2016 -- H 7945

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LC005200

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     STATE OF RHODE ISLAND

IN GENERAL ASSEMBLY

JANUARY SESSION, A.D. 2016

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A N   A C T

RELATING TO DOMESTIC RELATIONS - GRANDPARENTS RIGHTS

     

     Introduced By: Representatives Costantino, and Canario

     Date Introduced: March 16, 2016

     Referred To: House Judiciary

     It is enacted by the General Assembly as follows:

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     SECTION 1. Sections 15-5-24.1 and 15-5-24.3 of the General Laws in Chapter 15-5

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entitled "Divorce and Separation" are hereby amended to read as follows:

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     15-5-24.1. Visitation rights of grandparents. -- The court may, upon miscellaneous

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petition of a grandparent whose child is deceased, grant reasonable visitation rights of the

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grandchild or grandchildren to the grandparent, whether or not any divorce or custody

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proceedings were ever commenced, and may issue all necessary orders to enforce visitation

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rights.

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     15-5-24.3. Visitation rights -- Grandparents and siblings. -- (a) (1) The family court,

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upon miscellaneous petition of a grandparent for visitation rights with the petitioner's grandchild,

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and upon notice to both parents of the child and notice to the child, and after a hearing on the

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petition, may grant reasonable rights of visitation of the grandchild to the petitioner.

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      (2) The court, in order to grant the petitioner reasonable rights of visitation, must find

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and set forth in writing the following findings of fact:

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      (i) That it is in the best interest of the grandchild as determined on a case-by-case basis

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that the petitioner is granted visitation rights with the grandchild;. In considering whether it is in

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the child’s best interest, the court shall consider all the relevant factors including, but not limited

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to:

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     (A) The nature of the relationship between the child and the grandparent seeking

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visitation;

 

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     (B) The amount of time the grandparent and child spent together;

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     (C) The potential detriments and benefits to the child from granting visitation;

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     (D) The granting of visitation will not materially harm the parent-child relationship;

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     (E) The preferences of the child when the court determines it is appropriate; and

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     (F) The motivation of the adults participating in the proceeding.

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      (ii) That the petitioner is a fit and proper person to have visitation rights with the

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grandchild;

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      (iii) That the petitioner has repeatedly attempted to visit his or her grandchild during the

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thirty (30) days immediately preceding the date the petition was filed and was not allowed to visit

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the grandchild during the thirty (30) day period as a direct result of the actions of either, or both,

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parents of the grandchild;

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      (iv) That there is no other way the petitioner is able to visit his or her grandchild without

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court intervention; and

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      (v) That the petitioner, by clear and convincing evidence, has successfully rebutted the

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presumption that the parent's decision to refuse the grandparent visitation with the grandchild was

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reasonable.

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      (b) (1) The family court, upon miscellaneous petition of, or on behalf of, a sibling(s) for

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visitation rights with a minor brother(s), and/or step-brother(s), and/or sister(s), and/or step-

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sister(s) of the sibling(s) and upon notice to both parents of the minor and notice to the minor, and

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after a hearing on the petition, may grant reasonable rights of visitation of the minor to a

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sibling(s).

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      (2) The court, in order to grant a sibling reasonable rights of visitation, must find and set

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forth in writing the following findings of fact:

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      (i) That it is in the best interest of the minor that a sibling(s) be granted visitation rights

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with the minor;

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      (ii) That the sibling(s) is a fit and proper person to have visitation rights with the minor;

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      (iii) That the sibling(s) was not allowed to visit the minor during the thirty (30) day

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period immediately preceding the date the petition was filed as a direct result of the actions of

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either, or both, parents or guardians of the minor;

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      (iv) That there is no other way the sibling(s) is able to visit the minor without court

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intervention; and

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      (v) That the sibling(s), by clear and convincing evidence, has successfully rebutted the

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presumption that the parental decision to refuse the visitation with the minor was reasonable.

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      (c) The court may issue all necessary orders relative to the visitation rights it has granted.

 

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Once a petition has been granted, notice of any petition seeking a change in custody or visitation

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shall be served on the petitioner.

