SB2730 SD1

SECTION 1. The legislature finds that when decisions are being made under chapter 587, Hawaii Revised Statutes, concerning out-of-home placement of children under the jurisdiction of the department of human services, preference should be given to the child's grandparent or grandparents. With this preference, children needing out-of-home care will be more likely to be placed with appropriate family members in safe homes.

Grandparents are a part of the natural support system for a family. Placement with a grandparent or grandparents can help ensure that the child can stay within the family system and maintain relationships that promote the child's safety, stability, and well-being. In addition to being family members, grandparents can often bring other strengths and resources, including additional life experience and maturity.

Data from the 2000 United States Census demonstrated the increasingly visible role of grandparents acting as primary caregivers for their grandchildren. Nationally, 4,500,000 children lived in grandparent-headed households. This was 6.3 per cent of all children under age eighteen, and represented a thirty per cent increase from 1990 to 2000. Furthermore, 2,400,000 grandparents reported that they were responsible for their grandchildren who were living with them. In Hawaii, 38,051 children lived in grandparent-headed households in 2000, which was 12.9 per cent of all the children in the State. Also, 14,029 grandparents reported that they were responsible for their grandchildren who were living with them.

The legislature provided eligible caregivers the ability to sign consents to meet a child's educational needs (Act 99, Session Laws of Hawaii 2003) and medical care (Act 208, Session Laws of Hawaii 2005). Clearly, the legislature has recognized and sanctioned appropriate family relationships and care arrangements, either formal or informal, made by the legal and physical custodians of a child that are safe and appropriate. Most often the care arrangement will be with a member of the child's extended family, such as a grandparent, which provides the child the optimal opportunity to develop and maintain positive and lasting relationships with the child's siblings and other extended family. Maintaining family connections was an important factor in the last federal child and family service review and will be more heavily weighted in the upcoming child and family service review of Hawaii's child welfare system scheduled for 2009.

Establishing a preference for a grandparent or grandparents does not mean that children who need out-of-home placement will automatically be placed with a grandparent or grandparents. The safety of the child is paramount and consideration of the child's safety is part of any placement decision.

The purpose of this Act is to establish a preference for grandparents and other appropriate family members who are identified by the department of human services, when making out-of-home placements for children needing protection under chapter 587, Hawaii Revised Statutes.

SECTION 2. Section 587-1, Hawaii Revised Statutes, is amended to read as follows:

"§587-1 Purpose; construction. This chapter creates within the jurisdiction of the family court a child protective act to make paramount the safety and health of children who have been harmed or are in life circumstances that threaten harm. Furthermore, this chapter makes provisions for the service, treatment, and permanent plans for these children and their families.

The legislature finds that children deserve and require competent, responsible parenting and safe, secure, loving, and nurturing homes. The legislature finds that children who have been harmed or are threatened with harm are less likely than other children to realize their full educational, vocational, and emotional potential, and become law-abiding, productive, self-sufficient citizens, and are more likely to become involved with the mental health system, the juvenile justice system, or the criminal justice system, as well as become an economic burden on the State. The legislature finds that prompt identification, reporting, investigation, services, treatment, adjudication, and disposition of cases involving children who have been harmed or are threatened with harm are in the children's, their families', and society's best interests because the children are defenseless, exploitable, and vulnerable. The legislature recognizes that many grandparents are willing and able to provide a nurturing and safe placement for their grandchildren who have been harmed or are threatened with harm.

The policy and purpose of this chapter is to provide children with prompt and ample protection from the harms detailed herein, with an opportunity for timely reconciliation with their families if the families can provide safe family homes, and with timely and appropriate service or permanent plans to ensure the safety of the child so they may develop and mature into responsible, self-sufficient, law-abiding citizens. The service plan shall effectuate the child's remaining in the family home, when the family home can be immediately made safe with services, or the child's returning to a safe family home. If it is necessary to ensure the child's safety by removing the child from the family home, the child shall be placed in foster care, with placement preference given to the child's grandparent or grandparents, or other appropriate family member identified by the department, who is willing and able to care for the child. The service plan [~~should~~] shall be carefully formulated with the family in a timely manner. Every reasonable opportunity should be provided to help the child's legal custodian to succeed in remedying the problems [~~which~~] that put the child at substantial risk of being harmed in the family home. Each appropriate resource, public and private, family and friend, should be considered and used to maximize the legal custodian's potential for providing a safe family home for the child. Full and careful consideration [~~should~~] shall be given to the religious, cultural, and ethnic values of the child's legal custodian when service plans are being discussed and formulated. Where the court has determined, by clear and convincing evidence, that the child cannot be returned to a safe family home, the child [~~will~~] shall be permanently placed in a timely manner.

The department's child protective services provided under this chapter shall make every reasonable effort to be open, accessible, and communicative to the persons affected in any manner by a child protective proceeding; provided that the safety and best interests of the child under this chapter shall not be endangered in the process.

This chapter shall be liberally construed to serve the best interests of the children and the purposes set out in this chapter."

