While the 2009 legislative session was a long session, it was dominated by budget issues. With one notable exception, bills on child welfare issues tended to have a fairly narrow focus. However, a number of bills were passed in 2009 that make substantive changes to the dependency process or otherwise affect child welfare related statutes. They are listed below, roughly in order of their likely direct impact on dependency and termination of parental rights proceedings in Juvenile Court. 

 

The second part of this document lists most of the specific statutory changes in roughly chronological order. New RCW sections will be assigned a section number and title by the Code Reviser’s Office and will be placed in their chapter based on their content.

 

New statutory language is in bold type. Language that was amended out of an existing statute has a line through it. In some cases, the entire statute is shown, especially key statutes or statutes with a number of amendments. In other cases, only the amended subsections or other relevant parts are shown. These should be compared with the existing statute to understand the context of the amendment. All statutes enacted or amended in 2009 become effective on July 26, 2009 unless otherwise specified.

 

The most significant and far reaching bill passed this session is 2SHB 2106, which starts a process of shifting provision of child welfare services from DSHS to private supervising agencies. Initially this will be done through two demonstration sites to be selected by a child welfare transformation design committee. However, 2SHB 2106 is not specifically addressed in this report as it will be a few years before it has a direct impact on the local level. The bill does amend a number of existing sections in chapters 13.34 and 74.13 RCW effective this year, but most are not included here as they are technical in nature. For the most part, where a statute says “the department”, the phrase “or supervising agency” or “and supervising agency” is added. But where another bill amends a section that is also amended by 2SHB 2106, the 2106 amendment is included here as well.

 

Full copies of the bills listed below, along with legislative bill reports, can be accessed at the legislature’s website at http://apps.leg.wa.gov/billinfo/. Just put in the bill number and hit the search button.

 

This bill is entitled “an act relating to foster child placements” but it covers a number of issues, having incorporated parts of at least four other bills during the course of the legislative session. Sections 1 through 5 amend existing sections of chapter 13.34 RCW on dependency proceedings to put increased emphasis on placement of a child with relatives and “other suitable persons.” Section 1 amends RCW 13.34.065 to add a requirement in shelter care hearings that the court “shall ask the parents whether the department discussed with them the placement of the child with a relative or other suitable person…” With this information the court “shall determine what efforts have been made toward such a placement.” This is the first time the legislature has mandated that the court in a dependency related hearing directly ask the parents for information on any specific issue and it links the court’s finding on reasonable efforts to what the parents say. Social workers should be prepared to address this issue as well, especially if they have information to report regarding additional efforts they may have made to locate a relative or suitable other person placement that is not known to the parents.

 

Section 1 also amends RCW 13.34.065 to add “other suitable person” wherever the statute refers to relative placement. Section 2 makes similar changes to RCW 13.34.130 on relative placement when a disposition order is entered. Section 5 also amends RCW 13.34.260 to provide that the department shall follow the wishes of the parents (“absent good cause”) regarding placement of their child “with a relative or other suitable person…”  In 2007, the legislature added other suitable person as a placement option in dependencies. While the definition of other suitable person is unchanged, this year’s amendment effectively elevates other suitable person to the same status as a child’s relative for placement considerations. Among other things, the department must make the same ongoing reasonable efforts to locate a suitable other person for placement as it currently does to locate a relative.

 

To date, other suitable person placements have generally been agreed to by DCFS and the statute continues to require that such a person appear to the department to be “suitable and competent to provide care for the child.” RCW 13.34.130(1)(b). The new amendments may result in some contested hearings as parents may propose friends or acquaintances as potential other suitable person placements that are deemed not suitable by DCFS or another party. If there is a dispute, other amendments in this bill make it clear that the primary considerations of the court should be the best interests and needs of the child. In a shelter care hearing, the court “must also determine whether placement with the relative or other suitable person is in the child’s best interests.” While this is consistent with long standing case law, it has not previously been so clearly stated in statute. Also, at disposition, the court “shall consider the child’s existing relationships and attachment when determining placement.”   A similar change is made by section 3 to RCW 13.34.138 on review hearings where a best interests requirement is added when the court makes a finding on whether preference has been given to relative placement.

