Revision: May 31, 2024, 3:51 p.m.
SB 417-FN - AS AMENDED BY THE HOUSE
03/21/2024 1111s
04/11/2024 1421s
23May2024... 1923h
2024 SESSION
24-2976
05/08
SENATE BILL 417-FN
AN ACT relative to out-of-home placements for children.
SPONSORS: Sen. Whitley, Dist 15; Sen. D'Allesandro, Dist 20; Sen. Rosenwald, Dist 13; Sen. Altschiller, Dist 24; Sen. Prentiss, Dist 5; Sen. Perkins Kwoka, Dist 21; Sen. Soucy, Dist 18; Sen. Carson, Dist 14; Sen. Watters, Dist 4; Sen. Chandley, Dist 11; Rep. Grossman, Rock. 11; Rep. Long, Hills. 23; Rep. M. Pearson, Rock. 34; Rep. Wallner, Merr. 19
COMMITTEE: Judiciary
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AMENDED ANALYSIS
This bill revises criteria for out-of-home placement of children under the child protection act and other juvenile statutes and establishes an order of preference based on placement with the child's siblings, when possible, and proximity to the child's community of origin. The bill also makes appropriations to the department of health and human services and the judicial branch to support implementation of the act.
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Explanation: Matter added to current law appears in bold italics.
Matter removed from current law appears [in brackets and struckthrough.]
Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.
03/21/2024 1111s
04/11/2024 1421s
23May2024... 1923h 24-2976
05/08
STATE OF NEW HAMPSHIRE
In the Year of Our Lord Two Thousand Twenty Four
AN ACT relative to out-of-home placements for children.
Be it Enacted by the Senate and House of Representatives in General Court convened:
1 Child Protection Act; Presumption in Favor of In-State Placements. Amend RSA 169-C:19-b to read as follows:
169-C:19-b Presumption in Favor of In-State Placements. There shall be a presumption that an in-state placement is the least restrictive and most appropriate placement. The court may order an out-of-state placement only upon an express written finding that [there is no appropriate in-state placement available.] no options for in-state placement exist and the out-of-state placement offers specialized programming or services that are unable to be provided within New Hampshire, and the placement is contracted with the state. Preference shall be given to out-of-state placements that are in proximity to the child’s family and/or kin, who are able to participate in family and/or reunification services. Any out-of-state placements shall be limited in time and require both increased judicial oversight and the written approval of the director of the division for children, youth and families.
2 Child Protection Act; Siblings. RSA 169-C:19-d is repealed and reenacted to read as follows:
169-C:19-d Siblings.
I. The department shall place a child with the child's siblings unless doing so would be contrary to the welfare of the child or siblings, or otherwise not in the child's best interest.
II. If siblings are not placed together, reasonable efforts shall be made to provide for visitation with siblings, unless such visitation would be contrary to the welfare of the child or sibling.
3 Child Protection Act; Custody Hearing for Parent Not Charged with Abuse or Neglect. Amend RSA 169-C:19-e, I to read as follows:
I. A parent who has not been charged with abuse or neglect shall be [afforded, upon request,] deemed a fit parent. This may be challenged with a full hearing in the [district or family] circuit court regarding his or her ability to obtain custody. At the hearing, the parent shall be provided the opportunity to present evidence pertaining to his or her ability to provide care for the child and shall be awarded custody unless the state demonstrates, by [a preponderance of the] clear and convincing evidence, that he or she [has abused or neglected the child or is otherwise] is unfit to perform his or her parental duties. The court shall make written findings of fact supporting its decision.
I-a. The welfare of the child is the primary factor to be weighed when determining if a parent is fit to parent that child. In determining whether a parent is fit to perform his or her parental duties, the court may consider the following factors, in addition to any other relevant evidence presented:
(a) The unique physical, mental, emotional, and medical needs of the child;
(b) The parent’s existing and historical relationship with that child;
(c) The parent’s untreated mental health or substance use issues;
(d) The parent’s provision of care to other children in their household, including addressing education needs, medical care, and mental and behavioral health care;
(e) The condition of the parent’s home;
(f) Any prior allegations of child abuse or neglect; and
(g) The results of the department’s evidence-based safety assessment of that parent, their home, and any other adults in the home. A parent’s cooperation with the department's assessment, or their effort to provide any records necessary to such a determination, shall be weighed as a factor in favor of the fitness of that parent. The fact that a parent owns a firearm shall not make a home unsafe nor be weighted against the parent.
4 New Sections; Placement for Evaluation; Order of Preference of Out-of-Home Placement. Amend RSA 169-C by inserting after section 19-f the following new sections:
169-C:19-g Placement for Evaluation. Any psychological evaluations, including measures of personality functioning, shall be conducted by, or supervised by, a licensed psychologist with specialized training in the evidence-based treatment of childhood trauma.
