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H0171aaS.............................by JUDICIARY, RULES AND ADMINISTRATION
CHILD PROTECTIVE ACT - Amends existing law relating to the Child Protective
Act to provide language requiring a court finding; to require a court to
include on the summons an order to remove the child; to revise provisions
applicable to shelter care hearings; to revise provisions relating to the
delivery of investigative reports prior to pretrial conferences; to revise
requirements for court findings; to remove language requiring a decree to
provide for the preparation of written case plans within a specified
period; to revise provisions relating to review and permanency hearings;
and to require the filing of a permanency plan and department
recommendations at least five days prior to a permanency hearing in the
case of a finding of aggravated circumstances.
02/12 House intro - 1st rdg - to printing
02/13 Rpt prt - to Jud
02/16 Rpt out - rec d/p - to 2nd rdg
02/19 2nd rdg - to 3rd rdg
02/22 3rd rdg - PASSED - 68-0-2
AYES -- Anderson, Andrus, Barrett, Bayer, Bedke, Bell, Bilbao, Black,
Block, Bock, Boe, Bolz, Brackett, Bradford, Chadderdon, Chavez, Chew,
Clark, Collins, Crane, Durst, Edmunson, Eskridge, Hagedorn, Hart,
Harwood, Henbest, Henderson, Jaquet, Killen, King, Kren, Labrador,
LeFavour, Loertscher, Luker, Marriott, Mathews, McGeachin, Mortimer,
Moyle, Nielsen, Nonini, Pasley-Stuart, Patrick, Pence, Raybould,
Ring, Ringo, Roberts, Ruchti, Rusche, Sayler, Schaefer, Shepherd(2),
Shepherd(8), Shirley, Shively, Smith(30), Smith(24), Snodgrass,
Thayn, Trail, Vander Woude, Wills, Wood(27), Wood(35), Mr. Speaker
NAYS -- None
Absent and excused -- Lake, Stevenson
Floor Sponsor - Bolz
Title apvd - to Senate
02/23 Senate intro - 1st rdg - to Jud
03/12 Rpt out - to 14th Ord
03/13 Rpt out amen - to 1st rdg as amen
03/14 1st rdg - to 2nd rdg as amen
03/15 2nd rdg - to 3rd rdg as amen
Rls susp - PASSED - 34-0-1
AYES -- Andreason, Bair, Bilyeu, Broadsword, Burkett, Cameron,
Coiner, Corder, Darrington, Davis, Fulcher, Gannon, Geddes, Goedde,
Hammond, Heinrich, Hill, Jorgenson, Kelly, Keough, Langhorst, Little,
Lodge, Malepeai, McGee, McKague, McKenzie, Pearce, Richardson,
Schroeder, Siddoway, Stegner, Stennett, Werk
NAYS -- None
Absent and excused -- Bastian
Floor Sponsor - Davis
Title apvd - to House
03/15 House concurred in Senate amens - to engros
03/16 Rpt engros - 1st rdg - to 2nd rdg as amen
03/19 2nd rdg - to 3rd rdg as amen
03/20 3rd rdg as amen - PASSED - 66-0-4
AYES -- Anderson, Andrus, Barrett, Bayer, Bell, Bilbao, Black, Block,
Bock, Boe, Bolz, Brackett, Bradford, Chadderdon, Chew, Clark,
Collins, Crane, Durst, Edmunson, Eskridge, Hagedorn, Hart, Harwood,
Henbest, Jaquet, Killen, King, Kren, Labrador, Lake, LeFavour,
Loertscher, Luker, Marriott, Mathews, McGeachin, Mortimer, Moyle,
Nielsen, Nonini, Pasley-Stuart, Patrick, Pence, Raybould, Ring,
Ringo, Roberts, Ruchti, Rusche, Sayler, Schaefer, Shepherd(2),
Shepherd(8), Shirley, Shively, Smith(30), Smith(24), Snodgrass,
Stevenson, Thayn, Trail, Vander Woude, Wills, Wood(27), Wood(35)
NAYS -- None
Absent and excused -- Bedke, Chavez, Henderson, Mr. Speaker
Floor Sponsor - Bolz
Title apvd - to enrol
03/21 Rpt enrol - Sp signed
03/22 Pres signed - To Governor
03/27 Governor signed
Session Law Chapter 223
Effective: 07/01/07
]]]] LEGISLATURE OF THE STATE OF IDAHO ]]]]
