OLR Bill Analysis
sHB 6899 (as amended by House "A")*
AN ACT EXPANDING GUARDIANSHIP OPPORTUNITIES FOR CHILDREN AND IMPLEMENTING PROVISIONS OF THE FEDERAL PREVENTING SEX TRAFFICKING AND STRENGTHENING FAMILIES ACT.
This bill makes changes in several Department of Children and Families (DCF)-related statutes.
Principally, the bill:
1. permits caregivers to allow children with service or safety plans to participate in “normal childhood activities” (i.e., extracurricular, enrichment, and social activities, including overnight activities outside the caregiver's direct supervision for up to 48 hours) without prior department or court approval (§ 1);
2. limits permanency plan goals involving certain planned permanent living arrangements (such as placement in an independent living program) to children age 16 or older, establishes certain requirements for these arrangements, and eliminates certain other permanency plan goals (§§ 2-4 & 19);
3. defines “fictive kin caregivers,” allows child placement with one of these individuals, makes such caregivers eligible for guardianship subsidies, and allows for the transfer of such subsidies from one caregiver to a successor caregiver (§§ 5 - 10);
4. requires foster care providers, relative and fictive kin caregivers, and child care facilities to use a “reasonable and prudent parent standard” (i.e., careful and sensible parental decisions that maintain a child's health, safety, and best interests) (§§ 5 & 6);
5. gives the probate court the authority to order post-adoption sibling visitation rights for adoptions that take place in that venue and requires the court to consider certain factors before making such a decision (§ 18);
6. sets out a hearing process for individuals who believe they are harmed by a DCF decision to terminate voluntary services and modifies the notice and regulation adoption requirements DCF must follow for such terminations (§ 19);
7. allows the DCF commissioner to transfer a child or youth receiving voluntary services to the supervision of the mental health and addiction services (DMHAS) or developmental services department (DDS) (§ 19);
8. specifies that the court does not need to review case service plans annually (i.e., plans for children receiving DCF services who are not in out-of-home placements) and makes other minor changes to the plan review process (§ 19);
9. broadens the (a) circumstances in which DCF must disclose records to specified parties without the subject's consent and (b) list of individuals who must submit to criminal history and child abuse registry checks (§§ 5, 15, & 16);
10. adopts rules for the appointment of counsel when certain cases involving children or youths are transferred from probate to Superior Court (§ 20);
11. adds to the list of individuals the DCF commissioner must notify when (a) she removes a child from parental custody and extends the amount of time DCF has to provide the notice or (b) a child committed to DCF custody is missing or abducted (§§ 11 & 13);
12. increases the number of children for whom DCF must request an annual credit report (§ 12); and
13. specifies data DCF must annually submit to the Children's Committee pertaining to sibling visitation statutes (§ 17).
The bill also makes several minor, technical, and conforming changes.
*House Amendment “A” (1) adds the provisions pertaining to postadoption sibling visitation, court and inter-department transfers, case service plans, and voluntary service termination hearings; (2) modifies provisions pertaining to permanency plan requirements; (3) narrows the circumstances in which the bill allows caregivers to permit children in their care under a service or safety plan to participate in “normal childhood activities;” (4) shortens, from 72 hours to 48 hours, the amount of time away from a caregiver that qualifies as such activity; and (5) makes several other minor and technical changes.
EFFECTIVE DATE: July 1, 2015, except provisions pertaining (1) to permanency plans for children receiving voluntary services, (2) court transfers, (3) DCF data gathering requirements, and (4) postadoption sibling visitation, are effective October 1, 2015.
§ 1 ─ NORMAL CHILDHOOD ACTIVITIES
The bill permits a caregiver to allow a child in his or her care under a DCF or court-ordered service or safety plan to participate in normal childhood activities without prior DCF or court approval. The activities must (1) comply with the service or safety plan and (2) be age or developmentally appropriate based on a reasonably prudent parent standard. If applicable, the child's parent or guardian must be given an opportunity to provide input into the development of the child's service or safety plan.
