CHAPTER 338
FORMERLY
HOUSE BILL NO. 540
AS AMENDED BY HOUSE AMENDMENT NOS. 1 AND 2 AND
SENATE AMENDMENT NO. 1
AN ACT TO AMEND TITLES 10, 14, 29, AND 31 OF THE DELAWARE CODE RELATING TO THE CHILD PLACEMENT REVIEW ACT AND THE CHILD PLACEMENT REVIEW BOARD.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF DELAWARE :
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF DELAWARE:
Section 1. Amend Chapter 38, Title 31 of the Delaware Code by striking Chapter 38 in its entirety as it appears therein and by substituting in lieu thereof the following:
"CHAPTER 38. CHILD PLACEMENT REVIEW ACT
§3801. Purpose.
Establishing an independent monitoring system to identify and periodically review children in the care and custody of a placement agency is in the best interests of the health and welfare of all citizens of Delaware. The purposes of this chapter are to provide a system of independent child placement review that insures continuing efforts to obtain permanent homes for these children; to acknowledge that the time perception of children differs from that of adults; to provide stability and safety in the lives of children who must be removed from their caretakers; to make the ongoing needs of children for proper physical, mental, and emotional growth and development the decisive considerations in permanency planning; and to advocate as necessary for the paramount concerns of best interest and safety for the children.
§3802. Definitions.
As used in this chapter, unless the context clearly indicates otherwise:
(1) ‘Administrative review’ means an administrative review as codified in 42 U.S.C. §671(a)(16), 675(5)(A)-(G), and 675(6) that includes (i) the periodic review of a child’s placement conducted by a panel of appointed persons (Review Committee) to evaluate all plans for care and other needs of the child; (ii) the Review Committee’s recommendations to the court, to the Division of Family Services, and/or to the Division of Youth Rehabilitative Services through the distribution of the Committee’s findings and recommendations report; and (iii) the continued advocacy for the needs and safety of the child as identified and determined necessary.
(2) ‘Board’ means the Child Placement Review Board.
(3) ‘Child’ means any child in the custody or care of the Division of Family Services or a child in the custody or care of the Division of Youth Rehabilitative Services who is in an alternative placement or in out-of-home care, but who is not in a detention or incarceration facility.
(4) ‘Contract agency’ means a private organization, agency, or institution with which a placement agency contracts for residential and/or case-management services for a child.
(5) ‘Placement agency’ means the Division of Family Services (DFS) and/or the Division of Youth Rehabilitative Services (YRS) of the Department of Services for Children, Youth and Their Families.
§3803. Child Placement Review Board: composition; terms; appointment; removal; vacancies.
(a) The Delaware Child Placement Review Board is hereby established. For administrative purposes, the Board is within the Administrative Office of the Courts.
(b) The Board shall conduct administrative reviews for every child. A review must be conducted no less frequently than once during the first twelve months after a child’s initial custody or care placement, and no less frequently than annually thereafter until the child exits custody or care placement. For the purpose of conducting administrative reviews, the Board may divide its general membership into Review Committees with not less than 3 members on each committee.
(c) The Board must consist of no fewer than 56 members. No more than a simple majority of the Board members may be registered members of the same political party. A Board member must be a resident of Delaware for at least 1 year immediately preceding the appointment and must continue to be a resident of Delaware while serving as a member of the Board. However, a member may continue to serve until a successor is appointed.
(1) The Governor shall designate 1 Board member as chairperson of the Board to serve at the Governor’s pleasure and shall designate 5 Board members as members of the Executive Committee of the Board. When appointing Executive Committee members, preference must be given to current Board members and to former Board or Foster Care Review Board members. An appointment under this paragraph is for 3 years. The chairperson of the Board is also the chairperson of the Executive Committee, as well as a member of the Committee on Dispositional Guidelines for Juveniles pursuant to 10 Del. C. §1008(b)(11).
(2) The Governor shall appoint no fewer than 50 Board members as general members. Upon the advice of the chairperson, the Governor may increase or decrease the number of general Board members, but may never decrease the general membership below 50 members. The term of a general Board member's appointment may not exceed 3 years. A Board member may be reappointed without limitation.
(3) When a membership vacancy occurs, the Governor shall appoint a replacement member to serve the unexpired term only.
(4) The Governor may remove a Board member for cause.
