The 2010 legislative session was a short session and the legislature was preoccupied with budget issues. Most child welfare related bills had a fairly narrow focus. However, a number of bills were passed in 2010 that make changes to the dependency process or other 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 or other juvenile court status offense proceedings. 

 

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. For a few amendments, the entire statute is shown, but for most of the amended statutes only the affected subsections or other relevant parts are shown. These should be compared with the existing statute to understand the context of the amendment. All new RCW sections are shown in their entirety. All statutes enacted or amended in 2010 become effective on June 10, 2010 unless otherwise specified.

 

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 requires that adolescents in dependency proceedings be given periodic notice of their right to ask for an attorney by their social workers and guardians ad litem. This must be done when the child turns 12 and annually thereafter, as well as at the filing of any motion or petition “affecting the child’s placement, services, or familial relationships.”

 

Currently RCW 13.34.100(6) states that if a child age 12 or older “requests legal counsel” the court “may appoint an attorney to represent the child’s position.” While a few counties routinely appoint attorneys for youth in dependency cases when they turn 12 (or 8 in one judicial district), in most counties a youth must affirmatively request an attorney. The right to even ask for an attorney is meaningless if the youth doesn’t know about it or lacks access to the court. HB 2735 is something of a compromise on this issue. The Washington State Supreme Court’s Commission on Foster Care supports the concept that youth in dependency proceedings who are age 12 or older should have their own attorney. But there is no OPD type program for attorneys who represent youth and their appointments are usually paid for by the counties. In the current budget climate, any bill mandating such appointments or even requiring a court review had little chance of passing.

 

Section 1 of the bill is an uncodified statement of legislative intent that recognizes the benefits to youth of having their own legal advocates in dependency and termination proceedings. Section 2 amends RCW 13.34.100 and is the key provision of the bill. As indicated above, it requires that adolescents in dependency proceedings be given notice of their right to ask for an attorney by their social workers and guardians ad litem when they turn 12 or upon filing of a case for a youth who is already older than 12. The youth must be specifically asked “whether he or she wishes to have counsel.” There is also a ‘catch-up’ requirement that notice be provided by July 1, 2010 to youth currently in the system and older than 12. That notice was given must be documented in the agency’s ISSP and in the GAL’s report, which must also indicate the child’s position “regarding appointment of counsel.”   The notice, inquiry and documentation must be repeated “at least” annually thereafter, as well as at the filing of any motion or petition “affecting the child’s placement, services, or familial relationships.”  The provisions do not apply if the youth has already been appointed an attorney.

 

While most of the responsibility under the bill is placed on DSHS and the GAL, the court must consider the issue on two occasions: when the notice must first be provided and again at the first regularly scheduled hearing after the youth turns 15. The court simply considers whether the notice and inquiry was done – the bill does not require an appearance by the youth and the decision on whether to appoint an attorney remains within the discretion of the court.

 

Section 3 amends RCW 13.34.105 to add notice and inquiry to the duties of GALs and also provides that the GAL “shall report to the court his or her independent recommendation as to whether appointment of counsel is in the best interests of the child.” Section 4 amends RCW 13.34.215 to address a different issue by requiring DSHS and GALs to notify eligible youth of their right to petition for reinstatement of parental rights. That section already provides for appointment of counsel to youth who file reinstatement petitions.

 

A potential weakness of the bill will likely be a lack of attorneys with experience in representing youth or who are even willing to take such cases, especially in rural areas. The general consensus of people who have worked on this issue is that representation for youth will be most effective if their attorneys are not drawn from the same pool as those who routinely represent parents in dependencies and terminations. To this end, section 5 creates an uncodified requirement that the Administrative Office of the Courts and the Commission on Foster Care work together to “develop recommendations for voluntary training and caseload standards for attorneys who represent youth” and report to the legislature by December 10, 2010. However, it is likely to be some time before there will be a sufficient number of trained attorneys for youth in some parts of the state.

