PA 15-199—sHB 6899
Committee on Children
AN ACT EXPANDING GUARDIANSHIP OPPORTUNITIES FOR CHILDREN AND IMPLEMENTING PROVISIONS OF THE FEDERAL PREVENTING SEX TRAFFICKING AND STRENGTHENING FAMILIES ACT
SUMMARY: This act makes changes in several Department of Children and Families (DCF)-related statutes.
Principally, the act:
1. permits caregivers to allow children under a DCF or court-ordered service or safety plan 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, 14, & 19);
3. requires DCF to consult with any child age 12 or older in its custody when developing or revising the child's permanency plan (§ 3);
4. defines “fictive kin caregivers,” allows child placement with one of these individuals, makes these caregivers eligible for guardianship subsidies, and allows for the transfer of such subsidies from one caregiver to a successor caregiver (§§ 5 - 10);
5. requires foster care providers, relative and fictive kin caregivers, and child care facilities to make careful and sensible parental decisions that maintain the health, safety, and best interests of a child (§§ 5 & 6);
6. authorizes the probate court 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);
7. creates 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 these terminations (§ 19);
8. allows the DCF commissioner to transfer a youth (i. e. , 16 or 17 year old) or child receiving voluntary services to the supervision of the Department of Mental Health and Addiction Services (DMHAS) or Department of Developmental Services (DDS) (§ 19);
9. specifies that the court does not need to annually review case service plans (i. e. , plans for children receiving DCF services who are not in out-of-home placements) and makes other minor changes in the plan review process (§ 19);
10. expands the (a) circumstances under which DCF must disclose records to specified parties without the subject's consent and (b) list of individuals who must submit to criminal history record and child abuse registry checks (§§ 5, 15, & 16);
11. adopts rules for the appointment of counsel when certain cases involving children or youths are transferred from the probate to Superior Court (§ 20);
12. expands 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 such notice or (b) a child committed to DCF custody is missing or abducted (§§ 11 & 13);
13. broadens the age range for the children on whose behalf DCF must request an annual credit report and review it for identity theft (§ 12); and
14. specifies data DCF must annually submit to the Children's Committee pertaining to sibling visitation statutes (§ 17).
The act also makes several minor, technical, and conforming changes.
EFFECTIVE DATE: July 1, 2015, except provisions pertaining to permanency plans for children receiving voluntary services, court transfers, DCF data-gathering requirements, and postadoption sibling visitation are effective October 1, 2015.
§ 1 ─ NORMAL CHILDHOOD ACTIVITIES
The act permits caregivers to allow children in their 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 child's existing service or safety plan and (2) be age or developmentally appropriate based on a reasonable and prudent parent standard. If applicable, the child's parent or guardian must be given an opportunity to provide input in 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 age and developmentally appropriate 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 act 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 act immunizes the department, caregiver, child-placing agency, child care facility, or any other state-contracted private entity 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 the result of the caregiver's or entity's gross, willful, or wanton negligence. This provision of the act does not remove or limit existing liability protection.
Private Contractor Policies
The act requires that private entities that contract with DCF to place children in department custody have policies consistent with the above provisions. The policies are not consistent if they are incompatible with, contradictory to, or more restrictive than, these provisions.
§§ 2-4, 14, & 19 ─ PERMANENCY PLANS
The law requires DCF to establish and periodically revise permanency plans for children committed to its care or custody. These 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 act makes several changes in the requirements for these plans.
Under prior law, a child's permanency plan could include certain goals, depending on the grounds for commitment. In general, these goals included 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 adoption and termination of parental rights. If the DCF commissioner documented compelling reasons why these goals were not in the child's best interest, the court could instead order another planned permanent living arrangement, such as an independent living program or long-term foster care with an identified foster parent.
The act 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 (although 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 or older.
Under the act, 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 act requires DCF to consult with any child age 12 or older in its custody when developing or revising the child's permanency plan. The act allows the child to consult with up to two people who participate in his or her case plan, but not his or her 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. These adults' names must be recorded in the child's case plan.