169-C:19-h Order of Preference of Out-of-Home Placement. If the court finds that a child is abused or neglected or if the court issues a consent order pursuant to RSA 170-E:25, the court shall enter an order regarding the placement of the child, in the following order of preference:
I. If remaining in the care of the child's parent or legal guardian is determined to be contrary to the welfare of the child, to secure placement:
(a) With a related adult or with kin, as defined in RSA 170-E:25, VIII; or
(b) Within the child's community of origin, with kin or in a licensed foster home setting, with preference given to a licensed foster home with whom the child has a pre-existing relationship; or
(c) In a licensed foster home outside of the child’s community of origin, with preference given to a licensed foster home with whom the child has a pre-existing relationship, and/or in a foster home that can provide intensive (ISO) services designed to meet the specific needs of the child; and
(1) The department of health and human services and the department of education shall make every attempt to arrange for the child to continue to attend their school of origin, making special transportation arrangements when necessary; and
(2) The department of health and human services shall ensure that the child is able to maintain their connections with their community of origin, including important relationships and activities; and
II. Only if placements described under paragraph I are not appropriate for the child due to an inability to maintain safety in the community, may alternative placements be considered, such as group or residential care as defined in RSA 170-E:25 and certified by the department for the care of children placed pursuant to RSA 169-C, or in any state-operated treatment program, that meet the specific needs of that child, and that are not available in that child's community of origin; and
(a) If the child is placed in a group or residential facility, such placement shall be for a limited time and with frequent review, pursuant to RSA 169-F:8, with the goal to return the child home or to a family setting in the community of origin as quickly as possible; and
(b) The court determines that the needs of the child cannot be met by kin or in a foster family home. Neither the shortage or lack of foster family homes nor the lack of community-based resources as expressed by the department shall be acceptable reasons for determining that the needs of the child cannot be met in a family setting. Nonetheless, if there is no kin or licensed foster home available at the time the court is ordering placement of the child, the court may order the best available temporary placement while the department of health and human services prioritizes locating a preferred placement.
5 Standard for Return of Child in Placement. Amend RSA 169-C:23 to read as follows:
169-C:23 Standard for Return of Child in Placement. In the absence of a guardianship of the person of the minor, governed by the terms of RSA 463, before a child in out-of-home placement is returned to the custody of his or her parents, the parent or parents shall demonstrate to the court that:
I. They are in compliance with the outstanding dispositional court order;
II. The child will not be endangered [in the manner adjudicated on the initial petition,] if returned home; and
III. Return of custody is in the best interests of the child, [. Upon showing the] and with a showing that the parent has an ability to provide proper parental care, it shall be presumed that a return of custody is in the child's best interests unless the department demonstrates evidence to the contrary.
6 New Sections; Court Ordered Placements; Presumption in Favor of In-State Placements; Order of Preference of Out-of-Home Placement. Amend RSA 169-F by inserting after section 4 the following new sections:
169-F:5 Presumption in Favor of In-State Placements. There shall be a presumption that an in-state placement is the least restrictive and most appropriate placement. The court may order an out-of-state placement only upon an express written finding that no in-state options exist and that the out-of-state placement offers specialized programming or services that are unable to be provided within New Hampshire, and the placement is contracted with the state. Preference shall be given to out-of-state placements that are in proximity to the child’s family and/or kin, who are able to participate in family and/or reunification services. Any out-of-state placements shall be limited in time and require both increased judicial oversight and the written approval of the director of the division for children, youth and families.
169-F:6 Order of Preference of Out-of-Home Placement. For any out-of-home placements made under this chapter, the court shall enter an order regarding the placement of the child, in the following order of preference:
I. If remaining in the care of the child's parent or legal guardian is determined to be contrary to the welfare of the child, to secure placement:
(a) With a related adult or with kin as defined in RSA 170-E:25, VIII; or
(b) Within the child's community of origin, with kin or in a licensed foster home setting, with preference given to a licensed foster home with whom the child has a pre-existing relationship; or
(c) In a licensed foster home outside of the child’s community of origin, with preference given to a licensed foster home with whom the child has a pre-existing relationship, and/or in a foster home that can provide intensive (ISO) services designed to meet the specific needs of the child; and
(1) The department of health and human services and the department of education shall make every attempt to arrange for the child to continue to attend their school of origin, making special transportation arrangements when necessary; and
(2) The department of health and human services shall ensure that the child is able to maintain their connections with their community of origin, including important relationships and activities; and
II. Only if placements described under paragraph I are not appropriate for the child due to an inability to maintain safety in the community, may alternative placements be considered, such as group or residential care as defined in RSA 170-E:25 or certified by the department for the care of children placed pursuant to RSA 169-C, or in any state-operated treatment program, that meet the specific needs of that child, and that are not available in that child's community of origin; and
(a) If the child is placed in a group or residential facility, such placement shall be for a limited time and with frequent review, pursuant to RSA 169-F:8 with the goal to return the child home or to a family setting in the community of origin as quickly as possible.
