This chapter contains federal statute, the Indian Child Welfare Act (ICWA),
25 U.S.C. 1901, et. seq., Revised Code of Washington (RCW) laws applicable
specifically to Indian child welfare (ICW) matters, and the Washington Administrative
Code (WAC) Chapter 388- - , Indian Child Welfare. Children’s
Administration staff and agencies licensed agencies licensed or certified under
the provisions of chapter 388-15 RCW must comply with the legal provisions
of this chapter.
Recognizing the special relationship between the United States and the Indian
tribes and their members and the Federal responsibility to Indian people, the
Congress finds -
(1) That clause 3, section 8, article I of the United States
Constitution provides that ''The Congress shall have Power * * * To regulate
Commerce * * * with Indian tribes'' and, through this and other constitutional
authority, Congress has plenary power over Indian affairs;
(2) That Congress, through statutes, treaties,
and the general course of dealing with Indian tribes, has assumed the responsibility
for the protection and preservation of Indian tribes and their resources;
(3) That there is no resource that is more
vital to the continued existence and integrity of Indian tribes than their
children and that the United States has a direct interest, as trustee,
in protecting Indian children who are members of or are eligible for membership
in an Indian tribe;
(4) That an alarmingly high percentage of
Indian families are broken up by the removal, often unwarranted, of their
children from them by non-tribal public and private agencies and that an
alarmingly high percentage of such children are placed in non-Indian foster
and adoptive homes and institutions; and
(5) That the States, exercising their recognized
jurisdiction over Indian child custody proceedings through administrative
and judicial bodies, have often failed to recognize the essential tribal
relations of Indian people and the cultural and social standards prevailing
in Indian communities and families.
13.052 Sec. 1902 - Congressional Declaration of Policy
The Congress hereby declares that it is the policy of this Nation to protect
the best interests of Indian children and to promote the stability and security
of Indian tribes and families by the establishment of minimum Federal standards
for the removal of Indian children from their families and the placement of
such children in foster or adoptive homes which will reflect the unique values
of Indian culture, and by providing for assistance to Indian tribes in the
operation of child and family service programs.
For the purposes of this chapter, except as may be specifically provided
otherwise, the term –
(1) ''Child custody proceeding'' shall mean and include–
(i) ''Foster
care placement'' which shall mean any action removing an
Indian child from its parent or Indian custodian for temporary placement
in a foster home or institution or the home of a guardian or conservator
where the parent or Indian custodian cannot have the child returned
upon demand, but where parental rights have not been terminated;
(ii) ''Termination
of parental rights'' which shall mean any action resulting
in the termination of the parent-child relationship;
(iii) ''Pre-adoptive
placement'' which shall mean the temporary placement of
an Indian child in a foster home or institution after the termination
of parental rights, but prior to or in lieu of adoptive placement;
and
(iv) ''Adoptive
placement'' which shall mean the permanent placement of
an Indian child for adoption, including any action resulting in a
final decree of adoption. Such term or terms shall not include a
placement based upon an act which, if committed by an adult, would
be deemed a crime or upon an award, in a divorce proceeding, of custody
to one of the parents.
(2) ''Extended family member'' shall be as defined
by the law or custom of the Indian child's tribe or, in the absence of
such law or custom, shall be a person who has reached the age of eighteen
and who is the Indian child's grandparent, aunt or uncle, brother or sister,
brother-in-law or sister-in-law, niece or nephew, first or second cousin,
or stepparent;
(3) ''Indian'' means any person who is a member of
an Indian tribe, or who is an Alaska Native and a member of a Regional
Corporation as defined in 1606 of title 43;
(4) ''Indian child'' means any unmarried person who
is under age eighteen and is either
(a) A member of an Indian tribe or
(b) Is eligible for membership in an Indian tribe and is the biological
child of a member of an Indian tribe;
(5) ''Indian child's tribe'' means
(a) The Indian tribe in which an Indian child is a member
or eligible for membership or
(b) In the case of an Indian child who is a member of
or eligible for membership in more than one tribe, the Indian tribe
with which the Indian child has the more significant contacts;
(6) ''Indiancustodian''
means any Indian person who has legal custody of an Indian child under
tribal law or custom or under State law or to whom temporary physical care,
custody, and control has been transferred by the parent of such child;
(7) ''Indian organization''
means any group, association, partnership, corporation, or other legal
entity owned or controlled by Indians, or a majority of whose members are
Indians;
(8) ''Indian tribe''
means any Indian tribe, band, nation, or other organized group or community
of Indians recognized as eligible for the services provided to Indians
by the Secretary because of their status as Indians, including any Alaska
Native village as defined in section 1602(c) of title 43;
(9) ''Parent'' means any biological
parent or parents of an Indian child or any Indian person who has lawfully
adopted an Indian child, including adoptions under tribal law or custom.
It does not include the unwed father where paternity has not been acknowledged
or established;
(10) ''Reservation''
means Indian country as defined in section 1151 of title 18 and any lands,
not covered under such section, title to which is either held by the United
States in trust for the benefit of any Indian tribe or individual or held
by any Indian tribe or individual subject to a restriction by the United
States against alienation;
(11) ''Secretary''
means the Secretary of the Interior; and
(12) ''Tribal court''
means a court with jurisdiction over child custody proceedings and which
is either a Court of Indian Offenses, a court established and operated under
the code or custom of an Indian tribe, or any other administrative body of
a tribe which is vested with authority over child custody proceedings.