 

Section 4 amends RCW 13.34.145 on permanency planning hearings to also add a new finding for the court. If the department is recommending placement of a child with someone other than the current foster parent, relative or other suitable person, the court must “enter a finding as to the reasons for the recommendation for a change in placement.” This does not change either the department’s placement and care authority over children in its custody or its ability to move a child in an emergency situation, but if the department is recommending a change of placement as part of a permanency plan for a child, the court must make a finding on the reasons for that recommendation.

 

Section 6 adds a new section to chapter 13.34 RCW and requires the use of mandatory AOC pattern forms for dependency proceedings. The forms should be ready for use by January 1, 2010. The forms may be trimmed or supplemented by a party per rules to be developed by AOC.

 

Sections 7 and 8 require DSHS to inform children in dependency proceedings of the statutory duties and responsibilities of the department to them. Section 7 amends RCW 74.13.031 to require DSHS to post on the internet a document listing such duties and responsibilities, which include reasonable efforts towards reunification, sibling and parent-child visits, preference towards relative or other suitable person placement, etc. Section 8 adds a new section to Chapter 74.13 that requires a social worker to provide a dependent child 12 or older with this document and to explain it to the child and direct the child to the website.

 

Sections 9 and 10 address adoption support program issues.  RCW 74.13.109 is amended to require that require that DSHS provide written notice of the limits of the adoption support program to prospective adoptive parents “at least six months before an adoption is finalized…” RCW 74.13.250 is amended to require that information on the limits of the adoption supports program be provided to foster parents in their preservice training. Section 11 amends RCW 74.13.333 to strengthen the authority of the Office of Children’s and Family Ombudsman to investigate allegations by foster parents that the department is retaliating against them. These specific amendments have little direct bearing on dependency proceedings and are not included in the second part of this document.

This bill requires DSHS to provide housing assistance to families in dependency cases in which homelessness or lack of suitable housing is a “significant factor.” Its four sections amend RCW 13.34.030, 13.34.065, 13.34.130 and 13.34.138 respectively. However, while the provision of housing assistance may go to reasonable efforts, it is not a remedial service for purposes of reunification and the court’s authority to order housing assistance is conditioned on the availability of funding and resources and by eligibility on the part of the family.

 

Section 1 adds a definition of “housing assistance” to RCW 13.34.030. It is substantially the same as an existing description of housing services in the definition of “preventive services” in the same section but will have more emphasis as a separate definition.  The new definition includes “appropriate referrals,” help with forms and applications, and possible financial assistance, but it specifically states that “housing assistance” is not a remedial service as described in RCW 13.34.025(2).

 

Section 2 amends the shelter care hearing statute, RCW 13.34.065, to require that the court inquire “as to whether housing assistance was provided to the family to prevent or eliminate the need for removal of the child or children.” However, this inquiry does not need to be made in every case, but only when the court has information before it, from the dependency petition or other sources, that “homelessness or the lack of suitable housing was a significant factor contributing to the removal of the child…” Also, while this amendment requires the court to make a reasonable efforts finding as to the provision of pre-placement housing assistance (assuming there is a sufficient factual threshold for the court to even inquire), nothing in RCW 13.34.065 specifically authorizes the court to order DSHS to provide housing assistance at that point in the proceeding. 

 

The first reference to such authority is in RCW 13.34.130, which currently allows the court to order housing assistance in an in-home dependency. This is amended to clarify that it be for the purpose of assisting the parents “in maintaining the child in the home” and that it be “appropriate.” While this is not defined, the context of the entire bill may be construed to link the question of whether housing assistance is appropriate at disposition to whether homelessness or lack of suitable housing was or is a significant factor in either the removal of the child or in delaying permanency for the child.

 

This link is clearer at review hearings as section 4 of the bill amends RCW 13.34.138 to require the court to make a written finding as to whether a parent’s “homelessness or lack of suitable housing is a significant factor delaying permanency for the child by preventing the return of the child to home of the child’s parent and whether housing assistance should be provided by the department or supervising agency.” Even if the court makes such a finding, its authority to order housing assistance is limited to the availability of funds “appropriated for this specific purpose.” In addition, the court should not order DSHS to provide housing assistance if it is not available or the family is not eligible for such assistance. In order to respond to the issues that are likely to arise as a result of the enactment of SHB 1769, social workers will need to know what housing assistance is available in their community and whether funding has been appropriated for the department or other agencies specifically for housing assistance purposes.