§3804. Qualifications of Board members.
(a) A Board member must be a citizen of Delaware who has demonstrated an interest in children and their welfare through community service or professional experience, or who possesses a background in law, sociology, psychology, psychiatry, education, theology, social work, medicine, or related fields.
(b) A person employed by a placement agency, contract agency, or the Family Court of this State may not be appointed to the Board.
(c) Discrimination in the Board member appointment procedure on the basis of gender, marital status, socioeconomic status, handicap, religion, creed, sex. age, race, color, national origin, or ethnicity is prohibited.
§3805. Powers and duties of the Board.
The Board has the power and duty to:
(1) adopt goals and objectives to measure the Board’s effectiveness in facilitating permanent placement for children reviewed and to measure the effectiveness of other goals established by the Executive Committee;
(2) adopt rules and regulations consistent with the purpose and provisions of this chapter and with applicable federal and State laws, subject to the Administrative Procedures Act, subchapter II of Chapter 101, Title 29 of the Delaware Code;
(3) assign to the Executive Committee, through the Board’s rules and regulations, duties and responsibilities which are consistent with the purpose and provisions of this chapter and which are not otherwise assigned to the Executive Committee;
(4) designate annually no more than 5 additional general Board members to the Executive Committee;
(5) approve the Executive Committee's written annual report to the Governor, the Chief Justice of the Supreme Court of the State, and the General Assembly;
(6) conduct the 2-month review of child offenders required by 10 Del. C. §1009(j)(4);
(7) administer the Ivyane D. F. Davis Memorial Scholarship Fund pursuant to 14 Del. C. §§3470-3474.
§3806. Compensation and expenses for Board members.
A member of the Board is entitled to receive, upon request, reimbursement for necessary expenses to attend meetings and other business activities of the Board. Travel expenses may not exceed the mileage rate paid to State employees, per mile actually traveled, or the cost of public transportation. Other miscellaneous necessary expenses may not exceed $25 per meeting or activity.
§3807. Meetings of the Executive Committee and Board.
The Executive Committee shall meet at least 6 times each year. The Board as a whole shall meet at least once a year and shall annually elect its officers from among its members.
§3808. Duties of the Executive Committee.
The Executive Committee has the authority and duty to:
(1) Monitor and evaluate the effectiveness of the Board's child placement review program. To ensure a comprehensive monitoring and evaluation effort, the Executive Committee shall solicit comments, at a minimum, from the biological parents and family members, foster parents, the child, the Court Appointed Special Advocate, contract agencies, and placement agencies;
(2) Determine what information is necessary for reviewing and monitoring a child’s placement and advise the placement agency of the information that is necessary for reviewing and monitoring a child’s placement;
(3) Review and analyze reports prepared by the Executive Director. The Executive Committee may advise the Executive Director on report preparation;
(4) Provide an accounting to the Board on the Executive Committee’s review and analysis of reports provided by placement agencies and the Executive Director;
(5) Identify the need for child advocacy programs that are determined to be in the best interest of the child welfare system;
(6) Employ, supervise, and evaluate the Executive Director of the Board, who serves as chief administrator to implement and administer the provisions of this chapter;
(7) Advise the Executive Director on the establishment of training for the Board, and provide periodic in-service training for the Board;
(8) Review the Executive Director's annual budget request and other applications for funds from any source;
(9) Develop and produce a written annual report that includes an analysis of the effectiveness of this chapter and recommendations to the Governor, the Chief Justice of the Supreme Court of the State, and the General Assembly concerning resources, policies, procedures, and statutes which affect the goal of permanency for children.
§3809. Duties of the Executive Director.
Under the direction of the Executive Committee, the Executive Director’s duties include, but are not limited to:
(1) Applying for and administering funds for the administrative review system established by this chapter;
(2) Hiring and supervising Board employees, maintaining all necessary records and files, and directing the daily operations of the Board, including the implementation of the policies and procedures developed and approved by the Board;
(3) Reviewing and analyzing reports submitted by the placement agency on the status of every child for whom an administrative review is required;
(4) Ensuring the collection of necessary data and statistics and preparing reports to provide sufficient information the Board so that the Board can advocate effectively on behalf of children;
(5) Consulting with placement agency personnel and other appropriate persons to develop policies and procedures which maximize the coordination and cooperation between the Board and organizations involved in the provision of services to children;
(6) Monitoring and advising the Executive Committee on the changes, progress, and development of advocacy programs and of new initiatives designed to improve the lives of children;
(7) Representing and advocating for the views and the opinions of the Board, as approved by the Executive Committee. The Executive Director shall work with appropriate organizations, agencies, and individuals towards the goal of assuring that the safety and best interests of the child is the paramount concern in the provision of services to the child;
(8) Ensuring the accurate preparation and distribution of findings and recommendations reports pursuant to §3810(7) and (8) of this chapter.
