A N     A C T

RELATING TO PROCEEDINGS IN FAMILY COURT

Introduced By: Senators Izzo, Algiere, Roberts and Lenihan

Date Introduced : February 4, 1998

It is enacted by the General Assembly as follows:

SECTION 1. Section 14-1-30.2 of the General Laws in Chapter 14-1 entitled "Proceedings in Family Court" is hereby amended to read as follows:

14-1-30.2. Foster parents -- Notice of court proceedings. -- {DEL After a child is found to be either dependent, neglected, or abused and placed in the care, custody, and control of the department of children, youth, and families, the foster parents of the child shall be given notice by the department of any subsequent family court hearing on the dependency, neglect or abuse petition. DEL} {ADD The department of children, youth and families shall provide notice to foster parents, pre-adoptive parents or relatives providing care for a child of any review or hearing to be held with respect to a child in the care of the department. ADD} The foster parents {ADD , pre-adoptive parents or relatives providing care for a child, ADD} may attend the hearing and file with the court a report, either written or oral, for the purpose of conveying to the court information relating to the best interest of the child. Nothing herein shall be construed to give the foster parents {ADD , pre-adoptive parents or relatives providing care for a child, ADD} legal standing as a party to the petition.

SECTION 2. Sections 15-7-4 and 15-7-7 of the General Laws in Chapter 15-7 entitled "Adoption of Children" are hereby amended to read as follows:

15-7-4. Petition to adopt -- Court having jurisdiction. -- (a) Any person residing in Rhode Island may petition the family court for leave to adopt as his or her child any person younger than him or herself and under eighteen (18) years of age, and, if desired, for a change of the child's name, but the prayer of the petition by a person having a husband or wife shall not be granted unless the husband or wife joins therein; provided, however, that upon good cause shown and a showing that the granting of the petition for adoption would be in the best interests of the minor child, the prayer of the petition may be granted although the spouse of the petitioner is not a party to the petition.

(b) The family court shall retain jurisdiction over any petition properly filed under subsection (a) when and if the petitioners become nonresidents after the petition is filed, but during the pendency of the action.

(c) Any person not a resident of Rhode Island may petition the family court for leave to adopt as his or her child any person younger than him or herself and under eighteen (18) years of age, and, if desired, for a change of the child's name, if the child is at the time of the filing of the petition in the care and custody of a governmental child placing agency, or licensed Rhode Island child placing agency, but the prayer of the petition by a person having a husband or wife shall not be granted unless the husband or wife joins therein.

(d) Petitions for adoptions of persons eighteen (18) years or older shall be heard by the probate court of the city or town in which the petitioners live.

{ADD (e) The department shall grant an opportunity for a fair hearing, pursuant to 42 U.S.C. section 671(a)(12) and section 42-35-1, et. seq., of the general laws to an individual residing outside of Rhode Island who alleges that the department denied or delayed placement of a child for adoption. ADD}

15-7-7. Termination of parental rights. -- (a) The court shall, upon a petition duly filed {ADD by a governmental child placement agency or licensed child placement agency ADD} after notice to the parent and hearing thereon, 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 {DEL , by clear and convincing evidence, DEL} 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) Emotional illness, mental illness, mental deficiency, or institutionalization of the parent, including imprisonment, of such 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 {ADD involuntarily ADD} terminated parental rights to another child {ADD of the parent ADD} {DEL who is a member of the same family DEL} 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.

{ADD (v) The parent has subjected the child to aggravated circumstances, which circumstances shall be abandonment, torture, chronic abuse and sexual abuse. ADD}

{ADD (vi) The parent has committed murder or voluntary manslaughter on another of his/her children or has committed a felony assault resulting in serious bodily injury on that child or another of his/her children or has aided or abetted, attempted, conspired or solicited to commit such a murder or such a voluntary manslaughter. ADD}

(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, and provided further that there is not a substantial probability that the child will be able to return {ADD safely ADD} to the parents care within a reasonable period of time considering the child's age and the need for a permanent home.

(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.