 

In its final form, this bill has a dual focus: to promote early engagement of parents and to encourage placement stability of children by considering their best interests and attachments to their current care providers. It also adds a presumption of current unfitness to the termination statute which allows the court to consider a parent’s failure to remain in touch with his or her child in considering if there is little likelihood of reunification. 

 

Section 2 amends RCW 13.34.062 to require that the written notice provided to parents prior to or at the shelter care hearing be augmented by a fairly lengthy provision regarding the need to participate in the dependency proceeding.[1] The new notice describes what is meant by permanency planning, tells parents that the department is required to provide services and visits, and warns them that their failure to “promptly engage in services or to maintain contact with your child” may lead to the filing of a termination petition. It also tells parents they should immediately notify their attorney and the court of their placement wishes and preferences, including relatives and other suitable persons. DSHS currently provides this notice and will be responsible for adding the new provisions and no action is required by other participants in dependency cases. However, to avoid notice issues later in the case, AAGs and social workers should ensure that there is a signed receipt by the parents in the court file acknowledging they were provided with the notice.

 

Section 3 is one of four separate amendments to RCW 13.34.065, all of which now need to be read together. It adds a requirement that the court in making a placement decision at a shelter care hearing “shall weigh the child’s length of stay and attachment to the current provider” in determining the child’s best interest. Although the intent of this is to allow courts to consider a child’s attachments to the child’s care provider independent of the provider’s legal or biological relationship with the child, it is not likely to be consideration in most shelter care hearings.

RCW 13.34.145 is amended by section 4 to add a similar consideration in permanency planning hearing. RCW 13.34.145(1)(b) currently provides that when a child is removed from a long term placement and placed in out of home care, a permanency planning hearing must be set within 12 months. The amendment adds the requirement that “every effort shall be made to provide stability in long term placement, and avoid disruption of placement, unless the child is being returned home or it is in the best interest of the child.” From its context in the statute, this amendment arguably only applies to cases where a permanent plan has disrupted, i.e. a failed guardianship, and not to cases where a child is in relative, other suitable person, or licensed foster care under the supervision of DSHS or a supervising agency. While placement stability is desirable in most cases, and is being encouraged by other means such as the Braam Settlement, this provision should not be construed to create an entitlement to placement or to give any substantive rights to care providers not already in statute or DSHS policy. 

 

However, it should be read in conjunction with the amendment to this statute in ESSB 5811, which requires the court do “enter a finding as to the reasons for the recommendation for a change in placement” whenever the department is recommending placement of a child with someone other than the current foster parent, relative or other suitable person. The effect of these two amendments is to place heightened responsibility on the department or supervising agency to try and maintain placements and, in the event a placement must be changed or is disrupted, to provide clear information to the court on the reasons for the change and the relation to or impact on the child’s best interests. 

 

Section 5 amends RCW 13.34.180 to add a new rebuttable presumption to (1)(e) to the element of termination that there is little likelihood that a parent can remedy his or her deficiencies to the point where a child can be returned to the parent in the near future. To substance abuse and mental illness or psychological incapacity, the legislature now adds the “failure of the parent to have contact with the child for an extended period of time after the filing of the dependency petition” provided the parents was provided the opportunity to have such a relationship by the department or supervising agency and received “documented notice of the potential consequence of this failure.” In this regard, the notice provided in section 1 should be sufficient notice (but see also SSB 5510 below).

 

This is likely to have its greatest impact on non-custodial parents who may not have a history of parental deficiencies but who fail to engage with the department or court in a dependency case as to their child. It may not have much practical effect as even occasional or sporadic visitation may be enough to rebut the presumption in a given case. While “extended period of time” is not defined, it should be read in context with the time frame that gives rise to the rebuttable presumption in the first place: “twelve months following entry of the dispositional order.” 