(a) Exclusive Jurisdiction
An Indian tribe shall have jurisdiction exclusive as to any State over
any child custody proceeding involving an Indian child who resides or is
domiciled within the reservation of such tribe, except where such jurisdiction
is otherwise vested in the State by existing Federal law. Where an Indian
child is a ward of a tribal court, the Indian tribe shall retain exclusive
jurisdiction, notwithstanding the residence or domicile of the child.
(b) Transfer of Proceedings;
Declination by Tribal Court
In any State court proceeding for the foster care placement of, or termination
of parental rights to, an Indian child not domiciled or residing within
the reservation of the Indian child's tribe, the court, in the absence of
good cause to the contrary, shall transfer such proceeding to the jurisdiction
of the tribe, absent objection by either parent, upon the petition of either
parent or the Indian custodian or the Indian child's tribe: Provided, That
such transfer shall be subject to declination by the tribal court of such
tribe.
(c) State Court Proceedings;
Intervention
In any State court proceeding for the foster care placement of, or termination
of parental rights to, an Indian child, the Indian custodian of the child
and the Indian child's tribe shall have a right to intervene at any point
in the proceeding.
(d) Full Faith and
Credit to Public Acts, Records, and Judicial Proceedings of Indian Tribes
The United States, every State, every territory or possession of the United
States, and every Indian tribe shall give full faith and credit to the public
acts, records, and judicial proceedings of any Indian tribe applicable to
Indian child custody proceedings to the same extent that such entities give
full faith and credit to the public acts, records, and judicial proceedings
of any other entity.
(a) Notice; Time for Commencement of
Proceedings; Additional Time for Preparation
In any involuntary proceeding in a State court, where the court knows or
has reason to know that an Indian child is involved, the party seeking the
foster care placement of, or termination of parental rights to, an Indian child
shall notify the parent or Indian custodian and the Indian child's tribe, by
registered mail with return receipt requested, of the pending proceedings and
of their right of intervention. If the identity or location of the parent
or Indian custodian and the tribe cannot be determined, such notice shall be
given to the Secretary in like manner, who shall have fifteen days after receipt
to provide the requisite notice to the parent or Indian custodian and the tribe. No
foster care placement or termination of parental rights proceeding shall be
held until at least ten days after receipt of notice by the parent or Indian
custodian and the tribe or the Secretary: Provided, That the parent or Indian
custodian or the tribe shall, upon request, be granted up to twenty additional
days to prepare for such proceeding.
(b) Appointment of Counsel
In any case in which the court determines indigency, the parent or Indian
custodian shall have the right to court-appointed counsel in any removal, placement,
or termination proceeding. The court may, in its discretion, appoint
counsel for the child upon a finding that such appointment is in the best interest
of the child. Where State law makes no provision for appointment of counsel
in such proceedings, the court shall promptly notify the Secretary upon appointment
of counsel, and the Secretary, upon certification of the presiding judge, shall
pay reasonable fees and expenses out of funds which may be appropriated pursuant
to section 13 of this title.
(c) Examination of Reports or Other
Documents
Each party to a foster care placement or termination of parental rights proceeding
under State law involving an Indian child shall have the right to examine all
reports or other documents filed with the court upon which any decision with
respect to such action may be based.
(d) Remedial Services and Rehabilitative
Programs; Preventive Measures
Any party seeking to effect a foster care placement of, or termination of
parental rights to, an Indian child under State law shall satisfy the court
that active effortshave been made to provide remedial services
and rehabilitative programs designed to prevent the breakup of the Indian family
and that these efforts have proved unsuccessful.
(e) Foster Care Placement Orders; Evidence;
Determination of Damage to Child
No foster care placement may be ordered in such proceeding in the absence
of a determination, supported by clear and convincing evidence, including testimony
of qualified expert witnesses, that the continued custody of the child by the
parent or Indian custodian is likely to result in serious emotional or physical
damage to the child.
(f) Parental Rights Termination
Orders; Evidence; Determination of Damage to Child
No termination of parental rights may be ordered in such proceeding in the
absence of a determination, supported by evidence beyond a reasonable doubt,
including testimony of qualified expert witnesses, that the continued custody
of the child by the parent or Indian custodian is likely to result in serious
emotional or physical damage to the child.
(a) Consent; Record; Certification
Matters; Invalid Consents
Where any parent or Indian custodian voluntarily consents to a foster care
placement or to termination of parental rights, such consent shall not be valid
unless executed in writing and recorded before a judge of a court of competent
jurisdiction and accompanied by the presiding judge's certificate that the
terms and consequences of the consent were fully explained in detail and were
fully understood by the parent or Indian custodian. The court shall also
certify that either the parent or Indian custodian fully understood the explanation
in English or that it was interpreted into a language that the parent or Indian
custodian understood. Any consent given prior to, or within ten days after,
birth of the Indian child shall not be valid.
(b) Foster Care Placement; Withdrawal
of Consent
Any parent or Indian custodian may withdraw consent to a foster care placement
under State law at any time and, upon such withdrawal, the child shall be returned
to the parent or Indian custodian.
(c) Voluntary Termination of Parental
Rights or Adoptive Placement; Withdrawal of Consent; Return of Custody
In any voluntary proceeding for termination of parental rights to, or adoptive
placement of, an Indian child, the consent of the parent may be withdrawn for
any reason at any time prior to the entry of a final decree of termination
or adoption, as the case may be, and the child shall be returned to the parent.
(d) Collateral Attack; Vacation of
Decree and Return of Custody; Limitations
After the entry of a final decree of adoption of an Indian child in any State
court, the parent may withdraw consent thereto upon the grounds that consent
was obtained through fraud or duress and may petition the court to vacate such
decree. Upon a finding that such consent was obtained through fraud or duress,
the court shall vacate such decree and return the child to the parent. No adoption
which has been effective for at least two years may be invalidated under the
provisions of this subsection unless otherwise permitted under State law.