Additionally, if the child is age 12 or older, the DCF commissioner must notify the parent or guardian, foster parent, and child of any administrative case review of the child's commitment at least five days before the review and make a reasonable effort to schedule the review at a time and location that allow all the parties to attend.
The act specifies that the court must ask the child or youth at the permanency plan hearing about his or her desired outcome. If the child or youth is unavailable, the child's attorney must consult with the child and report to the court the child's desired outcome. Additionally, if the child is age 16 or older and the goal in his or her plan is another planned permanent living arrangement, the act requires the court to:
1. determine that, as of the hearing date, such arrangement is the best permanency plan for the child 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.
Case Plan Requirement
By law, the commissioner must prepare and maintain a written plan for each child under her supervision, providing for the child's care, treatment, and permanent placement. It must include a diagnosis of the child's problems and a permanent placement goal. The act eliminates from the permissible list of plan goals (1) long-term foster care with an identified individual and (2) another planned permanent living arrangement. It adds to the allowable plan goals, for a child age 16 or older, another planned permanent living arrangement. The act specifies that this plan is the child's case plan.
The act 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 act renames “special study foster parents” as “fictive kin caregivers” and narrows the category of individuals who qualify as such. Under prior law, a special study foster parent was a person age 21 or older not licensed by DCF to provide foster care. Under the act, a fictive kin caregiver must additionally (1) be unrelated to the 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.
Previously, DCF could place a child in foster care with a person if (1) he or she was licensed by DCF or DDS to provide such care or (2) his or her home was approved by a licensed child placing agency. The act additionally allows DCF to place a child in foster care with a person approved to provide foster care by a child-placing agency, which conforms to current practice.
Previously, DCF could also place a child, if it was in his or her best interest, with (1) an unlicensed relative; (2) a nonrelative who is related to the caregiver and a relative of the child's sibling; or (3) a special study foster parent. The act 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 special study foster parent placements.
Reasonable and Prudent Parent Standard
The act requires relative and fictive kin caregivers and licensed or approved foster care providers to use a reasonable and prudent parent standard (defined above) on the child's behalf. Licensed child care facilities must designate an on-site staff member to apply this standard.
§§ 7-10 ─ GUARDIANSHIP SUBSIDY
The act shortens the name of the Adoption Subsidy Review Board to the Subsidy Review Board and makes several conforming changes. It also eliminates the licensure requirement for the board member representing a child-placing agency and his or her alternate.
The act broadens eligibility for DCF's subsidized guardianship program. 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 act makes fictive kin caregivers and foster care providers approved by licensed child-placing agencies eligible for the subsidized guardianship program under the same circumstances.
The law allows the transfer of a guardianship subsidy from one relative caregiver to another if the subsidy recipient dies or becomes severely disabled or ill. The act additionally allows such transfers to and from fictive kin guardians and licensed foster care providers as well as relative caregivers (i. e. , successor guardians). Under the act, 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 or any related addendum, 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 act, the subsidy may be provided to a guardian, subject to annual review, through the child's 21st birthday if the:
1. guardianship transfer was finalized after September 30, 2013;
2. child was at least age 16 when the transfer was finalized; and
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 act 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 submit to the commissioner a sworn statement that the child is still meeting the education or participation requirement, unless the requirement was waived. The guardian must do so at the time of the commissioner's annual review.
The act also requires the commissioner, at least 30 days before terminating or reducing a guardianship subsidy, to provide written notice to the subsidy recipient and a hearing before the Subsidy Review Board. The subsidy must continue unmodified until the board issues a decision on any appeal.
§ 18 – POSTADOPTION ARRANGEMENTS
Cooperative Postadoption Agreements
The act broadens the circumstances in which birth parents and an intended adoptive parent may enter into a postadoption agreement on communication or contact between the birth parents and adopted child. Previously, the parties could enter into such an agreement only if (1) the child was in DCF custody, (2) an order terminating parental rights had not been entered, and (3) at least one birth parent agreed to voluntary parental rights termination. The act eliminates the requirement that the child be in DCF custody.
