REPORT TITLE:
Child Protection


DESCRIPTION:
Protects children and youth from abuse and neglect. (SB1052 HD1)

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
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THE SENATE                              S.B. NO.           S.D. 1
TWENTIETH LEGISLATURE, 1999                                H.D. 1
STATE OF HAWAII                                            
                                                             
________________________________________________________________
________________________________________________________________


                   A  BILL  FOR  AN  ACT

RELATING TO CHILD PROTECTIVE SERVICES.



BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:

 1      SECTION 1.  Section 346-17, Hawaii Revised Statutes, is
 
 2 amended to read as follows:
 
 3      "§346-17  Child placing organizations, child caring
 
 4 institutions, and foster boarding homes; authority over and
 
 5 investigation of.  (a)  No child placing organization shall
 
 6 engage in the investigation, placement, and supervision of minor
 
 7 children in foster care unless it meets [with] the standards of
 
 8 conditions, management, and competence set by the department [of
 
 9 human services].
 
10      (b)  No child caring institution shall [be allowed to]
 
11 receive minor children for care and maintenance unless it meets
 
12 with the standards of conditions, management, and competence to
 
13 care for and train children set by the department.
 
14      (c)  No foster boarding home shall receive for care and
 
15 maintenance any child unless [it meets]:
 
16      (1)  It meets with the standards of conditions, management,
 
17           and competence set by the department[.]; and
 
18      (2)  The foster boarding home applicant successfully
 
19           completes foster parent training.
 

 
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 1      Persons providing specially licensed or relative foster home
 
 2 care shall successfully complete foster parent training within
 
 3 one year of the child's initial placement.
 
 4      (d)  The department shall [make] adopt rules pursuant to
 
 5 chapter 91 relating to:
 
 6      (1)  [standards] Standards for the organization and
 
 7           administration of child placing organizations[,];
 
 8      (2)  [standards] Standards of conditions, management, and
 
 9           competence for the care and training of minor children
 
10           in child caring institutions[,] and foster boarding
 
11           homes; and
 
12      (3)  [standards] Standards of conditions and competence of
 
13           operation of foster boarding homes as may be necessary
 
14           to protect the welfare of children.
 
15      (e)  All rules of the department shall have the force and
 
16 effect of law, and any violation thereof or of this section shall
 
17 be punishable by a fine of not more than $200.
 
18      (f)  As a condition for a certificate of approval, any
 
19 organization, institution, or home shall meet the standards to
 
20 assure the reputable and responsible character of its operators
 
21 and employees by complying with the requirements of a criminal
 
22 history record check under section 346-19.6.
 

 
 
 
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 1      (g)  Upon approval of any such organization, institution, or
 
 2 home, the department or its authorized agents shall issue a
 
 3 certificate of approval [which] that shall continue in force for
 
 4 one year or for two years if the organization, institution, or
 
 5 home meets the criteria established by the department, unless
 
 6 sooner revoked for cause.  The certificate shall be renewed by
 
 7 the department or its authorized agents, after annual or biennial
 
 8 investigation, if the investigation discloses that the
 
 9 organization, institution, or home continues to meet with the
 
10 standards set by the department.  The certificate of approval
 
11 shall be a permit to operate the child placing organization,
 
12 child caring institution, or foster boarding home, and no person
 
13 or organization shall operate or maintain such organization,
 
14 institution, or home without the certificate.
 
15      (h)  Any child placing organization, child caring
 
16 institution, or foster boarding home shall be subject to
 
17 investigation at any time and in such manner, place, and form as
 
18 may be prescribed by the department or its authorized agents."
 
19      SECTION 2.  Section 350-2, Hawaii Revised Statutes, is
 
20 amended to read as follows:
 
21      "§350-2 Action on reporting.(a)  Upon receiving a report
 
22 concerning child abuse or neglect, the department shall proceed
 
23 pursuant to chapter 587 and the department's rules.
 

 
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 1      (b)  The department shall inform the appropriate police
 
 2 department or office of the prosecuting attorney of all reports
 
 3 received by the department concerning a case of child abuse or
 
 4 neglect, including reports received under section 350-1.1;
 
 5 provided that the name of a reporter, who requested that the
 
 6 reporter's name be confidential, shall be released to a police
 
 7 department or an office of the prosecuting attorney pursuant only
 
 8 to court order.
 
 9      [(b)] (c)  The department shall inform the appropriate
 
10 police department or office of the prosecuting attorney of the
 
11 relevant information concerning a case of child abuse or neglect
 
12 when [such] the information is required by the police department
 
13 or the office of the prosecuting attorney for the investigation
 
14 or prosecution of that case; provided that the name of a
 
15 reporter, who requested that the reporter's name be confidential,
 
16 shall only be released to a police department or an office of the
 
17 prosecuting attorney pursuant to court order.
 
