MISSISSIPPI LEGISLATURE
2017 Regular Session
To: Judiciary, Division A
By: Senator(s) Hill
AN ACT TO AMEND SECTION 43-15-13, MISSISSIPPI CODE OF 1972, TO CLARIFY THAT RELATIVE CARE IS A LEGAL PLACEMENT OPTION FOR ABUSED AND NEGLECTED CHILDREN; TO AMEND SECTION 43-15-17, MISSISSIPPI CODE OF 1972, TO CONFORM REFERENCES TO CHILD PROTECTION SERVICES; TO BRING FORWARD SECTION 43-15-23, MISSISSIPPI CODE OF 1972, FOR PURPOSES OF POSSIBLE AMENDMENT; TO AMEND SECTION 43-15-103, MISSISSIPPI CODE OF 1972, TO REVISE DEFINITIONS AS APPLY TO FOSTER CARE; TO AMEND SECTION 43-21-609, MISSISSIPPI CODE OF 1972, TO CLARIFY THAT GIVING CUSTODY TO A RELATIVE AND WAIVING ANY REQUIREMENT FOR THE RELATIVE TO PARTICIPATE IN FOSTER PARENT TRAINING IS WITHIN THE DISCRETION OF THE COURT; AND FOR RELATED PURPOSES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
SECTION 1. Section 43-15-13, Mississippi Code of 1972, is amended as follows:
43-15-13. (1) For purposes
of this section, "children" means persons found within the state who
are under the age of twenty-one (21) years, and who were placed in the custody
of the Department of * * * Child Protection Services by the youth court of the
appropriate county.
(2) The Department of * * * Child Protection Services shall
establish a foster care placement program for children whose custody lies with
the department, with the following objectives:
(a) Protecting and promoting the health, safety and welfare of children;
(b) Preventing the unnecessary separation of children from their families by identifying family problems, assisting families in resolving their problems and preventing the breakup of the family where the prevention of child removal is desirable and possible when the child can be cared for at home without endangering the child's health and safety;
(c) Remedying or assisting in the solution of problems that may result in the neglect, abuse, exploitation or delinquency of children;
(d) Restoring to their families children who have been removed, by the provision of services to the child and the families when the child can be cared for at home without endangering the child's health and safety;
(e) Placing children in suitable adoptive homes approved by a licensed adoption agency or family protection specialist, in cases where restoration to the biological family is not safe, possible or appropriate;
(f) Assuring safe and adequate care of children away from their homes, in cases where the child cannot be returned home or cannot be placed for adoption, including temporary or emergency relative placement pending youth court action on the case. At the time of placement, the department shall implement concurrent planning, as described in subsection (8) of this section, so that permanency may occur at the earliest opportunity. Consideration of possible failure or delay of reunification should be given, to the end that the placement made is the best available placement to provide permanency for the child; and
(g) Providing a family protection specialist or worker or team of such specialists or workers for a family and child throughout the implementation of their permanent living arrangement plan. Wherever feasible, the same family protection specialist or worker or team shall remain on the case until the child is no longer under the jurisdiction of the youth court.
(3) The Department of * * * Child Protection Services shall
administer a system of individualized plans and reviews once every six (6)
months for each child under its custody within the State of Mississippi, each
child who has been adjudged a neglected, abandoned or abused child and whose
custody was changed by court order as a result of that adjudication, and each
public or private facility licensed by the department. The Department of * * * Child Protection Services'
administrative review shall be completed on each child within the first three
(3) months and a relative placement or foster care review once every six
(6) months after the child's initial forty-eight-hour shelter hearing. That
system shall be for the purpose of enhancing potential family life for the
child by the development of individual plans to return the child to * * * the child's natural parent or
parents, or to refer the child to the appropriate court for termination of
parental rights and placement in a permanent relative's home, adoptive home or
foster/adoptive home. The goal of the Department of * * * Child Protection Services shall
be to return the child to * * *its the child's natural parent(s) or refer the child to
the appropriate court for termination of parental rights and placement in a
permanent relative's home, adoptive home or foster/adoptive home within the
time periods specified in this subsection or in subsection (4) of this
section. In furthering this goal, the department shall establish policy and
procedures designed to appropriately place children in permanent homes, the
policy to include a system of reviews for all children in foster care, as
follows: foster care counselors in the department shall make all possible
contact with the child's natural parent(s), custodial parent(s) of all siblings
of the child, and any interested relative for the first two (2) months
following the child's entry into the foster care system. For purposes of
contacting custodial parent(s) of a sibling, siblings include those who are considered
a sibling under state law, and those who would have been considered a sibling
under state law, except for termination or disruption of parental rights. For
any child who has been in foster care for fifteen (15) of the last twenty-two
(22) months regardless of whether the foster care was continuous for all of
those twenty-two (22) months, the department shall file a petition to terminate
the parental rights of the child's parents. The time period starts to run from
the date the court makes a finding of abuse and/or neglect or sixty (60) days
from when the child was removed from his or her home, whichever is earlier.
