wa-law.org > bill > 2023-24 > HB 1397 > Original Bill
This act may be known and cited as the Oakley Carlson act.
The tragic disappearance of six year old Oakley Carlson has captured the attention of people from all corners of Washington state, the United States, and the world. The fact that this vibrant little girl vanished after being removed from loving foster parents and returned to troubled birth parents raises serious questions about the effectiveness of our state's child welfare policies and bureaucracies.
The legislature intends to:
Improve the operations and oversight of Washington's child welfare system; and
Create positive change from the sadness and sorrow of young Oakley's disappearance.
For these reasons, the legislature finds that clear and specific standards for returning young children to birth parents who have lost custody of those children will help reduce the risk of harm befalling those children. While reunification of birth families is a good and necessary goal, it must be realized in a careful and comprehensive manner. Reunification must be realized in a manner that protects the children above all other interests.
(1) The status of all children found to be dependent shall be reviewed by the court at least every six months from the beginning date of the placement episode or the date dependency is established, whichever is first. The purpose of the hearing shall be to review the progress of the parties and determine whether court supervision should continue.
The purpose of a permanency planning hearing is to review the permanency plan for the child, inquire into the welfare of the child and progress of the case, and reach decisions regarding the permanent placement of the child.
A permanency planning hearing shall be held in all cases where the child has remained in out-of-home care for at least nine months and an adoption decree, guardianship order, or permanent custody order has not previously been entered. The hearing shall take place no later than 12 months following commencement of the current placement episode.
Whenever a child is removed from the home of a dependency guardian or long-term relative or foster care provider, and the child is not returned to the home of the parent, guardian, or legal custodian but is placed in out-of-home care, a permanency planning hearing shall take place no later than 12 months, as provided in this section, following the date of removal unless, prior to the hearing, the child returns to the home of the dependency guardian or long-term care provider, the child is placed in the home of the parent, guardian, or legal custodian, an adoption decree, guardianship order, or a permanent custody order is entered, or the dependency is dismissed. Every effort shall be made to provide stability in long-term placement, and to avoid disruption of placement, unless the child is being returned home or it is in the best interest of the child.
Permanency planning goals should be achieved at the earliest possible date, preferably before the child has been in out-of-home care for 15 months. In cases where parental rights have been terminated, the child is legally free for adoption, and adoption has been identified as the primary permanency planning goal, it shall be a goal to complete the adoption within six months following entry of the termination order.
No later than 10 working days prior to the permanency planning hearing, the agency having custody of the child shall submit a written permanency plan to the court and shall mail a copy of the plan to all parties and their legal counsel, if any.
When the youth is at least age 17 years but not older than 17 years and six months, the department shall provide the youth with written documentation which explains the availability of extended foster care services and detailed instructions regarding how the youth may access such services after he or she reaches age 18 years.
At the permanency planning hearing, the court shall conduct the following inquiry:
If a goal of long-term foster or relative care has been achieved prior to the permanency planning hearing, the court shall review the child's status to determine whether the placement and the plan for the child's care remain appropriate. The court shall find, as of the date of the hearing, that the child's placement and plan of care is the best permanency plan for the child and provide compelling reasons why it continues to not be in the child's best interest to (i) return home; (ii) be placed for adoption; (iii) be placed with a legal guardian; or (iv) be placed with a fit and willing relative. If the child is present at the hearing, the court should ask the child about his or her desired permanency outcome.
In cases where the primary permanency planning goal has not been achieved, the court shall inquire regarding the reasons why the primary goal has not been achieved and determine what needs to be done to make it possible to achieve the primary goal. The court shall review the permanency plan prepared by the agency and make explicit findings regarding each of the following:
The continuing necessity for, and the safety and appropriateness of, the placement;
The extent of compliance with the permanency plan by the department and any other service providers, the child's parents, the child, and the child's guardian, if any;
The extent of any efforts to involve appropriate service providers in addition to department staff in planning to meet the special needs of the child and the child's parents;
The progress toward eliminating the causes for the child's placement outside of his or her home and toward returning the child safely to his or her home or obtaining a permanent placement for the child;
The date by which it is likely that the child will be returned to his or her home or placed for adoption, with a guardian or in some other alternative permanent placement; and
(A) Being returned safely to his or her home;
(B) Having a petition for the involuntary termination of parental rights filed on behalf of the child;
(C) Being placed for adoption;
(D) Being placed with a guardian;
(E) Being placed in the home of a fit and willing relative of the child; or
(F) Being placed in some other alternative permanent placement, including independent living or long-term foster care.