 

While HB2735 addresses notice and inquiry for youth age 12 or older, nothing in the bill prohibits appointment of an attorney for younger youth. In any case in which a party believes that a child needs to have or would benefit from independent representation by counsel, that party or the court on its own can move for appointment of an attorney. Also, nothing in the bill prohibits concurrent appointments of an attorney and a GAL for a youth at any age. While it is likely that courts will not see a need to appoint or keep GALs for older youth who have an attorney, it may be appropriate in some cases. Keep in mind that in some cases an attorney may serve as a GAL for a youth, although it would be a potential conflict for an attorney to act both as a GAL and to represent the legal or stated interests of the same person. If there is any doubt regarding the specific role of an attorney for a youth, the court should clarify the purpose of the appointment in an order or on the record. Also, if a court denies appointment of an attorney for a youth in a case, parties should ask for the court to state its reasons on the record (or as findings in an order) as the denial may be appealed.

While HB2735 may directly impact more cases, SHB 2680 is the most substantive change to dependency statutes in years. It replaces the current dependency guardianship statutes with a more conventional guardianship program that is partially subsidized with newly available federal funds. The bill clarifies that guardianships are permanent plans for children involved in dependency proceedings and provides for dismissal of the dependency once the guardianship order is entered. 

 

Section 1 of the bill is an uncodified statement of legislative intent and sections 2 through 9 will be a new chapter in RCW Title 13.  Section 1 states that guardianships are appropriate permanent plans for children who are found dependent under RCW 13.34 and who cannot safely be reunified with their parents. A senate amendment to the bill also added a sentence stating that the legislature “is concerned that parents not be pressured by the department into agreeing to the entry of a guardianship when further services would increase the chances that the child could be reunified with his or her parents.”

 

Section 2 sets out the definitions that apply to the newly created guardianship chapter.  Guardian is defined as a person “who: (a) has been appointed by the court as the guardian of a child in a legal proceeding under this chapter; and (b) has the legal right to custody of the child pursuant to court order.” The other definitions are consistent with existing law. 

 

Section 3 outlines the requirements for filing a guardianship petition and for serving as a guardian. This section clarifies that a child age 12 or older is a party to the action. Proposed guardians include but are not limited to licensed foster parents, relatives, and other suitable persons. The ICWA applies to the new guardianship proceedings. While not addressed in the bill, AOC has determined that these petitions will require a new cause number, unlike the current practice of filing dependency guardianship petitions under the existing dependency cause number. 

 

Section 4 lays out the requirements for establishing a dependency guardianship or converting an existing dependency guardianship to a guardianship. The criteria for a guardianship hearing are consistent with the provisions currently in RCW 13.34.231, but the bill adds some new requirements. First, even if all parties agree to the guardianship, the court must find by a preponderance of the evidence that it is “in the child’s best interests to establish a guardianship, rather than to terminate the parent-child relationship and proceed with adoption, or to continue efforts to return custody of the child to the parent.” Second, for a contested guardianship, the proposed guardian must sign “a statement acknowledging the guardian's rights and responsibilities toward the child and affirming the guardian's understanding and acceptance that the guardianship is a commitment to provide care for the child until the child reaches age eighteen.” Third, the court may not establish a guardianship for a legally free child unless it also finds that “one or more exceptional circumstances exist and the benefits for the child of establishing the guardianship outweigh any potential disadvantage to the child of having no legal parent.” Non-exclusive exceptional circumstances are listed in the statute. The section also provides that on the request of a current dependency guardian and the department or supervising agency, the court shall convert the dependency guardianship to a guardianship under the new RCW chapter.

 

Section 5 states the contents of the guardianship order. It transfers custody of the child to the guardian and sets out the responsibilities of the guardian. Once guardianship is established the court shall issue a letter of guardianship to the guardian and the dependency should be dismissed. However, there appears to be a mistake in the bill as it refers to the dependency being dismissed “pursuant to section 7 of this act.” Section 7 addresses termination of the guardianship and is silent on the issue of dismissal of the underlying dependency. Section 5 goes on to provide that upon dismissal of the dependency, “the court shall not order the department or other supervising agency to supervise or provide case management services to the guardian or the child as part of the guardianship order.” While this provision may need to be clarified, the intent of the bill is clear. The Legislature’s Final Bill Report states:

 

The court is required to dismiss the underlying dependency when a guardianship is established or when a current dependency guardianship is converted to a guardianship under the new chapter. After the entry of the guardianship order, the court may not order the DSHS or supervising agency to provide continuing case management services to the guardian or the child.