18      [(c)] (d)  The department shall maintain a central registry
 
19 of reported child abuse or neglect cases and shall promptly
 
20 expunge the reports in cases if:
 
21      (1)  The department has found the reports to be
 
22           unsubstantiated; or
 

 
 
 
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 1      (2)  The petition arising from the report has been dismissed
 
 2           by order of the family court after an adjudicatory
 
 3           hearing on the merits pursuant to chapter 587.
 
 4      For purposes of expungement under paragraph (1), a report is
 
 5 unsubstantiated only when the department has found the
 
 6 allegations to be frivolous or to have been made in bad faith.
 
 7      However, the department may retain records and information
 
 8 of alleged child abuse and neglect with respect to the child that
 
 9 is the subject of the alleged abuse.
 
10      The department shall adopt rules as may be necessary in
 
11 carrying out this section."
 
12      SECTION 3.  Section 587-22, Hawaii Revised Statutes, is
 
13 amended by amending subsection (a) to read as follows:
 
14      "(a)  A police officer shall assume protective custody of a
 
15 child without a court order and without the consent of the
 
16 child's family, regardless of whether the child's family is
 
17 absent, if in the discretion of [such] the police officer, the
 
18 child is in [such] a circumstance or condition that [the]:
 
19      (1)  The child's continuing in the custody or care of the
 
20           child's family presents a situation of imminent harm to
 
21           the child[.]; or
 

 
 
 
 
 
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 1      (2)  There is evidence that a parent or guardian of a child
 
 2           has subjected a child to harm or threatened harm and
 
 3           that a parent or guardian is likely to flee the
 
 4           jurisdiction of the court with the child."
 
 5      SECTION 4.  Section 587-34, Hawaii Revised Statutes, is
 
 6 amended as follows:
 
 7      "§587-34  Guardian ad litem; court appointed counsel.(a)
 
 8 The court shall appoint a guardian ad litem for the child to
 
 9 serve throughout the pendency of the child protective proceedings
 
10 under this chapter.  The court may appoint additional counsel for
 
11 the child pursuant to subsection (c) or independent counsel for
 
12 any other party if [the]: 
 
13      (1)  The party is an indigent[, counsel];
 
14      (2)  Counsel is necessary to protect the party's interests
 
15           adequately[, and the]; and
 
16      (3)  The interests are not represented adequately by another
 
17           party who is represented by counsel.
 
18      (b)  A guardian ad litem shall:
 
19      (1)  Be allowed access to the child by the caretakers of the
 
20           child whether caretakers are individuals, authorized
 
21           agencies, or health care providers;
 

 
 
 
 
 
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 1      (2)  Have the authority to inspect and receive copies of any
 
 2           records, notes, and electronic recordings concerning
 
 3           the child that are relevant to the proceedings filed
 
 4           under this chapter without the consent of the child or
 
 5           individuals and authorized agencies who have control of
 
 6           the child; and
 
 7      (3)  Be given notice of all hearings and proceedings, civil
 
 8           or criminal, including[,] but not limited to[,] grand
 
 9           juries, involving the child and shall protect the best
 
10           interests of the child [therein], unless otherwise
 
11           ordered by the court.
 
12      (c)  A guardian ad litem appointed pursuant to subsection
 
13 (a) shall report to the court and all parties in writing at six
 
14 month intervals, or as is otherwise ordered by the court,
 
15 regarding [such] the guardian ad litem's activities on behalf of
 
16 the child and recommendations concerning the manner in which the
 
17 court should proceed in the best interests of the child; provided
 
18 that [such] the guardian ad litem shall make face to face contact
 
19 with the child in the child's family or foster home at least once
 
20 every three months.  A guardian ad litem shall inform the court
 
21 of the child's perceived interests if they differ from those
 
22 being advocated by the child's guardian ad litem.  If the child
 

 
 
 
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 1 and the child's guardian ad litem are not in agreement, the court
 
 2 shall evaluate the necessity for appointing special counsel for
 
 3 the child to serve as the child's legal advocate concerning
 
 4 [such] issues and during [such] proceedings [as] that the court
 
 5 deems to be in the best interests of the child.
 
