1999

HOUSE BILL 99-1146

BY REPRESENTATIVES Keller, Alexander, Bacon, Chavez, Clarke, Coleman, Gagliardi, Gordon, Kaufman, Leyba, Mace, Spradley, Tapia, Tupa, S. Williams, and Zimmerman;

also SENATORS Wham, Rupert, and Tanner.

Concerning implementation of the federal "Adoption and Safe Families Act of 1997", and making an appropriation in connection therewith.

Be it enacted by the General Assembly of the State of Colorado:

SECTION 1. Legislative declaration. The general assembly hereby finds, determines, and declares that the federal "Adoption Assistance and Child Welfare Act of 1980", Public Law 96-272, requires the state of Colorado to make "reasonable efforts" to prevent the placement of abused and neglected children out of the home and to reunify the family whenever appropriate. Further, the general assembly finds that the federal "Adoption and Safe Families Act of 1997", Public Law 105-89, clarifies what constitutes "reasonable efforts" and encourages expedition of permanency planning for children in out-of-home placement. Finally, the general assembly finds that greater clarification is necessary to assure that "reasonable efforts" and expedited permanency planning, including the use of administrative reviews, are required for children in the juvenile justice system.

SECTION 2. 19-1-103, Colorado Revised Statutes, is amended BY THE ADDITION OF A NEW SUBSECTION to read:

19-1-103. Definitions. As used in this title or in the specified portion of this title, unless the context otherwise requires:

(24.5) "Community placement" means the placement of a child for whom the state department of human services or a county department has placement and care responsibility pursuant to article 2 or 3 of this title in any licensed or certified twenty-four-hour, non-secure, care and treatment facility away from the child's parent or guardian. "Community placement" includes, but is not limited to, placement in a foster care home, group home, residential child care facility, or residential treatment facility.

SECTION 3. 19-2-508 (3) (a), Colorado Revised Statutes, is amended BY THE ADDITION OF A NEW SUBPARAGRAPH to read:

19-2-508. Detention and shelter - hearing - time limits - findings - review - confinement with adult offenders - restrictions. (3) (a) (VII) If the court orders further detention of a juvenile pursuant to the provisions of this section, said order shall contain specific findings as follows:

(A) Whether continuation of the juvenile in his or her home would be in the juvenile's and the community's best interests;

(B) Whether reasonable efforts have been made to prevent or eliminate the need for removal of the juvenile from the home or whether such efforts are unnecessary due to the existence of an emergency situation that requires the immediate removal of the juvenile from the home; and

(C) Whether procedural safeguards to preserve parental rights have been applied in connection with the removal of the juvenile from the home, any change in the juvenile's placement in a community placement, or any determination affecting parental visitation of the juvenile.

SECTION 4. Part 9 of article 2 of title 19, Colorado Revised Statutes, is amended BY THE ADDITION OF A NEW SECTION to read:

19-2-906.5. Orders - community placement - reasonable efforts required - reviews. (1) If the court sentences a juvenile to a community placement pursuant to the provisions of this article, said order shall contain specific findings as follows:

(a) Whether continuation of the juvenile in the home would be in the juvenile's and the community's best interests;

(b) Whether reasonable efforts have been made to prevent or eliminate the need for removal of the juvenile from the home or whether such efforts are unnecessary due to the existence of an emergency situation that requires the immediate removal of the juvenile from the home; and

(c) Whether procedural safeguards to preserve parental rights have been applied in connection with the removal of the juvenile from the home, any change in the juvenile's community placement, or any determination affecting parental visitation.

(2) (a) Every six months after the sentencing hearing provided in section 19-2-906, the court shall hold a hearing to review any order of community placement or, if there is no objection by any party to the action, the court may require the department of human services to conduct an administrative review. The entity conducting the review shall provide notice of the review to the juvenile, the juvenile's parents or guardian, any service providers working with the juvenile, the juvenile's guardian ad litem, if one has been appointed, and all attorneys of record to allow appearances of any of said persons at the review. At the review conducted pursuant to this subsection (2), the reviewing entity shall determine:

(I) Whether continued community placement is in the best interests of the juvenile and the community;

(II) Whether the juvenile's safety is protected in the community placement;

(III) Whether reasonable efforts have been made to return the juvenile to the home or whether the juvenile should be permanently removed from his or her home;

(IV) Whether continued community placement is necessary and appropriate;

(V) Whether there has been compliance with the juvenile's case plan;

(VI) Whether progress has been made toward alleviating or mitigating the causes that necessitated the community placement; and

(VII) Whether there is a date projected by which the juvenile will be returned and safely maintained in his or her home, placed for legal guardianship, or transitioned into independent living.