Any Indian child who is the subject of any action for foster care placement
or termination of parental rights under State law, any parent or Indian custodian
from whose custody such child was removed, and the Indian child's tribe may
petition any court of competent jurisdiction to invalidate such action upon
a showing that such action violated any provision of sections 1911, 1912, and
1913 of this title.
(a) Adoptive Placements; Preferences
In any adoptive placement of an Indian child under State law, a preference
shall be given, in the absence of good cause to the contrary, to a placement
with
(1) A member of the child's extended family;
(2) Other members of the Indian child's tribe; or
(3) Other Indian families.
(b) Foster Care or Pre-adoptive Placements;
Criteria; Preferences
Any child accepted for foster care or pre-adoptive placement shall be placed
in the least restrictive setting which most approximates a family and in
which his special needs, if any, may be met. The child shall also be placed
within reasonable proximity to his or her home, taking into account any
special needs of the child. In any foster care or pre-adoptive placement,
a preference shall be given, in the absence of good cause to the contrary,
to a placement with –
(i) A member of the
Indian child's extended family;
(ii) A foster home licensed,
approved, or specified by the Indian child's tribe;
(iii) An Indian foster home licensed
or approved by an authorized non-Indian licensing authority; or
(iv) An institution for children
approved by an Indian tribe or operated by an Indian organization which has
a program suitable to meet the Indian child's needs.
(c) Tribal Resolution for Different
Order of Preference; Personal Preference Considered; Anonymity in Application
of Preferences
In the case of a placement under subsection (a) or (b) of this section, if
the Indian child's tribe shall establish a different order of preference by
resolution, the agency or court effecting the placement shall follow such order
so long as the placement is the least restrictive setting appropriate to the
particular needs of the child, as provided in subsection (b) of this section. Where
appropriate, the preference of the Indian child or parent shall be considered:
Provided, That where a consenting parent evidences a desire for anonymity,
the court or agency shall give weight to such desire in applying the preferences.
(d) Social and Cultural Standards Applicable
The standards to be applied in meeting the preference requirements of this
section shall be the prevailing social and cultural standards of the Indian
community in which the parent or extended family resides or with which the
parent or extended family members maintain social and cultural ties.
(e) Record of Placement; Availability
A record of each such placement, under State law, of an Indian child shall
be maintained by the State in which the placement was made, evidencing the
efforts to comply with the order of preference specified in this section. Such
record shall be made available at any time upon the request of the Secretary
or the Indian child's tribe.
(a) Petition; Best Interests of Child
Notwithstanding State law to the contrary, whenever a final decree of adoption
of an Indian child has been vacated or set aside or the adoptive parents voluntarily
consent to the termination of their parental rights to the child, a biological
parent or prior Indian custodian may petition for return of custody and the
court shall grant such petition unless there is a showing, in a proceeding
subject to the provisions of section 1912 of this title, that such return of
custody is not in the best interests of the child.
(b) Removal from Foster Care Home; Placement
Procedure
Whenever an Indian child is removed from a foster care home or institution
for the purpose of further foster care, pre-adoptive, or adoptive placement,
such placement shall be in accordance with the provisions of this chapter,
except in the case where an Indian child is being returned to the parent or
Indian custodian from whose custody the child was originally removed.
Upon application by an Indian individual who has reached the age of eighteen
and who was the subject of an adoptive placement, the court which entered the
final decree shall inform such individual of the tribal affiliation, if any,
of the individual's biological parents and provide such other information as
may be necessary to protect any rights flowing from the individual's tribal
relationship.
(a) Petition; Suitable Plan; Approval
by Secretary
Any Indian tribe which became subject to State jurisdiction pursuant to the
provisions of the Act of August 15, 1953 (67 Stat. 588), as amended by title
IV of the Act of April 11, 1968 (82 Stat. 73, 78), or pursuant to any other
Federal law, may reassume jurisdiction over child custody proceedings. Before
any Indian tribe may reassume jurisdiction over Indian child custody proceedings,
such tribe shall present to the Secretary for approval a petition to reassume
such jurisdiction which includes a suitable plan to exercise such jurisdiction.
(b) Criteria Applicable to Consideration
by Secretary; Partial Retrocession
(1) In considering the petition
and feasibility of the plan of a tribe under subsection
(a) of this section,
the Secretary may consider, among other things:
(i) Whether or not
the tribe maintains a membership roll or alternative provision for clearly
identifying the persons who will be affected by the reassumption of jurisdiction
by the tribe;
(ii) The size of the reservation
or former reservation area which will be affected by retrocession and reassumption
of jurisdiction by the tribe;
(iii) The population base of the tribe, or distribution
of the population in homogeneous communities or geographic areas; and
(iv) The feasibility of the
plan in cases of multi-tribal occupation of a single reservation or geographic
area.
2. In those cases where
the Secretary determines that the jurisdictional provisions of section 1911(a)
of this title are not feasible, he is authorized to accept partial retrocession
which will enable tribes to exercise referral jurisdiction as provided in section
1911(b) of this title, or, where appropriate, will allow them to exercise exclusive
jurisdiction as provided in section 1911(a) of this title over limited community
or geographic areas without regard for the reservation status of the area affected.
