Title 40
Human Services

Chapter 11
Abused and Neglected Children

§ 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 this chapter or § 14-1-5, or §§ 42-72-14 and 14-1-11.1, and the child has resided in foster care or, pursuant to §§ 42-72-14 and 14-1-11.1, has resided in an out-of-home program that 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 permanency 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 permanency hearing, all parties shall be allowed to be heard and the foster parents, any pre-adoptive parent, or relative providing care for the child shall be provided with notice of, may attend, and present a report, oral or written, containing recommendations as to the best interest of the child, except that this subsection 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 the review or hearing solely on the basis of such notice and opportunity to be heard.

(d) In determining its order of permanency, 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;

(4) Any further efforts that have been, or will be made, to promote the best interests of the child; and

(5) The child’s health and safety shall be the paramount concern.

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

(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, and safety maintained in, the home of 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 a 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 permanency 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 §§ 42-72-14 and 14-1-11.1, been placed in an out-of-home program that 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; or

(5) For a child who has been placed in foster care by 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 three (3) months; or

(ii) The parent has maintained regular and consistent visitation and contact with the child, there is a relationship that is beneficial to the child, and there is a substantial probability that the child shall be returned to the parent within the next three (3) months; 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 that the court finds would not be in the best interest of the child;

(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

(vi) The department has not provided to the family of the child, consistent with the time period in the case plan, the 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;

(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:

(i) The child is being cared for by a relative;

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

(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.

(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 §§ 42-72-14 and 14-1-11.1, continued in an out-of-home program that 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 permanency hearing whenever it deems necessary or desirable, but at least every twelve (12) months. 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.

(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.

(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 childcare facility licensed by the state.