Introduced By: Senators Izzo, Roberts, Gibbs, and Parella
Date Introduced : Februry 4, 1999
It is enacted by the General Assembly as follows:
SECTION 1. Sections 42-72-3 and 42-72-8 of the General Laws in Chapter 42-72 entitled "Children, Youth, and Families Department" are hereby amended to read as follows:
42-72-3. Definitions. -- For the purposes of this chapter:
(1) "Advocate" means the child advocate or any of his or her agents, servants or employees as established pursuant to this title.
(2) "Child" or "children" means any person under the age of eighteen (18); provided that children over the age of eighteen (18) who are nevertheless subject to the continuing jurisdiction of the family court pursuant to chapter 1 of title 14 or defined as emotionally disturbed according to chapter 7 of title 40.1 shall be considered "children" for all the purposes of this chapter.
(3) "Child abuse and neglect" is that term as defined in chapter 11 of title 40.
(4) "Department" means the department of children, youth, and families.
(5) "Director" means the director of children, youth, and families, or his or her designee.
(6) "Regional service center" means the respective local or regional units established by the director.
{ADD (7) "Near fatality" means an act that, as certified by a physician, placed the child in serious or critical condition. ADD}
{ADD (8) "Infant" means any person under the age of twenty-four (24) months. ADD}
42-72-8. Confidentiality of records. -- (a) Any records of the department pertaining to children and their families in need of service pursuant to the provisions of this chapter; or for whom an application for services has been made, shall be confidential and only disclosed as provided by law.
(b) Records may be disclosed when necessary:
(1) To individuals, or public or private agencies engaged in medical, psychological or psychiatric diagnosis or treatment or education of the person under the supervision of the department;
(2) To individuals or public or private agencies for the purposes of temporary or permanent placement of the person, and when the director determines that the disclosure is needed to accomplish that placement;
(3) When the director determines that there is a risk of physical injury by the person to himself or herself or others, and that disclosure of the records is necessary to reduce that risk;
(4) To the family court including periodic reports regarding the care and treatment of children; provided, that if a child is represented by a guardian ad litem or attorney, a copy of the family court report will be made available to the guardian ad litem or attorney prior to its submission;
(5) To inform any person who made a report of child abuse or neglect pursuant to section 40-11-3, whether services have been provided the child as a result of the report; provided, however, that no facts or information shall be released pursuant to this subsection other than the fact that services have been or are being provided;
(6) To permit access to {DEL child abuse and neglect track
system (CANTS) DEL} computer records {ADD relating to child
abuse and neglect investigations ADD} by physicians who are examining
a child when the physician believes that there is reasonable cause
to suspect that a child may have been abused or neglected;
(7) To the office of the department of attorney general upon the request of the attorney general or assistant attorney general when the office is engaged in the investigation of or prosecution of criminal conduct by another relating to the child or other children within the same family unit;
(8) To the department of corrections in the case of an individual who has been transferred to the jurisdiction of that department pursuant to the provisions of section 14-1-7.3 "certification" or section 14-1-7.1 "waiver of jurisdiction"; and
(9) To the office of the department of the attorney general upon the request of the attorney general or assistant attorney general when the office is engaged in the investigation of or prosecution of criminal conduct as defined in section 40-11-3.2.
(10) To individuals employed by a state or county child welfare agency outside of Rhode Island when the director determines that the information is needed to ensure the care, protection and/or treatment of any child; provided, however, any records relating to allegations previously determined to be unfounded, unsubstantiated, or not indicated shall not be disclosed.
(11) Whenever a person previously under the supervision of the training school becomes subject to the jurisdiction of the department of corrections as an adult offender, the director of corrections or his or her designee shall receive, upon request, the portions of the person's training school records limited to the escape history, disciplinary record, and juvenile classification history.
(12) In an administrative hearing held pursuant to section 42-35-9, the records or exact copies of the records shall be delivered to the administrative hearing officer pursuant to a written request by one of the parties, and shall be delivered to the party making the request or shall be reviewed in camera by the administrative hearing officer for purposes of making a determination of relevancy to the merits of the administrative matter pending before the hearing officer, as the hearing officer may direct. If the records or a portion are relevant to the matter, those records may be viewed and/or copied by counsel of record, at the expense of the party requesting the records. The records shall not be disseminated in any form beyond the parties, counsel of record and their agents, and any experts, except as otherwise specifically authorized by the hearing officer, and provided further that at the conclusion of the action, the records shall be sealed.
