HB400 HD1.DOC

SECTION 1. Chapter 587A, Hawaii Revised Statutes, is amended by adding a new section to be appropriately designated and to read as follows:

"§587A‑ Child to remain in family home; circumstance. (a) If a report regarding child abuse or neglect, or suspected child abuse or neglect, is filed pursuant to section 350-1.1, the child subject of the report shall be allowed to remain in the family home if it is more likely than not that the child will be safe from harm in the family home. To make the family home safe for the child so that the child may remain in the family home, the alleged perpetrator of the abuse on the child shall be ordered by a police officer to leave the home for a period of twenty-four hours, pursuant to section 709-906, and to seek treatment services.

(b) This section shall not serve as a basis for any civil action or criminal proceeding against the State or its employees or agents for any physical harm to the child from the perpetrator of the abuse which occurs in the family home if the child remains in the family home."

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

"[[]§587A-2[]] 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 relatives are willing and able to provide a nurturing and safe placement for children 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[.], or, when appropriate, removing an alleged perpetrator of abuse or harm, pursuant to section 709-906, from an otherwise safe family home. The service plan 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 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 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 shall be permanently placed in a timely manner.

The policy and purpose of this chapter includes the protection of children who have been harmed or are threatened with harm by:

(1) Providing assistance to families to address the causes for abuse and neglect;

(2) Respecting and using each family's strengths, resources, culture, and customs;

(3) Ensuring that families are meaningfully engaged and children are consulted in an age-appropriate manner in case planning;

(4) Enlisting the early and appropriate participation of family and the family's support networks;

(5) Respecting and encouraging the input and views of caregivers; [~~and~~]

(6) Ensuring a permanent home through timely adoption or other permanent living arrangement, if safe reunification with the family is not possible[.]; and

(7) Requiring an alleged perpetrator of abuse of a child, rather than the child, to leave an otherwise safe family home in certain cases, pursuant to section 709-906.

The child protective services under this chapter shall be provided with every reasonable effort to be open, accessible, and communicative to the persons affected by a child protective proceeding without endangering the safety and best interests of the child under this chapter.

This chapter shall be liberally construed to serve the best interests of the children affected and the purpose and policies set forth herein."

SECTION 3. Section 587A-7, Hawaii Revised Statutes, is amended by amending subsection (a) to read as follows:

"(a) The following factors shall be fully considered when determining whether a child's family is willing and able to provide the child with a safe family home:

(1) Facts relating to the child's current situation, which shall include:

(A) The child's age, vulnerability, and special needs that affect the child's attachment, growth, and development;

(B) The child's developmental, psychological, medical, and dental health status and needs, including the names of assessment and treatment providers;

(D) The child's educational status and setting, and the department's efforts to maintain educational stability for the child in out-of-home placement;

(E) The child's living situation;

(F) The child's fear of being in the family home;

(G) The impact of out-of-home placement on the child; provided that preference shall be given to allowing the child to remain in the family home if it is more likely than not that the child will be safe from harm in the family home;

(H) Services provided to the child and family; and

(I) The department's efforts to maintain connections between the child and the child's siblings, if they are living in different homes;

(2) The initial and any subsequent reports of harm and threatened harm to the child;

(3) Dates and reasons for the child's out-of-home placement; description, appropriateness, and location of the placement; and who has placement responsibility;

(4) Facts regarding the alleged perpetrators of harm to the child, the child's parents, and other family members who are parties to the court proceedings, which facts shall include:

(A) Birthplace and family of origin;

(B) Manner in which the alleged perpetrator of harm was parented;

(D) Prior involvement in services;

(5) Results of psychiatric, psychological, or developmental evaluations of the child, the alleged perpetrators, and other family members who are parties;

(6) Whether there is a history of abusive or assaultive conduct by the child's family members and others who have access to the family home;

(7) Whether there is a history of substance abuse by the child's family or others who have access to the family home;