Postadoption Sibling Visitation
By law, both the Superior Court and probate court have authority to preside over adoption petitions. For those that take place in probate court, the act 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, it must order that the child have access to and visitation rights with his or her sibling until the child turns age 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 such 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 does not affect the adoption's validity or limit the court's authority to enforce its orders.
The act 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, on receiving the petition, must review its determination using 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. The act prohibits the court from increasing communication or contact between the adopted child and his or her sibling unless the court (1) receives the adoptive parents' consent and (2) inquires about and considers the child's opinion about the increase.
§ 19 ─ TERMINATION OF VOLUNTARY SERVICES
Under prior law, the commissioner could not terminate a child's or youth's voluntary admission to the department without first giving reasonable written notice to the (1) child's parent or guardian, if the child was under age 14, and (2) child, if age 14 or older, or youth. The act 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 act additionally requires the commissioner to notify the probate court of the petition before terminating voluntary services.
The act creates 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 must adopt under the act (see below) or (2) a probate court hearing.
If the probate court finds DCF terminated voluntary services according to DCF regulations, it must uphold the termination. If the court finds DCF terminated the services in violation of 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
The act expands the commissioner's existing regulatory authority by requiring her to adopt regulations on (1) application for and termination of voluntary admission; (2) the granting or denial of voluntary services; and (3) all informal administrative case reviews, regardless of whether the review is requested.
§ 19 ─ INTER-DEPARTMENT TRANSFERS
The act allows the DCF commissioner to transfer a child or youth receiving voluntary services to the supervision of DMHAS or DDS, in collaboration with the appropriate commissioner. The DCF commissioner must provide written notice of her intention to make such a transfer to the (1) child age 14 or older or youth and his or her parent or guardian at least 10 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.
The DCF commissioner may continue to provide services to the child or youth in collaboration with the department to which the child is transferred or terminate services if, in her discretion, the other department provides adequate services. She must provide written notice of her intention to terminate services in these circumstances to the (1) child, if he or she is age 14 or older, or youth; (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 act 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 age 14 or older, or youth, to compel the probate court to conduct a hearing to review a case service plan.
Under the act, the court may also conduct such a hearing on its own if it has imminent concerns for the child's or youth's health or safety. The court must notify the commissioner; child age 14 or older, 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.
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.
§ 15 ─ RECORDS DISCLOSURE
The act expands the circumstances under which DCF must disclose records about a person to specified parties without the person's consent. Under the act, DCF must disclose records without such consent to any individual or entity to identify resources that will promote a child's or youth's court-approved permanency plan.
The act 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, among other things, (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 act broadens the entities that must submit to the criminal history and registry checks to include:
1. all vendors or contractors and their employees who provide direct services to children in DCF custody or 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 in the home to provide child care or medical or other services) in the home of a person seeking foster care licensure or approval. (The act also specifies that applicants may be eligible to foster a child if they are licensed by DCF or approved by a DCF-licensed child care facility. )
The act 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 or older living in such person's household and
2. at the commissioner's discretion, anyone age 16 or older who is not living in the household of the person seeking licensure or renewal but who has regular unsupervised access to a child in the home.
§ 20 ─ COURT TRANSFERS
The act requires attorneys to continue representing their clients when a case is transferred from the 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 five 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 act requires the Public Defender Services Commission to pay the attorney.
As is required under current court rules, the act 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 act 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'S REMOVAL FROM PARENTAL CUSTODY
Under prior law, DCF had to use its best efforts to notify a child's grandparents within 15 days of the child's removal from the parents' home. The act 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, or 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's notice must include 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 enter into an agreement with DCF to receive foster care subsidies.
§ 13 ─ REPORT OF MISSING OR ABDUCTED CHILD
The act requires DCF to report any child committed to its custody 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 the National Center for Missing and Exploited Children.
§ 12 ─ CREDIT REPORTS
The act broadens the age range for children in DCF custody and in foster care on whose behalf the commissioner must annually request a free credit report, from age 16 and older to 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 within a specified timeframe.
§ 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 act 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) total number of child cases with documented sibling visitation, and (3) number of 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 in the requirements child foster care and adoption agencies must meet to receive certain federal funds. Among other things, the act requires these 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.
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