(b) The court determines that the needs of the child cannot be met by kin or in a foster family home. Neither the shortage or lack of foster family homes nor the lack of community-based resources as expressed by the department shall be acceptable reasons for determining that the needs of the child cannot be met in a family setting. Nonetheless, if there is no kin or licensed foster home available at the time the court is ordering placement of the child, the court may order the best available temporary placement while the department of health and human services prioritizes locating a preferred placement.
169-F:7 Oversight of Children in Care; Department Responsibilities.
I. Any child in a court-ordered placement pursuant to RSA 169-B, RSA 169-C, or RSA 169-D shall be seen in-person on at least a monthly basis, by their assigned case worker. In the event the assigned case worker is not available, another case worker or supervisor familiar with the child and/or case may perform the visit. The visit to the child shall include a private meeting with the child, in a safe place as determined by the case worker and child, to inquire about care received, as well as an in-person tour of the child’s living quarters. The monthly contact shall also include contact with the child’s placement provider, therapeutic providers, and educational providers, preferably in real-time, but at least by written correspondence. In addition, for any child placed in a residential placement by the department, these visits shall include a tour of the facility where the child may have access to; a check-in with appropriate leadership about program culture and therapeutic programming; a check-in with program direct care staff about the child’s progress in the program; and a check-in with the clinical director and/or the child’s therapeutic provider about the program culture, therapeutic programming, and the child’s individual progress, strengths, and challenges in the program, which may occur outside of the in-person visit in virtual real-time if circumstances require.
II. The department shall develop, in consultation with the office of child advocate, a standard operating procedure and form for monthly visits with children conducted by the department, pursuant to RSA 169-F:5, I, to be completed during each monthly in-person visit.
169-F:8 Court Oversight of Children in Residential Programs.
I. Except in cases of emergency placement, prior to placing a child in residential treatment programs or psychiatric residential treatment programs, except in emergency situations, the court shall:
(a) Consider all assessments and plans for the child, including assessment of whether a residential treatment program is the most effective and appropriate level of care, in the least restrictive environment for the child, and any child-specific, short- and long-term goals for the child and the family. The assessment shall specify, in writing:
(1) Whether the child’s needs can be met in a kin or foster family home, not primarily dependent upon availability of community resources.
(2) If the assessment recommends a residential treatment program:
(A) The specific reasons why the child’s needs cannot be met in a kin or foster family home, not primarily dependent upon availability of community resources; and
(B) Why recommended placement in a residential treatment program is the setting that will provide the child with the most effective and appropriate level of care, in the least restrictive environment.
(3) How the placement is consistent with the short- and long-term goals for the child, as specified in the case plan or permanency plan for the child.
(b) Confirm that the school district has complied with its legal obligations to assess the educational impact of the placement, and consider the school district’s input on that impact.
(c) Determine that the needs of the child cannot be met through placement with a parent, legal guardian, legal custodian, kin caregiver, or in a foster family home; and that placement of the child in a residential treatment program provides the most effective and appropriate level of care for the child in the least restrictive environment; and that placement is consistent with the short- and long-term goals, including mental, behavioral, and physical health goals, for the child as specified in the permanency plan for the child, or as outlined in the family services plan. A shortage or lack of foster family homes as expressed by the department shall not be an acceptable primary reason for determining that the needs of the child cannot be met in a foster family home. Nonetheless, if there is no kin or licensed foster home available at the time the court is ordering placement of the child, the court may order the best available temporary placement while the department prioritizes locating a preferred placement.
(d) Review information relating to the facility, which may include staff-to-child ratio; staff training; program culture; therapeutic, clinical and milieu programming; educational programming; recreational programming; and, family connections, in order to ensure that the program is the most effective and appropriate level of care, in the least restrictive environment for the child, and meets the child-specific short- and long-term goals for the child and the family.
(e) Approve or disapprove of the placement, in a written order, containing all of the necessary findings laid out in this section.
II. In the case of an emergency necessitating immediate placement of a child in a residential treatment program, the department shall notify the court within 2 business days of such placement, in order for the court to make the required findings of paragraph I.