(8) Whether any alleged perpetrator has completed services in relation to any history identified in paragraphs (6) and (7), and acknowledged and accepted responsibility for the harm to the child;

(9) Whether any non-perpetrator who resides in the family home has demonstrated an ability to protect the child from further harm and to ensure that any current protective orders are enforced;

(10) Whether there is a support system available to the child's family, including adoptive and hanai relatives, friends, and faith-based or other community networks;

(11) Attempts to locate and involve extended family, friends, and faith-based or other community networks;

(12) Whether the child's family has demonstrated an understanding of and involvement in services that have been recommended by the department or court-ordered as necessary to provide a safe family home for the child;

(13) Whether the child's family has resolved identified safety issues in the family home within a reasonable period of time; and

(14) The department's assessment, which shall include the demonstrated ability of the child's family to provide a safe family home for the child, and recommendations[.]; provided that preference shall be given to allowing the child to remain in the family home if it is more likely than not that the child will be safe from harm in the family home."

SECTION 4. Section 587A-11, Hawaii Revised Statutes, is amended to read as follows:

"[[]§587A-11[]] Investigation; department powers. Upon receiving a report that a child is subject to imminent harm, has been harmed, or is subject to threatened harm, the department shall cause such investigation to be made as it deems to be appropriate. In conducting the investigation, the department may:

(1) Enlist the cooperation and assistance of appropriate state and federal law enforcement authorities, who may conduct an investigation and, if an investigation is conducted, shall provide the department with all preliminary findings, including the results of a criminal history record check of an alleged perpetrator of harm or threatened harm to the child;

(2) Interview the child without the presence or prior approval of the child's family and temporarily assume protective custody of the child for the purpose of conducting the interview;

(3) Resolve the matter in an informal fashion that it deems appropriate under the circumstances;

(4) Close the matter if the department finds, after an assessment, that the child is residing with a caregiver who is willing and able to meet the child's needs and provide a safe and appropriate placement for the child; provided that preference shall be given to allowing the child to remain in the family home if it is more likely than not that the child will be safe from harm in the family home;

(5) Immediately enter into a service plan:

(A) To safely maintain the child in the family home; or

(B) To place the child in voluntary foster care pursuant to a written agreement with the child’s parent[.];

provided that preference shall be given to allowing the child to remain in the family home if it is more likely than not that the child will be safe from harm in the family home.

If the child is placed in voluntary foster care and the family does not successfully complete the service plan within three months after the date on which the department assumed physical custody of the child, the department shall file a petition. The department is not required to file a petition if the parents agree to adoption or legal guardianship of the child and the child's safety is ensured; provided that the adoption or legal guardianship hearing is conducted within six months of the date on which the department assumed physical custody of the child;

(6) Assume temporary foster custody of the child and file a petition with the court within three days, excluding Saturdays, Sundays, and holidays, after the date on which the department assumes temporary foster custody of the child, with placement preference being given to an approved relative; or

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

SECTION 5. Section 587A-15, Hawaii Revised Statutes, is amended as follows:

1. By amending subsections (a) and (b) to read:

"(a) If an authorized agency has family supervision, it has the following duties and rights, subject to such conditions or restrictions as the court deems to be in the best interests of a child:

(1) Monitoring and supervising the child and the child's family members who are parties. Monitoring and supervision shall include reasonable access to each of the family members who are parties and reasonable access into the child's family home; and

(2) Placement of the child in foster care and thereby assuming temporary foster custody or foster custody of the child[.]; provided that preference shall be given to allowing the child to remain in the family home if it is more likely than not that the child will be safe from harm in the family home. The authorized agency shall immediately notify the court when [~~such~~] foster care placement occurs. Upon notification, the court shall set the case for:

(A) A temporary foster custody hearing within three days, excluding Saturdays, Sundays, and holidays; or

(B) If jurisdiction has been established, a periodic review hearing within ten days of the child's placement.