(13) In a criminal or civil action, the records or exact copies of the records shall be delivered to a court of proper jurisdiction pursuant to a subpoena duces tecum, properly issued by one of the parties, and shall be delivered to the party issuing the subpoena or shall be reviewed in camera by the trial justice for purposes of making a determination of relevancy to the merits of the civil or criminal action pending before the court, as the court may direct. If the records or a portion are relevant to the civil or criminal action, those records may be viewed and/or copied by counsel of record, at the expense of the party requesting the records. The court shall issue a protective order preventing dissemination of the records in any form beyond the parties, counsel of record and their agents, and any experts, except as otherwise specifically authorized by the court, and provided further that at the conclusion of the action, all records shall be sealed.
{ADD (c) The director may disclose the findings or other information about a case as the director deems necessary in a case of child abuse or neglect which has resulted in a child fatality or near fatality. ADD}
{ADD (d) If a public panel is convened or established by the department to evaluate the extent to which the department is discharging its child protection responsibilities, the panel or any of its members or staff shall not disclose identifying information about a specific child protection case nor make public any identifying information provided by the department except as may be authorized by law. Any person who violates this subsection shall be subject to civil sanctions as provided by law. ADD}
{ADD (e) If a public panel is convened or established by the department, such panel, in the course of its evaluation, may review, but shall not investigate, any child fatality that is under the jurisdiction of the child advocate in accordance with the provisions of section 42-73-7(2). ADD}
SECTION 2. Section 40-11-13 of the General Laws in Chapter 40-11 entitled "Abused and Neglected Children" is hereby amended to read as follows:
40-11-13. Confidentiality of reports and records -- Penalty for disclosure. -- (a) All records concerning reports of child abuse and neglect, including reports made to the department, shall be confidential except as specifically provided by this chapter {ADD or as specifically provided by section 42-72-8 ADD} or specifically authorized by the family court in furtherance of the purposes directly connected with this chapter.
(b) Any employee or agent of the department violating any of the provisions of this section shall be guilty of a misdemeanor, and shall be fined not more than two hundred dollars ($200) or shall be imprisoned for not more than six (6) months or both.
(c) Nothing in this chapter shall limit the right of the attorney general to receive all records and reports of child abuse when the office is engaged in the investigation of or prosecution of criminal conduct by another relating to the child or other children within the same family unit.
SECTION 3. Section 15-7-7 of the General Laws in Chapter 15-7 entitled "Adoption of Children" is hereby amended to read as follows:
15-7-7. Termination of parental rights. -- (a) The court shall, upon a petition duly filed by a governmental child placement agency or licensed child placement agency after notice to the parent and hearing thereon, terminate any and all legal rights of the parent to the child, including the right to notice of any subsequent adoption proceedings involving the child, if the court finds as a fact by clear and convincing evidence that:
(1) The parent has willfully neglected to provide proper care and maintenance for the child for a period of at least one year where financially able to do so. In determining whether the parent has willfully neglected to provide proper care and maintenance for the child, the court may disregard contributions to support which are of an infrequent and insubstantial nature; or
(2) The parent is unfit by reason of conduct or conditions seriously detrimental to the child; such as, but not limited to, the following:
(i) Emotional illness, mental illness, mental deficiency, or institutionalization of the parent, including imprisonment, of such a duration as to render it improbable for the parent to care for the child for an extended period of time.
(ii) Conduct toward any child of a cruel or abusive nature.
(iii) The child has been placed in the legal custody or care of the department for children, youth, and families and the parent has a chronic substance abuse problem and the parent's prognosis indicates that the child will not be able to return to the custody of the parent within a reasonable period of time, considering the child's age and the need for a permanent home. The fact that a parent has been unable to provide care for a child for a period of twelve (12) months due to substance abuse shall constitute prima facie evidence of a chronic substance abuse problem.
(iv) The child has been placed with the department for children, youth, and families and the court has previously involuntarily terminated parental rights to another child of the parent and the parent continues to lack the ability or willingness to respond to services which would rehabilitate the parent and provided further that the court finds it is improbable that an additional period of services would result in reunification within a reasonable period of time considering the child's age and the need for a permanent home.
(v) The parent has subjected the child to aggravated circumstances, which circumstances shall be abandonment, torture, chronic abuse and sexual abuse.
(vi) The parent has committed murder or voluntary manslaughter on another of his/her children or has committed a felony assault resulting in serious bodily injury on that child or another of his/her children or has aided or abetted, attempted, conspired or solicited to commit such a murder or such a voluntary manslaughter.
(3) The child has been placed in the legal custody or care of the department for children, youth, and families for at least twelve (12) months; and the parents were offered or received services to correct the situation which led to the child being placed, and provided further that there is not a substantial probability that the child will be able to return safely to the parents care within a reasonable period of time considering the child's age and the need for a permanent home.