 

Section 5 also provides that if the child has independent funds or other valuable property under the control of the guardian, the guardian must provide an annual written account to the court. This does not apply to “routine funds or benefits received from a public social service agency on behalf of the child.”

 

Section 6governs modification of the visitation sections of the guardianship order. On its face, it only allows for modification of the visitation provisions of the guardianship order and requires a showing of adequate cause by motion and affidavit before the court will set a hearing. 

 

Section 7governs termination of the guardianship and establishes criteria for terminating a guardianship.  This requires a petition, not a motion, and the petition and supporting affidavit must be served on all parties as well as on the department or supervising agency. In a contested proceeding, the court shall not terminate a guardianship “unless it finds, upon the basis of facts that have arisen since the guardianship was established or that were unknown to the court at the time the guardianship was established, that a substantial change has occurred in the circumstances of the child or the guardian and that termination of the guardianship is necessary to serve the best interests of the child.” Note that this provision does not include any change of circumstances regarding the parent.

 

However, section 7 also provides that the court may terminate a guardianship on the agreement of the guardian and a “parent seeking to regain custody of the child if the court finds by a preponderance of the evidence and on the basis of facts that have arisen since the guardianship was established that:

 

Once a guardianship is terminated, the court must enter an order granting custody to the child’s parent, establish a substitute guardianship, or direct that the child be temporarily placed in the custody of the department and direct that the department file a dependency petition. 

 

Section 8 requires the court to appoint counsel or a guardian ad litem for the child in any proceeding to establish, modify or terminate a guardianship. 

 

Section 9 of the bill provides a right to a subsidy for any relative guardian who is a licensed foster parent at the time the guardianship is established, if the guardian was the child’s foster parent for a minimum of six consecutive months. The section also gives the department authority to establish eligibility and program standards consistent with federal guidelines.  While the subsidy for licensed relative guardians is subsidized with federal funds, the section also provides non-relatives who are licensed foster parents a guardianship subsidy that is paid with state-only funds “within amounts appropriated for this specific purpose.” Relatives and suitable other persons who do not become licensed are not eligible for either subsidy, although relatives are likely to be eligible for TANF for the child.

 

Section 10 amends RCW 13.34.030, the definition section of the juvenile dependency statute, to include a guardian appointed under the new chapter created by this bill. A second amendment changes the definition of “supervising agency” to be consistent with a proposed amendment in a separate bill. 

 

Section 11 adds a new section to chapter 13.34 RCW to authorize “conversion” of a dependency guardianship to a guardianship under the new guardianship chapter. Unless a dependency guardianship is converted, it shall remain in effect pursuant to the provisions of chapter 13.34 RCW. While there will be no new dependency guardianships as of the effective date of this bill, there are likely to be two types of guardianship subject to juvenile court review for an indefinite period. Section 11 also states that a dependency guardianship may be converted by filing a petition under section 3 of the act.  If both the dependency guardian and the department or supervising agency agree that the dependency guardianship should be converted, and if the court finds that such conversion is in the child's best interests, the court shall grant the petition and enter an order of guardianship in accordance with section 5 of this act.  However, this is slightly inconsistent with section 4 that simply says that “upon the request of a dependency guardian… and the department or supervising agency, the court shall convert the dependency guardianship” to a guardianship under the new RCW chapter. 

 

Section 12 adds a section to chapter 74.13 RCW, the child welfare services statute. It requires the department to adopt rules and implement a subsidy program for guardians appointed under the act. It also allows for some easing of nonsafety related licensing and background check standards for the purpose of licensing relatives so that they can be appointed as guardians and be eligible for the subsidy. 

 

Sections 13 through 15are minor or technical amendments to existing statutes in chapter 13.34 RCW. Section 16 repeals the current dependency guardianship provisions in RCW 13.34 that are replaced by this new guardianship statute.  Specific sections that are repealed are RCW 13.34.230, 13.34.231, 13.34. 236 and 13.34.238.