The DCF commissioner must (1) establish department policy to guide caregivers on the reasonable and prudent parent standard and (2) notify each caregiver of this policy. The policy must list factors for the caregiver to consider before allowing a child to participate in age or developmentally appropriate activities, including the child's age, maturity, mental and physical health, developmental level, behavioral propensities, and aptitude.
A DCF representative, during home visits and meetings with parents, must document the child's (1) interest in and pursuit of normal childhood activities and (2) participation in such activities in the child's service and safety plans. The representative must also communicate to the caregiver the parents' opinions on the child's participation in normal childhood activities so that the caregiver may consider them when providing the child's care.
For purposes of these provisions, the bill defines:
1. a “caregiver” as a (a) DCF-licensed foster care provider, (b) person approved by a licensed child-placing agency to provide foster care, (c) relative or fictive kin caregiver (see definition below), or (d) licensed child placing agency operator or official;
2. “reasonable and prudent parent standard” as careful and sensible parental decisions that maintain a child's health, safety, and best interests; and
3. “age appropriate or developmentally appropriate” as (a) activities or items generally accepted as suitable for children of the same age or maturity level or determined to be developmentally appropriate for a child based on the cognitive, emotional, physical, and behavioral capacities typical for his or her age or age group or (b) in the case of a specific child, activities or items that are suitable based on his or her cognitive, emotional, physical, and behavioral capabilities.
The bill makes the department, caregiver, child-placing agency, child care facility, or any other state-contracted private entity immune from liability for any injury a child sustains as the result of a caregiver allowing him or her to participate in normal childhood activities under these provisions, unless the injury was due to the person's or entity's gross, willful, or wanton negligence. This provision of the bill does not remove or limit existing liability protection.
Private Contractor Policies
The bill requires private entities that contract with DCF to place children in department custody to have policies consistent with the above provisions. Such policies are not consistent if they are incompatible with, contradictory to, or more restrictive than these provisions.
§§ 2-4, 19 ─ PERMANENCY PLANS
The law requires DCF to establish and periodically revise permanency plans for children in its care or custody, which include abused and neglected children, delinquents, and children in its voluntary services program (i.e., children whose mental health needs could not otherwise be met). The bill makes several changes to the permanency plan requirements for these children.
Under current law, a child's permanency plan may include certain goals depending on the grounds for commitment. In general, these goals include parental or guardian reunification; guardianship transfer; long-term foster care with a licensed relative (or if the child is a delinquent, permanent placement with a relative); or termination of parental rights and adoption. If the court has documented compelling reason that these goals are not in the child's best interest, the goal may instead be another planned permanent living arrangement such as an independent living program or long-term foster care with an identified foster parent.
The bill eliminates (1) permanent placement with a relative from the list of allowable permanency plan goals for delinquents and (2) long-term foster care with a licensed or certified relative as a permanency plan goal for children committed to DCF voluntarily or for abuse or neglect (though DCF must still make efforts to place a child with a relative under other permanency plan provisions, as described below). It also limits the permanency plan goal of “another planned permanent living arrangement” to children age 16 and over.
Under the bill, if such a child's permanency plan goal is another planned permanent living arrangement, DCF must document for the court the:
1. manner and frequency of its efforts to return the child to his or her home or a secure placement with a fit and willing relative, legal guardian, or adoptive parent; and
2. steps it has taken to ensure the (a) child's foster family home or child care institution is following a reasonable and prudent parent standard and (b) child has regular opportunities to engage in age and developmentally appropriate activities.
Child Involvement in Planning Process
The bill requires DCF to consult with any child age 12 and older in department custody, when developing the child's permanency plan or plan revisions. The bill allows the child to consult with up to two people who participate in his or her case plan, but not the child's foster parent or caseworker. One of the consultants may be designated the child's permanency plan development and revision advisor.