SECTION 3. Section 587-2, Hawaii Revised Statutes, is amended by amending the definition of "foster custody" to read:

""Foster custody" means the legal status created pursuant to this section, section 587-21(b)(2), or by an order of court after the court has determined that the child's family is not presently willing and able to provide the child with a safe family home, even with the assistance of a service plan.

(1) Foster custody vests in a foster custodian the following duties and rights:

(A) To determine where and with whom the child shall be placed in foster care; provided that preference shall be given to the child's grandparent or grandparents, or other appropriate family member identified by the department, who is willing and able to care for the child; provided further that the child shall not be placed in foster care outside the State without prior order of the court; provided further that, subsequent to the temporary foster custody hearing, unless otherwise ordered by the court, the temporary foster custodian or the foster custodian may permit the child to resume residence with the family from which the child was removed after providing prior written notice to the court and to all parties, which notice shall state that there is no objection of any party to the return; and upon the return of the child to the family, temporary foster custody[,] or foster custody automatically shall be revoked and the child and the child's family members who are parties shall be under the temporary family supervision or the family supervision of the former temporary foster custodian or foster custodian;

(B) To assure that the child is provided in a timely manner with adequate food, clothing, shelter, psychological care, physical care, medical care, supervision, and other necessities;

(D) To provide all consents [~~which~~] that are required for the child's physical or psychological health or welfare, including[,] but not limited to[,] ordinary medical, dental, psychiatric, psychological, educational, employment, recreational, or social needs; and to provide all consents for any other medical or psychological care or treatment, including[,] but not limited to[,] surgery, if the care or treatment is deemed by two physicians or two psychologists, whomever is appropriate, licensed or authorized to practice in this State to be necessary for the child's physical or psychological health or welfare, and the persons who are otherwise authorized to provide the consent are unable or have refused to consent to the care or treatment;

(E) To provide consent to the recording of a statement pursuant to section 587-43; and

(F) To provide the court with information concerning the child that the court may require at any time.

(2) The court, in its discretion, may vest foster custody of a child in any authorized agency or subsequent authorized agencies, in the child's best interests; provided that the rights and duties [~~which~~] that are so assumed by an authorized agency shall supersede the rights and duties of any legal or permanent custodian of the child, other than as is provided in paragraph (4).

(3) An authorized agency shall not be liable to third persons for the acts of the child solely by reason of the agency's status as temporary foster custodian or foster custodian of the child.

(4) Unless otherwise ordered by the court, a child's family member shall retain the following rights and responsibilities after a transfer of temporary foster custody or foster custody, to the extent that the family member possessed the rights and responsibilities prior to the transfer of temporary foster custody or foster custody[~~, to wit~~]: the right of reasonable supervised or unsupervised visitation at the discretion of the authorized agency; the right to consent to adoption, to marriage, or to major medical or psychological care or treatment, except as provided in paragraph (1)(D); and the continuing responsibility for support of the child, including[,] but not limited to[,] repayment for the cost of any and all care, treatment, or any other service supplied or provided by the temporary foster custodian, the foster custodian, or the court for the child's benefit."

SECTION 4. Section 587-21, Hawaii Revised Statutes, is amended by amending subsection (b) to read as follows:

"(b) Upon satisfying itself as to the course of action that should be pursued to best accord with the purpose of this chapter, the department shall:

(1) Resolve the matter in an informal fashion appropriate under the circumstances;

(2) Seek to enter into a service plan, without filing a petition in court, with members of the child's family and other authorized agency as the department deems necessary to the success of the service plan, including but not limited to, the member or members of the child's family who have legal custody of the child. The service plan may include an agreement with the child's family to voluntarily place the child in the foster custody of the department or other authorized agency, provided that placement preference shall be given to the child's grandparent or grandparents, or other appropriate family member identified by the department, who is willing and able to care for the child, or to place the child and the necessary members of the child's family under the family supervision of the department or other authorized agency; provided that if a service plan is not successfully completed within six months, the department shall file a petition or ensure that a petition is filed by another appropriate authorized agency in court under this chapter and the case shall be reviewed as is required by federal law;

(3) Assume temporary foster custody of the child pursuant to section 587-24(a) and file a petition with the court under this chapter within three working days, excluding Saturdays, Sundays, and holidays, after the date of the department's assumption of temporary foster custody of the child; provided that placement preference shall be given to the child's grandparent or grandparents, or other appropriate family member identified by the department, who is willing and able to care for the child; or

(4) File a petition or ensure that a petition is filed by another appropriate authorized agency in court under this chapter."

SECTION 5. Section 587-24, Hawaii Revised Statutes, is amended by amending subsection (c) to read as follows:

"(c) Upon assuming temporary foster custody of a child under this chapter, the department shall place the child in emergency foster care, unless the child is admitted to a hospital or similar institution, while it conducts an appropriate investigation[.]; provided that placement preference for emergency foster care shall be given to the child's grandparent or grandparents, or other appropriate family member identified by the department, who is willing and able to care for the child."