III. Prior to determining that a residential treatment program is the most effective and appropriate level of care, in the least restrictive environment for the child, the court shall consider any available assessments and plans, giving the greatest weight to the most recent assessment and assessments completed by a licensed psychologist or licensed neuropsychologist with specialized training in the evidence-based treatment of childhood trauma. If the court deviates from such recommendation, the court shall make specific findings of fact regarding the most effective and appropriate level of care, in the least restrictive environment for the child, and that the placement is consistent with child-specific short and long-term goals for the child and the family. When making such findings of fact, the court shall consider all relevant information, including but not limited to:
(a) Whether the protocol for the residential treatment program assessment was followed;
(b) Whether the school district is meeting the child’s educational needs, based on their statutory requirements under RSA 169-B:22, RSA 169-D:18, and RSA 169-C:20;
(c) The strengths and specific treatment or service needs of the child and the family;
(d) The expected length of stay; and
(e) The placement preference of the child and the family.
IV. When a child is placed in a residential treatment program or psychiatric residential treatment program:
(a) The department shall notify the court promptly of such placement.
(b)(1) The court shall review the placement of that child within 60 days after placement, and at every subsequent court review hearing; or
(2) Upon a motion by the child, the child's representative, or the child’s guardian ad litem establishing reason to believe the ordered residential treatment program is not the most effective and appropriate level of care for the child in the least restrictive environment, the court shall review the placement within 30 days, and at every subsequent court review hearing.
(c) The court may review the placement at any time sua sponte or in response to a motion for review by any party.
V. As long as a child remains in a residential treatment program, the department shall submit evidence to the court and all parties, at least 5 business days prior to every regular review hearing:
(a) Demonstrating that:
(1) Ongoing assessment of the strengths and needs of the child continues to support the determination that the needs of the child cannot be met through placement with a parent, legal guardian, legal custodian, kin caregiver, or in a foster family home;
(2) Any recommended psychological or clinical evaluations or assessments have been completed, and if not, the status of those evaluations or assessments;
(3) The department has worked with the school district to assure, consistent with the best interest of the child, the child’s educational stability;
(4) The placement in a residential treatment program provides the most effective and appropriate level of care for the child in the least restrictive environment; and,
(5) The placement is consistent with the short- and long-term goals for the child as specified in the permanency plan for the child, or as outlined in the family services plan.
(b) Documenting that:
(1) The specific treatment or service needs that will be met for the child in the placement;
(2) The length of time the child is expected to need treatment or services, and the treatment basis for the determination of that length of time; and
(3) The specific efforts made by the division to prepare the child and prospective placement for the child’s return home or to be placed with a fit and willing kin caregiver, a legal guardian, legal custodian, or an adoptive parent, or in a foster family.
7 Department of Health and Human Services; Classified Positions Established; Appropriation.
I. The following classified positions are established in the department of health and human services to support the placement of youth in residential facilities:
(a) Eight child protective service worker IV positions (labor grade 24, step 5).
(b) Two juvenile probation and parole officer IV positions (labor grade 24, step 5).
II. The sum of $870,000 for the biennium ending June 30, 2025, is hereby appropriated to the department of health and human services for the purpose of funding the positions established in paragraph I. In addition to the appropriation and notwithstanding RSA 14:30-a, the department may accept and expend matching federal funds without prior approval of the fiscal committee of the general court. The governor is authorized to draw a warrant for the general fund portion of said sum out of any money in the treasury not otherwise appropriated.
8 Department of Health and Human Services; Classified Attorney Positions Established; Appropriation.
I. The following classified positions are established in the department of health and human services to support placement of youth in residential facilities: 2 attorney III positions (labor grade 30, step 5).
II. The sum of $210,000 for the biennium ending June 30, 2025, is hereby appropriated to the department of health and human services for the purpose of funding the positions established in paragraph I. In addition to the appropriation and notwithstanding RSA 14:30-a, the department may accept and expend matching federal funds without prior approval of the fiscal committee of the general court. The governor is authorized to draw a warrant for the general fund portion of said sum out of any money in the treasury not otherwise appropriated.
9 Department of Health and Human Services; Appropriation; Youth Visit Travel Costs. The sum of $154,440 for the fiscal year ending June 30, 2025, is hereby appropriated to the department of health and human services for the purpose of paying for travel costs for youth visits in order to support implementing the provisions of this act. This appropriation shall be nonlapsing. The governor is authorized to draw a warrant for said sums out of any money in the treasury not otherwise appropriated.