§3810. Administrative review: Purposes.
The purposes of administrative review are:
(1) To determine if a plan has been developed for a child which adheres to the appropriate policy, maintains the child’s safety and best interest as paramount concerns, has been appropriately implemented and complied with, and specifies a projected date for when the child can be safely returned home or maintained in an alternate permanent home;
(2) To assess the efforts of the placement agency and/or contract agency to achieve permanence for the child. The assessment must include, but is not limited to, an assessment of the child's safety, best interest, stability of placement, and other special needs;
(3) To assess if the current placement of a child is appropriate and in the child’s best interest;
(4) To encourage and facilitate permanency for a child through reunification with his or her parents(s) or guardian(s), through the initiation of termination of parental rights proceedings and adoption, as appropriate, or through placement in another planned permanent living arrangement;
(5) To encourage and facilitate stability in a child’s life through quality placements and fewer changes in placement;
(6) To collect information from the placement agency, contract agency, and other individuals or organizations involved with a child for the purpose of data collection and advocacy on behalf of the child;
(7) To submit a written findings and recommendations report regarding the plan and status of a child to the placement and/or contract agency, Family Court, parents or legal guardians, and guardian ad litem or Court Appointed Special Advocate (CASA) that will assist in the decision making processes regarding the child and carry out the purposes of paragraphs (1) through (5) of this section;
(8) To distribute the recommendations portion of the findings and recommendations report as determined by the Executive Committee. The Executive Committee may consult with the placement agency in this determination.
§3811. Administrative Review: General responsibilities of the Review Committee.
For purposes of administrative review, the Review Committee shall:
(1) Disseminate information about the rights and responsibilities of biological parents, foster parents, and other interested persons regarding a child;
(2) Make recommendations to the Executive Committee regarding policies and procedures used by State agencies in the provision of services to children;
(3) Comply with the requirements set forth in the federal Adoption and Safe Families Act of 1997, §§475(5)(B), 427(a)(2)(B) [42 U.S.C. §§675(5)(B), 627(a)(2)(B) as amended], which requires periodic review of case plans for all children eligible for and receiving funding under the Act;
(4) Submit a written report following an administrative review stating the findings and recommendations of the Review Committee pursuant to §3815 of this chapter;
(5) Refer the findings and recommendations report of an administrative review to the Board's staff for distribution in accordance with §3810(7) and (8) of this chapter;
(6) Forward to the Executive Committee those cases where the Review Committee recommends that further advocacy for a child is necessary.
§3812. Administrative review: Notice.
To insure adequate notice of administrative review:
(1) The Board shall request of the placement agency no less than 60 days in advance of a scheduled review a list of the prospective review participants, as set forth in paragraph (2) of this section. Within 15 days of receipt of the request, the placement agency shall provide the Board with the requested list and shall include for each identified review participant the most current mailing address available.
(2) The Board shall send out written notice of a scheduled review at least 21 days in advance of the review date to the following review participants, if applicable: the placement agency; the contract agency; the child, unless inappropriate; the child’s parents or legal guardian; the child’s foster parents; the child’s guardian ad litem or court-appointed special advocate (CASA); and the child’s educational surrogate parent. The Board shall also send out written notice of a scheduled review at least 21 days in advance of the review date to any person or agency, including school officials, interested in or having knowledge or information about the child. In order to be notified of a review, an interested person or agency not identified by the placement agency must notify the Board of interest in the review at least 10 days prior to the scheduled review.
§3813. Administrative review: Documents required for the review.
(a) At least 7 days before a child's review, the placement agency shall submit to the Child Placement Review Board the child's permanent placement plan and other information as requested by the Board.