(c) Approval of Petition; Publication
in Federal Register; Notice; Reassumption Period; Correction of Causes for
Disapproval
If the Secretary approves any petition under subsection (a) of this section,
the Secretary shall publish notice of such approval in the Federal Register
and shall notify the affected State or States of such approval. The Indian
tribe concerned shall reassume jurisdiction sixty days after publication in
the Federal Register of notice of approval. If the Secretary disapproves
any petition under subsection (a) of this section, the Secretary shall provide
such technical assistance as may be necessary to enable the tribe to correct
any deficiency which the Secretary identified as a cause for disapproval.
(d) Pending Actions or Proceedings
Unaffected
Assumption of jurisdiction under this section shall not affect any action
or proceeding over which a court has already assumed jurisdiction, except as
may be provided pursuant to any agreement under section 1919 of this title.
(a) Subject Coverage
States and Indian tribes are authorized to enter into agreements with each
other respecting care and custody of Indian children and jurisdiction over
child custody proceedings, including agreements which may provide for orderly
transfer of jurisdiction on a case-by-case basis and agreements which provide
for concurrent jurisdiction between States and Indian tribes.
(b) Revocation; Notice; Actions or
Proceedings Unaffected
Such agreements may be revoked by either party upon one hundred and eighty
days' written notice to the other party. Such revocation shall not affect any
action or proceeding over which a court has already assumed jurisdiction, unless
the agreement provides otherwise.
Where any petitioner in an Indian child custody proceeding before a State
court has improperly removed the child from custody of the parent or Indian
custodian or has improperly retained custody after a visit or other temporary
relinquishment of custody, the court shall decline jurisdiction over such petition
and shall forthwith return the child to his parent or Indian custodian unless
returning the child to his parent or custodian would subject the child to a
substantial and immediate danger or threat of such danger.
In any case where State or Federal law applicable to a child custody proceeding
under State or Federal law provides a higher standard of protection to the
rights of the parent or Indian custodian of an Indian child than the rights
provided under this subchapter, the State or Federal court shall apply the
State or Federal standard.
Nothing in this subchapter shall be construed to prevent the emergency removal
of an Indian child who is a resident of or is domiciled on a reservation, but
temporarily located off the reservation, from his parent or Indian custodian
or the emergency placement of such child in a foster home or institution, under
applicable State law, in order to prevent imminent physical damage or harm
to the child. The State authority, official, or agency involved shall
insure that the emergency removal or placement terminates immediately when
such removal or placement is no longer necessary to prevent imminent physical
damage or harm to the child and shall expeditiously initiate a child custody
proceeding subject to the provisions of this subchapter, transfer the child
to the jurisdiction of the appropriate Indian tribe, or restore the child to
the parent or Indian custodian, as may be appropriate.
None of the provisions of this subchapter, except sections 1911(a), 1918,
and 1919 of this title, shall affect a proceeding under State law for foster
care placement, termination of parental rights, pre-adoptive placement, or
adoptive placement which was initiated or completed prior to one hundred and
eighty days after November 8, 1978, but shall apply to any subsequent proceeding
in the same matter or subsequent proceedings affecting the custody or placement
of the same child.
(a) Statement of Purpose; Scope of
Programs
The Secretary is authorized to make grants to Indian tribes and organizations
in the establishment and operation of Indian child and family service programs
on or near reservations and in the preparation and implementation of child
welfare codes. The objective of every Indian child and family service program
shall be to prevent the breakup of Indian families and, in particular, to insure
that the permanent removal of an Indian child from the custody of his parent
or Indian custodian shall be a last resort. Such child and family service programs
may include, but are not limited to -
(1) A system for licensing or otherwise
regulating Indian foster and adoptive homes;
(2) The operation and maintenance
of facilities for the counseling and treatment of Indian families and for the
temporary custody of Indian children;
(3) Family assistance, including
homemaker and home counselors, day care, after-school care, and employment,
recreational activities, and respite care;
(4) Home improvement programs;
(5) The employment of professional
and other trained personnel to assist the tribal court in the disposition of
domestic relations and child welfare matters;
(6) Education and training
of Indians, including tribal court judges and staff, in skills relating to
child and family assistance and service programs;
(7) A subsidy program under which Indian adoptive
children may be provided support comparable to that for which they would be
eligible as foster children, taking into account the appropriate State standards
of support for maintenance and medical needs; and
(8) Guidance, legal representation,
and advice to Indian families involved in tribal, State, or Federal child custody
proceedings.
(b) Non-Federal Matching Funds for
Related Social Security or other Federal Financial Assistance Programs; Assistance
for such Programs Unaffected; State Licensing or Approval for Qualification
for Assistance under Federally Assisted Program
Funds appropriated for use by the Secretary in accordance with this section
may be utilized as non-Federal matching share in connection with funds provided
under titles IV-B and XX of the Social Security Act (42 U.S.C. 620 et seq.,
1397 et seq.) or under any other Federal financial assistance programs which
contribute to the purpose for which such funds are authorized to be appropriated
for use under this chapter. The provision or possibility of assistance
under this chapter shall not be a basis for the denial or reduction of any
assistance otherwise authorized under titles IV-B and XX of the Social Security
Act or any other federally assisted program. For purposes of qualifying
for assistance under a federally assisted program, licensing or approval of
foster or adoptive homes or institutions by an Indian tribe shall be deemed
equivalent to licensing or approval by a State.
The Secretary is also authorized to make grants to Indian organizations to
establish and operate off-reservation Indian child and family service programs
which may include, but are not limited to –
(1) A system for regulating, maintaining, and
supporting Indian foster and adoptive homes, including a subsidy program under
which Indian adoptive children may be provided support comparable to that for
which they would be eligible as Indian foster children, taking into account
the appropriate State standards of support for maintenance and medical needs;
(2) The operation and maintenance of facilities
and services for counseling and treatment of Indian families and Indian foster
and adoptive children;
(3) Family assistance, including homemaker
and home counselors, day care, after-school care, and employment, recreational
activities, and respite care; and
(4) Guidance, legal representation, and advice
to Indian families involved in child custody proceedings.