c. Regardless of whether the primary permanency planning goal has been achieved, for a child who remains placed in a qualified residential treatment program as defined in this chapter for at least 60 days, and remains placed there at subsequent permanency planning hearings, the court shall establish in writing:
i. Whether ongoing assessment of the child's strengths and needs continues to support the determination that the child's needs cannot be met through placement in a foster family home;
ii. Whether the child's placement provides the most effective and appropriate level of care in the least restrictive environment;
iii. Whether the placement is consistent with the child's short and long-term goals as stated in the child's permanency plan;
iv. What specific treatment or service needs will be met in the placement, and how long the child is expected to need the treatment or services; and
v. What efforts the department has made to prepare the child to return home or be placed with a fit and willing relative as defined in RCW 13.34.030, a Title 13 RCW guardian, a guardian pursuant to RCW 11.130.215, an adoptive parent, or in a foster family home.
Following this inquiry, at the permanency planning hearing, the court shall order the department to file a petition seeking termination of parental rights if the child has been in out-of-home care for 15 of the last 22 months since the date the dependency petition was filed unless the court makes a good cause exception as to why the filing of a termination of parental rights petition is not appropriate. Any good cause finding shall be reviewed at all subsequent hearings pertaining to the child. The six-month period of sobriety required before returning a child to his or her parent under RCW 13.34.138 is not included in the period of time the child is in out-of-home care under this subsection (5) used for purposes of determining whether the court shall order the department to file a termination of parental rights petition.
For purposes of this subsection, "good cause exception" includes but is not limited to the following:
The child is being cared for by a relative;
The department has not provided to the child's family such services as the court and the department have deemed necessary for the child's safe return home;
The department has documented in the case plan a compelling reason for determining that filing a petition to terminate parental rights would not be in the child's best interests;
The parent is incarcerated, or the parent's prior incarceration is a significant factor in why the child has been in foster care for 15 of the last 22 months, the parent maintains a meaningful role in the child's life, and the department has not documented another reason why it would be otherwise appropriate to file a petition pursuant to this section;
Where a parent has been accepted into a dependency treatment court program or long-term substance abuse or dual diagnoses treatment program and is demonstrating compliance with treatment goals;
Where a parent who has been court ordered to complete services necessary for the child's safe return home files a declaration under penalty of perjury stating the parent's financial inability to pay for the same court-ordered services, and also declares the department was unwilling or unable to pay for the same services necessary for the child's safe return home; or
The department has not yet met with the caregiver for the child to discuss guardianship as an alternative to adoption or the court has determined that guardianship is an appropriate permanent plan.
The court's assessment of whether a parent who is incarcerated maintains a meaningful role in the child's life may include consideration of the following:
The parent's expressions or acts of manifesting concern for the child, such as letters, telephone calls, visits, and other forms of communication with the child;
The parent's efforts to communicate and work with the department or other individuals for the purpose of complying with the service plan and repairing, maintaining, or building the parent‑child relationship;
A positive response by the parent to the reasonable efforts of the department;
Information provided by individuals or agencies in a reasonable position to assist the court in making this assessment, including but not limited to the parent's attorney, correctional and mental health personnel, or other individuals providing services to the parent;
Limitations in the parent's access to family support programs, therapeutic services, and visiting opportunities, restrictions to telephone and mail services, inability to participate in foster care planning meetings, and difficulty accessing lawyers and participating meaningfully in court proceedings; and
Whether the continued involvement of the parent in the child's life is in the child's best interest.
The constraints of a parent's current or prior incarceration and associated delays or barriers to accessing court‑mandated services may be considered in rebuttal to a claim of aggravated circumstances under RCW 13.34.132(4)(h) for a parent's failure to complete available treatment.
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If the permanency plan identifies independent living as a goal, the court at the permanency planning hearing shall make a finding that the provision of services to assist the child in making a transition from foster care to independent living will allow the child to manage his or her financial, personal, social, educational, and nonfinancial affairs prior to approving independent living as a permanency plan of care. The court will inquire whether the child has been provided information about extended foster care services.