The child must, if possible, also identify up to three adults with whom he or she has a significant relationship who may serve as permanency resources. Their names must be recorded in the child's case plan.
Additionally, if the child is age 12 or older, the DCF commissioner must (1) notify the parent or guardian, foster parent, and child of any administrative case review regarding the child's commitment at least five days before the review and (2) make a reasonable effort to schedule the review at a time and location that allows all the parties to attend.
At a permanency plan hearing, the bill specifies that the court must ask the child or youth about his or her desired outcome. If the child is unavailable, it requires the child's attorney to consult with the child and report to the court the child's desired outcome. Additionally, if the child is age sixteen or older and the goal in his or her plan is another planned permanent living arrangement, the bill requires the court to:
1. make a judicial determination that, as of the hearing date, the arrangement is the best permanency plan for the youth; and
2. document the compelling reasons why it is not in the child's best interest to return home or be placed with a fit and willing relative, legal guardian, or adoptive parent.
The bill requires DCF, by January 1, 2016, to begin annually reporting to the Children's and Judiciary committees on the number of case plans in which children have identified adults with whom they have a significant relationship and who may serve as a permanency resource.
§§ 5 & 6 ─ FICTIVE KIN CAREGIVERS AND CHILD PLACEMENT
The bill renames “special study foster parents” as “fictive kin caregivers” and narrows the category of individuals who qualify as such. Under current law, a special study foster parent is a person age 21 or older not licensed by DCF to provide foster care. Under the bill, a fictive kin caregiver must additionally (1) be unrelated to a child by birth, adoption, or marriage; (2) have an emotionally significant relationship with the child similar to a family relationship; and (3) not be approved by DCF to provide foster care.
Currently, DCF may place a child in foster care with a person if (1) he or she is licensed by DCF or DDS to provide such care or (2) his or her home is approved by a licensed child placing agency. The bill additionally allows DCF to place a child in foster care with a person who has received approval to provide foster care by a child-placing agency, which conforms to a current practice.
Currently, DCF may also place a child, if it is in his or her best interest, with (1) an unlicensed relative; (2) a nonrelative, if the child's sibling who is related to the caregiver is also placed with the caregiver; or (3) a special study foster parent. The bill eliminates the last two placement options but allows placement with a fictive kin caregiver if it is in the child's best interest. The fictive kin caregiver is subject to the same home visitation, criminal background check, and licensure requirements already in law for such placements.
Reasonable and Prudent Parent Standard
The bill requires relative and fictive kin caregivers and licensed or approved foster care providers to use a reasonable and prudent parent standard on the child's behalf. Licensed child care facilities must designate an on-site staff member to apply the standard on a child's behalf.
§§ 7-10 ─ GUARDIANSHIP SUBSIDY
The bill shortens the name of the Adoption Subsidy Review Board to the Subsidy Review Board and makes several conforming changes. It also eliminates the requirement that the board member representing a child-placing agency and his or her alternate be licensed.
The bill broadens eligibility for, and the beneficiaries of, DCF's subsidized guardianship program. Currently, the program provides subsidies to licensed foster care relatives who have cared for a child for at least six months because the child's parent died or was otherwise unable to care for the child for reasons that make parental reunification and adoption not viable options in the foreseeable future.
The bill makes fictive kin caregivers and foster care providers approved by licensed child-placement agencies eligible for the subsidized guardianship program under the same circumstances.
Current law allows a guardianship subsidy to be transferred from one relative caregiver to another if the subsidy recipient dies or becomes severely disabled or ill. The bill additionally allows such transfers to and from fictive kin guardians and foster care providers as well as relative caregivers (i.e., successor guardians). To be eligible for the subsidy transfer, the successor guardian must (1) be the child's court-appointed legal guardian, (2) be identified in the subsidy agreement, and (3) meet DCF's foster care safety requirements.