(b) The permanent placement plan for a child must include, but is not limited to:
(1) A description of the type of home or institution in which the child is presently placed, including a discussion of the safety and appropriateness of the placement;
(2) The identification of specific goals for the responsible placement or contract agency and for the child and/or the child’s family which need to be accomplished in order to alleviate or mitigate the causes necessitating placement of the child;
(3) The identification of specific services to be provided and of the requirements on the placement agency, parents or legal guardian, foster parents or contract agency, and/or child to achieve the desired outcome;
(4) The projected date by which the child may be safely returned home or maintained in an alternate permanent home;
(5) A permanent placement goal;
(6) The date and signature by each necessary person accepting the plan or an explanation for the lack of a signature.
(c) A placement agency must provide the Board with information requested by the Board for a review, so long as providing the information requested does not violate federal or State law. The Executive Committee may petition Family Court for a hearing if a placement agency fails to provide requested and or required information.
§3814. Administrative review: Procedures.
(a) Administrative review procedures for a Review Committee must include, but are not limited to, consideration and evaluation of the following:
(1) the safety and best interests of the child under review;
(2) the goal of the permanent placement plan;
(3) services to the child and others involved;
(4) for children in the care or custody of DFS, the placement of siblings;
(5) length of time spent in out-of-home placements;
(6) number of placements;
(7) the child's wishes, where appropriate;
(8) efforts made by all involved to fulfill the case plan;
(9) the opportunity for parents, legal guardians, and siblings to visit regularly with the child; and
(10) obstacles which hinder or prevent attainment of the placement goal.
(b) The DFS and/or YRS caseworker or supervisor most closely involved with a case shall attend the administrative review of the case, unless prior approval of the absence is obtained from the Executive Director or the Director’s designee, or unless an emergency or other good cause exists that prevents attendance at the review.
(c) A Board member who has personal knowledge of, or is acquainted with, any of the principals in a case shall disqualify himself or herself from reviewing the case.
(d) An administrative review is not a court proceeding, and the formal rules of evidence do not apply. The Board may exclude factual data, documents, testimony, and argument that are plainly irrelevant, immaterial, insubstantial, cumulative, or privileged. The Board may also limit any factual data, documents, testimony, and argument that are unduly repetitive.
(e) Placement agencies, the child’s parents or legal guardians, and the guardian ad litem or CASA for the child, and/or their attorneys, and Board staff may be present throughout the review, unless the Review Committee reasonably believes that a safety issue exists. Other participants with notice to provide information at the review and anyone else deemed by the Committee as necessary to the review process may be present throughout all or part of the review at the discretion of the Review Committee.
(f) A child of appropriate age and mental capacity who requests a private interview with the Review Committee may be interviewed privately at the Committee's discretion.
(g) An administrative review is not subject to the provisions of §10004 of Title 29.
(h) Case and review records of the Board are exempt from the provisions of Chapter 100 of Title 29.
§3815. Administrative review: Findings and recommendations report.
(a) A Review Committee shall submit a written findings and recommendations report of its administrative review to the placement agency and/or contract agency, to the child’s parents or legal guardians, and to the child’s guardian ad litem or CASA within 15 days of the review. If a case is referred to the Executive Committee for review before the report is distributed, then the report must be submitted within 15 days following the Executive Committee’s review.
(b) A findings and recommendations report must offer recommendations regarding:
(1) the appropriateness of the case plan and the length of time determined to be necessary to achieve the identified goal with consideration of the best interest and safety of the child;
(2) the safety and appropriateness of the child's current placement in meeting the child’s needs;
(3) the appropriateness and timely provision of the services necessary for the identified goal;
(4) whether further advocacy by the Board is necessary and appropriate.
(c) Upon the receipt of a findings and recommendations report, a placement agency shall, within 10 working days, notify the Board in writing of the agency’s agreement or disagreement with the Review Committee's recommendations.
(d) Upon the receipt of a findings and recommendations report, a person, other than a placement agency, who disagrees with the report may, within 10 working days, submit to the Board in writing a statement of no more than two pages in length stating their disagreement with the Review Committee's recommendations.
(e) The findings and recommendations report and any response to the report pursuant to subsections (c) and (d) of this section must be submitted by the Review Committee to the Family Court and must be made a part of the child’s Family Court file within 7 working days after the 10-day response period has ended. The Court shall review the report and consider the recommendations in it. A report by the Review Committee submitted to the Court pursuant to this subsection is a communication authorized by law and is not an ex parte communication with a judge or commissioner. A findings and recommendations report may be received as evidence and may be considered by a court along with other evidence.