The permanency plan shall also specifically identify the services, including extended foster care services, where appropriate, that will be provided to assist the child to make a successful transition from foster care to independent living.
The department shall not discharge a child to an independent living situation before the child is eighteen years of age unless the child becomes emancipated pursuant to chapter 13.64 RCW.
If the child has resided in the home of a foster parent or relative for more than six months prior to the permanency planning hearing, the court shall:
Enter a finding regarding whether the foster parent or relative was informed of the hearing as required in RCW 74.13.280, 13.34.215(6), and 13.34.096; and
Instruct the department to discuss guardianship as a permanent option for the child with the child's parents and caregiver as an alternative to termination of parental rights and adoption. No child who is placed with a relative or other suitable person may be moved, unless, pursuant to the criteria established in RCW 13.34.130, the court finds that a change in circumstances necessitates a change in placement.
In all cases, at the permanency planning hearing, the court shall:
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Order the permanency plan prepared by the department to be implemented; or
Modify the permanency plan, and order implementation of the modified plan; and
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Order the child returned home only if the court finds that a reason for removal as set forth in RCW 13.34.130 no longer exists; or
Order the child to remain in out-of-home care for a limited specified time period while efforts are made to implement the permanency plan.
Following the first permanency planning hearing, the court shall hold a further permanency planning hearing in accordance with this section at least once every 12 months until a permanency planning goal is achieved or the dependency is dismissed, whichever occurs first.
Prior to the second permanency planning hearing, the agency that has custody of the child shall consider whether to file a petition for termination of parental rights.
(a) Except as provided in (b) of this subsection, if the court orders the child returned home, casework supervision by the department shall continue for at least six months, at which time a review hearing shall be held pursuant to RCW 13.34.138, and the court shall determine the need for continued intervention.
If the court orders the child returned home, casework supervision by the department must continue for at least five years, at which time a review hearing must be held pursuant to RCW 13.34.138, and the court shall determine the need for continued intervention for cases involving:
Substance use disorder on the part of a parent that contributed to the removal of the child or that occurred during the dependency; or
Conviction of the parent of a crime against children as defined in RCW 28A.400.322.
The juvenile court may hear a petition for permanent legal custody when: (a) The court has ordered implementation of a permanency plan that includes permanent legal custody; and (b) the party pursuing the permanent legal custody is the party identified in the permanency plan as the prospective legal custodian. During the pendency of such proceeding, the court shall conduct review hearings and further permanency planning hearings as provided in this chapter. At the conclusion of the legal guardianship or permanent legal custody proceeding, a juvenile court hearing shall be held for the purpose of determining whether dependency should be dismissed. If a guardianship or permanent custody order has been entered, the dependency shall be dismissed.
Continued juvenile court jurisdiction under this chapter shall not be a barrier to the entry of an order establishing a legal guardianship or permanent legal custody when the requirements of subsection (12) of this section are met.
Nothing in this chapter may be construed to limit the ability of the agency that has custody of the child to file a petition for termination of parental rights or a guardianship petition at any time following the establishment of dependency. Upon the filing of such a petition, a fact-finding hearing shall be scheduled and held in accordance with this chapter unless the department requests dismissal of the petition prior to the hearing or unless the parties enter an agreed order terminating parental rights, establishing guardianship, or otherwise resolving the matter.
The approval of a permanency plan that does not contemplate return of the child to the parent does not relieve the department of its obligation to provide reasonable services, under this chapter, intended to effectuate the return of the child to the parent, including but not limited to, visitation rights. The court shall consider the child's relationships with siblings in accordance with RCW 13.34.130.
Nothing in this chapter may be construed to limit the procedural due process rights of any party in a termination or guardianship proceeding filed under this chapter.
Following the dismissal of any dependency case under this chapter, the department shall continue to engage with individuals who are mandated reporters of child abuse and neglect under RCW 26.44.030 who have contact with the child for one year following dismissal of the dependency. The engagement required under this subsection must include requesting weekly reports detailing their observations of the child's health and safety from mandated reporters of child abuse and neglect under RCW 26.44.030 who have contact with the child.
The department shall develop a standard form to provide to mandated reporters of child abuse and neglect under RCW 26.44.030 who have contact with the child that allows mandated reporters to easily report to the department their observations of the child's health and safety as described in this section.