S.B. 490-492, 503, 504, 515-517, 543 & 544: - FOSTER CARE/CHILD PROTECTION

ENROLLED ANALYSIS

Senate Bill 490 (as enrolled) - PUBLIC ACT 163 of 1997

Senate Bill 491 (as enrolled) - PUBLIC ACT 164 of 1997

Senate Bill 492 (as enrolled) - PUBLIC ACT 165 of 1997

Senate Bill 503 (as enrolled) - PUBLIC ACT 166 of 1997

Senate Bill 504 (as enrolled) - PUBLIC ACT 167 of 1997

Senate Bill 515 (as enrolled) - PUBLIC ACT 168 of 1997

Senate Bill 516 (as enrolled) - PUBLIC ACT 169 of 1997

Senate Bill 517 (as enrolled) - PUBLIC ACT 170 of 1997

Senate Bill 543 (as enrolled) - PUBLIC ACT 171 of 1997

Senate Bill 544 (as enrolled) - PUBLIC ACT 172 of 1997

Sponsor: Senator Joel D. Gougeon (Senate Bills 490 & 516)

Senator Michael J. Bouchard (Senate Bill 492)

Senator Jon Cisky (Senate Bill 503)

Senator Loren Bennett (Senate Bill 504)

Senator Joanne G. Emmons (Senate Bill 515)

Senator George A. McManus, Jr. (Senate Bill 517)

Senator Gary Peters (Senate Bill 543)

Senator Bill Schuette (Senate Bill 544)

Senate Committee: Families, Mental Health and Human Services

House Committee: Human Services and Children

Date Completed: 1-7-98

RATIONALE

Executive Order 1995-12 created the Lieutenant Governor's Children's Commission to review laws and programs concerning the removal of children from abusive households, the placement of children in foster care, the reunification of families, and the permanent placement of children. The Commission held a number of hearings throughout the State, and issued a report in July 1996. The report contains specific goals as well as recommendations for early intervention, permanency planning, placement, and post-termination.

As the Commission's report pointed out, the Federal government in 1980 enacted The Adoption Assistance and Child Welfare Act, which provides fiscal incentives to states that facilitate permanency planning. The law requires states to make "reasonable efforts" to prevent the unnecessary separation of children from their parents and to facilitate the reunification of foster children with their birth parents. According to the Commission's report, however, making reasonable efforts to keep families together sometimes conflicts with protecting the best interests of the children. Among other things, the report found that the State needed to make an aggressive up-front assessment of a child's needs, the severity of abuse, and the parent's ability to change; to follow through with a variety of services that match the level and type of intervention needed for each family and child; and to evaluate continually the services provided.

A number of the Commission's recommendations concern the role of the Family Independence Agency (FIA) and other agencies in the investigation of reported child abuse or neglect. Under the Child Protection Law, various professionals (such as educators, health care workers, and child care providers) must report suspected cases of abuse or neglect to the FIA. The FIA then must begin an investigation or, in certain cases, notify the prosecuting attorney. A report of child abuse or neglect not only triggers an investigation, but also may set in motion the process of removing the child from the home, placing him or her in foster care, and potentially terminating parental rights.

In addition, the Commission recommended the implementation in each county of a model protocol developed by the Governor's Task Force on Children's Justice, in order to ensure coordination between Protective Services and law enforcement. The Governor's Task Force was created in 1992 pursuant to the Federal Children's Justice Act. The model protocol applies to situations in which the FIA is required to seek the assistance of law enforcement officials when conducting an investigation under the Child Protection Law (e.g., cases involving a child's death, suspected sexual abuse or exploitation, or severe physical injury).

The Governor's Task Force also recommended the formation of coordinated teams to investigate child abuse and neglect cases, and the Michigan Public Health Institute was selected to implement child fatality review program. In its December 1996 report, the Institute recommended specific actions in order to expand the program, such as increasing the number of local review teams, ensuring their training, and establishing a State-level advisory team.

CONTENT

Senate Bill 490 amended provisions of the juvenile code concerning abused and neglected juveniles, to do the following:

-- Prohibit a court from leaving a child in or returning a child to his or her home, or placing a child with an unlicensed person, without finding that the conditions of placement are adequate to safeguard the child.

-- Allow a court to place a child with someone other than a parent without determining that custody with a parent, guardian, or custodian presents a substantial risk to the child and that no other arrangement is reasonably available.

-- Require a criminal record check and a home study to be performed if a child is placed in a relative's home.

-- Require a child to have a psychological evaluation and/or counseling to determine the appropriateness of parenting time, if parenting time might be harmful to the child.

-- Provide for the automatic suspension of parenting time at an initial hearing on the termination of parental rights.

-- Require the provision of case service plans, court orders, and medical reports to foster care providers.

-- Limit the circumstances under which foster care placement may be changed, allow appeals to foster care review boards, and provide for judicial resolution of disputes between a board and an agency.

-- Require foster care review hearings and permanency planning hearings to be held every 91 days, unless a child is in a permanent foster family agreement or is placed with a relative and the placement is intended to be permanent.

Senate Bill 491 amended the Public Health Code to give priority for substance abuse services to a parent whose child has been removed from the home or is in danger of being removed, because of the parent's substance abuse.

Senate Bill 492 amended the child care licensing Act to provide that the Department of Consumer and Industry Services may grant a variance to licensing rules or statutes regulating foster family homes or group homes, in order to allow a child and one or more siblings to remain or be placed together.

Senate Bill 503 amended the Child Protection Law to require the prosecuting attorney in each county and the FIA to adopt a standard child abuse and neglect investigation and interview protocol.

Senate Bill 504 amended the Child Protection Law to allow each county to have a standing child fatality review team in place by January 1, 1999; and require that the FIA establish an advisory committee to recommend changes concerning child fatalities and publish an annual report.

Senate Bill 515 amended the Child Protection Law to require the FIA's central registry to be a "statewide, electronic" registry; require the FIA to submit a petition for authorization under certain circumstances involving severe injury or sexual abuse, or if a parent's parental rights to another child have been terminated; require the FIA to refer certain substantiated cases to the prosecutor; and provide that a child may not be interviewed in the presence of a suspected abuser.