 6      (d)  [When] If the court determines, after [such] any
 
 7 hearing [as] that the court deems [to be] appropriate, that a
 
 8 party is incapable of comprehending the legal significance of the
 
 9 issues or the nature of the child protective proceedings, the
 
10 court may appoint a guardian ad litem to represent the interests
 
11 of that party; provided that a guardian ad litem appointed
 
12 pursuant to this section shall investigate and report to the
 
13 court in writing at six month intervals, or as is otherwise
 
14 ordered by the court, regarding the current status of the party's
 
15 disability, including[,] but not limited to[,] a recommendation
 
16 as to available treatment, if any, for the disability and a
 
17 recommendation concerning the manner in which the court should
 
18 proceed in order to best protect the interests of the party in
 
19 conjunction with the court's determination as to the best
 
20 interests of the child.
 
21      (e)  A guardian ad litem or counsel appointed pursuant to
 
22 this section for the child or other party may be paid [for] by
 

 
 
 
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 1 the court, unless the party for whom counsel is appointed has an
 
 2 independent estate sufficient to pay [such] the costs.  The court
 
 3 may order the appropriate parties to pay or reimburse the costs
 
 4 and fees of the guardian ad litem and other counsel appointed for
 
 5 the child.
 
 6      (f)  No guardian ad litem shall be appointed to represent
 
 7 any child unless the guardian ad litem:
 
 8      (1)  Meets the standards of licensing and competence set by
 
 9           the department of commerce and consumer affairs; and
 
10      (2)  Has successfully completed guardian ad litem training
 
11           or has equivalent experience as determined by the
 
12           court.
 
13      The department of commerce and consumer affairs shall adopt
 
14 rules pursuant to chapter 91 relating to standards of training
 
15 and practice for the representation of minor children by a
 
16 guardian ad litem.
 
17      Any violation of this section or rules adopted pursuant to
 
18 this section shall be punishable by a fine of not more than
 
19 $200."
 
20      SECTION 5.  Section 587-72, Hawaii Revised Statutes, is
 
21 amended as follows:
 

 
 
 
 
 
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 1      "§587-72  Review hearings.(a)  Except for good cause
 
 2 shown, the court shall set each case for review hearing not later
 
 3 than six months after the date that a service plan is ordered by
 
 4 the court and, thereafter, the court shall set subsequent review
 
 5 hearings at intervals of no longer than six months until the
 
 6 court's jurisdiction has been terminated or the court has ordered
 
 7 a permanent plan and has set the case for a permanent plan review
 
 8 hearing; the court may set a case for a review hearing upon the
 
 9 motion of a party at any time if the hearing is deemed by the
 
10 court to be in the best interests of the child.
 
11      (b)  Notice of review hearings shall be served upon the
 
12 parties and upon the present foster parent or parents, each of
 
13 whom shall be entitled to participate in the proceedings as a
 
14 party.  Notice of the review hearing shall be served by the
 
15 department upon the present foster parent or parents no less than
 
16 forty-eight hours before the scheduled hearing.  No hearing shall
 
17 be held until the foster parent or parents are served.  For
 
18 purposes of this subsection, notice to foster parents may be
 
19 effected by hand delivery or by regular mail; and may consist of
 
20 the last court order, if it includes the date and time of the
 
21 hearing.
 

 
 
 
 
 
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 1      (c)  Upon each review hearing the court shall consider fully
 
 2 all relevant prior and current information pertaining to the safe
 
 3 family home guidelines, as set forth in section 587-25 including
 
 4 but not limited to[,] the report submitted pursuant to section
 
 5 587-40, and:
 
 6      (1)  Determine whether the child's family is presently
 
 7           willing and able to provide the child with a safe
 
 8           family home without the assistance of a service plan
 
 9           and, if so, the court shall terminate jurisdiction;
 
10      (2)  Determine whether the child's family is presently
 
11           willing and able to provide the child with a safe
 
12           family home with the assistance of a service plan and,
 
13           if so, the court shall return the child or continue the
 
14           placement of the child in the child's family home under
 
15           the family supervision of the appropriate authorized
 
16           agency;
 
17      (3)  If the child's family home is determined, pursuant to
 
18           subsection (c)(2) not to be safe, even with the
 
19           assistance of a service plan, order that the child
 
20           remain or be placed under the foster custody of the
 
21           appropriate authorized agency; [if the child has been
 
22           residing without the family home for a period of twelve
 

 
 
 
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 1           months or if there has been a court ordered service
 
 2           plan for a period of one year, the court may set the
 
 3           case for a show cause hearing at which the child's
 
 4           family shall have the burden of presenting evidence to
 
 5           the court regarding the reasons and considerations as
 
 6           the family has to offer as to why the case should not
 
 7           be set for a permanent plan hearing. Upon a show cause
 
 8           hearing that the court deems to be appropriate, the
 
 9           court shall consider the criteria set forth in section
 
10           587-73(a)(1), (2), and (4), or section 587-73(e), and:
 
