REPORT TITLE:
Child Protection


DESCRIPTION:
Protects children and youth from abuse and neglect. (SD1)

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


                   A  BILL  FOR  AN  ACT

RELATING TO FAMILIES.


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

 1      SECTION 1.  The legislature finds that child abuse and
 
 2 neglect are a root cause of many serious social problems,
 
 3 including emotional and mental health problems, alcohol and drug
 
 4 abuse and addiction, delinquency, and crime.  Child abuse
 
 5 continues to escalate with fifteen thousand reports and over five
 
 6 thousand cases investigated annually in Hawaii.  The most severe
 
 7 cases continue to be among the youngest, most vulnerable
 
 8 children.
 
 9      During the interim of the regular session of 1998, child
 
10 protection legislative roundtable discussions were convened to
 
11 suggest statutory, guideline, rule, regulation, and other changes
 
12 to improve Hawaii's child protective system.  Legislators, the
 
13 departments of human services, health, and the attorney general,
 
14 the judiciary, private nonprofit child and family serving
 
15 agencies, and concerned individuals communicated and collaborated
 
16 with one another, on behalf of abused and neglected children and
 
17 their families, to develop formal and informal mechanisms for
 
18 working together.
 
19      As a coordinated response to prevent and treat child abuse,
 

 
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 1 the roundtable cohesively suggested the following areas be
 
 2 strengthened:
 
 3      (1)  A medical case management system for the medical
 
 4           oversight of children in the child protective services
 
 5           system;
 
 6      (2)  Standards for guardian ad litems charged to protect the
 
 7           best interests of the child;
 
 8      (3)  Mandated training for foster parents of licensed foster
 
 9           homes;
 
10      (4)  Protective custody of a child without court order; and
 
11      (5)  Required reporting of child abuse and neglect.
 
12      The purpose of this Act is to improve Hawaii's child
 
13 protection system.
 
14      SECTION 2.  Chapter 587, Hawaii Revised Statutes, is amended
 
15 by adding a new section to be appropriately designated and to
 
16 read as follows:
 
17      "§587-    Medical and health case management.  (a)  There is
 
18 established a medical and health case management system in the
 
19 department of human services for the purpose of managing medical
 
20 and health needs of children in the foster care system.
 
21      (b)  The medical and health case management system shall:
 
22      (1)  Establish a system of services providing timely medical
 
23           and health information to key providers of care to
 

 
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 1           foster children and identify a health care manager for
 
 2           consistent follow-up to ensure that medical and health
 
 3           needs are met;
 
 4      (2)  Maintain a system of continuity of care for the medical
 
 5           and health needs of children in the foster care system;
 
 6      (3)  Maximize existing resources in the provision of medical
 
 7           and health services to foster children; and
 
 8      (4)  Research the enhancement of federal reimbursement for
 
 9           care coordination services provided to foster children
 
10           from birth to age twenty."
 
11      SECTION 3.  Section 346-17, Hawaii Revised Statutes, is
 
12 amended to read as follows:
 
13      "§346-17  Child placing organizations, child caring
 
14 institutions, and foster boarding homes; authority over and
 
15 investigation of.  No child placing organization shall engage in
 
16 the investigation, placement, and supervision of minor children
 
17 in foster care unless it meets with the standards of conditions,
 
18 management, and competence as set by the department [of human
 
19 services].
 
20      No child caring institution shall be allowed to receive
 
21 minor children for care and maintenance unless it meets with the
 
22 standards of conditions, management, and competence to care for
 
23 and train children as set by the department.
 

 
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 1      No foster boarding home shall receive for care and
 
 2 maintenance any child unless it meets with the standards of
 
 3 conditions, management, and competence as set by the
 
 4 department[.] and the applicants successfully complete foster
 
 5 parent training.
 
 6      The department shall [make] adopt rules relating to:
 
 7      (1)  [standards] Standards for the organization and
 
 8           administration of child placing organizations[,];
 
 9      (2)  [standards] Standards of conditions, management, and
 
10           competence for the care and training of minor children
 
11           in child caring institutions[,] and foster boarding
 
12           homes; and
 
13      (3)  [standards] Standards of conditions and competence of
 
14           operation of foster boarding homes as may be necessary
 
15           to protect the welfare of children.
 