Senate Bill 516 amended the juvenile code to do the following:

-- Allow a court to terminate parental rights under certain circumstances involving abuse of a child or his or her sibling, or if parental rights to another child have been terminated.

-- Limit the circumstances under which a court may adjourn or continue an abuse or neglect hearing; and set a deadline for the court's decision on a termination petition.

-- Provide for continued legal representation of a child.

Senate Bill 517 amended the foster care review board Act to do the following:

-- Provide for the creation of a review board in each county or multiple counties, and allow additional boards at the discretion of the State Court Administrative Office.

-- Require boards to hear appeals of proposed changes in foster care placement.

-- Require boards to select permanent wards for review.

-- Allow boards to evaluate foster home placement that would require a licensing variance.

Senate Bill 543 amended Public Act 220 of 1935, which governs the Michigan Children's Institute, to provide for communication between the Institute's superintendent and a child's attorney.

Senate Bill 544 amended the Foster Care and Adoption Services Act to require a supervising agency (the FIA or a child placing agency) to: make placement decisions after consulting with a child's relatives; strive to achieve permanent placement within 12 months after a child's removal from his or her home; require its workers to make in-home visits; develop a medical passport for each child under its care; and obtain an assessment or psychological evaluation of certain children.

Senate Bills 490, 503, and 504 were tie-barred to Senate Bill 515, which was tie-barred to those three bills. Senate Bill 517 was tie-barred to Senate Bill 490. Senate Bill 544 was tie-barred to Senate Bill 516.

All of the bills are described in more detail below.

Senate Bill 490

Placement of Child

Previously, under the juvenile code, if a petition alleging abuse or neglect by a parent, guardian, custodian, or other person residing in a juvenile's home were authorized and the court found probable cause to believe that the parent, guardian, custodian, or other person committed the abuse, the court could order that person to leave the home and not subsequently return to it, and could release the juvenile to the other parent or to another guardian or custodian. The court could not enter such an order unless it determined all of the following:

-- The presence in the home of the alleged abuser presented a substantial risk of harm to the juvenile's life, physical health, or mental well-being.

-- Removing the person was necessary to safeguard the juvenile adequately from that risk of harm.

-- The conditions of custody with the other parent or another guardian or custodian were adequate to safeguard the juvenile from the risk of harm.

-- It was in the best interests of the juvenile for him or her to remain in the home.

The bill generally retained this provision, but deleted reference to releasing the child to the other parent or to another guardian or custodian. In addition, regardless of whether the court orders the alleged abuser to leave the child's home, the court may not leave the child in or return the child to his or her home or place the child with a person not licensed under the child care licensing Act, unless the court finds that the conditions of custody at the placement and with the individual with whom the child is placed are adequate to safeguard the child from the risk of harm to his or her life, physical health, or mental well-being.

The bill deleted a provision under which the court, if a neglect or abuse petition was authorized, had to make the following determinations before ordering a juvenile to be placed with someone other than a parent: that custody of the juvenile with a parent, guardian, or custodian presented a substantial risk of harm to the juvenile's life, physical health, or mental well-being and no provision of service or other arrangement except removal of the juvenile was reasonably available to safeguard the juvenile adequately; and that conditions of custody of the juvenile away from a parent, guardian, or custodian were adequate to safeguard the juvenile's health and welfare.

The bill also provides that, before or within seven days after a child is placed in a relative's home, the Department must perform a criminal record check and central registry clearance. If the child is placed in a relative's home, the court must order a home study to be performed and a copy of the home study to be submitted to the court within 30 days after the placement. (Neither the bill nor the code defines "department" or "central registry".)

Parenting Time

Previously, a juvenile's parent had to be permitted to have parenting time frequently with the juvenile unless parenting time, even if supervised, would be harmful to the juvenile. The bill provides, instead, that if a juvenile is removed from his or her home, the juvenile's parent must be permitted to have parenting time frequently with the juvenile. If parenting time, even if supervised, could be harmful to the juvenile, however, the court must order the child to have a psychological evaluation and/or counseling to determine the appropriateness and conditions of parenting time. The court may suspend parenting time while the evaluation or counseling is conducted.

Under the code, an agency must prepare a case service plan before the court enters an order of disposition in a child abuse or neglect case. The case service plan must include, among other things, a parenting time schedule unless parenting time would be harmful to the child. The bill adds that, at the time of an initial termination hearing held to consider termination of parental rights, parenting time is automatically suspended unless the parent establishes and the court determines that the exercise of parenting time will not harm the child. If the court adjourns or continues the hearing beyond the original scheduled date for any reason, the court must suspend parenting time in the interim, unless the court determines that the exercise of parenting time will not harm the child.

Foster Care Placement

The bill provides that if a child is placed in foster care, within 10 days after receiving a written request, the agency must give the person who is providing the foster care copies of all initial, updated, and revised case service plans and court orders relating to the child and all of his or her medical, mental, and education reports, including reports compiled before the child was placed with that person. The court order placing the child in foster care must include an order directing the release of information in accordance with this provision. (The code defines "agency" as a public or private organization, institution, or facility responsible under court order or contractual agreement for the care and supervision of a child.)

The bill also requires an order placing a child in foster care to include both of the following:

-- An order that the child's parent, guardian, or custodian provide the supervising agency with the name and address of each of the child's medical providers.

-- An order that each of the child's medical providers release the child's medical records. This order may specify providers by profession or type of institution.

Change in Foster Care Placement

The bill adds a new section to the code governing change in foster care placement. This section will take effect on July 1, 1998.

If an abused or neglected child is placed in foster care, the agency may not change the placement except under either of the following circumstances: 1) the person providing the foster care requests or agrees to the change; or 2) even though the person providing foster care objects to a proposed change in placement, one of the following applies:

-- The court orders the child returned home.

-- The change in placement is less than 30 days after the child's initial removal from his or her home.

-- The change in placement is less than 90 days after the child's initial removal from his or her home and the new placement is with a relative.

-- The change in placement is in accordance with other provisions of this section.