(b) (1) In the event that the petition is filed pursuant to subsection (a)(1), (a)(2)(i), or (a)(2)(iii), 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 {DEL ; DEL} {ADD so that the child can safely return to the family. In the event that a petition is filed pursuant to subsection (a)(2)(ii), (a)(2)(iv), (a)(2)(v), (a)(2)(vi) or (a)(4), the department has no obligation to engage in reasonable efforts to preserve and reunify a family. ADD}

(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.

{ADD (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 for adoption or other permanent living arrangement for the child. ADD}

(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 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 further, 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; (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) Notwithstanding the provisions of section 9-17-24, no privilege of confidentiality may be involved with respect to any illness, trauma, incompetency, addiction to drugs, or alcoholism of any parent.

(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 section 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 whatsoever, 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 {DEL one hundred eighty (180) DEL} {ADD thirty (30) ADD} 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 {DEL explaining the permanent plan which it has for the child. In order to remove the proceedings from the court calendar for review, the agency shall file a certificate with this court that a placement has in fact occurred. The identity of the person or persons with whom the child has been placed need not be given. DEL} {ADD 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 minimum, such documentation shall include child specific recruitment efforts, such as the use of state, regional and national adoption exchanges including electronic exchange system. ADD} {DEL DEL}

(h) (1) There is hereby established a pilot program by which three (3) duly licensed child placement agencies, caring for children committed to the department for children, youth, and families, shall be allowed to petition for the termination of parental rights; provided, however, that each petition shall be approved by the director of the department on a case by case basis and the prosecution of the petition shall be conducted by the legal counsel of the department. Approval of a petition for termination submitted by the duly licensed child placement agencies by the director of the department for children, youth, and families shall be predicated on a finding by the director: that the child placement agency staff have appropriate and qualified educational backgrounds, that the child placement agency staffs have educational backgrounds similar to those of departmental personnel, that the child placement agency staff has demonstrated child welfare experience comparable to that of departmental staff, and that the agency has been specifically authorized by the director to perform this function.

(2) The cost of training child placement agency staff, if required to meet the standards set by the director, shall be borne by the child placement agency. The director shall submit a report on the operation of this pilot project to the permanent legislative commission on the department for children, youth, and families no later than January 1, 1994, and the commission shall make recommendations to the general assembly regarding the continuation or termination of this pilot program.

SECTION 3. Sections 40-11-12, 40-11-12.1, and 40-11-12.2 of the General Laws in Chapter 40-11 entitled "Abused and Neglected Children" are hereby amended to read as follows:

40-11-12. Award of custody. -- (a) If the court shall find that a child is abused or neglected within the meaning of this chapter, the court shall by decree duly enter process as follows:

(b) Place the child under the supervision of the department in his or her own home {ADD if the court makes a determination that the child will be safely maintained in the home ADD} or award the care, custody, and control of the child to the department upon such terms as the court shall determine. The court may place the custody of the child in the department until such time as it finds that the child may be returned to the parents or other person previously having custody or care of the child under circumstances consistent with the child's safety. The court may require the parent or person previously having custody to undertake a program of counseling, including psychiatric evaluation and/or treatment as a prerequisite to the return of the child to his or her custody. When a child has been placed in the care, custody and control of the department pursuant to the provisions of this chapter or of chapter 1 of title 14 the court shall have the power to appoint a guardian of the person of the child. No petition for guardianship shall be granted unless it contains the written consent of the parent or parents previously having custody of the child and of the department of children, youth and families. The entry of a decree of guardianship pursuant to this section shall terminate the award of custody to the department and the involvement of the department with the child and the child's parents. The court may revoke a guardianship awarded pursuant to this section if the court finds after hearing on a motion for revocation that continuation of said guardianship is not in the best interests of the child. Notice of any hearing on such motion shall be provided by the moving party to the department of children, youth and families, the court appointed special advocate, the parent or guardian and any and all other interested parties.

40-11-12.1. Family court review. -- (a) Within a period of twelve (12) months after a child is placed in the care of the department of children, youth and families pursuant to the provisions of chapter 11 of this title or section 14-1-5, or sections 42-72-14 and 14-1-11.1 and the child has resided in foster care or pursuant to sections 42-72-14 and 14-1-11.1 has resided in an out-of-home program which provides services for children with disabilities, including but not limited to residential treatment programs, residential counseling centers, and therapeutic foster care programs, the department of children, youth and families shall file a motion in the family court requesting a {DEL dispositional DEL} {ADD permanency ADD} hearing on the status of the child.