The department can choose not to file a termination of parental rights petition
if the following apply:
(a) The child is being cared for by a relative; and/or
(b) The department has documented compelling and extraordinary reasons why termination of parental rights would not be in the best interests of the child. Before granting or denying a request by the department for an extension of time for filing a termination of parental rights action, the court shall receive a written report on the progress which a parent of the child has made in treatment, to be made to the court in writing by a mental health/substance abuse therapist or counselor.
(4) In the case of any child who is placed in foster care on or after July 1, 1998, except in cases of aggravated circumstances prescribed in Section 43-21-603(7)(c), the child's natural parent(s) will have a reasonable time to be determined by the court, which shall not exceed a six-month period of time, in which to meet the service agreement with the department for the benefit of the child unless the department has documented extraordinary and compelling reasons for extending the time period in the best interest of the child. If this agreement has not been satisfactorily met, simultaneously the child will be referred to the appropriate court for termination of parental rights and placement in a permanent relative's home, adoptive home or a foster/adoptive home. For children under the age of three (3) years, termination of parental rights shall be initiated within six (6) months, unless the department has documented compelling and extraordinary circumstances, and placement in a permanent relative's home, adoptive home or foster/adoptive home within two (2) months. For children who have been abandoned under the provisions of Section 97-5-1, termination of parental rights shall be initiated within thirty (30) days and placement in an adoptive home shall be initiated without necessity for placement in a foster home. The department need not initiate termination of parental rights proceedings where the child has been placed in durable legal custody, durable relative legal guardianship, or long-term or formalized foster care by a court of competent jurisdiction.
(5) The foster care review
once every six (6) months shall be conducted by the youth court or its
designee(s), and/or by personnel within the Department of * * * Child Protection Services or by a
designee or designees of the department and may include others appointed by the
department, and the review shall include at a minimum an evaluation of the
child based on the following:
(a) The extent of the
care and support provided by the parents or parent * * * while the child is in temporary custody;
(b) The extent of communication with the child by parents, parent or guardian;
(c) The degree of compliance by the agency and the parents with the social service plan established;
(d) The methods of achieving the goal and the plan establishing a permanent home for the child;
(e) Social services offered and/or utilized to facilitate plans for establishing a permanent home for the child; and
(f) Relevant testimony and recommendations from the foster parent of the child, the grandparents of the child, the guardian ad litem of the child, representatives of any private care agency that has cared for the child, the family protection worker or family protection specialist assigned to the case, and any other relevant testimony pertaining to the case.
Each child's review plan
once every six (6) months shall be filed with the court which awarded custody
and shall be made available to natural parents or foster parents upon approval
of the court. The court shall make a finding as to the degree of compliance by
the agency and the parent(s) with the child's social service plan. The court
also shall find that the child's health and safety are the paramount concern.
In the interest of the child, the court shall, where appropriate, initiate
proceedings on its own motion. The Department of * * * Child Protection Services shall
report to the Legislature as to the number of those children, the findings of
the foster care review board and relevant statistical information in foster
care in a semiannual report to the Legislature to be submitted to the Joint
Oversight Committee of the Department of * * * Child Protection Services. The
report shall not refer to the specific name of any child in foster care.