This bill incorporates a specific requirement of the federal Indian Child Welfare Act into two sections of chapter 13.34 RCW. While the bill is redundant as the ICWA requirement already applies to dependency and termination proceedings involving an Indian Child as defined in 25 U.S.C. §1903, it may help clarify some potential legal issues regarding the scope or timing of the ICWA findings in this State . 

 

Section 1 adds the requirement of 25 U.S.C. §1912(e) to RCW 13.34.130, the statute on disposition hearings. Specifically, RCW 13.34.130(b) is amended to now include that the court cannot order an out-of-home placement for an Indian child “unless the court finds, by clear and convincing evidence including testimony of qualified expert witnesses, that the continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child.” As a practical matter, this amendment should not require any changes in dependency proceedings for two reasons: ICWA already applies in any case involving an Indian child and RCW 13.34.130(3)(c) currently requires that a juvenile court’s order for out-of-home placement must be based in some circumstances on a finding by clear, cogent and convincing evidence that “a manifest danger exists that the child will suffer serious abuse or neglect if the child is not removed from the home and an order under RCW 26.44.063 would not protect the child from danger.” 

 

Nonetheless, the Legislature’s decision to place this requirement in the disposition section may help clarify (or generate) some questions regarding the application of ICWA. While some of the evidence needed to prove this requirement may go to the merits of the dependency case, this is now in state law a dispositional finding relating to placement of the child. Per ER 1101(3) the rules of evidence do not apply to disposition hearings and the petitioner may have more leeway to bring in evidence to satisfy this requirement if the court has already found dependency to be established. This may give additional support for the use of declarations or affidavits to provide testimony by qualified expert witnesses. Further, to the extent that some attorneys may argue that 25 U.S.C. §1912(e) must be applied anew at each dependency review hearing, with the court needing to hear from expert witnesses and having to make a new finding by clear and convincing evidence at every hearing, the decision of the Legislature to add this provision only to RCW 13.34.130 and to not add similar language to RCW 13.34.138 or 13.34.145 may be construed to intend the opposite: the requirement only applies at the placement decision required upon the establishment of dependency and does not have to be addressed or repeated at any subsequent review or permanency planning hearings. 

 

Section 1 makes two other changes to RCW 13.34.130. One is basically a technical correction and the other adds the requirement that when an Indian child is placed in out-of-home care, the placement preferences in ICWA and RCW 13.34.250 must be followed. Again, this does not really add or change anything not already required in IWCA cases.

 

Section 2 adds the related requirement of 25 U.S.C. §1912(f) to RCW 13.34.190 for termination proceedings. In any termination proceeding involving an Indian child, including one based on abandonment or aggravated circumstances, “no termination of parental rights may be ordered in such proceeding in the absence of a determination, supported by evidence beyond a reasonable doubt, including testimony of qualified expert witnesses, that the continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child.” As with section 1 of SSB 6470, this amendment is more of an expression by the Legislature of the importance of recognizing and addressing ICWA requirements in cases involving Indian children than a substantive change or addition to existing legal requirements.

Section 2 of SHB 3124 adds a new section to chapter 26.44 RCW to require law enforcement officers to “promptly” notify child protective services (CPS) whenever a parent, guardian or legal custodian of a child under thirteen years of age is arrested for a drug or alcohol related driving offense and the child is present in the vehicle. The law enforcement officer is not required to place the child into protective custody if the officer can locate another “responsible person” or an “agency having the right to physical custody of the child” to assume responsibility for the child or the officer has “reasonable grounds to believe the child should be taken into custody pursuant to RCW 13.34.050 or 26.44.050.” Section 1 of the bill adds an identical new section to chapter 46.61 RCW, the chapter on “Rules of the Road”, which contains a number of sections on driving under the influence.