Before a change in foster care placement takes effect, the agency must notify the State Court Administrative Office of the change. The agency also must notify the foster parents of the intended change as well as inform them that if they disagree with the decision, they may appeal within three days to a foster care review board. A foster parent may appeal orally, but must submit the appeal in writing immediately after the oral appeal. The agency must give the foster parents the address and telephone number of a foster care review board with jurisdiction over the child. In addition, the agency must maintain the current placement for at least the time for appeal to the foster care review board and, if a foster parent appeals, until the board determination.

Upon receiving an appeal from foster parents, the foster care review board must investigate the change in placement and report its findings and recommendations within three days to the court, the foster care parents, the parents, and the agency. If, after investigation, the board determines that the move is in the child's best interests, the agency may move the child.

If, after investigation, the board determines that the move is not in the child's best interests, the board must maintain the current placement until a finding and order by the court. The agency may not, however, return a child to a placement from which he or she was removed because of sexual abuse, nonaccidental physical injury, or a risk of harm to the child's emotional well-being, unless the court orders restoration of that placement. The foster care review board must notify the court about the board's and agency's disagreement. The court must set a hearing date and give notice to the foster parents, each interested party, and the prosecuting attorney if he or she has appeared in the case. The court must set the hearing no sooner than seven and no later than 14 days after receiving the board's notice. The rules of evidence will not apply to the hearing.

After hearing testimony from the agency and any other interested party, and considering any other evidence bearing upon the proposed change in placement, the court must order the continuation or restoration of the placement unless the court finds that the change is in the child's best interests.

An agency may change a child's placement without complying with these provisions, however, if the agency has reasonable cause to believe that the child has suffered sexual abuse or nonaccidental physical injury or that there is substantial risk of harm to the child's emotional well-being. The agency must include in the child's file documentation of its justification for action under this provision. If a foster parent objects to the removal of the child, the foster care parent may appeal to the foster care review board within three days of the child's removal. The foster parent may appeal orally but must submit the appeal in writing immediately following the oral appeal.

At the time of or immediately following a child's removal due to sexual abuse, physical injury, or risk to emotional well-being, the agency must inform the foster parents about the removal and that they may appeal the decision within three days. The agency must give the parents the address and telephone number of a foster care review board with jurisdiction over the child.

Review & Permanency Planning Hearings

Previously, if an abused or neglected child was placed and remained in foster care, the court had to hold a review hearing within 91 days after entry of the order of disposition, and every 91 days thereafter for the first year following entry of the order. (At a review hearing, the court must determine the continuing necessity and appropriateness of the child's placement and must order the child returned to the parent's custody, continue or modify the dispositional order, or enter a new dispositional order.) After the first year, a review hearing had to be held within 182 days after a permanency planning hearing (described below). Under the bill, a review hearing must be held within 91 days after entry of the order and every 91 days after that as long as the child is subject to the jurisdiction, control, or supervision of the court or of the Michigan Children's Institute (MCI) or other agency.

If a child is in a permanent foster family agreement, or placed with a relative and the placement is intended to be permanent, the bill requires the court to hold a review hearing within 182 days after a permanency planning hearing and every 182 days after that as long as the child is subject to the jurisdiction, control, or supervision of the court or of the MCI or other agency. Upon the motion of any party or at the court's discretion, a review hearing may be accelerated to review any element of the case service plan prepared by the agency. (The bill defines "permanent foster family agreement" as an agreement for a child at least 14 years old to remain with a particular foster family until the child is 18 under standards and requirements established by the Family Independence Agency; the agreement must be among all of the following: the child; the child's family, if he or she is a temporary ward; the foster family; and the child placing agency responsible for the child's care in foster care.)

Previously, if a child remained in foster care and parental rights to the child had not been terminated, the court had to conduct a permanency planning hearing within 364 days after entry of the order of disposition and every 364 days thereafter during the continuation of the child's foster care placement. (Permanency planning hearings are held to review the child's status and the progress being made toward the child's return home or to show why the child should not be placed in the permanent custody of the court.) Under the bill, the court must conduct a permanency planning hearing within 364 days after an original petition has been filed. Except as provided above for a child who is in a permanent foster family agreement or placed with a relative in a placement intended to be permanent, the court must conduct a review hearing within 91 days after the original permanency planning hearing and every 91 days after that as long as the child is subject to the jurisdiction, control, or supervision of the court or of the MCI or other agency.

Under the code, if the court determines at a permanency planning hearing that the child should not be returned to his or her parent, the court must order the agency to initiate proceedings to terminate parental rights to the child within 42 days after the hearing, unless the agency demonstrates to the court that initiating the termination of parental rights is clearly not in the child's best interests. Under the bill, this requirement applies unless the court finds that initiating the termination of parental rights is clearly not in the child's best interests.

Under the code, in making determinations pursuant to a permanency planning hearing (e.g., whether the child should be returned to his or her parent), the court must consider any written or oral information concerning the child from his or her parent, guardian, custodian, foster parent, child caring institution, or relative with whom the child is placed, in addition to any other evidence offered at the hearing. Under the bill, the court also must consider information from the child's guardian ad litem, and must consider the appropriateness of parenting time.

FIA Petitions

The bill provides that, if the Family Independence Agency becomes aware of additional abuse or neglect of a child who is under the jurisdiction of the court, and that abuse or neglect is substantiated as provided in the Child Protection Law, the Department must file a supplemental petition with the court.

In addition, if a petition is before the court because the FIA is required to submit the petition under Section 17 of the Child Protection Law, the court must hold a hearing on the petition within 24 hours or on the next business day after the petition is submitted. At the hearing, the court at least must consider the matter of ordering a parent, guardian, custodian, or other person to leave the child's home. (Under Section 17 of the Child Protection Law, as added by Senate Bill 515, the FIA must submit a petition to the court within 24 hours after determining that a child was severely physically injured or sexually abused.)