(b) If the juvenile resides in a placement out of state, the entity conducting the review shall make a determination that the out-of-state placement continues to be appropriate and in the best interests of the juvenile.

(c) If the review is conducted by the department of human services as an administrative review, the department shall forward a copy of the findings required in paragraph (a) of this subsection (2) to the appropriate judicial district.

(3) (a) If the juvenile is placed in a community placement for a period of twelve months or longer, the court shall conduct a permanency hearing to review the order of community placement within said twelve months or, if there is no objection by any party to the action after notice to the juvenile, the juvenile's parents or guardian, any service providers working with the juvenile, the juvenile's guardian ad litem, if one has been appointed, and all attorneys of record, the court may require the department of human services to conduct a permanency review. At the permanency review, the entity conducting the review shall make determinations as to the following:

(I) Whether continued community placement is in the best interests of the juvenile and the community;

(II) Whether the juvenile's safety is protected in the community placement;

(III) Whether reasonable efforts have been made to find a safe and permanent placement for the juvenile;

(IV) Whether continued community placement is necessary and appropriate;

(V) Whether there has been compliance with the juvenile's case plan;

(VI) Whether progress has been made toward alleviating or mitigating the causes that necessitated the community placement; and

(VII) Whether there is a date projected by which the juvenile will be returned and safely maintained in his or her home, placed for legal guardianship, or transitioned into independent living.

SECTION 5. 19-3-502 (3) (b), Colorado Revised Statutes, is amended to read:

19-3-502. Petition form and content - limitations on claims in dependency or neglect actions. (3) All petitions filed alleging the dependency or neglect of a child shall include the following statements:

(b) "If the child is placed out of the home for a period of ~~eighteen~~ twelve months or longer, the court shall hold a ~~permanency planning hearing no later than eighteen months~~ permanency hearing within said twelve months to determine ~~the future status or placement of~~ a permanent placement for the child.".

SECTION 6. 19-3-507 (4), Colorado Revised Statutes, is amended to read:

19-3-507. Dispositional hearing. (4) In any case in which the disposition is placement out of the home, except for children committed to the department of human services, the court shall, at the time of placement, set a review within ninety days, to determine if whether continued placement is necessary and is in the best interests of the child and of the community and whether reasonable efforts have been made to return the child to the home. Notice of said review shall be given by the court to all parties and to the director of the facility or agency in which the child is placed and any person who has physical custody of the child and any attorney or guardian ad litem of record. The review shall be conducted in accordance with section 19-3-701 (6).

SECTION 7. 19-3-508 (1) (e) (I), Colorado Revised Statutes, is amended to read:

19-3-508. Neglected or dependent child - disposition - concurrent planning. (1) When a child has been adjudicated to be neglected or dependent, the court may enter a decree of disposition the same day, but in any event it shall do so within forty-five days unless the court finds that the best interests of the child will be served by granting a delay. In a county designated pursuant to section 19-1-123, if the child is under six years of age at the time a petition is filed in accordance with section 19-3-501 (2), the court shall enter a decree of disposition within thirty days after the adjudication and shall not grant a delay unless good cause is shown and unless the court finds that the best interests of the child will be served by granting the delay. It is the intent of the general assembly that the dispositional hearing be held on the same day as the adjudicatory hearing, whenever possible. If a delay is granted, the court shall set forth the reasons why a delay is necessary and the minimum amount of time needed to resolve the reasons for the delay and shall schedule the hearing at the earliest possible time following the delay. When the proposed disposition is termination of the parent-child legal relationship, the hearing on termination shall not be held on the same date as the adjudication, and the time limits set forth above for dispositional hearings shall not apply. When the proposed disposition is termination of the parent-child legal relationship, the court may continue the dispositional hearing to the earliest available date for hearing in accordance with the provisions of part 6 of this article. When the decree does not terminate the parent-child legal relationship, the court shall approve an appropriate treatment plan that shall include but not be limited to one or more of the following provisions of paragraphs (a) to (d) of this subsection (1):

(e) (I) Except where the proposed disposition is termination of the parent-child legal relationship, the court shall approve an appropriate treatment plan involving the child named and each respondent named and served in the action. However, the court may find that an appropriate treatment plan cannot be devised as to a particular respondent because the child has been abandoned as set forth in section 19-3-604 (1) (a) and the parents cannot be located, or because the child has been adjudicated as neglected or dependent based upon section 19-3-102 (2), or due to the unfitness of the parents as set forth in section 19-3-604 (1) (b). When the court finds that an appropriate treatment plan cannot be devised, the court shall conduct a permanency ~~planning~~ hearing as set forth in section 19-3-702 (1), unless a motion for termination of parental rights has been filed within thirty days after the court's finding.