(6) The Department of * * * Child Protection Services, with
the cooperation and assistance of the State Department of Health, shall develop
and implement a training program for foster care parents to indoctrinate them
as to their proper responsibilities upon a child's entry into their foster
care. The program shall provide a minimum of twelve (12) clock hours of
training. The foster care training program shall be satisfactorily completed
by such foster care parents before or within ninety (90) days after child
placement with the parent. Record of the foster care parent's training program
participation shall be filed with the court as part of a foster care child's
review plan once every six (6) months. Relatives seeking relative placement
and who do not seek foster parent payments shall not be required to participate
in the training, but may do so at their own election.
(7) When the Department of * * * Child Protection Services is
considering placement of a child in a foster home and when the department deems
it to be in the best interest of the child, the department shall give first
priority to placing the child in the home of one (1) of the child's relatives
within the third degree, as computed by the civil law rule. In placing the
child in a relative's home, the department may waive any rule, regulation or
policy applicable to placement in foster care that would otherwise require the
child to have a separate bed or bedroom or have a bedroom of a certain size, if
placing the child in a relative's home would be in the best interest of the
child and those requirements cannot be met in the relative's home.
(8) The Legislature
recognizes that the best interests of the child require that the child be
placed in the most permanent living arrangement as soon as is practicably
possible. To achieve this goal, the Department of * * * Child Protection Services is
directed to conduct concurrent planning so that a permanent living arrangement
may occur at the earliest opportunity. Permanent living arrangements may
include prevention of placement of a child outside the home of the family when
the child can be cared for at home without endangering the child's health or
safety; reunification with the family, when safe and appropriate, if temporary
placement is necessary; or movement of the child toward the most permanent
living arrangement and permanent legal status. When a child is placed in
foster care or relative care, the department shall first ensure and document
that reasonable efforts were made to prevent or eliminate the need to remove
the child from the child's home. The department's first priority shall be to
make reasonable efforts to reunify the family when temporary placement of the
child occurs or shall request a finding from the court that reasonable efforts
are not appropriate or have been unsuccessful. A decision to place a child in
foster care or relative care shall be made with consideration of the child's
health, safety and best interests. At the time of placement, consideration
should also be given so that if reunification fails or is delayed, the
placement made is the best available placement to provide a permanent living
arrangement for the child. The department shall adopt rules addressing
concurrent planning for reunification and a permanent living arrangement. The
department shall consider the following factors when determining
appropriateness of concurrent planning:
(a) The likelihood of prompt reunification;
(b) The past history of the family;
(c) The barriers to reunification being addressed by the family;
(d) The level of cooperation of the family;
(e) The foster parents' willingness to work with the family to reunite;
(f) The willingness and ability of the foster family or relative placement to provide an adoptive home or long-term placement;
(g) The age of the child; and
(h) Placement of siblings.
(9) If the department has placed a child in foster care or relative care under a court order, the department may not change the child's placement unless the department specifically documents to the court that the current placement is unsafe or unsuitable or that another placement is in the child's best interests unless the new placement is in an adoptive home or other permanent placement. Except in emergency circumstances as determined by the department or where the court orders placement of the child under Section 43-21-303, the foster parents, grandparents or other relatives of the child shall be given an opportunity to contest the specific reasons documented by the department at least seventy-two (72) hours before any such departure, and the court may conduct a review of that placement unless the new placement is in an adoptive home or other permanent placement. When a child is returned to foster care or relative care, the former foster parents or relative placement shall be given the prior right of return placement in order to eliminate additional trauma to the child.
(10) The Department of * * * Child Protection Services shall
provide the foster parents, grandparents or other relatives with at least a
seventy-two-hour notice of departure for any child placed in their foster care
or relative care, except in emergency circumstances as determined by the
department or where the court orders placement of the child under Section 43-21-303.
The parent/legal guardian, grandparents of the child, guardian ad litem and the
court exercising jurisdiction shall be notified in writing when the child
leaves foster care or relative care placement, regardless of whether the
child's departure was planned or unplanned. The only exceptions to giving a
written notice to the parent(s) are when a parent has voluntarily released the
child for adoption or the parent's legal rights to the child have been
terminated through the appropriate court with jurisdiction.