By law, the subsidy may continue until the child turns age (1) 18 or (2) 21, if he or she (a) attends a secondary school, technical school, or college full-time; (b) is in a state accredited job training program, or (c) meets other federal law requirements. Under the bill, the subsidy may be provided to a successor, subject to annual review, through the child's 21st birthday if the:
1. transfer was finalized after September 30, 2013;
2. child was at least age 16 when the transfer was finalized;
3. child is (a) enrolled in a full-time approved secondary education program or an approved program leading to an equivalent credential, (b) enrolled full-time in a postsecondary or vocational institution, or (c) participating full time in a commissioner-approved program or activity designed to promote or remove barriers to employment.
The bill allows the commissioner, at her discretion, to waive the enrollment or participation requirements based on compelling circumstances. In order to receive the transferred subsidy, the guardian must, at the commissioner's annual review time, submit to her a sworn statement that the child is still meeting the education or participation requirement unless the requirement was waived.
The bill also requires the commissioner, at least 30 days before terminating or reducing a subsidy, to provide written notice to the subsidy recipient and a hearing before the Subsidy Review Board. The subsidy must continue unmodified during any appeal and until the board issues its decision.
§ 18 – POSTADOPTION ARRANGEMENTS
Cooperative Postadoption Agreements
The bill broadens the circumstances in which birth parents and an intended adoptive parent may enter into a cooperative postadoption agreement regarding communication or contact between the birth parents and adopted child. Currently, the parties may only enter into such an agreement if (1) the child is in DCF custody, (2) an order terminating parental rights has not been entered, and (3) either or both birth parents agree to voluntary parental rights termination. The bill eliminates the requirement that the child must be in DCF custody.
Postadoption Sibling Visitation
By law, the Superior Court or probate court both have authority to preside over adoption petitions. For those that take place in probate court, the bill requires the court to consider if post-adoption communication or contact with a sibling is appropriate for each child who is the subject of an adoption petition. The communication or contact may include visitation, written correspondence, or telephone calls. If the court determines post-adoption communication or contact is in the child's best interest, the court must order that the child has access to and visitation rights with his or her sibling until the child turns 18. When making that determination, the court must consider the child's and sibling's:
1. age and the extent of their existing relationship;
2. physical, emotional, and psychological needs, including any special needs and their stability; and
3. opinions about post-adoption communication or contact.
The court must also consider (1) the adoptive parent's opinion about post-adoption communication or contact; (2) expert opinions, including from anyone who provided services to the child or sibling; (3) long-term plans for the child and sibling; and (4) any relevant logistical concerns.
Any decision the court makes about sibling visitation must be included in the final adoption order, but the determination does not affect the adoption's validity or limit the court's authority to legally enforce its orders.
The bill allows an adoptive parent, at any time, to petition the probate court to review its decision on post-adoption sibling communication or contact. The court, upon receiving the petition, must review the factors described above and may order that the communication or contact be terminated or modified, if doing so is in the child's best interest. The court may order the parties to engage in mediation if any dispute arises during the review.
Under the bill, the court cannot increase the communication or contact between the adopted child and his or her sibling unless the court (1) receives consent from the adopted parent and (2) inquires about and considers the child's opinion about the increase.
§ 19 ─ TERMINATION OF VOLUNTARY SERVICES
Currently, the commissioner may not terminate a child's or youth's voluntary admission to the department without first giving reasonable notice to the (1) child's parent or guardian if the child is under age 14, and (2) to the child or youth, if he or she is age 14 or older. The bill expands the notice requirement to include parents or guardians of children age 14 or older. If the commissioner previously petitioned the Probate Court for a determination of whether continued DCF care is in the child's of youth's best interest, the bill additionally requires the commissioner to provide notice to the probate court of the petition before terminating voluntary services.
The bill sets out a hearing process for individuals who believe they are harmed by a DCF decision to terminate voluntary services. It allows parents or guardians, or a child age 14 or older, to seek (1) an administrative hearing according to regulations the commissioner adopts under the bill (see below) or (2) a probate court hearing.
