it must schedule a hearing on the relative's motion for temporary custody within 15 days. At the hearing, anyone opposing the motion (DCF, the child's attorney or guardian ad litem, or the parent or guardian) must prove by a fair preponderance of the evidence that granting the relative temporary custody would not be in the child's best interest.
Relatives who are granted temporary custody must comply with court orders, including those directing them to provide the child care and supervision and cooperate with DCF in implementing treatment and permanency plans and services for the child. They may file objections to the contents of DCF's proposed permanency plan for the child and are entitled to court hearings to resolve the dispute.
Granting Guardianship or Permanent Custody to Relatives on Request
The amendment permits any relative to file a motion to intervene for purposes of seeking guardianship or permanent custody once 90 days have passed since the preliminary hearing. The court generally has discretion to grant the relative intervenor status, but it must do so if the child's most recent placement has disrupted or is about to disrupt unless it finds good cause for not doing so. The amendment also authorizes the court to order DCF to conduct a home study of the intervenor.
When a court determines that a child has been abused or neglected, the law authorizes it to order that the child be committed to DCF or placed in the custody of a suitable or worthy person. The amendment specifies that the latter may include people related to the child by blood or marriage. When the court (1) determines that a DCF commitment should be revoked and that the child should be placed with someone other than the parent or (2) terminates parental rights, the amendment establishes a rebuttable presumption that custody or guardianship or, in the case of termination of parental rights, a potential adoption, should be awarded to a relative who is a licensed foster parent, certified as a relative caregiver, or is currently acting as the child's temporary custodian pursuant to a court order. The presumption may be rebutted by a preponderance of evidence showing that the (1) award of custody or guardianship to, or adoption by, the relative would not be in the child's best interests and (2) relative is not a suitable or worthy person.
RELATIVES AS PREFERRED CAREGIVERS – PROBATE COURT CASES
The amendment also authorizes relatives to file motions to intervene in probate court cases in which an application to remove one or both parents as guardians has been filed. The court must grant these motions unless it finds good cause for not doing so. Intervening relatives may either personally appear in court or be represented by an attorney.
It also establishes a rebuttable presumption that awarding temporary custody to a relative is in the best interests of the child. The presumption may be rebutted by a preponderance of evidence showing that awarding
custody to the relative is not in the child's best interest. Finally, it establishes a rebuttable presumption favoring relative caregivers in guardianship or co-guardianship proceedings.
REPORTING BREACHES OF DCF RECORD CONFIDENTIALITY LAWS
The amendment requires DCF employees to report to the commissioner in writing when, in the ordinary course of employment; they reasonably suspect a co-worker of illegally disclosing confidential department records. They must include the name of the person who disclosed the record and to whom it was disclosed, along with the nature of the information involved, if known.
DCF officers and employees are prohibited from taking or threatening to take adverse personnel actions against those who make reports. The law already provides whistleblower protections to state employees who report violations of state and federal laws to their employers (CGS § 4-61dd).
DISREGARD OF VOLUNTARY SERVICES APPLICATIONS
DCF's Voluntary Services Program is for children with serious mental health conditions who could not otherwise gain access to treatment they need. The amendment prohibits the fact that a parent applied for or received voluntary services from being used against him or her:
1. in DCF child abuse or neglect investigations,
2. when placement decisions are being made about the child,
3. in foster care licensing decisions, or
4. in any court proceeding concerning the placement of a child who is related to the parent.
DCF Placement Policies
DCF's non-binding policies state that the department must give preference to placement with relatives or extended family if the family:
1. can meet the needs of the child;
2. can meet licensing requirements (i.e., either are licensed foster parents or will become licensed if the child remains in their household for longer than 90 days; and
3. lives in the same community where the child had been living at the time of removal, unless it is in the best interests of the child to be placed with relatives in another community.
When DCF places a child with non-relatives, its policy states that the placement must be in a foster care setting that serves the child's best interests based on the child's individual needs (DCF Policy Manual § 41-19-2).
Probate Court Placement Considerations
By law, probate courts must consider the following when appointing temporary guardians for children under these circumstances:
1. the prospective guardian's ability to meet the child's physical, emotional, moral, and educational needs on a continuing daily basis;
2. the child's wishes if he or she is at least age 13 or of sufficient maturity and capable of forming an intelligent preference;
3. whether there is an existing relationship between the child and prospective guardian; and
4. the best interests of the child (CGS § 45a-617).