Senate Bill 491

The bill amended the Public Health Code to give priority for substance abuse services to a parent whose child has been removed from the home under the State's child protection laws, or is in danger of being removed, because of the parent's substance abuse. If a licensee under Part 62 of the Code (which deals with substance abuse services) maintains a waiting list for services, the licensee must place the parent in a priority position on the waiting list. If a licensee receives Federal substance abuse prevention and treatment block grant funds, the parent's priority position will come after a priority position on the waiting list granted under the conditions of the Federal block grant. If the parent qualifies for priority status on the waiting list under the block grant conditions, however, the licensee must place the parent in that priority position on the waiting list.

Senate Bill 492

The bill amended the child care licensing Act to specify that, upon the recommendation of a local foster care review board under Section 7a of the foster care review board Act or a child placing agency, the Department of Consumer and Industry Services (DCIS) may grant a variance to one or more licensing rules or statutes regulating foster family homes or foster family group homes, to allow the child and one or more siblings to remain or be placed together. If the DCIS determines that such a placement would be in the child's best interests and that the variance would not jeopardize the health or safety of a child residing in the foster family home or group home, the DCIS may grant the variance. The Department's grant of a variance will not change a private home's licensure status.

(Section 7a of the foster care review board Act, as added by Senate Bill 517, provides for local boards to evaluate a child's placement in a foster home that would allow the child and his or her siblings to remain or be placed together but would require a variance from one or more licensing rules or statutes.)

Senate Bill 503

The bill amended the Child Protection Law to provide that, in each county, the prosecuting attorney and the Family Independence Agency must adopt and implement a standard child abuse and neglect investigation and interview protocol using as a model the protocol developed by the Governor's Task Force on Children's Justice, as published in "DSS publication 794 (8-93)". The FIA and law enforcement officials must conduct investigations in compliance with the protocol adopted and implemented under this provision.

The Law provides that, upon the completion of an investigation by the local law enforcement agency or the FIA, the agency or FIA may inform the person who made the report as to its disposition. Under the bill, this applies unless the person who made the report was mandated to do so. In such a case, upon completion of the investigation by the FIA, the FIA must inform the person in writing as to the disposition of the case and must include in the information at least all of the following:

-- Whether the case was substantiated and the rationale for that decision.

-- Whether legal action was commenced and, if so, the nature of that action.

-- Notification that the information being conveyed is confidential.

The information sent may not include personally identifying information for a person named in a report or record made under the Law.

Senate Bill 504

Child Fatality Review Teams

The bill amended the Child Protection Law to provide that, by January 1, 1999, each county may have in place a standing child fatality review team. Two or more counties may appoint a single child fatality review team for those counties. The membership of a child fatality review team must consist of at least all of the following:

-- A county medical examiner or deputy county medical examiner.

-- A representative of a local law enforcement agency.

-- A representative of the FIA.

-- The county prosecuting attorney, or a designated assistant county prosecutor.

-- A representative of the Department of Community Health (DCH) or a local health department.

A child fatality review team established under the bill must review each child fatality occurring in the county or counties that established the team. The FIA must make available to each team professional, interagency training and orientation on the review of child fatalities. The FIA must make available, as necessary, training on specific types of child fatalities, investigation techniques, and prevention initiatives.

Information obtained by a child fatality review team is confidential and may be disclosed by the team only to the FIA, the Children's Ombudsman, the county prosecutor's office, local law enforcement, or another child fatality review team. The information is not subject to the Freedom of Information Act.

Advisory Committee

By January 1, 1998, the FIA must establish a multiagency, multidisciplinary advisory committee to identify and make recommendations on policy and statutory changes pertaining to child fatalities and to guide statewide prevention, education, and training efforts. The advisory committee must consist of the following:

-- Two representatives of the FIA.

-- Two representatives of the DCH.

-- One county medical examiner.

-- One representative of law enforcement.

-- One county prosecuting attorney.

-- The Children's Ombudsman or his or her designee.

Using the annual compilation of child fatalities reported by the State Registrar under the Public Health Code, and data received from the child fatality review teams established under the bill, the advisory committee must publish an annual report on child fatalities. The committee must include in the report at least all of the following:

-- The total number of child fatalities and the type or cause of each child fatality.

-- The number of child fatalities that occurred while the child was in foster care.

-- The number of cases in which the child's death occurred within five years after family preservation or family reunification.

-- Trends in child fatalities.

The advisory committee must break down this information by county or by groups of counties that formed child fatality review teams. The information contained in the report is public information. The committee may not include identifying information of persons named in the report. The committee must transmit a copy of the annual report to the Governor and to the standing committees of the Legislature with jurisdiction over child protection matters.

Immunity

The bill specifies that a member of a child fatality review team or of the advisory committee is a member of a board, council, commission, or statutorily created task force of a governmental agency for the purposes of Section 7 of the governmental immunity Act (which provides for tort immunity for members of such entities and for governmental employees and volunteers).

Senate Bill 515

Release of Information

Under the Child Protection Law, the FIA is required to maintain a central registry, and information in it may be released only to specific persons. These include a person, agency, or organization engaged in a bona fide research or evaluation project, although information identifying a person named in a report or record may not be released without that person's written consent. The bill also provides that the FIA Director may authorize the release of information to such a person, agency, or organization if the release contributes to the purposes of the Child Protection Law, and the person, agency, or organization has appropriate controls to maintain the confidentiality of personally identifying information for a person named in a report or record made under the Law.

The Law allows information in the central registry to be released to child fatality review teams. The refers to a child fatality review team as established under Senate Bill 504. The bill deleted provisions governing team membership.

FIA Petition

The bill provides that, within 24 hours after the FIA determines that a child was severely physically injured or sexually abused, the FIA must submit a petition for authorization by the court, as provided in the juvenile code. The FIA also must submit a petition for authorization by the court if the FIA determines that a parent, guardian, or custodian, or a person who is 18 years old or older and resides for any length of time in the child's home, has abused the child or a sibling of the child and the abuse included any of the following:

-- Abandonment of a young child.

-- Criminal sexual conduct involving penetration, attempted penetration, or assault with intent to penetrate.

-- Battering, torture, or other severe physical abuse.

-- Loss or serious impairment of an organ or limb.

-- Life-threatening injury.

-- Murder or attempted murder.