 

Although section 2 of the bill creates a new RCW section instead of amending RCW 26.44.030, the existing section on mandated reporting, and uses the term “notify” instead of “report”, the intent of the bill appears to be that CPS treat the information in the same way it does any referral alleging child abuse or neglect. While the bill does not amend the current definition of “negligent treatment or maltreatment” in RCW 26.44.020(13) to add an arrest for a drug or alcohol related driving offense with a child in the car, the Legislature’s bill reports do characterize it as negligence on the part of a parent, guardian or legal custodian. It may be that one incident of impaired driving with a child in the car will not require CPS investigation or intervention or lead to the filing of a dependency petition, particularly if the arresting officer can locate someone to assume responsibility for the child, but it remains to be seen if there will be an increase in dependency cases where an officer places a child in protective custody, there are other risk factors present at the time of the arrest, or CPS has received previous referrals as to the parent, guardian or custodian.

This bill creates two new programs to provide in-home detention for non-violent offenders with minor children. The programs will be run by the Department of Corrections (DOC) but the bill requires DSHS to share information regarding any founded CPS findings or open child welfare cases with DOC. If the offender has an open child welfare case or is involved in a dependency proceeding, services ordered in the criminal proceeding may be coordinated with those provided by DCFS or ordered by juvenile court in the dependency. The two relevant sections of the bill add new sections to chapter 9.94A RCW (the sentencing reform act of 1981). The other ten sections of SSB 6639 make minor or technical changes or add references to the new programs to existing sections of chapter 9.94A.

 

The new section of chapter 9.94A enacted by section 2 of the bill establishes the “parent sentencing alternative” program. This program will allow eligible parents or guardians of minor children to remain in their home under community supervision.  It will be available to convicted offenders who do not have a prior or current conviction for a felony that is a sex offense or a violent offense, are not facing deportation, and who are the parents or legal guardian of a minor child and had physical custody of the child at the time of their current offense. To be eligible for the program, the offender must sign “release of information waivers required to allow information regarding current or prior child welfare cases to be shared with the department and the court.” (Department in the context of this bill is the DOC.) 

 

If the offender has an open child welfare case, DOC will provide the release of information and request that Children’s Administration provide a report to the court “that will include, at the minimum, the following”:

 

·       Legal status of the child welfare case;

·       Length of time the Children's Administration (CA) has been involved with the offender;

·       Legal status of the case and permanent plan;

·       Any special needs of the child;

·       Whether or not the offender has been cooperative with services ordered by a juvenile court under a child welfare case; and

·       If the offender has been convicted of a crime against a child.

 

If the offender does not have an open child welfare case with CA but has prior involvement, CA must provide information as to the number and type of past substantiated referrals of abuse and neglect to DOC.   If an offender is given the parenting sentencing alternative, DOC may then impose conditions that include participation in parenting classes, substance abuse treatment, mental health treatment and other services that may be identical to or closely align with services the offender may already be ordered to do in a dependency or which a dependency court may consider after the DOC requirements are imposed. The bill provides that when the offender “has an open child welfare case, [DOC] will seek to coordinate services with the children's administration.” 

 

Section 8 of SSB 6639 adds a new section to chapter 9.94A RCW creating a “parenting program” to authorize community placement for an incarcerated offender when the offender is a parent and has less than 12 months to serve on his or her sentence. Eligibility criteria for this home detention program are basically the same as the sentencing alternative and DOC “shall inquire” of CA and the offender whether CA “has an open child welfare case or prior substantiated referral for abuse or neglect involving the offender.” DOC will seek input from CA on the status of the child welfare case and recommendations regarding placement of the offender and services “required of the department and the court governing the individual’s child welfare case.” (In this context, “department” appears to mean DSHS.) If the offender has an open child welfare case with CA, his or her community corrections officer shall “collaborate and communicate with the identified social worker in the provision of services.”

 

An unusual provision in this section provides that in making a determination as to an offender’s eligibility for early release into this program, DOC must determine “that such a placement would be in the best interests of the child.” To the extent that this is intended to emphasize that the interests of the child are paramount over any interests of the parent or guardian, the provision is appropriate. But it may create confusion if there is also a dependency proceeding, where placement and care authority is vested in CA and reviewed by juvenile court and juvenile court has the legal responsibility to make best interest determinations. DOC has no authority to make a placement decision or best interest of the child determination counter to those made by CA or juvenile court.     