Fifty-ninth Legislature First Regular Session - 2007
IN THE HOUSE OF REPRESENTATIVES
HOUSE BILL NO. 171
BY JUDICIARY, RULES AND ADMINISTRATION COMMITTEE
1 AN ACT
2 RELATING TO THE CHILD PROTECTIVE ACT; AMENDING SECTION 16-1611, IDAHO CODE, TO
3 PROVIDE LANGUAGE REQUIRING A COURT FINDING, TO REQUIRE A COURT TO INCLUDE
4 ON THE SUMMONS AN ORDER TO REMOVE THE CHILD AND TO REVISE TERMINOLOGY;
5 AMENDING SECTION 16-1615, IDAHO CODE, TO REVISE PROVISIONS APPLICABLE TO
6 SHELTER CARE HEARINGS; AMENDING SECTION 16-1619, IDAHO CODE, TO REVISE
7 PROVISIONS RELATING TO THE DELIVERY OF INVESTIGATIVE REPORTS PRIOR TO PRE-
8 TRIAL CONFERENCES, TO REVISE REQUIREMENTS FOR COURT FINDINGS AND TO REMOVE
9 LANGUAGE REQUIRING A DECREE TO PROVIDE FOR THE PREPARATION OF WRITTEN CASE
10 PLANS WITHIN A SPECIFIED PERIOD; AMENDING SECTION 16-1622, IDAHO CODE, TO
11 REVISE PROVISIONS RELATING TO REVIEW AND PERMANENCY HEARINGS; AND AMENDING
12 SECTION 16-1629, IDAHO CODE, TO REQUIRE THE FILING OF A PERMANENCY PLAN
13 AND DEPARTMENT RECOMMENDATIONS AT LEAST FIVE DAYS PRIOR TO A PERMANENCY
14 HEARING IN THE CASE OF A FINDING OF AGGRAVATED CIRCUMSTANCES.
15 Be It Enacted by the Legislature of the State of Idaho:
16 SECTION 1. That Section 16-1611, Idaho Code, be, and the same is hereby
17 amended to read as follows:
18 16-1611. SUMMONS. (1) After a petition has been filed, the clerk of the
19 court may issue a summons requiring the person or persons who have custody of
20 the child to bring the child before the court at the adjudicatory hearing held
21 in accordance with section 16-1619, Idaho Code. Each parent or guardian shall
22 also be notified in the manner hereinafter provided of the pendency of the
23 case and the time and place set for the hearing. A summons shall be issued and
24 served requiring the appearance of each parent and legal guardian, and a sum-
25 mons may be issued and served for any other person whose presence is required
26 by the child, either of his parents or guardian or any other person whose
27 presence, in the opinion of the court, is necessary.
28 (2) A copy of the petition shall be attached to each summons.
29 (3) The summons shall notify each of the parents, guardian or legal cus-
30 todian of their right to retain and be represented by counsel. Each parent or
31 legal guardian of each child named in the petition shall be notified by the
32 court of the case and of the time and place set for the hearing.
33 (4) If based on facts presented to the court, it appears that the court
34 has jurisdiction upon the grounds set forth in section 16-1603, Idaho Code,
35 and the court finds that the child should be removed from his present condi-
36 tion or surroundings because continuation in such condition or surroundings
37 would be contrary to the welfare of the child and vesting legal custody with
38 the department or other authorized agency would be in the child's best inter-
39 ests, the court may so shall include on the summons an order by endorsement
40 upon the summons to remove the child. The endorsement order to remove the
41 child shall specifically state that continuation in the present condition or
42 surroundings is contrary to the welfare of the child and shall require a peace
43 officer or other suitable person to take the child at once to a place of
2
1 shelter care designated by the authorized agency which shall provide shelter
2 care for the child.
3 (5) If it appears that the child is safe in his present condition or sur-
4 roundings and it is not in his best interest to remove him at this time, the
5 court may issue a protective order based on an affidavit pending the
6 adjudicatory hearing. If the child is in joint custody, the protective order
7 shall state with specificity the rights and responsibilities of each parent.
8 Each parent shall be provided with a copy of the protective order.
9 SECTION 2. That Section 16-1615, Idaho Code, be, and the same is hereby
10 amended to read as follows:
11 16-1615. SHELTER CARE HEARING. (1) Notwithstanding any other provision of
12 this chapter, when a child is taken into shelter care pursuant to section
13 16-1608 or 16-1611, Idaho Code, a hearing to determine whether the child
14 should be released shall be held according to the provisions of this section.
15 (2) Each of the parents or custodian from whom the child was removed
16 shall be given notice of the shelter care hearing. Such notice shall include
17 the time, place, and purpose of the hearing; and, that such person is entitled
18 to be represented by legal counsel. Notice as required by this subsection
19 shall be given at least twenty-four (24) hours before the shelter care hear-
20 ing.
21 (3) Notice of the shelter care hearing shall be given to the parents or
22 custodian from whom the child was removed by personal service and the return
23 of service shall be filed with the court and to any person having joint legal
24 or physical custody of the subject child. Provided, however, that such service
25 need not be made where the undelivered notice is returned to the court along
26 with an affidavit stating that such parents or custodian could not be located
27 or were out of the state.
28 (4) The shelter care hearing may be continued for a reasonable time upon
29 request by the parent, custodian or counsel for the child.
30 (5) If, upon the completion of the shelter care hearing, it is shown
31 that:
32 (a) A petition has been filed; and
33 (b) There is reasonable cause to believe the child comes within the
34 jurisdiction of the court under this chapter and that reasonable efforts
35 to prevent the placement of the child in shelter care could not be pro-
36 vided because of the immediate danger to the child or were provided but
37 were not successful in eliminating the need for foster care placement of
38 the child; and either:
39 (i) Reasonable efforts were made but were unsuccessful in eliminat-
40 ing the need for shelter care; or
41 (ii) The department's efforts to prevent removal were reasonable
42 given that the department's assessment accurately determined that no
43 preventive services could be safely provided; and
44 (c) The child could not be placed in the temporary sole custody of a par-
45 ent having joint legal or physical custody; and
46 (d) It is contrary to the welfare of the child to remain in the home; and
47 (e) It is in the best interests of the child to remain in temporary
48 shelter care pending the conclusion of the adjudicatory hearing; or
49 (f) There is reasonable cause to believe that the child comes within the
50 jurisdiction of the court under this chapter, but a reasonable effort to
51 prevent placement of the child outside the home could be affected by a
52 protective order safeguarding the child's welfare and maintaining the
53 child in his present surroundings; the court shall issue, within twenty-
3
1 four (24) hours of such hearing, an order of temporary legal custody
2 and/or a protective order. Any evidence may be considered by the court
3 which is of the type which reasonable people may rely upon.
4 (6) Upon ordering shelter care pursuant to subsection (5) of this sec-
5 tion, the court shall also order an adjudicatory hearing to be held as soon as
6 possible, but in no event later than thirty (30) days from the date the peti-
7 tion was filed.