(11) The Department of * * * Child Protection Services shall
extend the following rights to persons who provide foster care and relative
care:
(a) A clear understanding of their role while providing care and the roles of the birth parent(s) and the placement agency in respect to the child in care;
(b) Respect, consideration, trust and value as a family who is making an important contribution to the agency's objectives;
(c) Involvement in all the agency's crucial decisions regarding the child as team members who have pertinent information based on their day-to-day knowledge of the child in care;
(d) Support from the family protection worker or the family protection specialist in efforts to do a better day-to-day job in caring for the child and in working to achieve the agency's objectives for the child and the birth family through provision of:
(i) Pertinent information about the child and the birth family;
(ii) Help in using appropriate resources to meet the child's needs;
(iii) Direct interviews between the family protection worker or specialist and the child, previously discussed and understood by the foster parents;
(e) The opportunity to develop confidence in making day-to-day decisions in regard to the child;
(f) The opportunity to learn and grow in their vocation through planned education in caring for the child;
(g) The opportunity to be heard regarding agency practices that they may question;
(h) Reimbursement for costs of the child's care in the form of a board payment based on the age of the child as prescribed in Section 43-15-17; and
(i) Reimbursement for
property damages caused by children in the custody of the Department of * * * Child Protection Services in an
amount not to exceed Five Hundred Dollars ($500.00), as evidenced by written
documentation. The Department of * * * Child Protection Services shall
not incur liability for any damages as a result of providing this reimbursement.
(12) The Department of * * * Child Protection Services shall
require the following responsibilities from participating persons who provide
foster care and relative care:
(a) Understanding the department's function in regard to the foster care and relative care program and related social service programs;
(b) Sharing with the department any information which may contribute to the care of children;
(c) Functioning within the established goals and objectives to improve the general welfare of the child;
(d) Recognizing the problems in home placement that will require professional advice and assistance and that such help should be utilized to its full potential;
(e) Recognizing that the family who cares for the child will be one of the primary resources for preparing a child for any future plans that are made, including return to birth parent(s), termination of parental rights or reinstitutionalization;
(f) Expressing their view of agency practices which relate to the child with the appropriate staff member;
(g) Understanding that all information shared with the persons who provide foster care or relative care about the child and his/her birth parent(s) must be held in the strictest of confidence;
(h) Cooperating with any plan to reunite the child with his birth family and work with the birth family to achieve this goal; and
(i) Attending dispositional review hearings and termination of parental rights hearings conducted by a court of competent jurisdiction, or providing their recommendations to the court in writing.
SECTION 2. Section 43-15-17, Mississippi Code of 1972, is amended as follows:
43-15-17. (1) The
Department of * * *
Child Protection Services is authorized to make such payments as may be
appropriate for supportive services to facilitate either the return of children
to their natural parents or their adoption, depending upon and contingent upon
the availability of the Department of * * * Child Protection Services
securing or having sufficient funds to render this supportive service. Upon
court order, the parent(s) shall be responsible for reimbursing the department
for any foster care or kinship care payments made on behalf of his or her
child, based upon financial ability to pay, until such time as there is a
termination of parental rights regarding the child, or the child is adopted.
(2) For those children
placed in foster care by the state or county departments of human services, the
department shall make monthly payments for the support of these children's room
and board, clothing, allowance and personal needs. From and after July 1,
1998, and subject to the availability of funds specifically appropriated
therefor, the Department of * * * Child Protection Services' foster
care and therapeutic care monthly payment schedule in effect before that date
shall be increased by One Hundred Dollars ($100.00) per month, with that
minimum payment not to preclude the department from increasing payments in
later years as funds become available. From and after July 1, 1998, in order
for foster parents to receive the monthly payments authorized under this
subsection (2), the Department of * * * Child Protection Services shall
require foster care placements to be licensed as foster care homes and shall
require prospective foster parents to satisfactorily complete an appropriate
training program that emphasizes the goal of the foster care program to provide
stable foster placement until a permanency outcome is achieved.