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     SECTION 2. Section 15-7-7 of the General Laws in Chapter 15-7 entitled "Adoption of

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Children" is hereby amended to read as follows:

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     15-7-7. Termination of parental rights. -- (a) The court shall, upon a petition duly filed

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by a governmental child placement agency or licensed child placement agency after notice to the

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parent and a hearing on the petition, terminate any and all legal rights of the parent to the child,

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including the right to notice of any subsequent adoption proceedings involving the child, if the

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court finds as a fact by clear and convincing evidence that:

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      (1) The parent has willfully neglected to provide proper care and maintenance for the

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child for a period of at least one year where financially able to do so. In determining whether the

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parent has willfully neglected to provide proper care and maintenance for the child, the court may

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disregard contributions to support which are of an infrequent and insubstantial nature; or

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      (2) The parent is unfit by reason of conduct or conditions seriously detrimental to the

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child; such as, but not limited to, the following:

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      (i) Institutionalization of the parent, including imprisonment, for a duration as to render

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it improbable for the parent to care for the child for an extended period of time;

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      (ii) Conduct toward any child of a cruel or abusive nature;

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      (iii) The child has been placed in the legal custody or care of the department for children,

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youth, and families and the parent has a chronic substance abuse problem and the parent's

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prognosis indicates that the child will not be able to return to the custody of the parent within a

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reasonable period of time, considering the child's age and the need for a permanent home. The

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fact that a parent has been unable to provide care for a child for a period of twelve (12) months

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due to substance abuse shall constitute prima facie evidence of a chronic substance abuse

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problem;

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      (iv) The child has been placed with the department for children, youth, and families and

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the court has previously involuntarily terminated parental rights to another child of the parent and

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the parent continues to lack the ability or willingness to respond to services which would

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rehabilitate the parent and provided further that the court finds it is improbable that an additional

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period of services would result in reunification within a reasonable period of time considering the

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child's age and the need for a permanent home;

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      (v) The parent has subjected the child to aggravated circumstances, which circumstances

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shall be abandonment, torture, chronic abuse and sexual abuse;

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      (vi) The parent has committed murder or voluntary manslaughter on another of his or her

 

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children or has committed a felony assault resulting in serious bodily injury on that child or

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another of his or her children or has aided or abetted, attempted, conspired or solicited to commit

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such a murder or voluntary manslaughter; or

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      (vii) The parent has exhibited behavior or conduct that is seriously detrimental to the

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child, for a duration as to render it improbable for the parent to care for the child for an extended

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period of time;

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      (3) The child has been placed in the legal custody or care of the department for children,

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youth, and families for at least twelve (12) months, and the parents were offered or received

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services to correct the situation which led to the child being placed; provided, that there is not a

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substantial probability that the child will be able to return safely to the parents' care within a

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reasonable period of time considering the child's age and the need for a permanent home; or

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      (4) The parent has abandoned or deserted the child. A lack of communication or contact

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with the child for at least a six (6) month period shall constitute prima facie evidence of

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abandonment or desertion. In the event that parents of an infant have had no contact or

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communication with the infant for a period of six (6) months the department shall file a petition

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pursuant to this section and the family court shall conduct expedited hearings on the petition.

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      (b) (1) In the event that the petition is filed pursuant to subdivisions (a)(1), (a)(2)(i),

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(a)(2)(iii), or (a)(2)(vii) of this section, the court shall find as a fact that, prior to the granting of

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the petition, such parental conduct or conditions must have occurred or existed notwithstanding

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the reasonable efforts which shall be made by the agency prior to the filing of the petition to

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encourage and strengthen the parental relationship so that the child can safely return to the family.

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In the event that a petition is filed pursuant to subdivisions (a)(2)(ii), (a)(2)(iv), (a)(2)(v),

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(a)(2)(vi) or (a)(4) of this section, the department has no obligation to engage in reasonable

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efforts to preserve and reunify a family.

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      (2) Any duty or obligation on the part of a licensed or governmental child placing agency

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to make reasonable efforts to strengthen the parental relationship shall cease upon the filing of a

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petition under this section. This provision shall not be construed and is not intended to limit or

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affect in any way the parents' right to see or visit with the child during the pendency of a petition

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under this section.

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      (3) Upon the filing of a termination of parental rights petition, the agency has an

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affirmative duty to identify, recruit, process and approve a qualified family including qualified

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grandparents for adoption or other permanent living arrangement for the child.

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      (c) (1) In considering the termination of rights as pursuant to subsection (a), the court

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shall give primary consideration to the physical, psychological, mental, and intellectual needs of

 

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the child insofar as that consideration is not inconsistent with other provisions of this chapter.

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      (2) The consideration shall include the following: If a child has been placed in foster

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family care, voluntarily or involuntarily, the court shall determine whether the child has been

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integrated into the foster family to the extent that the child's familial identity is with the foster

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family and whether the foster family is able and willing to permanently integrate the child into the

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foster family; provided, that in considering integrating into a foster family, the court should

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consider:

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      (i) The length of time child has lived in a stable, satisfactory environment and the

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desirability of maintaining that environment and continuity for the child; and

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      (ii) The reasonable preference of the child, if the court determines that the child has

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sufficient capacity to express a reasonable preference.