8 (7) If the court does not find that the child should remain in shelter
9 care under subsection (5) of this section, the child shall be released and the
10 court may dismiss the petition.
11 SECTION 3. That Section 16-1619, Idaho Code, be, and the same is hereby
12 amended to read as follows:
13 16-1619. ADJUDICATORY HEARING -- CONDUCT OF HEARING -- CONSOLIDATION. (1)
14 When a petition has been filed, the court shall set an adjudicatory hearing to
15 be held no later than thirty (30) days after the filing of the petition.
16 (2) A pretrial conference shall be held outside the presence of the court
17 within three (3) to five (5) days before the adjudicatory hearing. Investiga-
18 tive reports required under section 16-1616, Idaho Code, shall be delivered to
19 the court with copies to each of the parents and other legal custodians,
20 guardian ad litem and attorney for the child prior to the date set for the
21 pretrial conference.
22 (3) At the adjudicatory hearing, parents or guardians with disabilities
23 shall have the right to introduce admissible evidence regarding how use of
24 adaptive equipment or supportive services may enable the parent or guardian to
25 carry out the responsibilities of parenting the child by addressing the reason
26 for the removal of the child.
27 (4) If a preponderance of the evidence at the adjudicatory hearing shows
28 that the child comes within the court's jurisdiction under this chapter upon
29 the grounds set forth in section 16-1603, Idaho Code, the court shall so
30 decree and in its decree shall make a finding on the record of the facts and
31 conclusions of law upon which it exercises jurisdiction over the child.
32 (5) Upon entering its decree the court shall consider any information
33 relevant to the disposition of the child but in any event shall:
34 (a) Place the child under protective supervision in his own home for an
35 indeterminate period not to exceed the child's eighteenth birthday; or
36 (b) Vest legal custody in the department or other authorized agency sub-
37 ject to residual parental rights and subject to full judicial review by
38 the court of all matters relating to the custody of the child by the
39 department or other authorized agency.
40 (6) If the court vests legal custody in the department or other autho-
41 rized agency, the court shall make detailed written findings based on facts in
42 the record, that, in addition to the findings required in subsection (4) of
43 this section, continuation of residence in the home would be contrary to the
44 welfare of the child and that vesting legal custody with the department or
45 other authorized agency would be in the best interests of the child. In addi-
46 tion the court shall make detailed written findings based on facts in the
47 record as to whether the department made reasonable efforts to prevent the
48 placement of the child in foster care, including findings, when appropriate,
49 that:
50 (a) Reasonable efforts were made but were not successful in eliminating
51 the need for foster care placement of the child;
52 (b) Reasonable efforts were not made because of immediate danger to the
53 child The department's efforts to prevent removal were reasonable given
4
1 that the department's assessment accurately determined that no preventive
2 services could be safely provided;
3 (c) Reasonable efforts to temporarily place the child with related per-
4 sons were made but were not successful; or
5 (d) Reasonable efforts were not required as the parent had subjected the
6 child to aggravated circumstances as determined by the court including,
7 but not limited to: abandonment; torture; chronic abuse; sexual abuse;
8 committed murder; committed voluntary manslaughter of another child; aided
9 or abetted, attempted, conspired or solicited to commit such a murder or
10 voluntary manslaughter; committed a battery that results in serious bodily
11 injury to a child; or the parental rights of the parent to a sibling of
12 the child have been terminated involuntarily and that as a result, a hear-
13 ing to determine the permanent future plan for this child will be held
14 within thirty (30) days of this determination.
15 (7) A decree vesting legal custody in the department shall be binding
16 upon the department and may continue until the child's eighteenth birthday.
17 The decree shall state that the department shall prepare a written case plan
18 within thirty (30) days of placement.
19 (8) A decree vesting legal custody in an authorized agency other than the
20 department shall be for a period of time not to exceed the child's eighteenth
21 birthday, and on such other terms as the court shall state in its decree to be
22 in the best interests of the child and which the court finds to be acceptable
23 to such authorized agency.
24 (9) In order to preserve the unity of the family system and to ensure the
25 best interests of the child whether issuing an order of protective supervision
26 or an order of legal custody, the court may consider extending or initiating a
27 protective order as part of the decree. The protective order shall be deter-
28 mined as in the best interests of the child and upon a showing of continuing
29 danger to the child. The conditions and terms of the protective order shall be
30 clearly stated in the decree.
31 (10) If the court does not find that the child comes within the jurisdic-
32 tion of this chapter pursuant to subsection (4) of this section it shall dis-
33 miss the petition.
34 SECTION 4. That Section 16-1622, Idaho Code, be, and the same is hereby
35 amended to read as follows:
36 16-1622. REVIEW AND PERMANENCY HEARINGS. (1) A motion for revocation or
37 modification of an order issued under section 16-1619, Idaho Code, may be
38 filed by the department or any party; provided that no motion may be filed by
39 the respondents under this section within three (3) months of a prior hearing
40 on care and placement of the child. All persons required to be summoned or
41 notified of the original petition pursuant to section 16-1611, Idaho Code,
42 shall be served with notice of a motion for review of a child's case.
43 (2) If the motion filed under subsection (1) of this section alleges that
44 the child's best interests are no longer served by carrying out the order
45 issued under section 16-1619, Idaho Code, or the department or other autho-
46 rized agency has failed to provide adequate care for the child, the court
47 shall hold a hearing on the motion.
48 (3) A hearing for review of the child's case and permanency plan shall be
49 held no later than six (6) months after entry of the court's order taking
50 jurisdiction under the act, and every six (6) months thereafter, so long as
51 the child is in the custody of the department or authorized agency.