SECTION 8. 19-3-701 (2) (c) and (6), Colorado Revised Statutes, are amended to read:

19-3-701. Petition for review of need for placement. (2) (c) All petitions filed pursuant to this section shall include the following statement: "If the child is placed out of the home for a period of ~~eighteen~~ twelve months or longer, the court shall hold a ~~permanency planning hearing~~ permanency hearing within said twelve months to determine the future status of the child. The review of any decree of placement of a child subsequent to the three month review required by section 19-1-115 (4) (a) may be conducted as an administrative review by the department of human services. If you are a party to the action, you have a right to object to an administrative review, and, if you object, the review shall be conducted by the court.".

(6) The petition for review of need for placement shall request the court to determine, by a preponderance of the evidence, if whether placement or continued placement is necessary and is in the best interest of the child and of the community and whether reasonable efforts have been made to return the child to a safe home or whether the child should be permanently removed from his or her home. If the court makes such ~~a finding~~ findings, it shall enter a decree ordering the child's placement out of the home in the facility or setting that most appropriately meets the needs of the child, the family, and the community. In making its decision as to proper placement, the court shall utilize the evaluation for placement prepared pursuant to section 19-1-107 or the evaluation for placement required by subsection (5) of this section that shall state the cost of recommended placement. If the evaluation for placement recommends placement in a facility located in Colorado which can provide appropriate treatment and which will accept the child, then the court shall not place the child in a facility outside this state. If the court deviates from the recommendations of the evaluation for placement in a manner that results in a difference in the cost of the disposition ordered by the court and the cost of the disposition recommended in the evaluation, the court shall make specific findings of fact relating to its decision, including the monthly cost of the placement, if ordered. A copy of such findings shall be sent to the chief justice of the supreme court, who shall report annually to the joint budget committee and annually to the health, environment, welfare, and institutions committees of the house of representatives and senate of the general assembly on such orders. If the court commits the child to the department of human services, it shall not make a specific placement, nor shall the provisions of this subsection (6) relating to specific findings of fact be applicable. If the court makes a finding that continued placement is not necessary and is not in the best interest of the child and the community, the court shall dismiss the petition for review of need for placement and shall order that the child be returned home. The court may require a continued hearing of the petition for review of need for placement for a period not to exceed fourteen days if it finds that the materials submitted are insufficient to make a finding as provided in this subsection (6).

SECTION 9. 19-3-702 (1), (2), (2.5), (3), (6), and (8), Colorado Revised Statutes, are amended to read:

19-3-702. Permanency hearing. (1) In order to provide stable permanent homes for children in as short a time as possible, a court on its own motion or upon motion brought by any party shall conduct a permanency ~~planning~~ hearing if a child cannot be returned home under section 19-1-115 (4) (b) for the purpose of making a determination regarding the future status of the child. Such permanency ~~planning~~ hearing shall be held as soon as possible following the dispositional hearing but shall be held no later than twelve months after the date the child is considered to have entered foster care and from time to time as deemed necessary by the court; except that, in a county designated pursuant to section 19-1-123, if the child is under six years of age at the time a petition is filed in accordance with section 19-3-501 (2), such permanency ~~planning~~ hearing shall be held no later than three months after the decree of disposition of the child. A child shall be considered to have entered foster care on the date the court approves transfer of custody or approves out-of-home placement of the child, as provided for in section 19-3-402 (2), or the date that is sixty days after the date on which the child was removed from the home, whichever is earlier. If the court finds that an appropriate treatment plan cannot be devised at a dispositional hearing in accordance with section 19-3-508 (1) (e) (I), the permanency ~~planning~~ hearing shall be held no later than thirty days after such determination, unless a motion for termination of parental rights has been filed within thirty days after the court's finding. Where possible, the permanency ~~planning~~ hearing shall be combined with the six-month review as provided for in section 19-1-115 (4) (c).

(2) When the court schedules a permanency ~~planning~~ hearing under this section, the court shall promptly issue a notice reciting briefly the substance of the motion. The notice shall set forth the constitutional and legal rights of the child and the child's parents or guardian. Notice of the hearing shall be given to the parents and all parties, including the director of the facility or agency in which the child is placed, and any person who has physical custody of the child. Nothing in this section shall require the presence of any person before the court unless the court so directs. The court shall order the county department of social services to develop a permanency plan for the child, which plan shall be completed and submitted to the court at least three working days in advance of the permanency ~~planning~~ hearing as required in this section.