16      All rules of the department shall have the force and effect
 
17 of law, and any violation thereof or of this section shall be
 
18 punishable by a fine of not more than $200.
 
19      As a condition for a certificate of approval, any
 
20 organization, institution, or home shall meet the standards to
 
21 assure the reputable and responsible character of its operators
 
22 and employees by complying with the requirements of a criminal
 
23 history record check under section 346-19.6.
 

 
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 1      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      Any child placing organization, child caring institution, or
 
16 foster boarding home shall be subject to investigation at any
 
17 time and in such manner, place, and form as may be prescribed by
 
18 the department or its authorized agents."
 
19      SECTION 4.  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
 
23      (2)  The petition arising from the report has been dismissed
 

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

 
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 1           jurisdiction of the court with the child."
 
 2      SECTION 6.  Section 587-34, Hawaii Revised Statutes, is
 
 3 amended as follows:
 
 4      "§587-34  Guardian ad litem; court appointed counsel.(a)
 
 5 The court shall appoint a guardian ad litem for the child to
 
 6 serve throughout the pendency of the child protective proceedings
 
 7 under this chapter.  The court may appoint additional counsel for
 
 8 the child pursuant to subsection (c) or independent counsel for
 
 9 any other party if [the]: 
 
10      (1)  The party is an indigent[, counsel];
 
11      (2)  Counsel is necessary to protect the party's interests
 
12           adequately[, and the]; and
 
13      (3)  The interests are not represented adequately by another
 
14           party who is represented by counsel.
 
15      (b)  A guardian ad litem shall:
 
16      (1)  Be allowed access to the child by the caretakers of the
 
17           child whether caretakers are individuals, authorized
 
18           agencies, or health care providers;
 
19      (2)  Have the authority to inspect and receive copies of any
 
20           records, notes, and electronic recordings concerning
 
21           the child that are relevant to the proceedings filed
 
22           under this chapter without the consent of the child or
 
23           individuals and authorized agencies who have control of
 

 
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 1           the child; and
 
 2      (3)  Be given notice of all hearings and proceedings, civil
 
 3           or criminal, including[,] but not limited to, grand
 
 4           juries, involving the child and shall protect the best
 
 5           interests of the child [therein], unless otherwise
 
 6           ordered by the court.
 
 7      (c)  A guardian ad litem appointed pursuant to subsection
 
 8 (a) shall report to the court and all parties in writing at six
 
 9 month intervals, or as is otherwise ordered by the court,
 
10 regarding [such] the guardian ad litem's activities on behalf of
 
11 the child and recommendations concerning the manner in which the
 
12 court should proceed in the best interests of the child; provided
 
13 that [such] the guardian ad litem shall make face to face contact
 
14 with the child in the child's family or foster home at least once
 
15 every three months.  A guardian ad litem shall inform the court
 
16 of the child's perceived interests if they differ from those
 
17 being advocated by the child's guardian ad litem.  If the child
 
18 and the child's guardian ad litem are not in agreement, the court
 
19 shall evaluate the necessity for appointing special counsel for
 
20 the child to serve as the child's legal advocate concerning
 
21 [such] issues and during [such] proceedings [as] that the court
 
22 deems to be in the best interests of the child.
 
23      (d)  [When] If the court determines, after [such] any
 

 
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 1 hearing [as] that the court deems [to be] appropriate, that a
 
 2 party is incapable of comprehending the legal significance of the
 
 3 issues or the nature of the child protective proceedings, the
 
 4 court may appoint a guardian ad litem to represent the interests
 
 5 of that party; provided that a guardian ad litem appointed
 
 6 pursuant to this section shall investigate and report to the
 
 7 court in writing at six month intervals, or as is otherwise
 
 8 ordered by the court, regarding the current status of the party's
 
 9 disability, including[,] but not limited to, a recommendation as
 
10 to available treatment, if any, for the disability and a
 
11 recommendation concerning the manner in which the court should
 
12 proceed in order to best protect the interests of the party in
 
13 conjunction with the court's determination as to the best
 
14 interests of the child.
 