52 (4) A hearing shall be held to review the permanency plan of the depart-
53 ment prior to twelve (12) months from the date the child is removed from the
5
1 home or the date of the court's order taking jurisdiction under this chapter,
2 whichever occurs first. The court shall review, approve, reject or modify the
3 permanency plan of the department and review progress in accomplishing the
4 permanency plan. This permanency hearing may be combined with the review hear-
5 ing required under subsection (3) of this section.
6 (5) By order of tThe court a hearing officer may be appointed to conduct
7 hearings under this section shall make written case-specific findings whether
8 the department made reasonable efforts to finalize a permanency plan for the
9 child.
10 (6) The department or authorized agency may move the court at any time to
11 vacate any order placing a child in its custody or under its protective super-
12 vision.
13 (7) The department or any party may move the court requesting relief from
14 the duty imposed on the department pursuant to the provisions of section
15 16-1629(9), Idaho Code, that it seek termination of parental rights. The court
16 may grant the department's motion if it appears based on compelling reasons in
17 the record that the presumption has been rebutted.
18 SECTION 5. That Section 16-1629, Idaho Code, be, and the same is hereby
19 amended to read as follows:
20 16-1629. POWERS AND DUTIES OF THE DEPARTMENT. The department, working in
21 conjunction with the court and other public and private agencies and persons,
22 shall have the primary responsibility to implement the purpose of this chap-
23 ter. To this end, the department is empowered and shall have the duty to do
24 all things reasonably necessary to carry out the purpose of this chapter,
25 including, but not limited to, the following:
26 (1) The department shall administer treatment programs for the protection
27 and care of neglected, abused and abandoned children, and in so doing may
28 place in foster care, shelter care, or other diagnostic, treatment, or care
29 centers or facilities, children of whom it has been given custody. The depart-
30 ment is to be governed by the standards found in chapter 12, title 39, Idaho
31 Code.
32 (2) On December 1, the department shall make an annual statistical report
33 to the governor covering the preceding fiscal year showing the number and sta-
34 tus of persons in its custody and including such other data as will provide
35 sufficient facts for sound planning in the conservation of children and youth.
36 All officials and employees of the state and of every county and city shall
37 furnish the department upon request, such information within their knowledge
38 and control as the department deems necessary. Local agencies shall report in
39 such uniform format as may be required by the department.
40 (3) The department shall be required to maintain a central registry for
41 the reporting of child neglect, abuse and abandonment information. Provided
42 however, that the department shall not retain any information for this purpose
43 relating to a child, or parent of a child, abandoned pursuant to chapter 82,
44 title 39, Idaho Code.
45 (4) The department shall make periodic evaluation of all persons in its
46 custody or under its supervision for the purpose of determining whether exist-
47 ing orders and dispositions in individual cases shall be modified or continued
48 in force. Evaluations may be made as frequently as the department considers
49 desirable and shall be made with respect to every person at intervals not
50 exceeding six (6) months. Reports of evaluation made pursuant to this section
51 shall be filed with the court which vested custody of the person with the
52 department. Reports of evaluation shall be provided to persons having full or
53 partial legal or physical custody of a child. Failure of the department to
6
1 evaluate a person or to reevaluate him within six (6) months of a previous
2 examination shall not of itself entitle the person to a change in disposition
3 but shall entitle him, his parent, guardian or custodian or his counsel to
4 petition the court pursuant to section 16-1622, Idaho Code.
5 (5) In a consultive capacity, the department shall assist communities in
6 the development of constructive programs for the protection, prevention and
7 care of children and youth.
8 (6) The department shall keep written records of investigations, evalua-
9 tions, prognoses and all orders concerning disposition or treatment of every
10 person over whom it has legal custody. Department records shall be subject to
11 disclosure according to chapter 3, title 9, Idaho Code, unless otherwise
12 ordered by the court, the person consents to the disclosure, or disclosure is
13 necessary for the delivery of services to the person. Notwithstanding the pro-
14 visions restricting disclosure or the exemptions from disclosure provided in
15 chapter 3, title 9, Idaho Code, all records pertaining to investigations, the
16 rehabilitation of youth, the protection of children, evaluation, treatment
17 and/or disposition records pertaining to the statutory responsibilities of the
18 department shall be disclosed to any duly elected state official carrying out
19 his official functions.
20 (7) The department shall establish appropriate administrative procedures
21 for the processing of complaints of child neglect, abuse and abandonment
22 received and for the implementation of the protection, treatment and care of
23 children formally or informally placed in the custody of the department under
24 this chapter including, but not limited to:
25 (a) Department employees whose job duties are related to the child pro-
26 tective services system under this chapter shall first be trained as to
27 their obligations under this chapter regarding the protection of children
28 whose health and safety may be endangered. The curriculum shall include
29 information regarding their legal duties, how to conduct their work in
30 conformity with the requirements of this chapter, information regarding
31 applicable federal and state laws with regard to the rights of the child,
32 parent and others who may be under investigation under the child protec-
33 tive services system, and the applicable legal and constitutional parame-
34 ters within which they are to conduct their work.
35 (b) Department employees whose job duties are related to the child pro-
36 tective services system shall advise the individual of the complaints or
37 allegations made against the individual at the time of the initial con-
38 tact, consistent with protecting the identity of the referrant.
39 (8) The department having been granted legal custody of a child, subject
40 to the judicial review provisions of this subsection, shall have the right to
41 determine where and with whom the child shall live, provided that the child
42 shall not be placed outside the state without the court's consent. Provided
43 however, that the court shall retain jurisdiction over the child, which juris-
44 diction shall be entered on any order or petition granting legal custody to
45 the department, and the court shall have jurisdiction over all matters relat-
46 ing to the child. The department shall not place the child in the home from
47 which the court ordered the child removed without first obtaining the approval
48 of the court.