(b) Notice of the hearing along with a copy of the motion shall be served, in accordance with the rules of procedure of the family court, by the department upon all parties in interest.

(c) At the {DEL dispositional DEL} {ADD permanency ADD} hearing all parties shall be allowed to be heard and the foster parents {ADD , any pre-adoptive parent or relative providing care for the child shall be provided with notice of, ADD} may attend and present a report, oral or written, containing recommendations as to the best interest of the child {DEL . DEL} {ADD except that this subparagraph shall not be construed to require that any foster parent, pre-adoptive parent, or relative providing care for the child be made a party to such a review or hearing solely on the basis of such notice and opportunity to be heard. ADD}

(d) In determining its order of {DEL disposition DEL} {ADD permanency ADD}, the court shall consider, among other things:

(1) The appropriateness of the department's plan for service to the child and parent;

(2) What services have been offered to strengthen and reunite the family;

(3) Where return home of the child is not likely, what efforts have been or should be made to evaluate or plan for other modes of care; {DEL and DEL}

(4) Any further efforts which have been or will be made to promote the best interests of the child {DEL . DEL} {ADD ; and ADD}

{ADD (5) The child's health and safety shall be the paramount concern. ADD}

(e) At the conclusion of the hearing, the court shall, in accordance with the best interests of the child, enter an order of {DEL disposition DEL} {ADD permanency ADD}:

(1) In the case of a child whose care and custody have been transferred to the department of children, youth and families, direct that the child be returned to {ADD and safety maintained in the home of ADD} the parent, guardian, or relative; or

(2) Direct that the child's placement in foster care continue on a long-term basis or that the child be placed in an independent living facility; or

(3) Direct that foster care of the child and reunification efforts be continued if the department of children, youth and families, after hearing, has demonstrated to the court that continuation of the child in foster care and continued reunification efforts for a determinate period is in the child's best interests. If the court does not return the child to the care and custody of the parent, guardian or relative and the court does not direct that foster care of the child and reunification efforts be continued, the department shall institute a proceeding within thirty (30) days of the {DEL dispositional DEL} {ADD permanency ADD} hearing pursuant to chapter 7 of title 15 to legally free the child for adoption; or

(4) In the case of a child with an emotional, behavioral, or mental disorder or developmental or physical disability who has, pursuant solely to sections 42-72-14 and 14-1-11.1, been placed in an out-of-home program which provides services for children with disabilities, including but not limited to residential treatment programs, residential counseling centers, and therapeutic foster care programs, shall determine whether the continuation of such placement is in the best interest of the child;

(5) For a child {DEL ten (10) years old or younger DEL} who has been {ADD placed ADD} in {DEL the DEL} {ADD foster ADD} care {DEL of DEL} {ADD by ADD} the department for a period of twelve (12) consecutive months, the court shall order that the department institute proceedings for adoption of the child except in the event that the court determines it is not in the best interest of the child due to one or more of the following factors:

(i) There is a substantial probability that the child shall be returned to the parent within the next {DEL six (6) DEL} {ADD three (3) ADD} months; or

(ii) The parent has maintained regular and consistent visitation and contact with the child {ADD , ADD} {DEL and DEL} there is a relationship that is beneficial to the child {DEL ; DEL} {ADD , and there is a substantial probability that the child shall be returned to the parent within the next three (3) months; ADD} or

(iii) The child is in the care of a relative and the relative is not willing to adopt the child but is willing and capable of providing the child with a stable and permanent environment; or

(iv) Any other significant factor which the court finds would not be in the best interest of the child.

