MISSISSIPPI LEGISLATURE
2020 Regular Session
To: Public Health and Welfare
By: Senator(s) Fillingane
AN ACT TO AMEND SECTION 43-15-13, MISSISSIPPI CODE OF 1972, TO REQUIRE THE DEPARTMENT OF CHILD PROTECTION SERVICES TO PLACE A CHILD IN THE LEAST RESTRICTIVE PLACEMENT AVAILABLE; TO MANDATE THE PLACEMENT PREFERENCE FOR A CHILD; TO REQUIRE THE DEPARTMENT OF CHILD PROTECTION SERVICES, UPON TAKING A CHILD INTO CUSTODY, TO CONDUCT A SEARCH FOR ADULT RELATIVES OF THE CHILD AND PERSONS WITH A SIGNIFICANT RELATIONSHIP TO THE CHILD; TO REQUIRE THE DEPARTMENT OF CHILD PROTECTION SERVICES TO PROVIDE ALL RELATIVES AND PERSONS WITH A SIGNIFICANT RELATIONSHIP TO THE CHILD IDENTIFIED IN THE SEARCH WITH NOTICE THAT THE CHILD HAS BEEN OR IS BEING PLACED IN THE CUSTODY OF THE DEPARTMENT; 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. For purposes of this chapter, "commercial sexual exploitation" means any sexual act or crime of a sexual nature, which is committed against a child for financial or economic gain, to obtain a thing of value, for quid pro quo exchange of property or any other purpose.
(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, commercial sexual exploitation, human trafficking 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 placement with a relative or fictive kin 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, reviews and reports once every six (6) months for each child under its custody within the State of Mississippi, which document each child who has been adjudged a neglected, abandoned or abused child, including a child alleged to have experienced commercial sexual exploitation and/or human trafficking 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, fictive kin 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 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, and provide counseling services and other appropriate services to children who have been victims of commercial sexual exploitation or human trafficking. The policy shall 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, and provide care for victims of commercial sexual exploitation or human trafficking. 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 commercial sexual exploitation or human trafficking, 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 legal relative 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, when appointed, the Court-Appointed Special Advocate (CASA) 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) (a) 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, which shall include training foster care parents about providing mental and physical support to children who have experienced commercial sexual exploitation or human trafficking. 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 child's foster care review plan once every six (6) months.
(b) (i) The court may waive foster care training for an appropriate relative placement.
(ii) A relative exempted from foster care training is not eligible for board payments, foster care payments, kinship care payments, therapeutic care payments, or any other monthly payments from the department to assist in the care of the child.
(7) The Department of Child Protection Services shall place a child in the least restrictive type of placement available, consistent with the best interests of the child. 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.
(a) 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.
(b) The court may waive foster care training for a relative only when appropriate.
(c) The order for placement preference of a child in a foster home shall be as follows:
(i) With a parent;
(ii) In kinship care with another member of the child's extended family, including a person who has a significant relationship with the child. A foster parent or kinship caregiver with whom a child has resided for nine (9) months or more is a person who has a significant relationship with the child. Absent evidence to the contrary, the court may presume that continuation of the child's placement with his or her current caregivers is in the child's best interests;
(iii) In licensed family foster care;
(iv) In therapeutic foster care;
(v) In a group home; or
(vi) In a residential treatment facility.
(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, as defined in Section 43-21-105, 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, including counseling or other services for victims of commercial sexual exploitation or human trafficking;
(iii) Direct interviews between the family protection worker or specialist and the child, previously discussed and understood by the foster parents;
(iv) Information regarding whether the child experienced commercial sexual exploitation or human trafficking;
(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 unless the relative is exempt from foster care training and chooses to exercise the exemption; 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 views 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.
(13) (a) Within thirty (30) days from the date a child is taken into custody, the Department of Child Protection Services shall conduct a diligent search for adult relatives of the child and for persons with a significant relationship to the child, including absent/noncustodial parents, maternal and paternal relatives, fictive kin, the parents of the child's siblings, family friends and other individuals who have demonstrated an ongoing commitment to the child.
(b) At a minimum, the diligent search in paragraph (a) of this subsection shall include:
(i) Interviewing the parent/legal guardian;
(ii) Interviewing the child;
(iii) Interviewing identified relatives;
(iv) Interviewing any other person who is likely to have information about the identity or location of the person being sought;
(v) Conducting comprehensive searches of databases available to the department, including, but not limited to, searches of employment, residence, utilities, vehicle registration, child support enforcement, law enforcement, corrections records, and any other records likely to result in identifying and locating the person being sought;
(vi) Seeking the services of the Federal Parent Locator Service; and
(vii) Conducting any other reasonable means that are likely to identify relatives or persons with a significant relationship to the child.
(c) The Department of Child Protection Services shall file an affidavit with the court with information regarding attempts made pursuant to paragraph (a) and (b) of this subsection within thirty (30) days from the date the child was removed from his or her home, or as otherwise required by the court, and at each periodic review hearing.
(d) All relatives of the alleged dependent child and any persons with a significant relationship to the child identified in a diligent search required by paragraph (a) and (b) of this subsection, subject to exceptions due to family or domestic violence or other safety concerns, shall be provided with notice:
(i) Specifying that an alleged dependent child has been or is being placed in the custody of the Department of Child Protection Services;
(ii) Explaining the options a relative has to participate in the care and placement of the alleged dependent child and any options that may be lost by failing to respond to the notice;
(iii) Describing the process for becoming a licensed foster family home and the additional services and supports available for children placed in approved foster homes; and
(iv) Describing any financial assistance for which a relative or fictive kin placement may be eligible.
(e) After the completion of the diligent search, the Department of Child Protection Services shall have a continuing duty to search for relatives or other persons who have demonstrated an ongoing commitment to a child and with whom it may be appropriate to place the alleged dependent child until such relatives or persons are found or until such child is placed for adoption unless the court excuses the department from continuing a diligent search.
(f) If a relative entitled to notice under this section fails, within six (6) months from the date he or she receives the required notice, to demonstrate an interest in and willingness to provide a permanent home for a child, the court may excuse the department of Child Protection Services from considering the relative as a placement.
SECTION 2. This act shall take effect and be in force from and after July 1, 2020.