49 (9) The department shall give to the court any information concerning the
50 child that the court may at any time require, but in any event shall report
51 the progress of the child under its custody at intervals of not to exceed six
52 (6) months. The department shall file with the court at least five (5) days
53 prior to the permanency hearing either under section 16-1622, Idaho Code, or,
54 in the case of a finding of aggravated circumstances, section 16-1620, Idaho
55 Code, the permanency plan and recommendations of the department. There shall
7
1 be a rebuttable presumption that if a child is placed in the custody of the
2 department and was also placed in out of the home care for a period not less
3 than fifteen (15) out of the last twenty-two (22) months from the date the
4 child entered shelter care, the department shall initiate a petition for ter-
5 mination of parental rights. This presumption may be rebutted by a finding of
6 the court that the filing of a petition for termination of parental rights
7 would not be in the best interests of the child or reasonable efforts have not
8 been provided to reunite the child with his family, or the child is placed
9 permanently with a relative.
10 (10) The department shall establish appropriate administrative procedures
11 for the conduct of administrative reviews and hearings as required by federal
12 statute for all children committed to the department and placed in out of the
13 home care.
14 (11) At any time the department is considering a placement pursuant to
15 this act, the department shall make a reasonable effort to place the child in
16 the least disruptive environment to the child and in so doing may consider,
17 without limitation, placement of the child with related persons.
]]]] LEGISLATURE OF THE STATE OF IDAHO ]]]]
Fifty-ninth Legislature First Regular Session - 2007
Moved by Davis
Seconded by Stegner
IN THE SENATE
SENATE AMENDMENT TO H.B. NO. 171
1 AMENDMENT TO SECTION 2
2 On page 2 of the printed bill, delete lines 39 through 43 and insert:
3 "(i) The department made reasonable efforts to eliminate the need
4 for shelter care but the efforts were unsuccessful; or
5 (ii) The department made reasonable efforts to eliminate the need
6 for shelter care but was not able to safely provide preventive ser-
7 vices; and".
8 AMENDMENTS TO SECTION 3
9 On page 3, delete line 53; and on page 4, delete lines 1 and 2 and insert:
10 "child The department made reasonable efforts to prevent removal but was not
11 able to safely provide preventive services;".
]]]] LEGISLATURE OF THE STATE OF IDAHO ]]]]
Fifty-ninth Legislature First Regular Session - 2007
IN THE HOUSE OF REPRESENTATIVES
HOUSE BILL NO. 171, As Amended in the Senate
BY JUDICIARY, RULES AND ADMINISTRATION COMMITTEE
1 AN ACT
2 RELATING TO THE CHILD PROTECTIVE ACT; AMENDING SECTION 16-1611, IDAHO CODE, TO
3 PROVIDE LANGUAGE REQUIRING A COURT FINDING, TO REQUIRE A COURT TO INCLUDE
4 ON THE SUMMONS AN ORDER TO REMOVE THE CHILD AND TO REVISE TERMINOLOGY;
5 AMENDING SECTION 16-1615, IDAHO CODE, TO REVISE PROVISIONS APPLICABLE TO
6 SHELTER CARE HEARINGS; AMENDING SECTION 16-1619, IDAHO CODE, TO REVISE
7 PROVISIONS RELATING TO THE DELIVERY OF INVESTIGATIVE REPORTS PRIOR TO PRE-
8 TRIAL CONFERENCES, TO REVISE REQUIREMENTS FOR COURT FINDINGS AND TO REMOVE
9 LANGUAGE REQUIRING A DECREE TO PROVIDE FOR THE PREPARATION OF WRITTEN CASE
10 PLANS WITHIN A SPECIFIED PERIOD; AMENDING SECTION 16-1622, IDAHO CODE, TO
11 REVISE PROVISIONS RELATING TO REVIEW AND PERMANENCY HEARINGS; AND AMENDING
12 SECTION 16-1629, IDAHO CODE, TO REQUIRE THE FILING OF A PERMANENCY PLAN
13 AND DEPARTMENT RECOMMENDATIONS AT LEAST FIVE DAYS PRIOR TO A PERMANENCY
14 HEARING IN THE CASE OF A FINDING OF AGGRAVATED CIRCUMSTANCES.
15 Be It Enacted by the Legislature of the State of Idaho:
16 SECTION 1. That Section 16-1611, Idaho Code, be, and the same is hereby
17 amended to read as follows:
18 16-1611. SUMMONS. (1) After a petition has been filed, the clerk of the
19 court may issue a summons requiring the person or persons who have custody of
20 the child to bring the child before the court at the adjudicatory hearing held
21 in accordance with section 16-1619, Idaho Code. Each parent or guardian shall
22 also be notified in the manner hereinafter provided of the pendency of the
23 case and the time and place set for the hearing. A summons shall be issued and
24 served requiring the appearance of each parent and legal guardian, and a sum-
25 mons may be issued and served for any other person whose presence is required
26 by the child, either of his parents or guardian or any other person whose
27 presence, in the opinion of the court, is necessary.
28 (2) A copy of the petition shall be attached to each summons.
29 (3) The summons shall notify each of the parents, guardian or legal cus-
30 todian of their right to retain and be represented by counsel. Each parent or
31 legal guardian of each child named in the petition shall be notified by the
32 court of the case and of the time and place set for the hearing.
33 (4) If based on facts presented to the court, it appears that the court
34 has jurisdiction upon the grounds set forth in section 16-1603, Idaho Code,
35 and the court finds that the child should be removed from his present condi-
36 tion or surroundings because continuation in such condition or surroundings
37 would be contrary to the welfare of the child and vesting legal custody with
38 the department or other authorized agency would be in the child's best inter-
39 ests, the court may so shall include on the summons an order by endorsement
40 upon the summons to remove the child. The endorsement order to remove the
41 child shall specifically state that continuation in the present condition or
42 surroundings is contrary to the welfare of the child and shall require a peace
43 officer or other suitable person to take the child at once to a place of
2
1 shelter care designated by the authorized agency which shall provide shelter
2 care for the child.