§3816. Confidentiality of records.
(a) All Child Placement Review Board records and information, as well as records and information provided to the Board regarding children and their parents or relatives, are confidential and may be disclosed only pursuant to the provisions of this chapter, or upon an order of a court.
(b) A person who violates the confidentiality provisions of this section is guilty of a class B misdemeanor. The Superior Court has jurisdiction over violations of this section.
(c) Any member of the Board or the administrative staff of the Board who violates a provision of this chapter by improperly disclosing confidential information may be removed or dismissed from his or her position, subject to due process notice and hearing requirements.
§3817. Notice of judicial hearing.
The Family Court shall notify the Child Placement Review Board of every dispositional and permanency hearing regarding a child, as defined in §3802(3) of this title, and shall submit to the Board a copy of the final order resolving the dispositional or permanency hearing within 30 days of the date of the final order.
§3818. Participation in judicial reviews or hearings.
The Board or its designee, with the approval of the Executive Committee, may participate in judicial reviews and/or permanency hearings through its recommendation to the Court regarding the permanency goal, provision of services, and best interests of a child and through presentation consistent with its findings and recommendations report.
§3819. Intervention as a party in an action.
The Board, with the approval of the Executive Committee, has the unconditional right to intervene, pursuant to Family Court Civil Rule 24(a), in any action involving a child in the care or custody of a placement agency. Upon filing a motion to intervene, the Board shall become a party to the action, with all rights and privileges entitled thereto.
§3820. Petition for judicial review.
The Board, with the approval of the Executive Committee, may petition the Court for a judicial review of a child in the care or custody of a placement agency if:
(1) the placement agency disagrees with the recommendations of the Board and notifies the Board pursuant to §3815(c) of this title; or
(2) the Board determines that there has been a failure by the placement agency to progress towards establishing permanency for the child; or
(3) the Board determines that the placement agency is not fulfilling the requirements of the permanency plan as ordered by the Court.
§3821. Construction of chapter.
This chapter, being necessary for the welfare of the State and its inhabitants, shall be liberally construed to effect the purposes thereof.
§3822. Conflict with existing laws.
Any provision of this chapter which, if enforced, will cause the State to lose federal funding is null and void.
§3823. Continuation of service by present Foster Care Review Board members.
Each member of the present Foster Care Review Board may elect to serve out the term for which the member was appointed. The present chairperson of the Foster Care Review Board may elect to continue to serve as the chairperson of the Child Placement Review Board until a new chairperson is appointed pursuant to §3803(c)(1)of this title.".
Section 2. Amend §914, Title 10 of the Delaware Code by striking the phrase “Foster Care Review Board” as it appears therein and by substituting in lieu thereof “Child Placement Review Board”.
Section 3. Amend §1008(b)(11), Title 10 of the Delaware Code by striking the phrase “Foster Care Review Board” as it appears in paragraph (11) and by substituting in lieu thereof “Child Placement Review Board”.
Section 4. Amend §1009(j)(4), Title 10 of the Delaware Code by striking the phrase “Foster Care Review Board” as it appears in the third sentence of paragraph (4) and by substituting in lieu thereof “Child Placement Review Board”.
Section 5. Amend §3471(a), Title 14 of the Delaware Code by striking the phrase “Foster Care Review Board” as it appears in subsection (a) and by substituting in lieu thereof “Child Placement Review Board”.
Section 6. Amend §5812(a)(12), Title 29 of the Delaware Code by striking the phrase “the Administrative Coordinator of the Foster Care Review Board” as it appears in paragraph (12) and by substituting in lieu thereof “the Executive Director of the Child Placement Review Board”.
Section 7. Amend §10161(a)(44), Title 29 of the Delaware Code by striking the phrase “Foster Care Review Board” as it appears in paragraph (44) and by substituting in lieu thereof “Child Placement Review Board”.
Section 8. If any provision of this Act or the application thereof to any person or circumstance is held invalid, such invalidity shall not affect other provisions or applications of the Act which can be given effect without the invalid provision or application, and to that end the provisions of this Act are declared to be severable.
Section 9. The provisions of this Act become effective on July 1, 2000 or 30 days after this Act is enacted into law, whichever is later.