{ADD (v) The department has documented in the case plan, which shall be presented to the court, a compelling reason for determining that filing a petition for termination of parental rights and a petition for adoption would not be in the best interests of the child; or ADD}

{ADD (vi) The department has not provided to the family of the child, consistent with the time period in the case plan, such services as the department deems necessary for the safe return of the child to the child's home, if reasonable efforts are required to be made. ADD}

{ADD (6) In the case of a child who has been in foster care under the temporary custody or custody of the department for fifteen (15) of the most recent twenty-two (22) months, or if the court has determined a child to be abandoned or has made a determination that the parent has engaged in conduct toward any child of a cruel and abusive nature or that the parent has committed murder of another child of the parent, committed voluntary manslaughter of another child of the parent, aided or abetted, attempted, conspired, or solicited to commit such a murder or such a voluntary manslaughter, or committed a felony assault that has resulted in serious bodily injury to the child or to another child of the parent, the department shall file a petition to terminate the parental rights of the child's parents, and, concurrently, to identify, recruit, process, and approve a qualified family for an adoption, unless: ADD}

{ADD (i) the child is being cared for by a relative; ADD}

{ADD (ii) the department has documented in the case plan (which shall be available for court review) a compelling reason for determining that filing such a petition would not be in the best interests of the child; or ADD}

{ADD (iii) the department has not provided to the family of the child, consistent with the time period in the case plan, such services as the department deems necessary for the safe return of the child to the child's home, if reasonable efforts are required to be made with respect to the child; or ADD}

(f) The court shall possess continuing jurisdiction in proceedings under this section and, in the case of children who are continued in foster care or, pursuant to sections 42-72-14 and 14-1-11.1 continued in an out-of-home program which provides services for children with disabilities, including but not limited to residential treatment programs, residential counseling centers, and therapeutic foster care programs, shall conduct a further {DEL dispositional DEL} {ADD permanency ADD} hearing whenever it deems necessary or desirable, but at least every twelve (12) months. {ADD Nothing herein shall be construed to preclude the department from filing a termination of parental rights petition pursuant to the provisions of chapter 7 of title 15 of the general laws of Rhode Island. ADD}

{ADD (g) Each child continued in foster care shall be afforded a permanency hearing not less frequently than every twelve (12) months during the continuation of foster care, which hearing shall determine the permanency plan for the child that includes whether, and if applicable when, the child will be returned to the parent or placed for adoption with the state filing a petition for termination of parental rights, or referred for legal guardianship, or that the child be placed in another planned permanent living arrangement in cases where the department has documented to the court a compelling reason for determining that it would not be in the best interests of the child to return home, or be referred for termination of parental rights, or be placed for adoption, or be placed with a fit and willing relative, or with a legal guardian. ADD}

{ADD (h) For the purpose of this chapter, entering foster care is defined as placement of a child in the temporary custody or custody of the department in a foster family home or in a private or public child care facility which is licensed by the state. ADD}

40-11-12.2. {DEL Reunification plan -- Case plan -- Order of court. -- DEL} {ADD Permanency plan -- Order of court. -- ADD} {ADD (a) ADD} At every regularly scheduled family court review and/or {DEL dispositional DEL} {ADD permanency ADD} hearing of any child found to be abused or neglected under section 40-11-12 or dependent under section 14-1-34, the department shall present a written {DEL reunification and/or case DEL} {ADD reunification and/or permanency ADD} plan to the court for approval. {ADD The plan shall include whether, and if applicable when, the child will be returned to the parent, placed for adoption, referred for legal guardianship, placed with a fit and willing relative, or (in cases whether the department can show the court compelling reasons why the foregoing placements or referrals would not be in the child's best interests) placed in another planned permanent living arrangement. ADD} The plan shall clearly set forth the goals and obligations of the department, parent(s), child and all other parties. The plan may be approved and/or modified by a justice of the family court and incorporated into the orders of the court, at the discretion of the court.

{ADD (b) In determining reasonable efforts to be made with respect to a child, and in making such reasonable efforts, the child's health and safety shall be the paramount concern; ADD}

{ADD (c) Except as provided in subparagraph (e), reasonable efforts shall be made to preserve and reunify families; ADD}

{ADD (i) prior to the placement of a child in foster care, to prevent or eliminate the need for removing the child from the child's home which efforts shall include placement of the child with a blood relative or other family member if such placement is in the best interest of the child; and ADD}

{ADD (ii) to make it possible for a child to safely return to the child's home; ADD}

