PA 09-185—sHB 5421

Human Services Committee

Judiciary Committee

AN ACT CONCERNING PROCEEDINGS AND OPERATIONS OF THE DEPARTMENT OF CHILDREN AND FAMILIES AND THE DISCLOSURE OF ADOPTION INFORMATION

SUMMARY: This act requires courts to look for suitable caretaker relatives (related by blood or marriage) in the early stages of cases where children have been, or are at risk of 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 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 act also:

1. prohibits DCF and courts from considering a parent's applying for or receiving DCF voluntary behavioral health services for his or her child when making certain decisions about the person's suitability to care for a child;

2. eliminates a requirement for both biological parents' consent before identifying information about either one is released to an applicant, such as a biological child, and instead allows access to the records of any consenting biological parent;

3. 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;

4. extends the relatives DCF must notify and the notice it must give when a child is removed from his or her home because of suspected abuse;

5. describes actions DCF may take concerning a guardianship custody when a guardian dies or becomes disabled;

6. adds licensed foster parents to the existing list of mandated reporters of abuse or neglect; and

7. makes minor and technical changes.

EFFECTIVE DATE: October 1, 2009, except the provisions concerning temporary relative placements are effective on passage and the provisions concerning guardianship transfers and mandated reporters are effective July 1, 2009.

3 — RELATIVES AS PREFERRED CAREGIVERS – ABUSE AND NEGLECT CASES IN SUPERIOR COURT

Notice to Parents at Outset of Case

By law, when DCF, or any other agency or authorized person, 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. It must give the child's parents certain information in clear and simple language about the case and their legal rights before the hearing. The act 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 or temporary custodian. Where practicable, the DCF commissioner must investigate such a placement and report to the court on a relative's suitability at the preliminary hearing.

Identifying Relatives at Preliminary Hearings

At the preliminary hearing, the act allows the court to order DCF to investigate and determine, within 30 days after the hearing, the appropriateness of placing a child with his or her relatives living in Connecticut who might serve as licensed foster parents or temporary custodians. If out-of-state relatives are identified at the hearing, the act requires DCF to complete its investigation and make 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

Intervening Relatives. When DCF determines that there is no suitable relative and the court has not granted temporary custody to a relative, the act allows any relative to file a motion seeking temporary custody. The court must grant intervenor status when motions are filed not later than 90 days after the preliminary hearing date, unless it finds good cause for not doing so. The act gives the court discretion to grant intervenor status when motions are filed after that period, except when the child's most recent placement has been disrupted or is about to be disrupted, in which case the motion must be granted unless there is good cause for not doing so.

The act eliminates a requirement that courts grant grandparents' motions to intervene unless they find good cause for not doing so. Instead, grandparents are subject to the provisions regarding relatives described above.

Under the act, 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.

Investigating the Suitability of Intervening Relatives. When the court grants a relative intervenor status, the act requires the judge to order the DCF commissioner to conduct an assessment 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 act also permits the court to ask the intervening relative to release his or her medical records, including psychiatric or psychological treatment records. It may order him or her to submit to a physical or mental examination, with the expenses paid in the same way as commitment costs.

The court must schedule a hearing on the relative's motion for temporary custody within 15 days after receiving the assessment. 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 granted temporary custody must comply with court orders, including those directing them to care for and supervise the child, and cooperate with DCF in implementing treatment and permanency plans and services for the child. They may object to DCF's proposed permanency or treatment plans for the child and are entitled to a court hearing to resolve the dispute. The issue may be raised by any party or the court.

The court may terminate a relative's intervenor status if, after notice and a hearing, it determines that the relative's participation in the case is no longer warranted or necessary.

Granting Legal Guardianship Relatives on Request

The act permits any relative to file a motion to intervene for purposes of seeking permanent guardianship once 90 days have passed after the preliminary hearing. It gives the court discretion to grant intervenor status to the relative, but it must do so if the child's most recent placement has been disrupted or is about to be disrupted unless it finds good cause for not doing so. The act also authorizes the court to order DCF to conduct an assessment of the intervenor.