In addition, the FIA must submit a petition for authorization if the parent's rights to another child were terminated as a result of proceedings under the juvenile code's abuse and neglect provisions, or a similar law of another state; or if the parent's rights to another child were voluntarily terminated following the initiation of proceedings under the juvenile code or a similar law of another state.

In a petition submitted by the FIA, the Agency must include a request for termination of parental rights at the initial dispositional hearing as authorized under Section 19b of the juvenile code (which requires the court to hold a hearing to determine whether parental rights should be terminated if a child remains in foster care following a review hearing or permanency planning hearing; or, upon petition of the prosecutor, child, guardian, custodian, concerned person, agency, or the Children's Ombudsman, if a child remains in the custody of a guardian or limited guardian).

If the FIA is considering petitioning for termination of parental rights at the initial dispositional hearing, as authorized in Section 19b of the juvenile code, even though the facts of the child's case do not require Agency action under these provisions, the FIA must hold a conference among the appropriate Agency personnel to agree upon the course of action. The FIA must notify the attorney representing the child of the time and place of the conference, and he or she may attend. If an agreement is not reached at the conference, the FIA Director or his or her designee must resolve the disagreement after consulting the attorneys representing both the FIA and the child.

Other Provisions

Under the bill, if a substantiated case involves a child's death, serious physical injury to a child, or sexual abuse or exploitation of a child, the FIA must refer the case to the prosecuting attorney for the county in which the child is located. The prosecuting attorney must review the investigation of the case to determine if it complied with the protocol adopted under requirements of the Law (pursuant to Senate Bill 503).

The bill provides that, during an investigation of suspected child abuse or neglect, the child reported to have been abused or neglected may not be interviewed in the presence of an individual reported to have perpetrated the abuse or neglect.

Senate Bill 516

Grounds for Termination

The bill amended the juvenile code to provide that a court may terminate a parent's parental rights to a child if the court finds, by clear and convincing evidence, that the parent abused the child or a sibling of the child and the abuse included one or more of the following:

-- Abandonment of a young child.

-- Criminal sexual conduct involving penetration, attempted penetration, or assault with intent to penetrate.

-- Battering, torture, or other severe physical abuse.

-- Loss or serious impairment of an organ or limb.

-- Life-threatening injury.

-- Murder or attempted murder.

A court also may terminate a parent's parental rights if it finds that his or her parental rights to another child have been terminated as a result of abuse and neglect proceedings under the juvenile code or a similar law of another state; or if the parent's rights to another child were voluntarily terminated following the initiation of proceedings under the juvenile code or a similar law of another state.

Time Periods/Adjournment or Continuance

Under the bill, the court may adjourn a hearing or grant a continuance regarding an abuse or neglect case only for good cause with factual findings on the record and not solely upon stipulation of counsel or for the convenience of a party. In addition to a factual finding of good cause, the court may not adjourn the hearing or grant a continuance unless one of the following also is true:

-- The motion for the adjournment or continuance is made in writing at least 14 days before the hearing.

-- The court grants the adjournment or continuance upon its own motion after considering the child's best interests. An adjournment or continuance granted under this provision may not last more than 28 days unless the court states on the record the specific reasons why a longer adjournment or continuance is necessary.

Under the juvenile code, if a child remains in foster care in the temporary custody of the court following a review hearing or a permanency planning hearing, or if a child remains in the custody of a guardian, upon petition of the prosecutor, child, guardian, custodian, concerned person, FIA, or the Children's Ombudsman, the court must hold a hearing to determine if the parental rights to the child should be terminated and, if all parental rights are terminated, the child placed in permanent custody of the court. The bill requires the court to issue an opinion or order regarding a termination petition within 70 days after the commencement of the initial hearing on the petition. The court's failure to issue an opinion within 70 days, however, will not dismiss the petition.

Attorney for the Child

The code requires the court to appoint an attorney for an abused or neglected child. The bill provides that a child's attorney must be present at all hearings concerning the child and may not substitute counsel unless the court approves.

The code provides that a court-appointed attorney must serve until discharged by the court. The bill prohibits the court from discharging the attorney as long as the child is subject to the jurisdiction, control, or supervision of the court, or of the Michigan Children's Institute or other agency, unless the court discharges the attorney for good cause shown on the record. If the child remains subject to the jurisdiction, control, or supervision of the court, or the MCI or other agency, the court immediately must appoint another attorney to represent the child.

Annual Report

The bill requires the State Court Administrative Office to publish an annual report evaluating the court regarding its duty under the juvenile code to engage in obtaining permanency for children. The report must include at least information and statistics detailing the court's adherence to each time period prescribed by the code or court rule for the management and disposition of children's cases petitioned under the code and, if the court fails to adhere to a time period, the specific reasons for that failure.

Senate Bill 517

Local Foster Care Review Boards

Previously, the foster care review board Act provided for the creation of a local foster care review board in each county having at least 100 but not more than 500 children in foster care. An additional board was created for each additional 300 children in a county having more than 500 children in foster care. In addition, a county with fewer than 100 children in foster care could create its own board or create a multicounty board with other counties having fewer than 100 children in foster care under certain conditions. The bill, instead, provides that a local foster care review board is created in each county or in multiple counties. At the discretion of the State Court Administrative Office, additional boards may be created in each county or in multiple counties. This is subject to the Act's limit on the number of local boards that a county may have, which the bill increases from 10 to 15.

The bill also deleted provisions that did the following: exempted a county from establishing a review board if not less than the minimum acceptable percentage of children in foster care in the county achieved a foster care event within six months after admission into foster care; required that a board be terminated if the minimum acceptable percentage of children within the county achieving foster care events within six months after admission was attained and maintained for two consecutive State fiscal years; and, required the creation of one or more review boards in an exempted county upon agreement of the State Court Administrative Office, the judge(s) of the juvenile division of the county's probate court, and the county board of social services. (A "foster care event" is the child's return to the parent from whom the child was removed; the child's placement with the other parent; the child's placement with a relative; the voluntary release of parental rights to the child; or the filing of a petition for the termination of parental rights.)