(a) Appropriated Funds for Similar
Programs of Department of Health and Human Services; Appropriation in Advance
for Payments
In the establishment, operation, and funding of Indian child and family service
programs, both on and off reservation, the Secretary may enter into agreements
with the Secretary of Health and Human Services, and the latter Secretary is
hereby authorized for such purposes to use funds appropriated for similar programs
of the Department of Health and Human Services: Provided, That authority to
make payments pursuant to such agreements shall be effective only to the extent
and in such amounts as may be provided in advance by appropriation Acts.
(b) Appropriation Authorization under Section
13 of this Title
Funds for the purposes of this chapter may be appropriated pursuant to the
provisions of section 13 of this title.
For the purposes of sections 1932 and 1933 of this title, the term ''Indian''
shall include persons defined in section 1603(c) of this title.
(a) Copy of Final Decree or Order; Other
Information; Anonymity Affidavit; Exemption from Freedom of Information Act
Any State court entering a final decree or order in any Indian child adoptive
placement after November 8, 1978, shall provide the Secretary with a copy
of such decree or order together with such other information as may be necessary
to show –
(1) The name and tribal affiliation of the
child;
(2) The names and addresses of the biological
parents;
(3) The names and addresses of the adoptive
parents; and
(4) The identity of any agency having files
or information relating to such adoptive placement.
Where the court records contain an affidavit of the biological parent or
parents that their identity remain confidential, the court shall include such
affidavit with the other information. The Secretary shall insure that the confidentiality
of such information is maintained and such information shall not be subject
to the Freedom of Information Act (5 U.S.C. 552), as amended.
(b) Disclosure of Information for Enrollment
of Indian Child in Tribe or for Determination of Member Rights or Benefits;
Certification of Entitlement to Enrollment
Upon the request of the adopted Indian child over the age of eighteen, the
adoptive or foster parents of an Indian child, or an Indian tribe, the Secretary
shall disclose such information as may be necessary for the enrollment of an
Indian child in the tribe in which the child may be eligible for enrollment
or for determining any rights or benefits associated with that membership. Where
the documents relating to such child contain an affidavit from the biological
parent or parents requesting anonymity, the Secretary shall certify to the
Indian child's tribe, where the information warrants, that the child's parentage
and other circumstances of birth entitle the child to enrollment under the
criteria established by such tribe.
Within one hundred and eighty days after November 8, 1978, the Secretary
shall promulgate such rules and regulations as may be necessary to carry out
the provisions of this chapter.
(a) Sense of Congress
It is the sense of Congress that the absence of locally convenient day schools
may contribute to the breakup of Indian families.
(b) Report to Congress; Contents, Etc.
The Secretary is authorized and directed to prepare, in consultation with
appropriate agencies in the Department of Health and Human Services, a report
on the feasibility of providing Indian children with schools located near their
homes, and to submit such report to the Select Committee on Indian Affairs
of the United States Senate and the Committee on Interior and Insular Affairs
of the United States House of Representatives within two years from November
8, 1978. In developing this report the Secretary shall give particular consideration
to the provision of educational facilities for children in the elementary grades.
Within sixty days after November 8, 1978, the Secretary shall send to the
Governor, chief justice of the highest court of appeal, and the attorney general
of each State a copy of this chapter, together with committee reports and an
explanation of the provisions of this chapter.
If any provision of this chapter or the applicability thereof is held invalid,
the remaining provisions of this chapter shall not be affected thereby.
(1) Except as provided in this section, the juvenile courts
in this state shall have exclusive original jurisdiction over all proceedings:
(a) Under the interstate compact on placement of children as
provided in chapter 26.34 RCW;
(b) Relating to children alleged or found to be dependent as provided
in chapter 26.44 RCW and in RCW 13.34.030 through13.34.170;
(c) Relating to the termination of a parent and child
relationship as provided in RCW 13.34.180 through 13.34.210;
(d) To approve or disapprove out-of-home placement as provided in
RCW 13.32A.170;
(e) Relating to juveniles alleged or found to have committed
offenses, traffic or civil infractions, or violations as provided in RCW 13.40.020
through 13.40.230, unless:
(i) The
juvenile court transfers jurisdiction of a particular juvenile to adult criminal
court pursuant to RCW 13.40.110;
(ii) The
statute of limitations applicable to adult prosecution for the offense, traffic
or civil infraction, or violation has expired;
(iii) The
alleged offense or infraction is a traffic, fish, boating, or game offense,
or traffic or civil infraction committed by a juvenile sixteen years of age
or older and would, if committed by an adult, be tried or heard in a court
of limited jurisdiction, in which instance the appropriate court of limited
jurisdiction shall have jurisdiction over the alleged offense or infraction,
and no guardian ad litemis required in any such proceeding due to
the juvenile's age:
PROVIDED, That if such an alleged offense or infraction and an alleged offense
or infraction subject to juvenile court jurisdiction arise out of the same
event or incident, the juvenile court may have jurisdiction of both matters:
PROVIDED FURTHER, That the jurisdiction under this subsection does not
constitute "transfer" or
a "decline" for purposes of RCW 13.40.110(1) or (e)(i)
of this subsection:
PROVIDED FURTHER, That courts of limited jurisdiction which confine juveniles
for an alleged offense or infraction may place juveniles in juvenile detention
facilities under an agreement with the officials responsible for the administration
of the juvenile detention facility in RCW 13.04.035 and 13.20.060;
(iv) The
alleged offense is a traffic or civil infraction, a violation of compulsory
school attendance provisions under chapter 28A.225 RCW, or a misdemeanor, and