SECTION 6. Section 587-53, Hawaii Revised Statutes, is amended as follows:

1. By amending subsection (d) to read:

"(d) During a continuance period ordered pursuant to subsection (c) or at any other time during the pendency of a child protective proceeding, the court may further order that:

(1) Any party undergo a physical, developmental, psychological, or psychiatric evaluation and that a written or oral report be submitted to the court and all parties prior to or upon the date of the continued or next hearing;

(2) The child's family members who are parties provide the department or other appropriate authorized agency with the names and addresses of the child's grandparents, other family members, and friends who may be potential visitation supervisors or foster parents for the child and that they arrange for the persons to appear in court upon the date of the continued or next hearing;

(3) The child's family members who are parties be permitted reasonable supervised or unsupervised visitation with the child at the discretion of the department or other appropriate authorized agency and the child's guardian ad litem;

(4) The parties, subject to their agreement unless jurisdiction has been established, meet with appropriate expert witnesses to discuss the alleged harm to the child;

(5) The court and the parties view a visual recording or listen to an oral recording of the child's statement at such time and in such manner as the court deems to be appropriate;

(6) The child and the child's family members who are parties, subject to their agreement unless jurisdiction has been established, arrange and commence participation in such counseling or therapy for themselves and the child as the court deems to be appropriate and consistent with the best interests of the child;

(7) An appropriate order of protection be entered;

(8) A criminal history record check be conducted by the department or other appropriate authorized agency concerning a party who is an alleged perpetrator of imminent harm, harm, or threatened harm to the child, and that the results be submitted to the court and other parties in such manner as the court deems to be appropriate prior to or upon the date of the continued or next hearing;

(9) The department or other appropriate authorized agency prepare a written or oral supplemental report pursuant to section 587-40 and submit the report to the court, the guardian ad litem, and all parties prior to or upon the date of the continued or next hearing; or

(10) The child's guardian ad litem visit the child's family home and foster home, be present during a supervised visitation, and prepare a written or oral report, including specific recommendations concerning services and assistance, to be submitted to the court and all parties prior to or upon the date of the continued or next hearing."

2. By amending subsection (f) to read:

"(f) After a temporary foster custody hearing, if the court determines that there is reasonable cause to believe that continued placement in foster care is necessary to protect the child from imminent harm, it shall order that the child continue in the temporary foster custody of the department (provided that preference shall be given to the child's grandparent or grandparents, or other appropriate family member identified by the department, who is willing and able to care for the child) under the terms and conditions, including[,] but not limited to[,] orders concerning services and assistance and [~~which~~] that may be entered pursuant to subsection (d), as are deemed by the court to be in the best interests of the child; provided that prior to ordering placement or continued placement in any proceeding under this chapter the court first shall give due consideration to whether:

(1) The removal or continued removal of the alleged potential perpetrator of the imminent harm, harm, or threatened harm from the child's family home prior to continuing or placing the child out of the family home. The child's family shall have the burden of establishing that it is not in the best interests of the child that the alleged perpetrator be removed from the family's home rather than the child by order of the court; and

(2) Every reasonable effort has been or is being made to place siblings or psychologically bonded children together, unless the placement is not in the best interests of the children."

SECTION 7. Section 587-73, Hawaii Revised Statutes, is amended by amending subsection (a) to read as follows:

"(a) At the permanent plan hearing, the court shall consider fully all relevant prior and current information pertaining to the safe family home guidelines, as set forth in section 587-25, including but not limited to the report or reports submitted pursuant to section 587-40, and determine whether there exists clear and convincing evidence that:

(1) The child's legal mother, legal father, adjudicated, presumed, or concerned natural father as defined under chapter 578 are not presently willing and able to provide the child with a safe family home, even with the assistance of a service plan;

(2) It is not reasonably foreseeable that the child's legal mother, legal father, adjudicated, presumed, or concerned natural father as defined under chapter 578 will become willing and able to provide the child with a safe family home, even with the assistance of a service plan, within a reasonable period of time which shall not exceed two years from the date upon which the child was first placed under foster custody by the court;

(3) The proposed permanent plan will assist in achieving the goal which is in the best interests of the child; provided that the court shall presume that:

(A) It is in the best interests of a child to be promptly and permanently placed with responsible and competent substitute parents and families in safe and secure homes; provided that preference shall be given to the child's grandparent or grandparents, or other appropriate family member identified by the department, who is willing and able to care for the child; and

(B) The presumption increases in importance proportionate to the youth of the child upon the date that the child was first placed under foster custody by the court; and

(4) If the child has reached the age of fourteen, the child consents to the permanent plan, unless the court, after consulting with the child in camera, finds that it is in the best interest of the child to dispense with the child's consent."

SECTION 8. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.

SECTION 9. This Act shall take effect upon its approval.

THE SENATE	S.B. NO.	2730
TWENTY-FOURTH LEGISLATURE, 2008		S.D. 1
STATE OF HAWAII