11           (A)  Set the case for a permanent plan hearing and
 
12                order that the authorized agency submit a report
 
13                pursuant to section 587-40; or
 
14           (B)  Proceed pursuant to this section;]
 
15      (4)  Determine whether the parties have complied with,
 
16           performed, and completed every term and condition of
 
17           the service plan that was previously court ordered;
 
18      (5)  Order revisions to the existing service plan, after
 
19           satisfying section 587-71(h), as the court, upon a
 
20           hearing that the court deems to be appropriate,
 
21           determines to be in the best interests of the child;
 
22           provided that a copy of the revised service plan shall
 
23           be incorporated as part of the order;
 

 
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 1      (6)  Enter further orders as the court deems to be in the
 
 2           best interests of the child; [and]
 
 3      (7)  Determine whether aggravated circumstances are present
 
 4           and, if so, the court shall set the case for a show
 
 5           cause hearing [at which] as the court deems appropriate
 
 6           within thirty days.  At the show cause hearing, the
 
 7           child's family shall have the burden of presenting
 
 8           evidence to the court regarding the reasons and
 
 9           considerations as to why the case should not be set for
 
10           a permanent plan hearing[.]; and
 
11      (8)  If the child has been residing outside the family home
 
12           for twelve consecutive months, set the case for a show
 
13           cause hearing as deemed appropriate by the court.  At
 
14           the show cause hearing, the child's family shall have
 
15           the burden of presenting evidence to the court
 
16           regarding the reasons and considerations as to why the
 
17           case should not be set for a permanent plan hearing.
 
18      (d)  In any case that a permanent plan hearing is not deemed
 
19 to be appropriate, the court shall:
 
20      (1)  Make a finding that the parties understand that unless
 
21           the family is willing and able to provide the child
 
22           with a safe family home, even with the assistance of a
 

 
 
 
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 1           service plan, within the reasonable period of time
 
 2           specified in the service plan, their respective
 
 3           parental and custodial duties and rights shall be
 
 4           subject to termination; and
 
 5      (2)  Set the case for a review hearing within six months.
 
 6      (e)  If the child has been residing outside of the family
 
 7 home for an aggregate of fifteen out of the most recent twenty-
 
 8 two months, the department shall file a motion to set the matter
 
 9 for a permanent plan hearing unless:
 
10      (1)  The department has documented in the safe family home
 
11           guidelines prepared pursuant to section 587-25(a) a
 
12           compelling reason why it would not be in the best
 
13           interests of the child to file a motion; or
 
14      (2)  The State has not provided to the family of the child,
 
15           consistent with the time period in the service plan,
 
16           such services as the department deems necessary for the
 
17           safe return of the child to the family home; provided
 
18           that nothing in this section shall prevent the
 
19           department from filing a motion to set a permanent plan
 
20           hearing if the department has determined that the
 
21           criteria in section 587-73(a) are present."
 

 
 
 
 
 
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 1      SECTION 6.  Act 302, Session Laws of Hawaii 1996, is amended
 
 2 as follows:
 
 3      1.  By adding a new section to read:
 
 4      "SECTION 6.  Notwithstanding sections 346-10 and 350-1.4,
 
 5 Hawaii Revised Statutes, the department may share information
 
 6 with the neighborhood places; provided that the shared
 
 7 information shall remain confidential in accordance with the
 
 8 requirements of section 350-1.4, Hawaii Revised Statutes."
 
 9      2.  By amending section 4 to read:
 
10      "SECTION 4.  There is established a child protective
 
11 services reform coordinating committee which shall be attached to
 
12 the department of human services for administrative purposes
 
13 only.  It shall be the duty of the committee to make
 
14 recommendations to the public agencies participating in the pilot
 
15 project regarding its implementation, which shall include:
 
16      (1)  Development of requests for proposals from the
 
17           community;
 
18      (2)  Site selection of two neighborhood places, and the
 
19           development of requests for proposals from the
 
20           community;
 
21      (3)  Identification of pilot project goals, including the
 
22           identification of a schedule and evaluation process;
 

 
 
 
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 1      (4)  Development and implementation of systems-change
 
 2           training programs; and
 
 3      (5)  Coordination of financial resources, excluding the use
 
 4           of state funds, that may be necessary to effectuate the
 
 5           pilot project.
 