3 (5) If it appears that the child is safe in his present condition or sur-
4 roundings and it is not in his best interest to remove him at this time, the
5 court may issue a protective order based on an affidavit pending the
6 adjudicatory hearing. If the child is in joint custody, the protective order
7 shall state with specificity the rights and responsibilities of each parent.
8 Each parent shall be provided with a copy of the protective order.
9 SECTION 2. That Section 16-1615, Idaho Code, be, and the same is hereby
10 amended to read as follows:
11 16-1615. SHELTER CARE HEARING. (1) Notwithstanding any other provision of
12 this chapter, when a child is taken into shelter care pursuant to section
13 16-1608 or 16-1611, Idaho Code, a hearing to determine whether the child
14 should be released shall be held according to the provisions of this section.
15 (2) Each of the parents or custodian from whom the child was removed
16 shall be given notice of the shelter care hearing. Such notice shall include
17 the time, place, and purpose of the hearing; and, that such person is entitled
18 to be represented by legal counsel. Notice as required by this subsection
19 shall be given at least twenty-four (24) hours before the shelter care hear-
20 ing.
21 (3) Notice of the shelter care hearing shall be given to the parents or
22 custodian from whom the child was removed by personal service and the return
23 of service shall be filed with the court and to any person having joint legal
24 or physical custody of the subject child. Provided, however, that such service
25 need not be made where the undelivered notice is returned to the court along
26 with an affidavit stating that such parents or custodian could not be located
27 or were out of the state.
28 (4) The shelter care hearing may be continued for a reasonable time upon
29 request by the parent, custodian or counsel for the child.
30 (5) If, upon the completion of the shelter care hearing, it is shown
31 that:
32 (a) A petition has been filed; and
33 (b) There is reasonable cause to believe the child comes within the
34 jurisdiction of the court under this chapter and that reasonable efforts
35 to prevent the placement of the child in shelter care could not be pro-
36 vided because of the immediate danger to the child or were provided but
37 were not successful in eliminating the need for foster care placement of
38 the child; and either:
39 (i) The department made reasonable efforts to eliminate the need
40 for shelter care but the efforts were unsuccessful; or
41 (ii) The department made reasonable efforts to eliminate the need
42 for shelter care but was not able to safely provide preventive ser-
43 vices; and
44 (c) The child could not be placed in the temporary sole custody of a par-
45 ent having joint legal or physical custody; and
46 (d) It is contrary to the welfare of the child to remain in the home; and
47 (e) It is in the best interests of the child to remain in temporary
48 shelter care pending the conclusion of the adjudicatory hearing; or
49 (f) There is reasonable cause to believe that the child comes within the
50 jurisdiction of the court under this chapter, but a reasonable effort to
51 prevent placement of the child outside the home could be affected by a
52 protective order safeguarding the child's welfare and maintaining the
53 child in his present surroundings; the court shall issue, within twenty-
3
1 four (24) hours of such hearing, an order of temporary legal custody
2 and/or a protective order. Any evidence may be considered by the court
3 which is of the type which reasonable people may rely upon.
4 (6) Upon ordering shelter care pursuant to subsection (5) of this sec-
5 tion, the court shall also order an adjudicatory hearing to be held as soon as
6 possible, but in no event later than thirty (30) days from the date the peti-
7 tion was filed.
8 (7) If the court does not find that the child should remain in shelter
9 care under subsection (5) of this section, the child shall be released and the
10 court may dismiss the petition.
11 SECTION 3. That Section 16-1619, Idaho Code, be, and the same is hereby
12 amended to read as follows:
13 16-1619. ADJUDICATORY HEARING -- CONDUCT OF HEARING -- CONSOLIDATION. (1)
14 When a petition has been filed, the court shall set an adjudicatory hearing to
15 be held no later than thirty (30) days after the filing of the petition.
16 (2) A pretrial conference shall be held outside the presence of the court
17 within three (3) to five (5) days before the adjudicatory hearing. Investiga-
18 tive reports required under section 16-1616, Idaho Code, shall be delivered to
19 the court with copies to each of the parents and other legal custodians,
20 guardian ad litem and attorney for the child prior to the date set for the
21 pretrial conference.
22 (3) At the adjudicatory hearing, parents or guardians with disabilities
23 shall have the right to introduce admissible evidence regarding how use of
24 adaptive equipment or supportive services may enable the parent or guardian to
25 carry out the responsibilities of parenting the child by addressing the reason
26 for the removal of the child.
27 (4) If a preponderance of the evidence at the adjudicatory hearing shows
28 that the child comes within the court's jurisdiction under this chapter upon
29 the grounds set forth in section 16-1603, Idaho Code, the court shall so
30 decree and in its decree shall make a finding on the record of the facts and
31 conclusions of law upon which it exercises jurisdiction over the child.
32 (5) Upon entering its decree the court shall consider any information
33 relevant to the disposition of the child but in any event shall:
34 (a) Place the child under protective supervision in his own home for an
35 indeterminate period not to exceed the child's eighteenth birthday; or
36 (b) Vest legal custody in the department or other authorized agency sub-
37 ject to residual parental rights and subject to full judicial review by
38 the court of all matters relating to the custody of the child by the
39 department or other authorized agency.