a court of limited jurisdiction has assumed concurrent jurisdiction over those
offenses as provided in RCW 13.04.0301; or
(v) The
juvenile is sixteen or seventeen years old and the alleged offense is:
(A) A serious violent offense as defined in
RCW 9.94A.030;
(B) A violent offense as defined in RCW 9.94A.030
and the juvenile has a criminal history consisting of:
(I) One
or more prior serious violent offenses;
(II) Two
or more prior violent offenses; or
(III) Three
or more of any combination of the following offenses:
· Any class A felony,
· Any class B felony, vehicular assault, or manslaughter
in the second degree, all of which must have been committed
after the juvenile's thirteenth birthday and prosecuted separately;
(C) Robbery in the first degree, rape of a
child in the first degree, or drive-by shooting, committed on or after July
1, 1997;
(D) Burglary in the first degree committed on or
after July 1,1997, and the juvenile has a criminal history consisting of one
or more prior felony or misdemeanor offenses; or
(E) Any violent offense as defined in RCW
9.94A.030 committed on or after July 1, 1997, and the juvenile is alleged to
have been armed with a firearm. In such a case the adult criminal court
shall have exclusive original jurisdiction. If the juvenile challenges
the state's determination of the juvenile's criminal history under (e)(v) of
this subsection, the state may establish the offender's criminal history by
a preponderance of the evidence. If the criminal history consists of
adjudications entered upon a plea of guilty, the state shall not bear a burden
of establishing the knowing and voluntariness of the plea;
(f) Under the interstate compact on juveniles as
provided in chapter 13.24 RCW;
(g) Relating to termination of a diversion agreement under RCW13.40.080,
including a proceeding in which the divertee has attained eighteen years of
age;
(h) Relating to court validation of a voluntary consent to an out-of-home
placement under chapter 13.34 RCW, by the parent or Indian custodian of an
Indian child, except if the parent or Indian custodian and child are residents
of or domiciled within the boundaries of a federally recognized Indian reservation
over which the tribe exercises exclusive jurisdiction;
(i) Relating to petitions to compel disclosure of
information filed by the department of social and health services pursuant
to RCW 74.13.042; and
(j) Relating to judicial determinations and permanency
planning hearings involving developmentally disabled children who have been
placed in out-of-home care pursuant to a voluntary placement agreement between
the child's parent, guardian, or legal custodian and the department of social
and health services.
(2) The family court shall have concurrent original jurisdiction
with the juvenile court over all proceedings under this section if the superior
court judges of a county authorize concurrent jurisdiction as provided in RCW
26.12.010.
(3) A juvenile subject to adult superior court jurisdiction
under subsection (1)(e)(i) through (v) of this section, who is detained pending
trial, may be detained in a detention facility as defined in RCW 13.40.020
pending sentencing or a dismissal.
(1) Where any parent or Indian custodian voluntarily consents
to foster care placement of an Indian child and a petition for dependency has
not been filed regarding the child, such consent shall not be valid unless
executed in writing before the court and filed with the court. The consent
shall be accompanied by the written certification of the court that the terms
and consequences of the consent were fully explained in detail to the parent
or Indian custodian during the court proceeding and were fully understood by
the parent or Indian custodian. The court shall also certify in writing
either that the parent or Indian custodian fully understood the explanation
in English or that it was interpreted into a language that the parent or Indian
custodian understood. Any consent given prior to, or within ten days
after, the birth of the Indian child shall not be valid.
(2) To obtain court validation of a voluntary consent to foster
care placement, any person may file a petition for validation alleging that
there is located or residing within the county an Indian child whose parent
or Indian custodian wishes to voluntarily consent to foster care placement
of the child and requesting that the court validate the consent as provided
in this section. The petition shall contain the name, date of birth, and residence
of the child, the names and residences of the consenting parent or Indian custodian,
and the name and location of the Indian tribe in which the child is a member
or eligible for membership. The petition shall state whether the placement
preferences of 25 U.S.C. Sec. 1915 (b) or (c) will be followed. Reasonable
attempts shall be made by the petitioner to ascertain and set forth in the
petition the identity, location, and custodial status of any parent or Indian
custodian who has not consented to foster care placement and why that parent
or Indian custodian cannot assume custody of the child.
(3) Upon filing of the petition for validation, the clerk of
the court shall schedule the petition for a hearing on the court validation
of the voluntary consent no later than forty-eight hours after the petition
has been filed, excluding Saturdays, Sundays, and holidays. Notification
of time, date, location, and purpose of the validation hearing shall be provided
as soon as possible to the consenting parent or Indian custodian, the department
or other child-placing agency which is to assume responsibility for the child's
placement and care pursuant to the consent to foster care placement, and the
Indian tribe in which the child is enrolled or eligible for enrollment as a
member. If the identity and location of any non-consenting parent or
Indian custodian is known, reasonable attempts shall be made to notify the
parent or Indian custodian of the consent to placement and the validation hearing. Notification
under this subsection may be given by the most expedient means, including,
but not limited to, mail, personal service, telephone, and telegraph.
(4) Any parent or Indian custodian may withdraw consent to a
voluntary foster care placement, made under this section, at anytime. Unless
the Indian child has been taken in custody pursuant to RCW 13.34.050 or 26.44.050,
placed in shelter care pursuant to RCW 13.34.060, or placed in foster care
pursuant to RCW 13.34.130, the Indian child shall be returned to the parent
or Indian custodian upon withdrawal of consent to foster care placement of
the child.