When a court determines that a child has been abused or neglected, the law authorizes it to commit the child to DCF or place the child in the custody of a suitable or worthy person. The act 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 act 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 or certified 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 (1) the award of custody or guardianship to, or adoption by, the relative would not be in the child's best interests and (2) the relative is not a suitable or worthy person.

The act adds relatives related by marriage as an option for DCF when placing a child.

4 & 5 — RELATIVES AS PREFERRED CAREGIVERS – PROBATE COURT CASES

The act also authorizes relatives to file motions to intervene in probate court cases in which an application to remove one or both parents as guardians or to terminate parental rights 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.

The act establishes a 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 this is not the case. Finally, it establishes a rebuttable presumption favoring relatives in guardianship or co-guardianship proceedings.

7 — RELATIVE CAREGIVER'S DEATH OR ILLNESS

When a relative caregiver who is receiving a guardianship subsidy dies or becomes severely disabled or seriously ill, the act authorizes DCF to transfer the subsidy to a new relative caregiver. The new caregiver must meet DCF's foster care safety requirements and be appointed legal guardian by a court.

6 — 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 act prohibits the fact that a parent applied for or received voluntary services for a child 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.

10 — ACCESS TO DCF RECORDS

Under prior law, DCF could not release information identifying a biological parent without the written consent of both parents. Beginning October 1, 2009, the act allows DCF and adoption agencies to release information if the biological parent whose information is to be disclosed provides written consent. DCF or the adoption agency must first attempt to locate the other biological parent to obtain written consent to permit disclosure. If the other biological parent cannot be located or does not provide written consent, identification of the consenting parent may be disclosed provided: (1) information about the non-consenting parent is not disclosed and (2) the consenting parent signs an affidavit that he or she will not disclose information identifying the non-consenting parent without written consent.

1 — REPORTING BREACHES OF DCF RECORD CONFIDENTIALITY LAWS

The act requires DCF employees to report to the commissioner in writing when they reasonably suspect a co-worker of illegally disclosing confidential department records. They must include the name of the person who disclosed the record; to whom it was disclosed; and the nature of the information involved, if known. The act explicitly protects these people from retaliation.

The act also limits the existing exception from record confidentiality laws by requiring that the subject of the record file written permission to disclose it. Prior law did not require that consent be given in writing.

9 — NOTIFYING RELATIVES

When DCF removes a child from his or her home because of allegations of abuse or neglect, it must immediately, and with due diligence, identify all grandparents and other relatives of the child, including those the parents suggest, subject to exemptions for family or domestic violence. Within 30 days after the removal, the commissioner must give the relatives notice that:

1. the child has been or is being removed from his or her parent or guardian;

2. explains the options that the relative has under federal, state, and local law to participate in the care and placement of the child, including any options that may be lost by failing to respond to the notice;

3. describes the requirements (a) to obtain a foster care license and (b) for additional services and supports that are available for children placed in their homes; and

4. describes the subsidized guardianship program, including eligibility requirements, the application process, and financial assistance available under the program.

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).

Confidential DCF Records

In general, DCF cannot disclose information it creates or obtains in connection with its child protection activities or other activities related to a child who is or was in its care or custody or a person it has investigated for child abuse or neglect without (1) obtaining permission from the person who is the subject of the record or an authorized representative or (2) legal authorization to do so without the person's consent. Existing law specifies many entities and officials to whom DCF must disclose records that would otherwise be confidential, in most cases expressly limiting the uses recipients can make of the information. It also lists entities and people with whom DCF may share information when the commissioner or her designee determines this is in the best interests of the person who is the subject of the record.

Anyone who discloses any part of a confidential record is subject to imprisonment for up to one year, a fine of up to $1,000, or both.

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