 6 The committee, with the consent of the director of human
 
 7 services, may seek grants, receive gifts, funds, or donations of
 
 8 services-in-kind to effectuate the purposes of this Act.  The
 
 9 child protective services reform coordinating committee shall
 
10 consist of at least thirteen members appointed by the [governor.]
 
11 director.  The members shall include:
 
12      (1)  The director of human services, or a designated
 
13           representative;
 
14      (2)  The director of health, or a designated representative;
 
15      (3)  The superintendent of education, or a designated
 
16           representative;
 
17      (4)  The executive director of the office of youth services,
 
18           or a designated representative;
 
19      (5)  One representative from the family court, who shall be
 
20           selected from a list of nominees submitted by the chief
 
21           justice of the supreme court;
 

 
 
 
 
 
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 1      (6)  One representative from the blueprint for change task
 
 2           force created by Senate Concurrent Resolution No. 89,
 
 3           H.D. 1, as adopted by the legislature during the 1994
 
 4           regular session;
 
 5      (7)  One representative from the Alliance for Health and
 
 6           Human Services;
 
 7      (8)  One representative from a community service
 
 8           organization with experience with child protective or
 
 9           child welfare services;
 
10      (9)  Three representatives at-large; of which one person
 
11           shall be employed at the department of human services
 
12           child protective services unit; and one person shall be
 
13           from each neighborhood place once the sites have been
 
14           selected;
 
15     (10)  One member of the house of representatives, who shall
 
16           be selected from a list of nominees submitted by the
 
17           speaker of the house; and
 
18     (11)  One member of the senate, who shall be selected from a
 
19           list of nominees submitted by the president of the
 
20           senate.
 
21 The governor shall appoint the director of human services as the
 
22 chairperson of the committee.  The members of the committee shall
 

 
 
 
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 1 serve without compensation and shall be exempt from the
 
 2 requirements of section 26-34, Hawaii Revised Statutes.  The
 
 3 committee may adopt [rules] procedures necessary for the purposes
 
 4 of this Act[; provided that such rules shall be exempt from the
 
 5 public notice and public hearing requirements of chapter 91,
 
 6 Hawaii Revised Statutes] without regard to chapter 91, Hawaii
 
 7 Revised Statutes."
 
 8      3.  By amending section 6 to read:
 
 9      "SECTION [6.] 7.  The child protective services reform
 
10 coordinating committee shall[:
 
11      (1)  Submit progress reports regarding the pilot project to
 
12           the legislature on a semi-annual basis; provided that
 
13           copies of the report shall be made available to
 
14           interested community groups; and
 
15      (2)  Submit a] submit an annual progress report regarding
 
16           the pilot project including legislative recommendations
 
17           not later than twenty days prior to the convening of
 
18           the [1997, 1998, and 1999] 2000, 2001, and 2002 regular
 
19           sessions[.]; provided that copies of the reports shall
 
20           be made available to interested community groups."
 
21      4.  By amending section 7 to read:
 

 
 
 
 
 
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 1      "SECTION [7.] 8.  This Act shall take effect on July 1,
 
 2 1996, and shall be repealed on June 30, [1999.] 2002."
 
 3      SECTION 7.  (a)  The department of human services shall
 
 4 establish a medical and health case management procedure for the
 
 5 purpose of managing medical and health needs of children in the
 
 6 foster care system.
 
 7      (b)  The medical and health case management procedure shall:
 
 8      (1)  Establish a continuum of services providing timely
 
 9           medical and health information to key providers of care
 
10           to foster children and an identified health care
 
11           manager for consistent follow-up to ensure that medical
 
12           and health needs are met;
 
13      (2)  Maintain a medical home as the constant for continuity
 
14           of care;
 
15      (3)  Maximize existing resources in the provision of medical
 
16           and health services to foster children; and
 
17      (4)  Research enhancement of federal reimbursement for care
 
18           coordination services provided to foster children from
 
19           birth to age twenty.
 
20      SECTION 8.  If any provision of this Act, or the application
 
21 thereof to any person or circumstance is held invalid, the
 
22 invalidity does not affect other provisions or applications of
 

 
 
 
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 1 the Act which can be given effect without the invalid provision
 
 2 or application, and to this end the provisions of this Act are
 
 3 severable.
 
 4      SECTION 9.  The penalty established in section 4 of this Act
 
 5 shall not apply to any violation under section 587-34 that
 
 6 occurred before the effective date of this Act.
 
 7      SECTION 10.  Statutory material to be repealed is bracketed.
 
 8 New statutory material is underscored.
 
 9      SECTION 11.  This Act shall take effect upon its approval;
 
10 provided that section 6 shall take effect on June 29, 1999.