The temporary foster custody hearing or the periodic review hearing may be held at a later date, only if the court finds it to be in the best interests of the child.

(b) If an authorized agency has foster custody, it has the following duties and rights:

(1) Determining where and with whom the child shall be placed in foster care; provided that the child shall not be placed in foster care outside the State without prior order of the court; provided that preference shall be given to allowing the child to remain in the family home if it is more likely than not that the child will be safe from harm in the family home;

(2) Permitting the child to return to the family from which the child was removed, unless otherwise ordered by the court[.]; provided that preference shall be given to allowing the child to remain in the family home if it is more likely than not that the child will be safe from harm in the family home. The child's return may occur only if no party objects to such placement and prior written notice is given to the court and to all parties stating that there is no objection of any party to the child's return. Upon the child's return to the family, temporary foster custody or foster custody shall be automatically revoked, and the child and the child's family members who are parties shall be placed under temporary family supervision or the family supervision of the authorized agency;

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

(4) Monitoring whether the child is being provided with an appropriate education;

(5) Providing required consents for the child's physical or psychological health or welfare, including ordinary medical, dental, psychiatric, psychological, educational, employment, recreational, or social needs;

(6) Providing consents for any other medical or psychological care or treatment, including surgery, if the persons who are otherwise authorized to provide consent are unable or unwilling to consent. Before being provided to the child, this care or treatment shall be deemed necessary for the child's physical or psychological health or welfare by two physicians or two psychologists, as appropriate, who are licensed or authorized to practice in the State;

(7) Providing consent for the child's application for a driver's instructional permit, provisional driver's license, or driver's license;

(8) Providing consent to the recording of a statement pursuant to section 587A-21; and

(9) Providing the court with information concerning the child.

The court, in its discretion, may vest foster custody of a child in any authorized agency or subsequently authorized agencies, if the court finds that it is in the child's best interests to do so[.]; provided that preference shall be given to allowing the child to remain in the family home if it is more likely than not that the child will be safe from harm in the family home. The rights and duties that are so assumed by an authorized agency shall supersede the rights and duties of any legal or permanent custodian of the child."

2. By amending subsection (d) to read:

"(d) If an authorized agency has permanent custody, it has the following duties and rights:

(1) Assuming the parental and custodial duties and rights of a legal custodian and family member;

(2) Determining where and with whom the child shall live; provided that the child shall not be placed outside the State without prior order of the court; provided further that preference shall be given to allowing the child to remain in the family home if it is more likely than not that the child will be safe from harm in the family home;

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

(4) Monitoring whether the child is being provided with an appropriate education;

(5) Providing all required consents for the child's physical or psychological health or welfare, including medical, dental, psychiatric, psychological, educational, employment, recreational, and social needs;

(6) Providing consent for the child's application for a driver's instructional permit, provisional driver's license, or driver's license;

(7) Providing consent to adoption, change of name, and marriage; and

(8) Submitting a written report to the court if the child leaves the home of the permanent custodian for a period of seven consecutive days or more. The report shall state the child's current situation and shall be submitted on or before the tenth day, excluding Saturdays, Sundays, and holidays, after the child leaves the home."

SECTION 6. Section 587A-27, Hawaii Revised Statutes, is amended by amending subsection (a) to read as follows:

"(a) The service plan shall provide:

(1) The specific steps necessary to facilitate the return of the child to a safe family home, if the proposed placement of the child is in foster care under foster custody. These specific steps shall include treatment and services that will be provided[,] to the child and to the perpetrator of the abuse, as necessary, actions completed, specific measurable and behavioral changes that must be achieved, and responsibilities assumed;

(2) Whether an ohana conference will be conducted for family finding and family group decision making;

(3) The respective responsibilities of the child, the parents, legal guardian or custodian, the department, other family members, and treatment providers, and a description and expected outcomes of the services required to achieve the permanency goal;