Under the Act, a local board must be composed of five members who reside within the jurisdiction of the local board, and who represent to the maximum extent possible the socioeconomic, racial, and ethnic groups residing within that jurisdiction. The bill adds that a local board may have one or more alternative member who will serve when an appointed board member is unavailable.

Foster Care Placement

The following provisions concerning foster care placement will take effect on July 1, 1998.

In addition to the activities already required of local boards, the bill requires a board to hear an appeal of a proposed change in foster care placement, as provided in a section of Senate Bill 490 that establishes procedures for a change in foster care placement. A local board also must report to the court as required by those procedures.

As part of the ongoing review process, a local board must select permanent wards for review from all of the following categories:

-- Wards who are registered with the Michigan Adoption Resource Exchange and have been on hold status for at least 12 months.

-- Wards who have not been registered with the Michigan Adoption Resource Exchange, have been permanent wards for at least six months, and do not have a documented permanency plan in place.

-- Wards who are under 12 years old and have been listed in the Michigan Adoption Resource Exchange photo listing book for more than six months and for whom no family has been identified.

A local board must compile and maintain statistics and make findings regarding its reviews of permanent wards, including identification of any barriers to placement. The Michigan Adoption Resource Exchange must cooperate with the foster care review board program, and submit copies of its file material and registration documentation as requested by the program.

Sibling Placement/Variance

Under the bill, if the case of a child who has at least one sibling is otherwise before a local board, the board may evaluate the child's placement in a foster family home or foster family group home that would allow the child and one or more siblings to remain or be placed together, but also would require obtaining a variance from one or more licensing rules or statutes. If the local board determines that such a placement would be in the child's best interests and that the variance would not jeopardize the health or safety of a child residing in the foster family home or foster family group home, the board must recommend the variance to the Department of Consumer and Industry Services.

Annual Report

The Act requires the State Court Administrator to publish an annual report of the State board program created by the Act and make the report available to the public. The bill also requires the State Court Administrator to submit the annual report to the Legislature and the Governor.

In addition to the information that already has to be in an annual report, the bill requires it to include the statistics and findings regarding local boards' reviews of permanent wards in the categories identified by the bill.

Senate Bill 543

The bill amended Public Act 220 of 1935, which governs the Michigan Children's Institute, to provide that, during the time a child is committed to the superintendent of the MCI, the superintendent and the child's attorney may communicate with each other regarding issues of commitment, placement, and permanency planning. If the child's attorney has an objection or concern regarding such an issue, the superintendent and the attorney must consult with each other regarding that issue.

The bill retains a requirement that, if an order is made committing a child to the MCI, the court send to the superintendent a certified copy of the petition, the order of disposition in the case, and the report of the physician who examined the child, within 30 days after the order is made. (The bill deleted a requirement that the court also send a report of the county agent or probation officer.) Previously, upon receiving the order, the superintendent had to notify the probate judge as soon as there was room to receive the child at the Institute, so that the child could be transported to the Institute for placement. The bill, instead, requires the superintendent to notify the court of the child's placement upon receiving the commitment order so that the child may be transported to that placement.

(Under Public Act 220, a child may be admitted to the Michigan Children's Institute either by commitment to the FIA or by observation order of the probate court.)

(Please note: The arguments contained in this analysis originate from sources outside the Senate Fiscal Agency. The Senate Fiscal Agency neither supports nor opposes legislation.)

Supporting Argument

By implementing many recommendations of the Lieutenant Governor's Children's Commission, the bills will help to protect abused children from further violence, and ensure their placement in an appropriate home environment as soon as possible. Although family reunification may be appropriate in some situations, it clearly is not desirable when children are subject to sexual abuse or severe physical abuse by a member of the household. In some cases, the temporary removal of a child might be in his or her best interests, while permanent placement might be the best alternative for another child. Senate Bill 490 takes a number of steps to ensure that the goal of family reunification does not take precedence over a child's safety and ultimate well-being, and recognizes that a child may be better off in a stable and secure foster home than with his or her biological family. The bill also protects the interests of foster parents by establishing appeal procedures for a change in foster care placement, and requiring that reports, records, case service plans, and court orders be given to foster parents. In addition, the bill may reduce the time children spend in foster care by mandating more judicial oversight.

Supporting Argument

When reunification is in the best interests of a child, efforts should be made to rehabilitate the family. According to the report of the Lieutenant Governor's Children's Commission, one barrier to achieving this goal is the lack of services that address substance abuse by women with children. According to testimony before the Senate Committee on Families, Mental Health and Human Services, substance abuse is a factor in perhaps as much as 80% of the cases in which children are removed from their home. Senate Bill 491 addresses this situation by giving priority for substance abuse services to parents whose children have been or may be removed due to the parents' substance abuse. At the same time, the bill protects Federal funding by recognizing the priority that must be given pursuant to Federal block grant regulations.

Supporting Argument

According to the statement of purpose of the model protocol developed by the Governor's Task Force, "The development of this protocol grew out of the increased awareness among professionals that children are 'special' and require a different approach from adults. It is also recognized that there is a greater need for coordination of services for physically and sexually abused children and their families." The protocol further states, "...the overriding philosophy of this protocol is to consider first and foremost what is best for the child while ensuring the rights of the accused". Among the goals of the protocol are ensuring that child abuse cases are properly and efficiently investigated and prosecuted, and gaining improved cooperation among professionals and agencies to develop improved management of child abuse cases. The model protocol also contains separate sections on reporting child sexual abuse and physical abuse; coordinated investigative team approach; child protective services and police investigations; medical personnel; mental health personnel; and school personnel.

The Lieutenant Governor's Children's Commission reported that, although the Child Protection Law mandates the FIA to seek the assistance of law enforcement officials, this joint investigation often does not occur, and even when it does, a protocol regarding roles and responsibilities is not in place in many counties. The Commission also heard testimony that some child protective service workers have not been properly trained to investigate cases. In addition, the Commission found that the Law's requirement that prosecutors and the FIA develop and establish procedures for involving law enforcement officials, is not implemented uniformly across the State.