15      (e)  A guardian ad litem or counsel appointed pursuant to
 
16 this section for the child or other party may be paid [for] by
 
17 the court, unless the party for whom counsel is appointed has an
 
18 independent estate sufficient to pay [such] the costs.  The court
 
19 may order the appropriate parties to pay or reimburse the costs
 
20 and fees of the guardian ad litem and other counsel appointed for
 
21 the child.
 
22      (f)  No guardian ad litem shall be appointed to represent
 
23 any child unless the guardian ad litem has successfully completed
 

 
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 1 guardian ad litem training or has equivalent experience as
 
 2 determined by the lead family court judge.
 
 3      The judiciary shall issue orders or rules relating to
 
 4 standards of training and practice for the representation of
 
 5 minor children by a guardian ad litem.
 
 6      All orders or rules of the judiciary shall have the form and
 
 7 effect of law, and any violation of the orders or rules or of
 
 8 this section shall be punishable by a fine of not more than
 
 9 $200."
 
10      SECTION 7.  Section 587-72, Hawaii Revised Statutes, is
 
11 amended by amending subsection (c) to read as follows:
 
12      "(c)  Upon each review hearing, the court shall consider
 
13 fully all relevant prior and current information pertaining to
 
14 the safe family home guidelines, as set forth in section 587-25,
 
15 including but not limited to, the report submitted pursuant to
 
16 section 587-40, and:
 
17      (1)  Determine whether the child's family is presently
 
18           willing and able to provide the child with a safe
 
19           family home without the assistance of a service plan
 
20           and, if so, the court shall terminate jurisdiction;
 
21      (2)  Determine whether the child's family is presently
 
22           willing and able to provide the child with a safe
 
23           family home with the assistance of a service plan and,
 

 
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 1           if so, the court shall return the child or continue the
 
 2           placement of the child in the child's family home under
 
 3           the family supervision of the appropriate authorized
 
 4           agency;
 
 5      (3)  If the child's family home is determined, pursuant to
 
 6           subsection (c)(2), not to be safe, even with the
 
 7           assistance of a service plan, order that the child
 
 8           remain or be placed under the foster custody of the
 
 9           appropriate authorized agency; if the child has been
 
10           residing without the family home for a period of twelve
 
11           months or if there has been a [court ordered] court-
 
12           ordered service plan for a period of one year, the
 
13           court [may] shall set the case for a show cause hearing
 
14           at which the child's family shall have the burden of
 
15           presenting evidence to the court regarding the reasons
 
16           and considerations [as] that the family has to offer as
 
17           to why the case should not be set for a permanent plan
 
18           hearing.  Upon a show cause hearing that the court
 
19           deems to be appropriate, the court shall consider the
 
20           criteria set forth in section 587-73(a)(1), (2), and
 
21           (4), or section 587-73(e), and:
 
22           (A)  Set the case for a permanent plan hearing and
 
23                order that the authorized agency submit a report
 

 
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 1                pursuant to section 587-40; or
 
 2           (B)  Proceed pursuant to this section;
 
 3      (4)  Determine whether the parties have complied with,
 
 4           performed, and completed every term and condition of
 
 5           the service plan that was previously court ordered;
 
 6      (5)  Order revisions to the existing service plan, after
 
 7           satisfying section 587-71(h), [as] that the court, upon
 
 8           a hearing that the court deems to be appropriate,
 
 9           determines to be in the best interests of the child;
 
10           provided that a copy of the revised service plan shall
 
11           be incorporated as part of the order;
 
12      (6)  Enter further orders [as] that the court deems to be in
 
13           the best interests of the child; and
 
14      (7)  Determine whether aggravated circumstances are present
 
15           and, if so, the court shall set the case for a show
 
16           cause hearing at which the child's family shall have
 
17           the burden of presenting evidence to the court
 
18           regarding the reasons and considerations as to why the
 
19           case should not be set for a permanent plan hearing."
 
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
 
23 the Act which can be given effect without the invalid provision
 

 
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 1 or application, and to this end the provisions of this Act are
 
 2 severable.
 
 3      SECTION 9.  Statutory material to be repealed is bracketed.
 
 4 New statutory material is underscored.
 
 5      SECTION 10.  This Act shall take effect upon its approval.