If the latter, and the probate court finds DCF terminated voluntary services according to DCFs regulations, the court must uphold the termination. If the court finds DCF did not terminate the services according to its regulations, it may order that services continue, and specify a time to determine a new case service plan (for people receiving services at home) or permanency plan (for people receiving out-of-home services).
Adoption of Regulations
Current law requires the commissioner to adopt regulations (1) on the documentation required for voluntary admission and (2) for informal administrative case review, on request, of denials of applications for voluntary admission.
The bill expands the regulations that the commissioner must adopt related to voluntary admission, to include (1) granting or denying voluntary services and (2) termination of voluntary admission. It expands the requirement that the regulations address informal administrative case review to include review of all cases, regardless of whether the review has been requested.
§ 19 ─ INTER-DEPARTMENT TRANSFERS
The bill allows the DCF commissioner to transfer a child or youth receiving voluntary services to the supervision of DMHAS or DDS, in collaboration with the respective commissioner. The DCF commissioner must provide written notice of the transfer to the (1) child age 14 or older and his or her parent or guardian at least ten days before the transfer and (2) probate court if she has already petitioned the court for a determination of whether continued DCF care is in the child's best interest.
DCF may (1) continue to provide services to the child or youth in collaboration with the department to which the child is transferred or (2) terminate services if, in her discretion, the other department provides adequate services. She must provide written notice of her intention to terminate services in such circumstances to the (1) child, if he or she is age 14 or older, (2) child's or youth's parent or guardian, and (3) probate court if she has already petitioned the court for a determination of whether continued DCF care is in the child's best interest.
§ 19 ─ CASE SERVICE PLANS
By law, DCF must have a case service plan for any child receiving voluntary services who is not in an out-of-home placement. The bill specifies that the commissioner is not required to file periodic motions to review the plan, but it allows the commissioner; parents or guardians of a child or youth; child, if 14 or older, or youth, to compel the probate court to conduct a hearing to review a case service plan.
Under the bill, the court also may conduct such a hearing on its own if it finds “imminent concerns” for the child's or youth's health or safety. The court must notify the commissioner, child over age 14 or youth, and the child's or youth's parents or guardians, as appropriate, of the time and place of the hearing at least 10 days before the hearing takes place.
The court must approve a case service plan that is in the child's or youth's best interests. The child's or youth's health and safety must be the court's primary concern in formulating the plan. At the hearing, the court must consider:
1. the plan's appropriateness for the child or youth, and his or her family;
2. the treatment and support services offered and provided to the child or youth to strengthen the family; and
3. any further efforts that have been or will be made to promote the child's or youth's best interests.
At the end of the hearing, the court may direct services to be (1) continued or (2) modified to reflect the child's or youth's best interests.
§ 16 ─ RECORDS DISCLOSURE
The bill expands the circumstances in which DCF must disclose records about a person to specified parties without the person's consent. Under the bill, DCF must disclose records without consent to any individual or entity to identify resources that will promote a child's or youth's court-approved permanency plan.
The bill also requires DCF to make such disclosures to the public school superintendent or head of a public or private child care institution or private school pursuant to the child's permanency plan.
§§ 5 &16 ─ CRIMINAL RECORDS CHECKS
By law, DCF must (1) require all applicants for employment with DCF or foster care licensure to submit to state and national criminal history records checks and (2) check the child abuse registry for the applicant's name. The bill broadens the entities that must submit to the criminal history and registry checks to include:
1. all vendors or contractors and their employees who (a) provide direct services to children in DCF custody or (b) have access to DCF records, and
2. at the commissioner's discretion, anyone age 16 or older who is not living in the household but has regular unsupervised access to a child (i.e., periodic interaction to provide child care, medical or other services) in a licensed or approved applicant's home. (The bill also specifies that foster care applicants may be eligible if they are either licensed by DCF or approved by a DCF-licensed child care facility.)