Statutorily mandating the adoption and implementation of an investigation and interview protocol will provide consistency and direction to local communities. According to the FIA, the model protocol already has been offered statewide through Task Force funding in cooperation with the Prosecuting Attorneys Association of Michigan.

Response: Including a specific model in statute might limit the use of other models as research and practice develop improved models in the future.

Supporting Argument

Senate Bill 504 enacts various recommendations of the Michigan Public Health Institute contained in its December 1996 report. Specifically, the Institute recommended increasing the number of child fatality review teams from 17 to 30 in 1997, and expanding the program Statewide in 1998. Under the bill, every county may have a review team in place by January 1, 1999. Also, as recommended, the FIA must make available to each team professional, interagency training and orientation on child death review, as well as establish a multiagency, multidisciplinary advisory committee to guide Statewide prevention, education, and training efforts. In addition, the Institute recommended that child death review be linked to other State initiatives. The bill permits the disclosure of information obtained by a team to other teams, the FIA, the Children's Ombudsman, prosecutors, and law enforcement. Otherwise, the information will be confidential, as recommended in the report. These changes will enhance existing efforts to investigate the circumstances of children's deaths, and to save the lives of other children.

Supporting Argument

Among the goals of the Lieutenant Governor's Children's Commission were: ensuring the coordination of investigation between protective services and law enforcement; ensuring an expeditious adjudication to guarantee the safety of mistreated children; ensuring that the FIA establishes protocols for seeking termination at the initial dispositional hearing; ensuring legal representation for the child until his or her adoption or other permanent placement; maintaining uniform judicial timelines for placement decisions; and building a body of knowledge to improve services to children and families.

According to the Commission's report, children sometimes are interviewed in the presence of the alleged perpetrator, resulting in an unsubstantiated case. The Commission also found that policy and law did not require the FIA to file a court petition in specific cases; there was no mechanism to identify which cases should be considered for termination of parental rights; there was a lack of clear policy on the coordination of protective services and foster care staff regarding permanency planning when termination of parental rights was being considered; foster care workers often did not file a supplemental petition when new allegations of abuse and neglect surfaced; the court often discontinued appointment of the child's attorney after parental rights had been terminated; and, the court's exercise of broad discretion in termination issues often resulted in delayed permanency for a child.

The report also pointed out that child welfare policy analysis, program evaluation, and research can be very helpful in improving services received by Michigan's children and families. While the FIA has limited resources to devote to this work, university workers and children's advocates are willing and able to conduct this analysis. The Child Protection Law's confidentiality restrictions, however, may have prevented analysts outside of the FIA from doing meaningful research.

Senate Bills 515, 516, and 517 implement a number of recommendations of the Commission to overcome these barriers and achieve the goals identified by the Commission.

Supporting Argument

Local foster care review boards provide much-needed oversight of foster care placements, and educate and involve the community in these matters. Since an informed and vigilant citizenry is critical to the well-being of children, Senate Bill 517 will protect the best interests of children by expanding local boards statewide, providing for the appointment of alternative members, and requiring review boards to hear an appeal of a proposed change in foster care placement (as provided under Senate Bill 490).

Supporting Argument

Senate Bills 492 and 517 will help keep siblings together by providing for the waiver of a particular licensing rule or statute for a foster care home if that action would be in a child's best interests and would not jeopardize other children in a home. Senate Bill 517 authorizes foster care review boards to recommend a waiver, and Senate Bill 492 gives the DCIS Director discretion to grant a variance to statutory and administrative regulations concerning foster homes.

Supporting Argument

The superintendent of the Michigan Children's Institute is appointed as the legal guardian of a child committed to the Institute and is responsible for consent to such actions as adoption, emancipation, marriage, and military service. While there has been no prohibition against consultation between a child's attorney and the superintendent, Senate Bill 543 gives clear statutory direction for that type of communication. In cases in which there is agreement on the FIA's actions, consultation between the attorney and the superintendent may not be necessary. Contact between those parties, however, might be very productive when there is disagreement. Senate Bill 543 provides an avenue for direct input to the superintendent and will ensure that the superintendent has access to information that a child's attorney can provide. The bill implements a recommendation of the Children's Commission, while accommodating concerns of the FIA.

Supporting Argument

The report of the Children's Commission recommended that timely and appropriate placement with extended family members be used as an alternative to foster care whenever possible. In order to keep children within their extended family, Senate Bill 544 requires the FIA and child placing agencies to consult with relatives and determine whether placement with a relative would meet a child's needs. In order to keep children safe, Senate Bill 490 provides that, when a child is placed in a relative's home, a criminal history check and a central registry clearance must be performed, and the court must order a home study. These provisions will benefit children as well as relieve the foster care system.

Response: While placement with a relative may divert some children from foster care, thereby saving foster care payments, these families might need help with obtaining other assistance and services, such as food stamps or psychological counseling for the children placed in their care.

Supporting Argument

The requirements in Senate Bill 544 for a medical passport, a constant medical provider for a child, and psychological assessments will ensure that each child in the foster care system receives consistent care and proper protection, and that the child's placement meets his or her needs. These provisions will establish continuity in the assignment of professionals and the transfer of information throughout the child's placement.

Supporting Argument

Setting a goal of permanent placement within 12 months, and providing for a "report card" of supervising agencies will contribute to better care of children in the foster care system and to less time spent in that system. Requiring monthly visits by a supervising agency will protect children from abuse in out-of-home placements, and requiring a flexible schedule for in-home visitation will ensure that a family's interactions can be monitored and assessed.

- Legislative Analyst: S. Lowe

FISCAL IMPACT

Senate Bill 490

State Government

Family Independence Agency. The bill will have an indeterminate fiscal impact on State government. The psychological evaluations, which will be required when there is a concern regarding the effect of parenting time, will increase in number. Psychological assessments currently are ordered at the FIA worker's discretion. Therefore, the bill will possibly increase the number of assessments ordered. The maximum cost of a general assessment for parents is $300. The maximum cost of a general psychological assessment for a child is $200. A more specialized (sexual assault) assessment could cost more. Home studies prior to placements with relatives are not done now before a child becomes a ward of the court; however, the FIA staff indicate that a change in this policy is being considered. Child abuse and neglect cases do have home studies done because the problem is seen as a family problem. The cost of a home study includes staff time, transportation, and materials costs. Providing foster care parents with copies of reports related to the child placed with them will result in a minimal increase in costs for copying and distribution of the reports. The bill will increase the required number of permanency planning hearings. The cost of a hearing includes staff time, transportation, court costs, and reimbursement of costs for the foster parents.