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      (d) If the court finds that the parental rights of the parent should be terminated as

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specified in subsection (a), it shall by decree duly entered, appoint some suitable person to give or

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withhold consent in any subsequent adoption proceedings. In the case of petitions filed by

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licensed or governmental child placement agencies, the court shall appoint the agency to be the

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sole party to give or withhold consent to the adoption of the child and further vest the agency with

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all rights of guardianship over the child.

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      (e) Nothing in this section shall be construed to prohibit the introduction of expert

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testimony with respect to any illness, medical or psychological condition, trauma, incompetency,

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addiction to drugs, or alcoholism of any parent who has exhibited behavior or conduct that is

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seriously detrimental to a child, to assist the court in evaluating the reason for the conduct or its

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probable duration.

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      (f) The record of the testimony of the parties adduced in any proceeding terminating

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parental rights to a child shall be entitled to the confidentiality provided for in § 8-10-21 and

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more specifically shall not be admissible in any civil, criminal, or other proceeding in any court

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against a person named a defendant or respondent for any purpose, except in subsequent

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proceedings involving the same child or proceedings involving the same respondent.

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      (g) In the event any child, the parental rights to whom have been finally terminated, has

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not been placed by the agency in the home of a person or persons with the intention of adopting

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the child within thirty (30) days from the date of the final termination decree, the family court

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shall review the status of the child and the agency shall file a report that documents the steps the

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agency is taking to find an adoptive family or other permanent living arrangement for the child, to

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place the child with an adoptive family, a fit and willing relative, a legal guardian, or in another

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planned permanent living arrangement, and to finalize the adoption or legal guardianship. At a

 

LC005200 - Page 5 of 12

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minimum, this documentation shall include child specific recruitment efforts, such as the use of

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state, regional and national adoption exchanges, including electronic exchange system.

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     SECTION 3. Section 42-72-5 of the General Laws in Chapter 42-72 entitled "Department

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of Children, Youth, and Families" is hereby amended to read as follows:

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     42-72-5. Powers and scope of activities. -- (a) The department is the principal agency of

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the state to mobilize the human, physical, and financial resources available to plan, develop, and

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evaluate a comprehensive and integrated statewide program of services designed to ensure the

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opportunity for children to reach their full potential. The services include prevention, early

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intervention, outreach, placement, care and treatment, and after-care programs; provided,

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however, that the department notifies the state police and cooperates with local police

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departments when it receives and/or investigates a complaint of sexual assault on a minor and

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concludes that probable cause exists to support the allegations(s). The department also serves as

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an advocate for the needs of children.

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      (b) To accomplish the purposes and duties, as set forth in this chapter, the director is

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authorized and empowered:

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      (1) To establish those administrative and operational divisions of the department that the

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director determines is in the best interests of fulfilling the purposes and duties of this chapter;

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      (2) To assign different tasks to staff members that the director determines best suit the

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purposes of this chapter;

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      (3) To establish plans and facilities for emergency treatment, relocation, and physical

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custody of abused or neglected children that may include, but are not limited to,

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homemaker/educator child case aides, specialized foster family programs, day care facilities,

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crisis teams, emergency parents, group homes for teenage parents, family centers within existing

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community agencies, and counseling services;

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      (4) To establish, monitor, and evaluate protective services for children including, but not

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limited to, purchase of services from private agencies and establishment of a policy and

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procedure manual to standardize protective services;

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      (5) To plan and initiate primary and secondary treatment programs for abused and

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neglected children;

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      (6) To evaluate the services of the department and to conduct periodic comprehensive

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needs assessment;

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      (7) To license, approve, monitor, and evaluate all residential and non-residential child

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care institutions, group homes, foster homes, and programs;

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      (8) To recruit and coordinate community resources, public and private;

 

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      (9) To promulgate rules and regulations concerning the confidentiality, disclosure, and

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expungement of case records pertaining to matters under the jurisdiction of the department;

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      (10) To establish a minimum mandatory level of twenty (20) hours of training per year

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and provide ongoing staff development for all staff; provided, however, all social workers hired

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after June 15, 1991, within the department shall have a minimum of a bachelor's degree in social

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work or a closely related field, and must be appointed from a valid civil service list;

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      (11) To establish procedures for reporting suspected child abuse and neglect pursuant to

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chapter 11 of title 40;

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      (12) To promulgate all rules and regulations necessary for the execution of departmental

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powers pursuant to the Administrative Procedures Act, chapter 35 of title 42;