10 Judicial Branch; Appropriation. The sum of $376,145 for the fiscal year ending June 30, 2025, is hereby appropriated to the judicial branch for the purpose of funding new positions required to carry out the duties set out in this act. In addition to the appropriation and notwithstanding RSA 14:30-a, the judicial branch may accept and expend matching federal funds without prior approval of the fiscal committee of the general court. The governor is authorized to draw a warrant for the general fund portion of said sum out of any money in the treasury not otherwise appropriated.
11 Reallocation of Monies Saved. Any monies saved by the department of health and human services, including the division for children, youth and families and the bureau of children’s behavioral health, in preventing the out-of-home placement of children pursuant to this act shall be used by the department to provide services pursuant to RSA 135-F, the system of care for children’s mental health, and any other community-based intervention services.
I. Sections 7-11 of this act shall take effect July 1, 2024.
II. The remainder of this act shall take effect January 1, 2025.
24-2976
Amended 5/31/24
SB 417-FN- FISCAL NOTE
AS AMENDED BY THE HOUSE (AMENDMENT #2024-1923h)
AN ACT relative to out-of-home placements for children.
FISCAL IMPACT: [ X ] State [ ] County [ ] Local [ ] None
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| |||||
Estimated State Impact - Increase / (Decrease) | ||||||
| FY 2024 | FY 2025 | FY 2026 | FY 2027 | ||
Revenue | $0 | $0 | $0 | $0 | ||
Revenue Fund(s) | None | |||||
Expenditures | $0 | DHHS $1,234,440/ Judicial Branch $376,145/ Judicial Council Indeterminable | DHHS $1,737,235/ Judicial Branch $376,000+/ Judicial Council Indeterminable | DHHS $1,800,084/ Judicial Branch $376,000+/ Judicial Council Indeterminable | ||
Funding Source(s) | General Fund | |||||
Appropriations | $0 | DHHS $1,234,440/ Judicial Branch $376,145 | $0 | $0 | ||
Funding Source(s) | General Fund | |||||
• Does this bill provide sufficient funding to cover estimated expenditures? [X] Yes • Does this bill authorize new positions to implement this bill? [X] Yes | ||||||
METHODOLOGY:
This bill provides additional structure to the Department of Health and Human Services’ use and oversight of residential treatment for children and youth. In particular, the bill enhances the scope of in-person visits between Division for Children, Youth, and Families (DCYF) caseworkers and DCYF-involved youth in residential treatment. It also increases the frequency and intensity of court oversight of placements of DCYF-involved youth.
Compared to earlier versions of the bill, the House-amended version revises the evidentiary standard from "preponderance of the evidence" to "clear and convincing evidence" for cases involving parents who have not been charged with abuse or neglect but who the state argues are unfit to perform their parental duties. As of this writing, the Department of Health and Human Services has not provided information relative to the financial impact, if any, of this change. This fiscal note, therefore, assumes that the cost estimates provided for previous versions of the bill continue to apply.
In order to accommodate this increased workload for DCYF-involved youth, the Department anticipates a need for eight additional child protective services workers (CPSW); two additional juvenile probation and parole officers (JPPO); and two additional attorneys. In total, the Department projects the costs shown below. These projections assume the positions will be active beginning October 1, 2024. Accordingly, FY25 reflects 75 percent of a full year’s cost. (FY25 costs also include equipment and other startup costs for the positions.) Relatedly, travel is assumed to begin on January 1, 2025. FY25 therefore reflects 50 percent of a full year’s cost. The Department’s travel estimates assume a four percent cost increase each year.
| FY25 | FY26 | FY27 |
Youth Visit Staffing |
|
|
|
8 CPSWs | $696,000 | $912,000 | $944,000 |
2 JPPOs | $174,000 | $228,000 | $236,000 |
2 Attorneys | $210,000 | $276,000 | $286,000 |
Youth Visit Travel (Mileage, Flights, Hotel) | $154,440 | $321,235 | $334,084 |
Total: | $1,234,440 | $1,737,235 | $1,800,084 |
With respect to the impact on the Judicial Branch, the Branch states that additional staffing needs will result in a cost of approximately $376,000 in FY25.
The Judicial Council states that the bill's impact is indeterminable. The Council notes that depending on the parties present for a given review hearing, the Council would potentially be responsible for funding one or more attorneys or guardians ad litem (GAL) for a given review hearing. Attorneys and non-court appointed special advocate GALS are compensated at $90/hour, with a current cap under the rules of $450 per review hearing. The Council also pays for travel time to court.
The bill contains appropriations totaling $1,234,440 to the Department of Health and Human Services and $376,145 to the Judicial Branch in FY25 for the purpose of funding the positions and travel costs described above.
AGENCIES CONTACTED:
Department of Health and Human Services, Judicial Branch, and Judicial Council