 

Actual inability to visit is also a defense. One mitigating circumstances that may exist in a number of cases is the parent’s incarceration, which “does not in and of itself constitute failure to have contact with the child.” This is not inconsistent with long standing case law that holds that criminal activity or incarceration of a parent do not constitute abandonment in and of themselves, but that a pattern of criminal activity or repeated or long-term incarceration may constitute constructive abandonment of a child.[2]

This bill amends RCW 13.34.155 to give juvenile court similar authority to enter parenting plans in dependency proceedings as it currently has to enter third party custody orders: “when doing so will implement a permanent plan of care for the child and result in the dismissal of the dependency.” All parents active in the case must agree to the entry or modification of the parenting plan and the court must find that it is in the child’s best interests. While the amendment does not require that the department or supervising agency explicitly agree as well, there are not likely to be many cases where these factors apply in the absence of agreement by all parties. If parents do not agree, a party can move for the parenting plan issues to be transferred to family court, but the court can only grant the motion if it makes a written finding that it is in the best interests of the child.

 

The court also has authority to appoint a GAL or attorney for the child on the parenting plan issues and to interview the child in chambers to ascertain the child’s wishes. Property and support issues should not be addressed by juvenile court but should be transferred to family court. Filing fees are waived for indigent parties. Section 1 also amends RCW 13.04.030 to provide that juvenile court have concurrent jurisdiction with family court for parenting plans or residential schedules as provided in RCW 13.34.155.

 

In the event a dependent child is returned home for a trial home visit or eventual reunification and has to be placed in out-of-home care a second (or subsequent) time, a new section is added to chapter 13.34 RCW providing that if the department cannot locate an appropriate relative or other suitable person placement, the preferred placement for the child is a foster home where the child was previously placed. This is conditioned on whether the foster home is available and willing to care for the child, is appropriate and able to meet the child’s needs, and such placement is in the best interests of the child. RCW 74.13.290 is amended to say essentially the same thing, but a provision is also added to that statute saying that when a placement determination is made at the initial removal of the child or at disposition, “placement of the child with a relative or other suitable person is the preferred option.” 

 

Whenever the permanent plan for a child is adoption and that child has siblings, this bill encourages providing and facilitating post adoption contact between the siblings by means of an open adoption agreement. It was introduced after legislators heard from youth in foster care and recent alumni of the foster care system that they had been denied contact with their siblings after they were separated in foster care and the siblings were adopted. But while the bill encourages such post adoption contact, it cannot mandate it.

 

The key section for dependency purposes is section 5 which amends RCW 13.34.136 on permanent plans of care. When the plan is adoption, courts “shall encourage” the prospective adoptive parents or other care providers to “seriously consider the long-term benefits to the child adoptee and his or her siblings of providing for or facilitating postadoption contact between the siblings.”  The court shall make a similar inquiry of the child’s GAL or attorney, if any, and there is a presumption that contact should be at the same level as existed prior to the adoption whenever feasible and in the best interests of the child. 

 

This statute imposes some responsibility on the court but it does not require that it make a finding or order on this issue. The court can only inquire about and encourage postadoption sibling contact. Prospective adoptive parents are not parties to the dependency (which raises the practical issue of how courts will “encourage” them) and the court will have no jurisdiction over the child, adoptive parents or department once the adoption is finalized. The amendment further provides that it does not require the department to agree to any specific provisions in an open adoption agreement and does not create an obligation for it to provide “supervision or transportation for visits between siblings separated by adoption from foster care.” 

 

Section 1 is a statement of legislative intent and sections 2, 3 and 4 amend two sections of chapter 26.33 RCW (“Adoption”) and add a new section to that chapter. The new section essentially mirrors the amendment to RCW 13.34.136 discussed above. Section 4 amends RCW 26.33.190 to require adoption preplacement reports to address this issue and section 3 amends RCW 26.33.295 to allow open adoption agreements for the purpose of sibling contact. 

 

While the court in either the dependency or the adoption proceeding cannot order specific relief, AAGs and social workers should be prepared to address this issue whenever siblings are separated and one of them has a permanent plan of adoption. It should also be viewed in the larger context of promoting sibling visits and contacts pursuant to RCW 13.34.130(3) whenever children are separated in out-of-home care. Maintaining consistent sibling visits and contact throughout the dependency may be the best guarantee that adoptive parents will see value in continuing them after they achieve full parental rights to their child.