(3) For a child placed in the care of the child's relative within the third degree by the state or county departments of human services, the department shall make monthly payments to defray the relative's expense of furnishing room and board. The department's relative care payment shall be in an amount up to one hundred percent (100%) of the amount of the foster care board payment. The department may continue to make those payments to the relative after the department relinquishes legal custody of the child to the relative. Any such payments for relative care shall be subject to specific appropriation therefor by the Legislature.
SECTION 3. Section 43-15-23, Mississippi Code of 1972, is brought forward as follows:
43-15-23. (1) As used in this section the term "placing out" means to arrange for the free care of a child in a family, other than that of the child's parent, stepparent, grandparent, brother, sister, uncle or aunt or legal guardian, for the purpose of adoption or for the purpose of providing care.
(2) No person, agency, association, corporation, institution, society or other organization, except a child placement agency licensed by the Department of Public Welfare under Section 43-15-5, shall request, receive or accept any compensation or thing of value, directly or indirectly, for placing out of a child.
(3) No person shall pay or give any compensation or thing of value, directly or indirectly, for placing out of a child to any person, agency, association, corporation, institution, society or other organization except a child placement agency licensed by the Department of Public Welfare.
(4) The provisions of this section shall not be construed to (a) prevent the payment of salaries or other compensation by a child placement agency licensed by the Department of Public Welfare to the officers or employees thereof; (b) prevent the payment of legal fees, which have been approved by the chancery court, to an attorney for services performed in regard to adoption proceedings; (c) prevent the payment of reasonable and actual medical fees or hospital charges for services rendered in connection with the birth or medical treatment of such child to the physician or hospital which rendered the services; or (d) prevent the receipt of such payments by such attorney, physician or hospital.
(5) Any person, agency, association, corporation, institution, society or other organization violating the provisions of this section shall be guilty of illegal placement of children and shall be punished by a fine not to exceed Five Thousand Dollars ($5,000.00) or by imprisonment not more than five (5) years, or both such fine and imprisonment.
SECTION 4. Section 43-15-103, Mississippi Code of 1972, is amended as follows:
43-15-103. As used in this article:
(a) "Agency" means a residential child-caring agency or a child-placing agency.
(b) "Child" or "children" mean(s) any unmarried person or persons under the age of eighteen (18) years.
(c) "Child placing" means receiving, accepting or providing custody or care for any child under eighteen (18) years of age, temporarily or permanently, for the purpose of:
(i) Finding a person to adopt the child;
(ii) Placing the child temporarily or permanently in a home for adoption; or
(iii) Placing a child in a foster home or residential child-caring agency.
(d) "Child-placing agency" means any entity or person which places children in foster boarding homes or foster homes for temporary care or for adoption or any other entity or person or group of persons who are engaged in providing adoption studies or foster care studies or placement services as defined by the rules of the department.
(e)
"Department" means the Mississippi Department of * * * Child Protection Services.
(f) "Director" means the Director of the Division of Family and Children's Services.
(g)
"Division" means the Division of Family and Children's Services
within the Mississippi Department of * * * Child Protection Services.
(h) "Family boarding home" or "foster home" means a home (occupied residence) operated by any entity or person which provides residential child care to at least one (1) child but not more than six (6) children who are not related to the primary caregivers.
(i) "Group care home" means any place or facility operated by any entity or person which provides residential child care for at least seven (7) children but not more than twelve (12) children who are not related to the primary caregivers.
(j) "Licensee" means any person, agency or entity licensed under this article.
(k) "Maternity home" means any place or facility operated by any entity or person which receives, treats or cares for more than one (1) child or adult who is pregnant out of wedlock, either before, during or within two (2) weeks after childbirth; provided, that the licensed child-placing agencies and licensed maternity homes may use a family boarding home approved and supervised by the agency or home, as a part of their work, for as many as three (3) children or adults who are pregnant out of wedlock, and provided further, that the provisions of this definition shall not include children or women who receive maternity care in the home of a person to whom they are kin within the sixth degree of kindred computed according to civil law, nor does it apply to any maternity care provided by general or special hospitals licensed according to law and in which maternity treatment and care are part of the medical services performed and the care of children is brief and incidental.