(4) The required frequency and types of contact between the assigned social worker, the child, and the family;

(5) The time frames during which services will be provided, actions must be completed, and responsibilities must be discharged;

(6) Notice to the parents that their failure to substantially achieve the objectives described in the service plan within the time frames established may result in termination of their parental rights;

(7) Notice to the parents that if the child has been in foster care under the responsibility of the department for an aggregate of fifteen out of the most recent twenty-two months from the child's date of entry into foster care, the department is required to file a motion to set a termination of parental rights hearing, and the parents' failure to provide a safe family home within two years from the date when the child was first placed under foster custody by the court, may result in the parents' parental rights being terminated; and

(8) Any other terms and conditions that the court or the authorized agency deem necessary to the success of the service plan."

SECTION 7. Section 587A-28, Hawaii Revised Statutes, is amended by amending subsection (d) to read as follows:

"(d) At the return hearing, the court shall decide:

(1) Whether the child's physical or psychological health or welfare has been harmed or is subject to threatened harm by the acts or omissions of the child's family;

(2) Whether the child should be placed in foster custody or under family supervision[.]; provided that in making that decision, the court shall consider whether the alleged or potential perpetrator of imminent harm, harm, or threatened harm should be removed from the family home rather than continuing the child's placement in foster care; provided further that the child's family shall have the burden of establishing that it is in the child's best interests to remove the child, rather than the alleged or potential perpetrator, from the family home; and

(3) What services should be provided to the child's parents."

SECTION 8. Section 587A-30, Hawaii Revised Statutes, is amended by amending subsection (b) to read as follows:

"(b) At each periodic review hearing, the court shall review the status of the case to determine whether the child is receiving appropriate services and care, whether the case plan is being properly implemented, and whether the department's or authorized agency's activities are directed toward a permanent placement for the child. At the hearing, the court shall:

(1) Determine whether the child is safe and enter orders:

(A) That the child be placed in foster custody if the court finds that the child's remaining in the family home is contrary to the welfare of the child and the child's parents are not willing and able to provide a safe family home for the child, even with the assistance of a service plan[.]; provided that in making that determination, the court shall consider whether the alleged or potential perpetrator of imminent harm, harm, or threatened harm should be removed from the family home rather than continuing the child's placement in foster care; provided further that the child's family shall have the burden of establishing that it is in the child's best interests to remove the child, rather than the alleged or potential perpetrator, from the family home;

(B) That the child be placed in family supervision if the court finds that the child's parents are willing and able to provide the child with a safe family home with the assistance of a service plan; or

(C) To terminate jurisdiction if the court finds that the child's parents are willing and able to provide the child with a safe family home without the assistance of a service plan;

(2) Determine the continued need for and appropriateness of the out-of-home placement;

(3) Determine the extent to which each party has complied with the case plan and the family's progress in making their home safe for the child;

(4) Determine the family's progress in resolving the problems that caused the child harm or to be threatened with harm and, if applicable, the necessity for continued out-of-home placement of the child;

(5) Project a likely date for:

(A) The child's return to a safe family home; or

(B) The child's permanent placement out of the family home in the following order of preference:

(i) Adoption;

(ii) Legal guardianship; or

(iii) Other permanent out-of-home placement;

(6) Evaluate visitation arrangements; and

(7) Issue such further or other appropriate orders as it deems to be in the best interests of the child."