(5) Upon termination of the voluntary foster care placement
and return of the child to the parent or Indian custodian, the department or
other child-placing agency which had assumed responsibility for the child's
placement and care pursuant to the consent to foster care placement shall file
with the court written notification of the child's return and shall also send
such notification to the Indian tribe in which the child is enrolled or eligible
for enrollment as a member and to any other party to the validation proceeding
including any non-custodial parent.
(1) A parent, an alleged father, the department, or an agency
may file with the court a petition to relinquish a child to the department
or an agency. The parent's or alleged father's written consent to adoption
shall accompany the petition. The written consent of the department or
the agency to assume custody shall be filed with the petition.
(2) A parent, alleged father, or prospective adoptive parent
may file with the court a petition to relinquish a child to the prospective
adoptive parent. The parent's or alleged father's written consent to
adoption shall accompany the petition. The written consent of the prospective
adoptive parent to assume custody shall be filed with the petition. The
identity of the prospective adoptive parent need not be disclosed to the petitioner.
(3) A petition for relinquishment, together with the written
consent to adoption, may be filed before the child's birth. If the child
is an Indian child as defined in 25 U.S.C. Sec. 1903(4), the petition and consent
shall not be signed until at least ten days after the child's birth and shall
be recorded before a court of competent jurisdiction pursuant to 25 U.S.C.
Sec. 1913(a).
(1) The court shall set a time and place for a hearing
on the petition for relinquishment. The hearing may not be held sooner
than forty-eight hours after the child's birth or the signing of all necessary
consents to adoption, whichever is later. However, if the child is an
Indian child, the hearing shall not be held sooner than ten days after the
child's birth, and no consent shall be valid unless signed at least ten days
after the child's birth and recorded before a court of competent jurisdiction
pursuant to 25 U.S.C. Sec.1913(a). Except where the child is an Indian
child, the court may enter a temporary order giving custody of the child to
the prospective adoptive parent, if a pre-placement report has been filed,
or to the department or agency to whom the child will be relinquished pending
the court's hearing on the petition. If the child is an Indian child,
the court may enter a temporary custody order under this subsection only if
the requirements of 25 U.S.C. Sec. 1913(a) regarding voluntary foster care
placement have been satisfied.
(2) Notice of the hearing shall be served on any
relinquishing parent or alleged father, and the department or agency in the
manner prescribed by RCW 26.33.310. If the child is an Indian child,
notice of the hearing shall also be served on the child's tribe in the manner
prescribed by RCW 26.33.310.
(3) The court may require the parent to appear personally
and enter his or her consent to adoption on the record. However, if the
child is an Indian child, the court shall require the consenting parent to
appear personally before a court of competent jurisdiction to enter on the
record his or her consent to the relinquishment or adoption. The court
shall determine that any written consent has been validly executed, and if
the child is an Indian child, such court shall further certify that the requirements
of 25 U.S.C. Sec. 1913(a) have been satisfied. If the court determines it is
in the best interests of the child, the court shall approve the petition for
relinquishment.
(4) If the court approves the petition, it shall
award custody of the child to the department, agency, or prospective adoptive
parent, who shall be appointed legal guardian. The legal guardian shall
be financially responsible for support of the child until further order of
the court. The court shall also enter an order pursuant to RCW 26.33.130
terminating the parent-child relationship of the parent and the child.
(5) An order of relinquishment to an agency or the
department shall include an order authorizing the agency to place the child
with a prospective adoptive parent.
(1) The court shall set a time and place for a hearing
on the petition for termination of the parent-child relationship, which shall
not beheld sooner than forty-eight hours after the child's birth. However,
if the child is an Indian child, the hearing shall not be held sooner than
ten days after the child's birth and the time of the hearing shall be extended
up to twenty additional days from the date of the scheduled hearing upon the
motion of the parent, Indian custodian, or the child's tribe.
(2) Notice of the hearing shall be served on the
petitioner, the non-consenting parent or alleged father, the legal guardian
of a party, and the guardian ad litemof a party, in the manner prescribed
by RCW 26.33.310. If the child is an Indian child, notice of the hearing
shall also be served on the child's tribe in the manner prescribed by 25 U.S.C.
Sec. 1912(a).
(3) Except as otherwise provided in this section,
the notice of the petition shall:
(a) State the date and place of birth. If the petition
is filed prior to birth, the notice shall state the approximate date and location
of conception of the child and the expected date of birth, and shall identify
the mother;
(b) Inform the non-consenting parent or alleged father that:
(i) He
or she has a right to be represented by counsel and that counsel will be appointed
for an indigent person who requests counsel; and
(ii) Failure
to respond to the termination action within twenty days of service if served
within the state or thirty days if served outside of this state, will result
in the termination of his or her parent-child relationship with respect to
the child;
(c) Inform an alleged father that failure to file a claim of
paternity under chapter 26.26 RCW or to respond to the petition, within twenty
days of the date of service of the petition is grounds to terminate his parent-child
relationship with respect to the child;
(d) Inform an alleged father of an Indian child that if he acknowledges
paternity of the child or if his paternity of the child is established prior
to the termination of the parent-child relationship, that his parental rights
may not be terminated unless he:
(i) Gives
valid consent to termination, or
(ii) His
parent-child relationship is terminated involuntarily pursuant to chapter 26.33
or 13.34 RCW.