40 (6) If the court vests legal custody in the department or other autho-
41 rized agency, the court shall make detailed written findings based on facts in
42 the record, that, in addition to the findings required in subsection (4) of
43 this section, continuation of residence in the home would be contrary to the
44 welfare of the child and that vesting legal custody with the department or
45 other authorized agency would be in the best interests of the child. In addi-
46 tion the court shall make detailed written findings based on facts in the
47 record as to whether the department made reasonable efforts to prevent the
48 placement of the child in foster care, including findings, when appropriate,
49 that:
50 (a) Reasonable efforts were made but were not successful in eliminating
51 the need for foster care placement of the child;
52 (b) Reasonable efforts were not made because of immediate danger to the
53 child The department made reasonable efforts to prevent removal but was
4
1 not able to safely provide preventive services;
2 (c) Reasonable efforts to temporarily place the child with related per-
3 sons were made but were not successful; or
4 (d) Reasonable efforts were not required as the parent had subjected the
5 child to aggravated circumstances as determined by the court including,
6 but not limited to: abandonment; torture; chronic abuse; sexual abuse;
7 committed murder; committed voluntary manslaughter of another child; aided
8 or abetted, attempted, conspired or solicited to commit such a murder or
9 voluntary manslaughter; committed a battery that results in serious bodily
10 injury to a child; or the parental rights of the parent to a sibling of
11 the child have been terminated involuntarily and that as a result, a hear-
12 ing to determine the permanent future plan for this child will be held
13 within thirty (30) days of this determination.
14 (7) A decree vesting legal custody in the department shall be binding
15 upon the department and may continue until the child's eighteenth birthday.
16 The decree shall state that the department shall prepare a written case plan
17 within thirty (30) days of placement.
18 (8) A decree vesting legal custody in an authorized agency other than the
19 department shall be for a period of time not to exceed the child's eighteenth
20 birthday, and on such other terms as the court shall state in its decree to be
21 in the best interests of the child and which the court finds to be acceptable
22 to such authorized agency.
23 (9) In order to preserve the unity of the family system and to ensure the
24 best interests of the child whether issuing an order of protective supervision
25 or an order of legal custody, the court may consider extending or initiating a
26 protective order as part of the decree. The protective order shall be deter-
27 mined as in the best interests of the child and upon a showing of continuing
28 danger to the child. The conditions and terms of the protective order shall be
29 clearly stated in the decree.
30 (10) If the court does not find that the child comes within the jurisdic-
31 tion of this chapter pursuant to subsection (4) of this section it shall dis-
32 miss the petition.
33 SECTION 4. That Section 16-1622, Idaho Code, be, and the same is hereby
34 amended to read as follows:
35 16-1622. REVIEW AND PERMANENCY HEARINGS. (1) A motion for revocation or
36 modification of an order issued under section 16-1619, Idaho Code, may be
37 filed by the department or any party; provided that no motion may be filed by
38 the respondents under this section within three (3) months of a prior hearing
39 on care and placement of the child. All persons required to be summoned or
40 notified of the original petition pursuant to section 16-1611, Idaho Code,
41 shall be served with notice of a motion for review of a child's case.
42 (2) If the motion filed under subsection (1) of this section alleges that
43 the child's best interests are no longer served by carrying out the order
44 issued under section 16-1619, Idaho Code, or the department or other autho-
45 rized agency has failed to provide adequate care for the child, the court
46 shall hold a hearing on the motion.
47 (3) A hearing for review of the child's case and permanency plan shall be
48 held no later than six (6) months after entry of the court's order taking
49 jurisdiction under the act, and every six (6) months thereafter, so long as
50 the child is in the custody of the department or authorized agency.
51 (4) A hearing shall be held to review the permanency plan of the depart-
52 ment prior to twelve (12) months from the date the child is removed from the
53 home or the date of the court's order taking jurisdiction under this chapter,
5
1 whichever occurs first. The court shall review, approve, reject or modify the
2 permanency plan of the department and review progress in accomplishing the
3 permanency plan. This permanency hearing may be combined with the review hear-
4 ing required under subsection (3) of this section.
5 (5) By order of tThe court a hearing officer may be appointed to conduct
6 hearings under this section shall make written case-specific findings whether
7 the department made reasonable efforts to finalize a permanency plan for the
8 child.
9 (6) The department or authorized agency may move the court at any time to
10 vacate any order placing a child in its custody or under its protective super-
11 vision.
12 (7) The department or any party may move the court requesting relief from
13 the duty imposed on the department pursuant to the provisions of section
14 16-1629(9), Idaho Code, that it seek termination of parental rights. The court
15 may grant the department's motion if it appears based on compelling reasons in
16 the record that the presumption has been rebutted.
17 SECTION 5. That Section 16-1629, Idaho Code, be, and the same is hereby
18 amended to read as follows:
19 16-1629. POWERS AND DUTIES OF THE DEPARTMENT. The department, working in
20 conjunction with the court and other public and private agencies and persons,
21 shall have the primary responsibility to implement the purpose of this chap-
22 ter. To this end, the department is empowered and shall have the duty to do
23 all things reasonably necessary to carry out the purpose of this chapter,
24 including, but not limited to, the following:
25 (1) The department shall administer treatment programs for the protection
26 and care of neglected, abused and abandoned children, and in so doing may
27 place in foster care, shelter care, or other diagnostic, treatment, or care
28 centers or facilities, children of whom it has been given custody. The depart-
29 ment is to be governed by the standards found in chapter 12, title 39, Idaho
30 Code.
31 (2) On December 1, the department shall make an annual statistical report
32 to the governor covering the preceding fiscal year showing the number and sta-
33 tus of persons in its custody and including such other data as will provide
34 sufficient facts for sound planning in the conservation of children and youth.
35 All officials and employees of the state and of every county and city shall
36 furnish the department upon request, such information within their knowledge
37 and control as the department deems necessary. Local agencies shall report in
38 such uniform format as may be required by the department.