{ADD (d) If continuation of reasonable efforts of the type described in subparagraph (c) is determined to be inconsistent with the permanency plan for the child, reasonable efforts shall be made to place the child in a timely manner in accordance with the permanency plan, and to complete whatever steps are necessary to finalize the permanent placement of the child; ADD}

{ADD (e) Reasonable efforts of the type described in subparagraph (c) shall not be required to be made with respect to a parent of a child if the court has determined that: ADD}

{ADD (i) the parent has subjected any child to conduct of a cruel or abusive nature; ADD}

{ADD (ii) The parent has: ADD}

{ADD (I) committed murder of another child of the parent; or ADD}

{ADD (II) subjected the child to aggravating circumstances, which circumstances shall be abandonment, torture, chronic abuse and sexual abuse. ADD}

{ADD (III) committed voluntary manslaughter of another child of the parent; or ADD}

{ADD (IV) aided or abetted, attempted, conspired, or solicited to commit such a murder or such a voluntary manslaughter; or ADD}

{ADD (V) committed a felony assault that results in serious bodily injury to the child or another child of the parent; or ADD}

{ADD (iii) the parental rights of the parent to a sibling have been terminated involuntarily; ADD}

{ADD (f) If reasonable efforts of the type described in subparagraph (c) are not made with respect to a child as a result of a determination made by the court in accordance with subparagraph (e); ADD}

{ADD (i) a permanency hearing shall be held for the child within thirty (30) days after the determination; and ADD}

{ADD (ii) reasonable efforts shall be made to place the child in a timely manner in accordance with the permanency plan, and to complete whatever steps are necessary to finalize the permanent placement of the child; and ADD}

{ADD (g) Reasonable efforts to place a child for adoption or with a legal guardian may be made concurrently with reasonable efforts of the type described in subparagraph (c). ADD}

{ADD (h) In the case of a child with respect to whom the permanency plan is adoption or placement in another permanent home, the permanency plan shall include documentation of the steps the department 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 minimum, such documentation shall include child specific recruitment efforts such as the use of state, regional, and national adoption exchanges including electronic exchange systems. The department shall not act, or fail to act, to deny or delay placement of a child for adoption when an approved family is available outside of Rhode Island and no other prospective pre-adoptive home is available. ADD}

SECTION 4. Sections 42-72-10 and 42-72-11 of the General Laws in Chapter 42-72 entitled "Department of Children, Youth, and Families" are hereby amended to read as follows:

42-72-10. Development of service plan. -- {ADD (a) ADD} A written service plan for care and treatment shall be prepared for each child under the department's supervision. The service plan shall include but not be limited to a statement of the needs of each child together with the proposed treatment and placement. The service plan for treatment and placement of each child shall be reviewed at least every six (6) months to evaluate whether the service plan is in the best interest of the child and is also cost effective.

{ADD (b) The child's health and safety shall be the paramount concern in making reasonable efforts toward reunification with parent(s). ADD}

{ADD (c) If the plan is one for adoption or placement in another permanent home, the plan shall include documentation of the steps the department is taking to find an adoptive family or other permanent placement, to place the child in such a family or placement, and to finalize such permanency. The plan must specify the type of recruitment efforts, such as the use of state, regional and national adoption exchanges, including electronic adoption exchanges. ADD}

42-72-11. Protective services. -- In furtherance of the purposes and duties imposed by this chapter, and in order to implement the procedures of the Rhode Island Child Abuse and Neglect Act contained in chapter 11 of title 40, the department shall provide protective services for children. The department shall:

(1) {DEL Mobilize DEL} {ADD In cases in which reasonable efforts are required pursuant to section 15-7-7 or section 40-11-12.2, mobilize ADD} the services available in cases of child abuse and neglect which may assist the child and the child's family including, but not limited to, day care, homemaking services, medical attention, social, psychological, and psychiatric evaluation and treatment, emergency shelters, transportation, individual or group counseling, and information and referral;

(2) Establish procedures for administering purchase of service agreements from community and private agencies;

(3) Develop a policy and procedure manual to be available to all staff workers; and

(4) Require that the service plan developed for every child under protective care be geared to finding a permanent plan for the child within a time frame of one year, and require a review and evaluation program for all children for whom a plan has been developed.

SECTION 5. This act shall take effect upon passage.