 

Most of the provisions of ESSB 6476 affect JRA and juvenile offender proceedings under chapter 13.40 RCW by requiring that minors who are arrested for prostitution related offenses be treated, at least for their first offense, as victims and receive remedial services and treatment.  The bill mandates the use of diversion agreements for the first offense. It also gives prosecutors discretion to use them for subsequent offenses if the county in which the offense occurred has a program that provides remedial services and treatment to such youth. However, some sections of the bill create additional responsibilities for Children’s Administration and may increase filings of CHINS petitions pursuant to chapter 13.32A RCW.

 

Section 1 of the bill amends RCW 13.32A.030 by adding a definition of “sexually exploited child” to the definition section of the Family Reconciliation Act. A "sexually exploited child" is “any person under the age of eighteen who is a victim of the crime of commercial sex abuse of a minor under RCW 9.68A.100, promoting commercial sexual abuse of a minor under RCW .68A.101, or promoting travel for commercial sexual abuse of a minor under RCW 9.68A.102.” Section 1 also adds “sexually exploited child” to the criteria for the filing of a CHINS petition so that the department, a child’s parents, or a child herself or himself can file a CHINS petition in juvenile court on any child who meets the above definition of "sexually exploited child.

 

The original version of the bill required prosecutors to refer such cases to DSHS, a provision that was replaced with the diversion requirements cited above. However, there is nothing in the bill that would prohibit a prosecutor or law enforcement from referring such cases to DSHS either as part of a diversion agreement or in lieu of filing charges and it is possible that this will create a demand that Family Reconciliation Services (FRS) become involved in these cases and file CHINS petitions. But section 1 does not become effective until July 1, 2011 so the impact of this bill on CHINS proceedings will not be felt for some time. 

 

Section 5 adds a new section to chapter 13.32A RCW which provides that when a youth who has been diverted under RCW 13.40.070 for an alleged offense of prostitution or prostitution loitering is referred to the department, the department “shall” connect the child to services and treatment specified in RCW 74.14B.060 and 74.14B.070. Those sections authorize services for sexually abused children and child victims of sexual assault. 

 

Section 10 adds a new section to chapter 74.15 RCW to provide that DSHS in licensing crisis residential centers and HOPE centers require that they have on staff, or have access to, a person trained to work with sexually exploited children. The remaining sections of the bill address amendments to the state’s criminal code to increase the penalties and fines for cases involving juvenile prostitution, L & I benefits for former child prostitutes and training for law enforcement officers. 

This bill requires licensed youth shelters providing services to runaway and street youth to inform a youth’s parents of the youth’s whereabouts, physical and emotional condition, and the circumstances surrounding the youth’s contact with the shelter. Section 1 is an uncodified statement of legislative intent that describes the purpose of the bill as allowing youth shelters to establish communication and trust with youth while also letting parents know that their children are safe in a shelter instead of on the street. The legislature finds that law enforcement and DSHS can do this without disclosing the youth’s location or compromising the ability of youth shelters to effectively assist youth in crisis.

 

Section 2 amends RCW 13.32A.082 to add requirements for licensed “overnight youth shelters” to provide timely notice to parents that their child is in a shelter. The amended section does not define “overnight youth shelter” and DSHS does not have a specific definition for such shelters in statute, including in chapter 74.15 RCW. In addition, the requirements also apply to “another licensed organization whose stated mission is to provide services to homeless or runaway youth and their families,” a description which likely includes HOPE and crisis residential centers. 

 

If such a facility provides shelter to a youth and knows that the youth is “away from a lawfully prescribed residence or home without parental permission, it shall contact” the youth’s parents within 24 hours, but no more than 72 hours following the youth’s admission. However, if there are compelling reasons not to notify the parent, shelter staff need only to provide the information to the department. Compelling reasons include “but are not limited to” circumstances that indicate that notice to the parent will subject the child to abuse or neglect.

 

In addition, if the facility learns that the youth seeking services or shelter “is away from home without permission,” it must check the Washington State Patrol data base at least once every eight hours to see if the youth has been publicly listed as missing by his or her parents. If the youth is listed as missing, the facility must immediately notify the department, which must then “make a good faith effort” to notify the youth’s parent and offer services to the family.