39 (3) The department shall be required to maintain a central registry for
40 the reporting of child neglect, abuse and abandonment information. Provided
41 however, that the department shall not retain any information for this purpose
42 relating to a child, or parent of a child, abandoned pursuant to chapter 82,
43 title 39, Idaho Code.
44 (4) The department shall make periodic evaluation of all persons in its
45 custody or under its supervision for the purpose of determining whether exist-
46 ing orders and dispositions in individual cases shall be modified or continued
47 in force. Evaluations may be made as frequently as the department considers
48 desirable and shall be made with respect to every person at intervals not
49 exceeding six (6) months. Reports of evaluation made pursuant to this section
50 shall be filed with the court which vested custody of the person with the
51 department. Reports of evaluation shall be provided to persons having full or
52 partial legal or physical custody of a child. Failure of the department to
53 evaluate a person or to reevaluate him within six (6) months of a previous
6
1 examination shall not of itself entitle the person to a change in disposition
2 but shall entitle him, his parent, guardian or custodian or his counsel to
3 petition the court pursuant to section 16-1622, Idaho Code.
4 (5) In a consultive capacity, the department shall assist communities in
5 the development of constructive programs for the protection, prevention and
6 care of children and youth.
7 (6) The department shall keep written records of investigations, evalua-
8 tions, prognoses and all orders concerning disposition or treatment of every
9 person over whom it has legal custody. Department records shall be subject to
10 disclosure according to chapter 3, title 9, Idaho Code, unless otherwise
11 ordered by the court, the person consents to the disclosure, or disclosure is
12 necessary for the delivery of services to the person. Notwithstanding the pro-
13 visions restricting disclosure or the exemptions from disclosure provided in
14 chapter 3, title 9, Idaho Code, all records pertaining to investigations, the
15 rehabilitation of youth, the protection of children, evaluation, treatment
16 and/or disposition records pertaining to the statutory responsibilities of the
17 department shall be disclosed to any duly elected state official carrying out
18 his official functions.
19 (7) The department shall establish appropriate administrative procedures
20 for the processing of complaints of child neglect, abuse and abandonment
21 received and for the implementation of the protection, treatment and care of
22 children formally or informally placed in the custody of the department under
23 this chapter including, but not limited to:
24 (a) Department employees whose job duties are related to the child pro-
25 tective services system under this chapter shall first be trained as to
26 their obligations under this chapter regarding the protection of children
27 whose health and safety may be endangered. The curriculum shall include
28 information regarding their legal duties, how to conduct their work in
29 conformity with the requirements of this chapter, information regarding
30 applicable federal and state laws with regard to the rights of the child,
31 parent and others who may be under investigation under the child protec-
32 tive services system, and the applicable legal and constitutional parame-
33 ters within which they are to conduct their work.
34 (b) Department employees whose job duties are related to the child pro-
35 tective services system shall advise the individual of the complaints or
36 allegations made against the individual at the time of the initial con-
37 tact, consistent with protecting the identity of the referrant.
38 (8) The department having been granted legal custody of a child, subject
39 to the judicial review provisions of this subsection, shall have the right to
40 determine where and with whom the child shall live, provided that the child
41 shall not be placed outside the state without the court's consent. Provided
42 however, that the court shall retain jurisdiction over the child, which juris-
43 diction shall be entered on any order or petition granting legal custody to
44 the department, and the court shall have jurisdiction over all matters relat-
45 ing to the child. The department shall not place the child in the home from
46 which the court ordered the child removed without first obtaining the approval
47 of the court.
48 (9) The department shall give to the court any information concerning the
49 child that the court may at any time require, but in any event shall report
50 the progress of the child under its custody at intervals of not to exceed six
51 (6) months. The department shall file with the court at least five (5) days
52 prior to the permanency hearing either under section 16-1622, Idaho Code, or,
53 in the case of a finding of aggravated circumstances, section 16-1620, Idaho
54 Code, the permanency plan and recommendations of the department. There shall
55 be a rebuttable presumption that if a child is placed in the custody of the
7
1 department and was also placed in out of the home care for a period not less
2 than fifteen (15) out of the last twenty-two (22) months from the date the
3 child entered shelter care, the department shall initiate a petition for ter-
4 mination of parental rights. This presumption may be rebutted by a finding of
5 the court that the filing of a petition for termination of parental rights
6 would not be in the best interests of the child or reasonable efforts have not
7 been provided to reunite the child with his family, or the child is placed
8 permanently with a relative.
9 (10) The department shall establish appropriate administrative procedures
10 for the conduct of administrative reviews and hearings as required by federal
11 statute for all children committed to the department and placed in out of the
12 home care.
13 (11) At any time the department is considering a placement pursuant to
14 this act, the department shall make a reasonable effort to place the child in
15 the least disruptive environment to the child and in so doing may consider,
16 without limitation, placement of the child with related persons.
STATEMENT OF PURPOSE
RS 16678C1
This bill would amend certain provisions of the Child
Protective Act in keeping with recommendations of the
Supreme Court's Child Protection Committee. The language
referring to reasonable efforts to prevent the removal of a
child from the home, or to prevent placement of the child in
shelter care, would be modified to bring it into more exact
compliance with federal requirements. Other amendments
would remove inconsistencies between provisions of the Act;
remove unnecessary language; simplify other provisions; and
specify that the court shall make written findings as to
whether the Department of Health and Welfare has made
reasonable efforts to finalize a permanency plan for a child
found to be within the jurisdiction of the court under the
provisions of the Act.
FISCAL NOTE
This bill would have no impact on the general fund.
Contact Person:
Patricia Tobias
Administrative Director of the Courts
(208) 334-2246
STATEMENT OF PURPOSE/FISCAL NOTE H 171