(l) "Office"
means the Office of Licensing within the Division of Family and Children's
Services of the Mississippi Department of * * * Child Protection Services.
(m) "Person associated with a licensee" means an owner, director, member of the governing body, employee, provider of care and volunteer of a human services licensee.
(n) "Related" means children, step-children, grandchildren, step-grandchildren, siblings of the whole or half-blood, step-siblings, nieces or nephews of the primary care provider.
(o) "Residential child care" means the provision of supervision, and/or protection, and meeting the basic needs of a child for twenty-four (24) hours per day, which may include services to children in a residential setting where care, lodging, maintenance and counseling or therapy for alcohol or controlled substance abuse or for any other emotional disorder or mental illness is provided for children, whether for compensation or not.
(p) "Residential child-caring agency" means any place or facility operated by any entity or person, public or private, providing residential child care, regardless of whether operated for profit or whether a fee is charged. Such residential child-caring agencies include, but are not limited to, maternity homes, runaway shelters, group homes that are administered by an agency, and emergency shelters that are not in private residence.
SECTION 5. Section 43-21-609, Mississippi Code of 1972, is amended as follows:
43-21-609. In neglect and abuse cases, the disposition order may include any of the following alternatives, giving precedence in the following sequence:
(a) Release the child without further action;
(b) Place the child in
the custody of his parents, a relative or other person subject to any
conditions and limitations as the court may prescribe. If the court finds that
temporary relative placement, adoption or foster care placement is
inappropriate, unavailable or otherwise not in the best interest of the child,
durable legal custody may be granted by the court to any person subject to any
limitations and conditions the court may prescribe; such durable legal custody
will not take effect unless the child or children have been in the physical
custody of the proposed durable custodians for at least one (1) year under the
supervision of the Department of * * * Child Protection Services. The
requirements of Section 43-21-613 as to disposition review hearings does not
apply to those matters in which the court has granted durable legal custody.
In such cases, the Department of * * * Child Protection Services shall
be released from any oversight or monitoring responsibilities;
(c) Order terms of treatment calculated to assist the child and the child's parent, guardian or custodian which are within the ability of the parent, guardian or custodian to perform;
(d) Order youth court
personnel, the Department of * * * Child Protection Services or
child care agencies to assist the child and the child's parent, guardian or
custodian to secure social or medical services to provide proper supervision
and care of the child;
(e) Give legal custody of the child to any of the following but in no event to any state training school:
(i) The Department
of * * * Child
Protection Services for appropriate placement; or
(ii) Any private or public organization, preferably community-based, able to assume the education, care and maintenance of the child, which has been found suitable by the court. Prior to assigning the custody of any child to any private institution or agency, the youth court through its designee shall first inspect the physical facilities to determine that they provide a reasonable standard of health and safety for the child;
(f) If the court makes a finding that custody is necessary as defined in Section 43-21-301(3)(b), and that the child, in the action pending before the youth court had not previously been taken into custody, the disposition order shall recite that the effect of the continuation of the child's residing within his or her own home would be contrary to the welfare of the child, that the placement of the child in foster care is in the best interests of the child, and unless the reasonable efforts requirement is bypassed under Section 43-21-603(7)(c), the order also must state:
(i) That reasonable efforts have been made to maintain the child within his or her own home, but that the circumstances warrant his or her removal, and there is no reasonable alternative to custody; or
(ii) The circumstances are of such an emergency nature that no reasonable efforts have been made to maintain the child within his or her own home, and there is no reasonable alternative to custody; or
(iii) If the court
makes a finding in accordance with (ii) of this paragraph, the court shall
order that reasonable efforts be made towards the reunification of the child
with his or her family * * *;
(g) If the court had,
before the disposition hearing in the action pending before the court, taken
the child into custody, the judge or referee shall determine, and the youth
court order shall recite that reasonable efforts were made by the Department of * * * Child Protection Services to
finalize the child's permanency plan that was in effect on the date of the
disposition hearing * * *;
or
(h) Giving custody to a relative and waiving any requirement for the relative to participate in foster parent training, in the discretion of the court.
SECTION 6. This act shall take effect and be in force from and after July 1, 2017.