State Court Administrative Office - Foster Care Review Board. Requiring a foster care review board to investigate a proposed change in foster care placement and report findings and recommendations in three days will require additional resources. Currently 19 boards made up of volunteer members in 18 counties review selected cases. In addition, this legislation will require the local community boards to investigate and make recommendations when a foster parent files an appeal of an agency decision. The July 1996 report of the Binsfeld Children's Commission made a similar recommendation for foster parents to be given an opportunity to appeal decisions. This will mean possible expansion of the current community boards that review cases as well as additional resources for the foster care review board office, whose staff are responsible for attending the hearings that are held one day a month. In addition, office staff are also responsible for compiling and presenting the recommendations of the local community boards to the courts, agency, and other interested parties. It is not know how many foster parents will potentially appeal decisions to a foster care review board, but in order to address any of these potential cases in a timely fashion as well as conduct normal business, the foster care review board might be required to increase its field representatives, which consist of two persons.

Local Government

The section of the bill that requires a home study to be done might be interpreted as a State mandate to local government. If there are no court orders for the children for whom home studies will be required, these children will be between systems; they will be awaiting a trial and will not be court or State wards yet. This means that the locals might be required to bear the costs of the studies.

Senate Bill 491

The bill will have no fiscal impact on State or local government.

Senate Bill 492

According to the Department of Consumer and Industry Services, this bill puts in statute and expands a procedure that has been promulgated as a rule by the Department, which allows the DCIS to waive administrative requirements. The bill also expands the provisions of that rule by allowing the Department to grant a variance to statutory requirements. The bill therefore will have no fiscal impact on State or local government.

Senate Bill 503

State Government

The bill may have an indeterminate fiscal impact on State government. The Family Independence Agency developed, established, and implemented at the local level the model several years ago and currently encourages the other agencies to adopt and implement the protocol at the local level. However, the FIA might incur the cost of increased complaint investigations. In FY 1994-95, the number of child abuse and neglect complaints was 124,000. Complaints investigated totaled 57,914, and 12,194 were substantiated.

Local Government

The bill will have an indeterminate impact on local government. Certain activities will be required of local government agencies and therefore possibly result in an increase in local expenditures. There may be more cases reported to FIA children's protective services workers and local law enforcement agencies. This will increase local law enforcement and prosecutors' staff time, as well as the medical examinations or hospital admissions at county and city facilities that will be required upon suspicion or identification of the occurrence of abuse. Local agencies will be under a State mandate to provide services and possibly bear the increased costs.

Senate Bill 504

The bill will have an indeterminate fiscal impact on State government. The Family Independence Agency currently conducts child death reviews; therefore, the bill codifies this activity. The reviews began as a pilot project in January 1996 in 17 counties. The FIA plan is to expand to 30 communities during FY 1996-97, with full statewide implementation expected in FY 1997-98. The FY 1997-98 budget includes an additional $500,000 Gross/GF to finance the expansion.

Various departments and agencies across State government are involved in the child death review activity. In the Michigan Public Health Institute's Second Quarter Report on Child Death Review Activity, the Institute outlined the various agencies' FY 1996-97 expenditures. Total FY 1996-97 funding available is $262,200 and is divided among the agencies as follows: FIA, $180,000; Department of Community Health, $50,000; Michigan State Police, $15,000; Wayne County, $15,000; and the Michigan Public Health Institute, $2,200.

Senate Bill 515

State Government. The bill will have an indeterminate fiscal impact on State government. The expansion of the central registry to a Statewide, electronic system might involve some additional cost for the FIA.

Local Government. The bill will have an indeterminate fiscal impact on local government. The requirement for county prosecuting attorneys to determine whether procedures under the Child Protection Law were complied with in certain cases might result in additional administrative costs.

Senate Bill 516

Courts. The provision of the bill that prohibits the court from discharging an attorney until a child is placed in a home or is no longer a State ward might result in increased cost to local units of government. At this time these costs cannot be determined.

The bill also will result in additional administrative costs to the State Court Administrative Office, which will be required to monitor the court for compliance with time periods.

Family Independence Agency. The bill appears to have no fiscal impact on the State or local governments.

Senate Bill 517

The provisions of the bill will require an additional 11 boards. This will mean an additional 50 volunteer members on the local boards and the necessary staff support by the Foster Care Review Board. Currently there are two field representatives in the State Court Administrative Office-Foster Care Review Board (FCRB) who provide the necessary support to 19 local boards in 18 counties. The additional local boards will require additional staff support and resources by the FCRB.

Based on recommendations of the Children's Commission, local foster care review boards will be expanding their duties. The 30 boards will provide service to all counties. The FY 1997-98 budget includes $556,200 in additional Federal funding to help meet the increased responsibilities contained in the bill. The total appropriation for FY 1997-98 is $1,155,400.

Senate Bill 543

The bill appears to have no fiscal impact on State or local governments.

Senate Bill 544

The bill may have an indeterminate impact on State government. The development of a medical passport for children in foster care placement is included in the FY 1997-98 the Family Independence Agency appropriation. It is anticipated that a managed care provider will maintain the child's complete medical history and provide this information to the FIA. Approximately $500,000 is anticipated to be used for the medical passport program implementation. In addition, the implementation details will be developed in conjunction with the Medical Assistance Program in the Department of Community Health.

- Fiscal Analyst: C. Cole (S.B. 490, 503, 504,

- 515, 516, 543, & 544)

- B. Bowerman (S.B. 490 & 517)

- P. Graham (S.B. 491)

- M. Tyszkiewicz (S.B. 492)A9798\S490EA

This analysis was prepared by nonpartisan Senate staff for use by the Senate in its deliberations and does not constitute an official statement of legislative intent.