The bill also requires the following individuals to submit to a state and national criminal history records check before a foster care license or approval may be renewed:
1. the person seeking a foster care license or approval renewal and anyone age 16 older living in the household and
2. at the commissioner's discretion, anyone age 16 or older who is not living in the household of the person seeking foster care license or approval renewal, but who has regular unsupervised access to a child in the home.
§ 20 ─ COURT TRANSFERS
The bill requires attorneys to continue representing their clients when a case is transferred from Probate Court to the superior court for juvenile matters (juvenile court) unless (1) the Probate Court grants a motion to withdraw, which the attorney must file, within 5 days of the transfer motion's filing, (2) the juvenile court grants a motion to withdraw, or (3) another attorney files an “in lieu of” (in place of) appearance on behalf of the client.
The juvenile court must assign an attorney from the Public Defender Services' list of assigned counsel for a (1) party who cannot afford counsel or (2) child subject to the court proceedings. The bill requires the Public Defender Services Commission to pay the attorney.
As with current court rules, the bill requires the Public Defender Services Commission to pay probate court-appointed attorneys who continue their representation in juvenile court according to the commission's policies and pay schedule. The bill also allows the juvenile court to request that the Division of Public Defender Services contract with probate counsel for these purposes.
§ 11 ─ RELATIVE NOTIFICATION OF CHILD REMOVAL FROM PARENTAL CUSTODY
Currently, DCF must use its best efforts to notify the child's grandparents within 15 days of the child's removal from the home. The bill instead requires DCF to make a reasonable effort to provide notice within 30 days to the grandparents as well as to (1) each parent with legal custody of one or more of the child's siblings, and (2) any other adult related to the child by blood or marriage. “Sibling” includes a stepbrother, stepsister, half-brother, half-sister, anyone else who would be considered the child's sibling if not for parental rights termination or disruption, including the parent's death.
The commissioner must include in the notice a:
1. statement that the child has been removed from parental custody;
2. summary of the relative's rights under federal and state law to participate in the child's care and placement, including any options that may be deemed waived if the recipient fails to respond;
3. description of requirements to become licensed or approved as a foster family home and additional supports and services available for a child placed in the home; and
4. description of how the child's caregiver may subsequently enter into an agreement with DCF to receive foster care subsidies.
§ 13 ─ REPORT OF MISSING OR ABDUCTED CHILD
The bill requires DCF to report any child committed to the department who is abducted or missing to the law enforcement authority with jurisdiction over the location where the child was abducted or reported missing. DCF must also report immediately, or within 24 hours after the child is missing or abducted, to the FBI's National Crime Information Center and to the National Center for Missing and Exploited Children.
§ 12 ─ CREDIT REPORTS
The bill increases the number of children who are in DCF custody and placed in foster care on whose behalf the commissioner must annually request a free credit report, from those age 16 and older to those age 14 and older. By law, DCF must review the reports for signs of identity theft, provide it to the child's attorney or guardian ad litem for review, assist a child in resolving any inaccuracies in the report, and report any evidence of identity theft to the chief state's attorney.
§ 17 ─ DATA COLLECTION
The law requires DCF to annually report to the Children's Committee data sufficient to demonstrate compliance with certain sibling visitation statutes. The bill specifies that the data in the report must include the (1) total annual number of children in out-of-home placements who have siblings, (2) the total number of child cases with documented sibling visitation, and (3) number of individual siblings involved in each case.
Preventing Sex Trafficking and Strengthening Families Act
The federal Preventing Sex Trafficking and Strengthening Families Act (P.L. 113-183) makes several changes to the requirements child foster care and adoption agencies must meet to receive certain federal funds. Among its provisions, the act requires such agencies to:
1. develop a reasonable and prudent parent standard for a foster child's participation in certain activities;
2. limit certain permanency plan goals to children age 16 or older;
3. allow children age 14 and older to participate in certain aspects of case planning; and
4. immediately report missing or abducted children to the FBI.
Committee on Children