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      (13) To provide and act as a clearinghouse for information, data, and other materials

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relative to children;

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      (14) To initiate and carry out studies and analysis that will aid in solving local, regional,

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and statewide problems concerning children;

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      (15) To represent and act on behalf of the state in connection with federal grant programs

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applicable to programs for children in the functional areas described in this chapter;

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      (16) To seek, accept, and otherwise take advantage of all federal aid available to the

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department, and to assist other agencies of the state, local agencies, and community groups in

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taking advantage of all federal grants and subventions available for children;

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      (17) To review and coordinate those activities of agencies of the state, and of any

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political subdivision of the state, that affect the full and fair utilization of community resources

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for programs for children, and initiate programs that will help ensure utilization;

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      (18) To administer the pilot juvenile restitution program, including the overseeing and

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coordinating of all local community-based restitution programs, and the establishment of

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procedures for the processing of payments to children performing community service; and

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      (19) To adopt rules and regulations that:

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      (i) For the twelve-month (12) period beginning on October 1, 1983, and for each

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subsequent twelve-month (12) period, establish specific goals as to the maximum number of

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children who will remain in foster care for a period in excess of two (2) years; and

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      (ii) Are reasonably necessary to implement the child welfare services and foster care

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programs that emphasize the importance of kinship placement;

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      (20) May establish and conduct seminars for the purpose of educating children regarding

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sexual abuse;

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      (21) To establish fee schedules by regulations for the processing of requests from

 

LC005200 - Page 7 of 12

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adoption placement agencies for adoption studies, adoption study updates, and supervision related

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to interstate and international adoptions. The fee shall equal the actual cost of the service(s)

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rendered, but in no event shall the fee exceed two thousand dollars ($2,000);

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      (22) To be responsible for the education of all children who are placed, assigned, or

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otherwise accommodated for residence by the department in a state-operated or -supported

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community residence licensed by a Rhode Island state agency. In fulfilling this responsibility, the

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department is authorized to enroll and pay for the education of students in the public schools or,

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when necessary and appropriate, to itself provide education in accordance with the regulations of

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the board of regents for elementary and secondary education either directly or through contract;

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      (23) To develop multidisciplinary service plans, in conjunction with the department of

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health, at hospitals prior to the discharge of any drug-exposed babies. The plan requires the

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development of a plan using all health care professionals.

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      (24) To be responsible for the delivery of appropriate mental health services to seriously

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emotionally disturbed children and children with functional developmental disabilities.

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Appropriate mental health services may include hospitalization, placement in a residential

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treatment facility, or treatment in a community-based setting. The department is charged with the

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responsibility for developing the public policy and programs related to the needs of seriously

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emotionally disturbed children and children with functional developmental disabilities.

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      In fulfilling its responsibilities the department shall:

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      (i) Plan a diversified and comprehensive network of programs and services to meet the

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needs of seriously emotionally disturbed children and children with functional developmental

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disabilities;

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      (ii) Provide the overall management and supervision of the state program for seriously

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emotionally disturbed children and children with functional developmental disabilities;

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      (iii) Promote the development of programs for preventing and controlling emotional or

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behavioral disorders in children;

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      (iv) Coordinate the efforts of several state departments and agencies to meet the needs of

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seriously emotionally disturbed children and children with functional developmental disabilities

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and to work with private agencies serving those children;

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      (v) Promote the development of new resources for program implementation in providing

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services to seriously emotionally disturbed children and children with functional developmental

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disabilities.

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      The department shall adopt rules and regulations that are reasonably necessary to

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implement a program of mental health services for seriously emotionally disturbed children.

 

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      Each community, as defined in chapter 7 of title 16, shall contribute to the department, at

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least in accordance with rules and regulations to be adopted by the department, at least its average

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per-pupil cost for special education for the year in which placement commences, as its share of

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the cost of educational services furnished to a seriously emotionally disturbed child pursuant to

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this section in a residential treatment program which includes the delivery of educational services.

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      "Seriously emotionally disturbed child" means any person under the age of eighteen (18)

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years or any person under the age of twenty-one (21) years who began to receive services from

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the department prior to attaining eighteen (18) years of age and has continuously received those

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services thereafter who has been diagnosed as having an emotional, behavioral, or mental

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disorder under the current edition of the Diagnostic and Statistical Manual and that disability has

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been on-going for one year or more or has the potential of being ongoing for one year or more,

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and the child is in need of multi-agency intervention, and the child is in an out-of-home

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placement or is at risk of placement because of the disability.