(2.5) At a permanency ~~planning~~ hearing held in a county designated pursuant to section 19-1-123, if the child is under six years of age at the time a petition is filed in accordance with section 19-3-501 (2) and has been placed out of the home for three months, the court shall review the progress of the case and the treatment plan including the provision of services. The court may order the county department of social services to show cause why it should not file a motion to terminate the parent-child legal relationship pursuant to part 6 of this article. Cause may include, but not be limited to, the following conditions:

(a) The parents or guardians have maintained regular parenting time and contact with the child, and the child would benefit from continuing this relationship; or

(b) The criteria of section 19-3-604 have not yet been met.

(3) Except as provided in subsection (2.5) of this section, at the permanency ~~planning~~ hearing, the court shall first determine whether the child shall be returned to the child's parent or guardian, pursuant to section 19-1-115 (4) (b) and, if applicable, the date on which the child shall be returned, and whether reasonable efforts have been made to find a safe and permanent placement for the child. If the child is not returned to the custody of the child's parent or guardian, the court shall determine whether there is a substantial probability that the child will be returned to the physical custody of the child's parent, guardian, or legal custodian within six months. If the court so determines, it shall set another review hearing for not more than six months, which shall be a permanency ~~planning~~ hearing.

(6) (a) Periodic reviews conducted by the court or, if there is no objection by any party to the action, in the court's discretion, through an administrative review conducted by the state department of human services, shall determine whether the child's safety is protected in the placement, whether reasonable efforts have been made to find a safe and permanent placement, the continuing necessity for and appropriateness of the placement, the extent of compliance with the case plan, and the extent of progress ~~which~~ that has been made toward alleviating or mitigating the causes necessitating placement in foster care and shall project a likely date by which the child may be returned to and safely maintained at the home, placed for adoption, legal guardianship, or guardianship of the person, or placed in another permanent safe placement setting.

(8) (a) Subsequent reviews by the court or, if there is no objection by any party to the action, in the court's discretion, through an administrative review conducted by the state department of human services, shall be conducted every six months except when the court requires a court review or when a court review is requested by the child's parents or guardians or by the child. In the event that an administrative review is ordered, all counsel of record shall be notified and may appear at said review. The entity conducting the review shall make the same determinations as are required at a periodic review conducted pursuant to paragraph (a) of subsection (6) of this section.

SECTION 10. Appropriation. (1) In addition to any other appropriation, there is hereby appropriated, out of any moneys in the general fund not otherwise appropriated, to the department of human services, children, youth and families, special purpose welfare programs, quality improvement unit, for the fiscal year beginning July 1, 1999, the sum of fifty-three thousand forty-eight dollars ($53,048) and 1.0 FTE, or so much thereof as may be necessary, for the implementation of this act. Said amount is exempt from the statutory limit on state general fund appropriations pursuant to section 24-75-201.1 (1) (a) (III) (A), Colorado Revised Statutes. In addition to said appropriation, the general assembly anticipates that, for the fiscal year beginning July 1, 1999, the department of human services will receive the sum of thirteen thousand two hundred sixty-two dollars ($13,262) in federal funds for the implementation of this act. Although the federal funds are not appropriated in this act, they are noted for the purpose of indicating the assumptions used relative to these funds in developing the state appropriation amounts.

(2) In addition to any other appropriation, there is hereby appropriated, out of any moneys in the general fund not otherwise appropriated, to the judicial department, trial courts, for mandated costs, for the fiscal year beginning July 1, 1999, the sum of two hundred twenty-one thousand two hundred sixty dollars ($221,260), or so much thereof as may be necessary, for the implementation of this act. Said amount is exempt from the statutory limit on state general fund appropriations pursuant to section 24-75-201.1 (1) (a) (III) (A), Colorado Revised Statutes.

SECTION 11. Effective date - applicability. This act shall take effect July 1, 1999, and shall apply to juveniles sentenced to community placement on or after said date.

SECTION 12. Safety clause. The general assembly hereby finds, determines, and declares that this act is necessary for the immediate preservation of the public peace, health, and safety.

____________________________ ____________________________

Russell George Ray Powers

SPEAKER OF THE HOUSE PRESIDENT OF

OF REPRESENTATIVES THE SENATE

____________________________ ____________________________

Judith M. Rodrigue Patricia K. Dicks

CHIEF CLERK OF THE HOUSE SECRETARY OF

OF REPRESENTATIVES THE SENATE

APPROVED________________________________________

_________________________________________

Bill Owens

GOVERNOR OF THE STATE OF COLORADO