Like section 2 of ESHB 1782, this bill requires the department to provide additional notice to parents to encourage them to engage in services and maintain contact with their child or risk possible termination of parental rights. It adds a new section to chapter 13.34 RCW requiring the department to attach the written notice on contrasting paper to the ISSP when it is provided to the parent prior to a dependency review hearing. There is not a specific requirement that this notice be filed in the court file and practice varies around the state regarding whether ISSPs are filed in review and permanency planning hearings. As best practice, AAGs or social workers should see that a copy of the notice is filed with a declaration or other proof of service each time it is provided to the parent.

This bill was enacted to implement two provisions of a lengthy federal law that was passed in late 2008.   The Fostering Connections to Success and Increasing Adoptions Act of 2008 (P.L. 110-351) is an 89-page act that amends Titles IV-B and IV-E of the Social Security Act and requires state child welfare agencies to implement a number of practices as a condition of federal funding. While the majority of the Act’s requirements are already law in Washington State or are practices that can be implemented without legislative changes, 2SHB 1961 is intended to implement two programs that are optional for states: (1) extending foster care, adoption support and relative guardianship payments to youth ages 18 to 21 in certain circumstances and (2) implementing a relative guardianship subsidy program. 

 

Section 1 is an uncodified statement of legislative intent. Sections 2 and 4 both amend RCW 74.13.031 on the duty of the department to provide child welfare services.[3] Section 4 is intended to continue current law on educational opportunities for youth aging out of foster care, part of which expired at the end of 2008. It provides that the department has authority, within amounts appropriated for this specific purpose, to provide continued foster care to youths who are participating in a postsecondary academic or vocational program. Continued eligibility is subject to department rules. The amendment deletes a requirement that youth enrolled in a postsecondary educational program must maintain a 2.0 grade point average. 

 

Section 2 expands the program consistent with the new federal option to give the department authority to provide continued foster care or group care benefits and to continue adoption support benefits or subsidized relative guardianship to youth up to age 21 under certain specified conditions. The amendments to RCW 74.13.031 under section 2 do not become effective until October 1, 2010 at which time they will supersede the amendments made by section 4.[4] 

Section 5 and 6 address subsidies for dependency guardianships. Section 5adds a new section to chapter 13.34 RCW that first states that the legislature intends to make subsidized relative guardianships, as permitted under federal law, available to Washington families through the dependency guardianship statute and through a guardianship program. It then provides that relative guardianships “shall be a permissible permanency plan” for a dependent child who is Title IV-E eligible “and for whom the prospective relative guardian has been the licensed foster care provider for at least six months prior to the guardianship being established.” The remainder of this statute is general provisions regarding outreach, promotion of permanency and stability through use of relative guardianship subsidy agreements, and compliance with federal laws, rules and regulations. 

 

Section 6 amends RCW 13.34.234 to specify that to be eligible for a guardianship subsidy, the dependency guardian must be a licensed foster parent at the time the guardianship is established and have been the child’s foster parent for a minimum of six consecutive months prior to the entry of the guardianship order.  But unlike section 5, it does not use the term “relative guardianship.” 

 

The effect of sections 5 and 6 is to limit the federal guardianship subsidy but it remains to be seen what impact this bill will have on non-subsided dependency guardianships. For example, it appears that an unlicensed suitable other person who is the care provider for a child could become a dependency guardian but would not be eligible for the federal subsidy. Federal guidelines have not yet been issued on the Fostering Connections to Success and Increasing Adoptions Act. After such guidelines are issued, the department can establish rules setting eligibility and program standards. This process has begun and additional clarification may be available within a few months.    

Section 2 of SSB 5285 amends RCW 13.34.100 to require that courts “shall attempt” to match children with special needs with a guardian ad litem or CASA with specific training or education related to the child’s needs. GAL programs will also be required to maintain and provide information on each GAL’s/CASA’s “specific training related to issues potentially faced by children in the dependency system” and “specific training or education related to child disability or developmental issues.” Background check requirements for GAL/CASAs are also strengthened, although the results of the background check cannot be provided to parties or their attorneys, only to the court. 