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      A child with a "functional developmental disability" means any person under the age of

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eighteen (18) years or any person under the age of twenty-one (21) years who began to receive

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services from the department prior to attaining eighteen (18) years of age and has continuously

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received those services thereafter.

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      The term "functional developmental disability" includes autism spectrum disorders and

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means a severe, chronic disability of a person that:

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      (A) Is attributable to a mental or physical impairment or combination of mental physical

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impairments;

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      (B) Is manifested before the person attains age eighteen (18);

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      (C) Is likely to continue indefinitely;

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      (D) Results in age- appropriate substantial functional limitations in three (3) or more of

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the following areas of major life activity.

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      (I) Self-care;

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      (II) Receptive and expressive language;

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      (III) Learning;

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      (IV) Mobility;

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      (V) Self direction;

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      (VI) Capacity for independent living; and

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      (VII) Economic self-sufficiency; and

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      (E) Reflects the person's need for a combination and sequence of special,

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interdisciplinary, or generic care, treatment, or other services that are of life-long or extended

 

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duration and are individually planned and coordinated.

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      Funding for these clients shall include funds that are transferred to the department of

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human services as part of the managed health care program transfer. However, the expenditures

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relating to these clients shall not be part of the department of human services' caseload estimated

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for the semi-annual caseload estimating conference. The expenditures shall be accounted for

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separately.

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      (25) To provide access to services to any person under the age of eighteen (18) years or

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any person under the age of twenty-one (21) years who began to receive child welfare services

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from the department prior to attaining eighteen (18) years of age, has continuously received those

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services thereafter and elects to continue to receive such services after attaining the age of

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eighteen (18) years. The assembly has included funding in the FY 2008 department of children,

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youth and families budget in the amount of $10.5 million from all sources of funds and $6.0

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million from general revenues to provide a managed system to care for children serviced between

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18 to 21 years of age. The department shall manage this caseload to this level of funding.

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      (26) To initiate transition planning in cooperation with the department of behavioral

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healthcare, developmental disabilities and hospitals and local school departments for any child

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who receives services through the department of children, youth and families, is seriously

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emotionally disturbed or developmentally delayed pursuant to § 42-72-5(24)(v), and whose care

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may or shall be administered by the department of behavioral healthcare, developmental

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disabilities and hospitals after the age of twenty-one (21) years, the transition planning shall

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commence at least twelve (12) months prior to the person's twenty-first birthday and shall result

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in a collaborative plan submitted to the family court by both the department of behavioral

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healthcare, developmental disabilities and hospitals and the department of children, youth and

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families and shall require the approval of the court prior to the dismissal of the abuse, neglect,

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dependency, or miscellaneous petition before the child's twenty-first birthday.

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      (27) To develop and maintain, in collaboration with other state and private agencies, a

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comprehensive continuum of care in this state for children in the care and custody of the

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department or at risk of being in state care. This continuum of care should be family centered and

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community based with the focus of maintaining children safely within their families or, when a

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child cannot live at home, within as close proximity to home as possible based on the needs of the

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child and resource availability. The continuum should include community-based prevention,

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family support, and crisis intervention services, as well as a full array of foster care and

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residential services, including residential services designed to meet the needs of children who are

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seriously emotionally disturbed, children who have a functional developmental disability, and

 

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youth who have juvenile justice issues. The director shall make reasonable efforts to provide a

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comprehensive continuum of care for children in the care and custody of the department of

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children, youth and families, taking into account the availability of public and private resources

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and financial appropriations and the director shall submit an annual report to the general assembly

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as to the status of his or her efforts in accordance with the provisions of subsection 42-72-

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4(b)(13).

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      (28) To administer funds under the John H. Chafee Foster Care Independence and

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Educational And Training Voucher (ETV) Programs of Title IV-E of the Social Security Act, and

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the department of children, youth and families higher education opportunity grant program as

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outlined in chapter 72.8 of title 42, in accordance with rules and regulations as promulgated by

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the director of the department.

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      (c) In order to assist in the discharge of his or her duties, the director may request from

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any agency of the state information pertinent to the affairs and problems of children.

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      (d) [Deleted by P.L. 2008, ch. 9, art. 16, § 2.]

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      (e) [Deleted by P.L. 2008, ch. 9, art. 16, § 2.]

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     SECTION 4. This act shall take effect upon passage.

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EXPLANATION

BY THE LEGISLATIVE COUNCIL

OF

A N   A C T

RELATING TO DOMESTIC RELATIONS - GRANDPARENTS RIGHTS

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     This act would specify the relevant factors which should be considered by the family

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court when granting grandparents visitation rights.

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     This act would take effect upon passage.

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