2016 -- S 2221

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LC003787

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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: Senators DiPalma, Archambault, Lombardi, and McCaffrey

     Date Introduced: January 27, 2016

     Referred To: Senate Judiciary

     It is enacted by the General Assembly as follows:

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

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

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

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

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

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

rights.

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

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

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

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

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

and set forth in writing the following findings of fact:

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

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

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

to:

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

visitation;

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

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

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

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

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

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

grandchild;

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

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

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

parents of the grandchild;

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

court intervention; and

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

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

reasonable.

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

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

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

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

sibling(s).

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

forth in writing the following findings of fact:

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

with the minor;

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

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

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

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

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

intervention; and

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

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

      (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

shall be served on the petitioner.

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

Children" is hereby amended to read as follows:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

problem;

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

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

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

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

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

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

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

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

      (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

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

such a murder or voluntary manslaughter; or

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

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

period of time;

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

efforts to preserve and reunify a family.

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

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

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

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

under this section.

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

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

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

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

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.

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

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

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

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

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

consider:

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

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

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

sufficient capacity to express a reasonable preference.

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

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

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

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

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

all rights of guardianship over the child.

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

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

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

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

probable duration.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

an advocate for the needs of children.

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

authorized and empowered:

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

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

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

purposes of this chapter;

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

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

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

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

community agencies, and counseling services;

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

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

procedure manual to standardize protective services;

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

neglected children;

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

needs assessment;

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

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

      (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

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

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

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

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

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

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

chapter 11 of title 40;

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

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

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

relative to children;

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

and statewide problems concerning children;

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

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

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

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

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

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

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

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

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

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

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

      (19) To adopt rules and regulations that:

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

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

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

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

programs that emphasize the importance of kinship placement;

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

sexual abuse;

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

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

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

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

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

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

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

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

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

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

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

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

development of a plan using all health care professionals.

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

emotionally disturbed children and children with functional developmental disabilities.

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

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

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

emotionally disturbed children and children with functional developmental disabilities.

      In fulfilling its responsibilities the department shall:

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

needs of seriously emotionally disturbed children and children with functional developmental

disabilities;

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

emotionally disturbed children and children with functional developmental disabilities;

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

behavioral disorders in children;

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

seriously emotionally disturbed children and children with functional developmental disabilities

and to work with private agencies serving those children;

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

services to seriously emotionally disturbed children and children with functional developmental

disabilities.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

received those services thereafter.

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

means a severe, chronic disability of a person that:

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

impairments;

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

      (C) Is likely to continue indefinitely;

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

the following areas of major life activity.

      (I) Self-care;

      (II) Receptive and expressive language;

      (III) Learning;

      (IV) Mobility;

      (V) Self direction;

      (VI) Capacity for independent living; and

      (VII) Economic self-sufficiency; and

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

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.

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

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

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

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

separately.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

4(b)(13).

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

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

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

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

the director of the department.

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

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

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

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

     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

court when granting grandparents visitation rights.

     This act would take effect upon passage.

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