SECTION 9. Section 587A-31, Hawaii Revised Statutes, is amended by amending subsections (c) and (d) to read as follows:

"(c) At each permanency hearing, the court shall make written findings pertaining to:

(1) The extent to which each party has complied with the service plan and progressed in making the home safe;

(2) Whether the current placement of the child continues to be appropriate and in the best interests of the child or if another in-state or out-of-state placement should be considered; provided that preference shall be given to allowing the child to remain in the family home if it is more likely than not that the child will be safe from harm in the family home;

(3) The court's projected timetable for reunification or, if the current placement is not expected to be permanent, placement in an adoptive home, with a legal guardian, or under the permanent custody of the department or an authorized agency;

(4) Whether the department has made reasonable efforts, in accordance with the safety and well-being of the child, to:

(A) Place siblings who have been removed from the family home with the same resource family, adoptive placement, or legal guardians; and

(B) Provide for frequent visitation or other on-going interactions with siblings who are not living in the same household;

(5) The appropriate permanency goal for the child, including whether a change in goal is necessary;

(6) Whether the department has made reasonable efforts to finalize the permanency goal in effect for the child and a summary of those efforts;

(7) The date by which the permanency goal for the child is to be achieved;

(8) In the case of a child who has attained sixteen years of age, the services needed to assist the child with the transition from foster care to independent living; and

(9) Consultations with the child in an age-appropriate manner about the proposed plan for permanency or transition from foster care to independent living.

(d) At each permanency hearing, the court shall order:

(1) The child's reunification with a parent or parents;

(2) The child's continued placement in foster care, where:

(A) The court has considered whether the alleged or potential perpetrator of imminent harm, harm, or threatened harm should be removed from the family home rather than continuing the child's placement in foster care; provided that the child's family shall have the burden of establishing that it is in the child's best interests to remove the child, rather than the alleged or potential perpetrator, from the family home;

[~~(A)~~] (B) Reunification is expected to occur within a time frame that is consistent with the developmental needs of the child; and

[~~(B)~~] (C) The safety and health of the child can be adequately safeguarded; or

(3) A permanent plan with a goal of:

(A) Placing the child for adoption and when the department will file a motion to set the matter for the termination of parental rights;

(B) Placing the child for legal guardianship if the department documents and presents to the court a compelling reason why termination of parental rights and adoption are not in the best interests of the child; or

(C) Awarding permanent custody to the department or an authorized agency, if the department documents and presents to the court a compelling reason why adoption and legal guardianship are not in the best interests of the child."

SECTION 10. Section 587A-32, Hawaii Revised Statutes, is amended by amending subsection (a) to read as follows:

"(a) The permanent plan shall:

(1) State whether the permanency goal for the child will be achieved through adoption, legal guardianship, or permanent custody; provided that preference shall be given to allowing the child to remain in the family home if it is more likely than not that the child will be safe from harm in the family home in the absence of the perpetrator of the abuse on the child;

(2) Establish a reasonable period of time by which the adoption or legal guardianship shall be finalized;

(3) Document:

(A) A compelling reason why legal guardianship or permanent custody is in the child's best interests if adoption is not the goal; or

(B) A compelling reason why permanent custody is in the child's best interests if adoption or legal guardianship is not the goal;

(4) Establish other related goals, including those pertaining to the stability of the child's placement; education; health; therapy; counseling; relationship with the child's birth family, including visits, if any; cultural connections; and preparation for independent living;

(5) If a child has reached the age of sixteen, describe the services needed to assist the child with the transition from foster care to independent living; and

(6) Describe the methods for achieving the goals and objectives set forth in paragraphs (4) and (5)."

SECTION 11. Section 587A-38, Hawaii Revised Statutes, is amended by amending subsection (d) to read as follows:

"(d) The protective order may require a party to leave the party's dwelling or residence during the period of time in which the protective order is in effect[.]; provided that the court shall consider whether the alleged or potential perpetrator of imminent harm, harm, or threatened harm should be removed from the family home rather than continuing the child's placement in foster care provided further that; the child's family shall have the burden of establishing that it is in the child's best interests to remove the child, rather than the alleged or potential perpetrator, from the family home."

SECTION 12. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.

SECTION 13. This Act shall take effect on July 1, 2013.

HOUSE OF REPRESENTATIVES	H.B. NO.	400
TWENTY-SEVENTH LEGISLATURE, 2013		H.D. 1
STATE OF HAWAII