(4) The parent has abandoned or deserted the child. A lack of communication or contact with the child for at least a six (6) month period shall constitute prima facie evidence of abandonment or desertion. {ADD In the event that parents of an infant have had no contact or communication with the infant for a period of six (6) months the department shall file a petition pursuant to this section and the family court shall conduct expedited hearings on such petition. ADD}
(b) (1) In the event that the petition is filed pursuant to subsection (a)(1), (a)(2)(i), or (a)(2)(iii), the court shall find as a fact that prior to the granting of the petition such parental conduct or conditions must have occurred or existed notwithstanding the reasonable efforts which shall be made by the agency prior to the filing of the petition to encourage and strengthen the parental relationship so that the child can safely return to the family. In the event that a petition is filed pursuant to subsection (a)(2)(ii), (a)(2)(iv), (a)(2)(v), (a)(2)(vi) or (a)(4), the department has no obligation to engage in reasonable efforts to preserve and reunify a family.
(2) Any duty or obligation on the part of a licensed or governmental child placing agency to make reasonable efforts to strengthen the parental relationship shall cease upon the filing of a petition under this section. This provision shall not be construed and is not intended to limit or affect in any way the parents' right to see or visit with the child during the pendency of a petition under this section.
(3) Upon the filing of a termination of parental rights petition, the agency has an affirmative duty to identify, recruit, process and approve a qualified family for adoption or other permanent living arrangement for the child.
(c) (1) In considering the termination of rights as pursuant to subsection (a), the court shall give primary consideration to the physical, psychological, mental, and intellectual needs of the child insofar as that consideration is not inconsistent with other provisions of this chapter.
(2) The consideration shall include the following: If a child has been placed in foster family care, voluntarily or involuntarily, the court shall determine whether the child has been integrated into the foster family to the extent that the child's familial identity is with the foster family and whether the foster family is able and willing to permanently integrate the child into the foster family. Provided further, that in considering integrating into a foster family, the court should consider: (i) the length of time child has lived in a stable, satisfactory environment and the desirability of maintaining that environment and continuity for the child; (ii) the reasonable preference of the child, if the court determines that the child has sufficient capacity to express a reasonable preference.
(d) If the court finds that the parental rights of the parent should be terminated as specified in subsection (a), it shall by decree duly entered, appoint some suitable person to give or withhold consent in any subsequent adoption proceedings. In the case of petitions filed by licensed or governmental child placement agencies, the court shall appoint the agency to be the sole party to give or withhold consent to the adoption of the child and further vest the agency with all rights of guardianship over the child.
(e) Notwithstanding the provisions of section 9-17-24, no privilege of confidentiality may be involved with respect to any illness, trauma, incompetency, addiction to drugs, or alcoholism of any parent.
(f) The record of the testimony of the parties adduced in any proceeding terminating parental rights to a child shall be entitled to the confidentiality provided for in section 8-10-21 and more specifically shall not be admissible in any civil, criminal, or other proceeding in any court against a person named a defendant or respondent for any purpose whatsoever, except in subsequent proceedings involving the same child or proceedings involving the same respondent.
(g) In the event any child, the parental rights to whom have been finally terminated, has not been placed by the agency in the home of a person or persons with the intention of adopting the child within thirty (30) days from the date of the final termination decree, the family court shall review the status of the child and the agency shall file a report that documents the steps the agency is taking to find an adoptive family or other permanent living arrangement for the child, to place the child with an adoptive family, a fit and willing relative, a legal guardian, or in another planned permanent living arrangement, and to finalize the adoption or legal guardianship. At a minimum, such documentation shall include child specific recruitment efforts, such as the use of state, regional and national adoption exchanges including electronic exchange system.
{DEL (h) (1) There is hereby established a pilot program by
which three (3) duly licensed child placement agencies, caring
for children committed to the department for children, youth,
and families, shall be allowed to petition for the termination
of parental rights; provided, however, that each petition shall
be approved by the director of the department on a case by case
basis and the prosecution of the petition shall be conducted by
the legal counsel of the department. Approval of a petition for
termination submitted by the duly licensed child placement agencies
by the director of the department for children, youth, and families
shall be predicated on a finding by the director: that the child
placement agency staff have appropriate and qualified educational
backgrounds, that the child placement agency staffs have educational
backgrounds similar to those of departmental personnel, that the
child placement agency staff has demonstrated child welfare experience
comparable to that of departmental staff, and that the agency
has been specifically authorized by the director to perform this
function. DEL}
{DEL (2) The cost of training child placement agency staff,
if required to meet the standards set by the director, shall be
borne by the child placement agency. The director shall submit
a report on the operation of this pilot project to the permanent
legislative commission on the department for children, youth,
and families no later than January 1, 1994, and the commission
shall make recommendations to the general assembly regarding the
continuation or termination of this pilot program. DEL}
SECTION 4. This act shall take effect upon passage.