 

Section 1 amends RCW 26.44.030 to make GALs and CASAs appointed under Titles 11, 13 or 26 RCW mandated reporters for child abuse and neglect when acting in the course of their representation of children. Sections 3 and 4 amend sections of chapter 26.12 RCW on GALs for family law cases similar to section 2. These statutes do not directly apply to juvenile cases and are not included below.

Currently RCW 26.44.160 provides that a prosecutor or judge may refer a child under age 12 to DSHS as a sexually aggressive youth if they determine that there is probable cause to believe that the child committed a sex offense but that he or she cannot be prosecuted because of age. Upon receipt of such a referral, the department may offer services to the youth through a review process outlined in RCW 74.13.075. SHB 1419 amends RCW 74.13.075 to add two new subsections. The first subsection provides that the department may offer “available” services and treatment to a sexually aggressive youth and his or her parents or legal guardians, or make referrals to such services and treatment “available within the community”, regardless of whether the child is the subject of a dependency proceeding. While this is intended to remove a perceived barrier to services in some cases, the provision of SAY services is both within the discretionary authority of DSHS and limited to those services that are available within the community.

 

The second new subsection to the end of RCW 74.13.075 creates a specific information sharing and confidentiality requirement for SAY youth. It provides that a juvenile’s status as SAY and any “protective plan, services, and treatment plans and progress reports” provided with SAY funds are confidential and not subject to public disclosure, but that they “shall” be shared by the department with other juvenile care agencies, law enforcement agencies, and schools, who must also maintain its confidentiality. 

 

The first four sections of this bill amend existing statutes in chapters 13.32A and 74.13 RCW to provide that youth may be held in some secure or semi-secure crisis residential centers (CRCs) for as long as fifteen days, up from the current five day maximum. This is intended to increase the opportunity for the CRC to provide intervention, stabilization and reconciliation services to the youth or the youth’s family. 

 

Secure CRCs were first established by the legislature in the Becca Bill in 1995. They are licensed by DSHS and are defined in RCW 13.32A.030:

 

(15) "Secure facility" means a crisis residential center, or portion thereof, that has locking doors, locking windows, or a secured perimeter, designed and operated to prevent a child from leaving without permission of the facility staff.

 

The legislature in 1998 amended the Becca Bill to allow secure CRCs to be co-located in existing juvenile detention centers. But SHB 2346 authorizes a stay of up to 15 days only in those secure CRCs that are not co-located in a juvenile detention center, in effect creating two distinct types of secure CRCs. [5] In no event may a child stay in a secure CRC co-located in a juvenile detention center for more than 5 days. 

 

Section 5 adds a new section to chapter 13.32A RCW which authorizes DSHS to “take a runaway youth to a secure facility after attempting to notify the parent of the child's whereabouts.” However, DSHS may not do this if it “has reasonable cause to believe that the reason for the child's runaway status is the result of abuse or neglect.” Further, there is nothing in chapter 13.32A RCW that specifically gives the department the authority to take a runaway youth into custody for placement purposes. Only law enforcement officers have this authority per RCW 13.32A.050 and .060.

 

Since secure CRCs are by definition locked facilities, whether co-located in a juvenile detention center or elsewhere, it does not appear that the new statute gives DSHS social workers authority to place a youth into custody in order to transport the youth to the secure CRC. But if a runway youth, who self presents to the department or is brought to the department as a runaway, voluntarily agrees to go to a secure CRC, it would be appropriate for DSHS to transport the youth to that facility as long as other provisions of chapter 13.32A RCW are complied with and the youth’s consent is appropriately documented. In other situations, DSHS social workers should contact law enforcement to take the youth into custody pursuant to RCW 13.32A.050. This also raises the issue of whether youth who voluntarily enter a secure CRC under this section can leave at will or can be held there for the full 15 days. 

This bill amends RCW 13.34.360 to add a new location to existing sites where a parent may voluntarily surrender a newborn baby without facing criminal sanctions. Currently, a parent may transfer a baby less than 72 hours old to a qualified person at a hospital emergency department or a fire station. The bill adds “federally designated rural health clinic” as a third option and requires that by July 1, 2011 all three sites post signs indicating that they are appropriate locations for the transfer of a newborn under this statute. This amendment has little direct bearing on dependency proceedings and is not included in the second part of this document.