(1) Except in the case of an Indian child and his
or her parent , the parent-child relationship of a parent may be terminated
upon a showing by clear, cogent, and convincing evidence that it is in the
best interest of the child to terminate the relationship and that the parent
has failed to perform parental duties under circumstances showing a substantial
lack of regard for his or her parental obligations and is withholding consent
to adoption contrary to the best interest of the child.
(2) Except in the case of an Indian child and his
or her alleged father, the parent-child relationship of an alleged father who
appears and claims paternity may be terminated upon a showing by clear, cogent,
and convincing evidence that it is in the best interest of the child to terminate
the relationship and that:
(a) The alleged father has failed to perform parental
duties under circumstances showing a substantial lack of regard for his parental
obligations and is withholding consent to adoption contrary to the best interest
of the child; or
(b) He is not the father.
(3) The parent-child relationship of a parent or
an alleged father may be terminated if the parent or alleged father fails to
appear after being notified of the hearing in the manner prescribed by RCW
26.33.310.
(4) The parent-child relationship of an Indian child
and his or her parent or alleged father where paternity has been claimed or
established, may be terminated only pursuant to the standards set forth in
25 U.S.C. Sec. 1912(f).
(1) Except as otherwise provided in RCW 26.33.170, consent to
an adoption shall be required of the following if applicable:
(a) The adoptee, if fourteen years of age or older;
(b) The parents and any alleged father of an adoptee under eighteen
years of age;
(c) An agency or the department to whom the adoptee has been
relinquished pursuant to RCW 26.33.080; and
(d) The legal guardian of the adoptee.
(2) Except as otherwise provided in subsection (4)(h) of this
section, consent to adoption is revocable by the consenting party at any time
before the consent is approved by the court. The revocation may be made in
either of the following ways:
(a) Written revocation may be delivered or mailed to the clerk
of the court before approval; or
(b) Written revocation may be delivered or mailed to the clerk of
the court after approval, but only if it is delivered or mailed within forty-eight
hours after a prior notice of revocation that was given within forty-eight
hours after the birth of the child. The prior notice of revocation shall
be given to the agency or person who sought the consent and may be either oral
or written.
(3) Except as provided in subsections (2)(b) and (4)(h) of this
section and in this subsection, a consent to adoption may not be revoked after
it has been approved by the court. Within one year after approval, a
consent may be revoked for fraud or duress practiced by the person, department,
or agency requesting the consent, or for lack of mental competency on the part
of the person giving the consent at the time the consent was given. A
written consent to adoption may not be revoked more than one year after it
is approved by the court.
(4) Except as provided in (h) of this subsection, the written
consent to adoption shall be signed under penalty of perjury and shall state
that:
(a) It is given subject to approval of the court;
(b) It has no force or effect until approved by the court;
(c) The birth parent is or is not of Native American or Alaska
native ancestry;
(d) The consent will not be presented to the court until forty-eight
hours after it is signed or forty-eight hours after the birth of the child,
whichever occurs later;
(e) It is revocable by the consenting party at any time before
its approval by the court. It may be revoked in either of the following
ways:
(i) Written
revocation may be delivered or mailed to the clerk of the court before approval
of the consent by the court; or
(ii) Written
revocation may be delivered or mailed to the clerk of the court after approval,
but only if it is delivered or mailed within forty-eight hours after a prior
notice of revocation that was given within forty-eight hours after the birth
of the child. The prior notice of revocation shall be given to the agency
or person who sought the consent and may be either oral or written;
(f) The address of the clerk of court where the
consent will be presented is included;
(g) Except as provided in (h) of this subsection, after it has
been approved by the court, the consent is not revocable except for fraud or
duress practiced by the person, department, or agency requesting the consent
or for lack of mental competency on the part of the person giving the consent
at the time the consent was given. A written consent to adoption may
not be revoked more than one year after it is approved by the court;
(h) In the case of a consent to an adoption of an Indian child, no
consent shall be valid unless the consent is executed in writing more than
ten days after the birth of the child and unless the consent is recorded before
a court of competent jurisdiction pursuant to 25 U.S.C. Sec. 1913(a). Consent
may be withdrawn for any reason at any time prior to the entry of the final
decree of adoption. Consent may be withdrawn for fraud or duress within
two years of the entry of the final decree of adoption. Revocation of
the consent prior to a final decree of adoption, may be delivered or mailed
to the clerk of the court or made orally to the court which shall certify such
revocation. Revocation of the consent is effective if received by the
clerk of the court prior to the entry of the final decree of adoption or made
orally to the court at any time prior to the entry of the final decree of adoption. Upon
withdrawal of consent, the court shall return the child to the parent unless
the child has been taken into custody pursuant to RCW13.34.050 or 26.44.050,
placed in shelter care pursuant to RCW 13.34.060, or placed in foster care
pursuant to RCW 13.34.130; and
(i) The following statement has been read before
signing the consent:
I understand that my decision to relinquish the child is an extremely important
one, that the legal effect of this relinquishment will be to take from me all
legal rights and obligations with respect to the child, and that an order permanently
terminating all of my parental rights to the child will be entered. I
also understand that there are social services and counseling services available
in the community, and that there may be financial assistance available through
state and local governmental agencies.
(5) A written consent to adoption which meets all the requirements
of this chapter but which does not name or otherwise identify the adopting
parent is valid if it contains a statement that it is voluntarily executed
without disclosure of the name or other identification of the adopting parent.
(6) There must be a witness to the consent of the parent or
alleged father. The witness must be at least eighteen years of age and
selected by the parent or alleged father. The consent document shall
contain a statement identifying by name, address, and relationship the witness
selected by the parent or alleged father.
(1) After the reports required by RCW 26.33.190 and 26.33.200
have been filed, the court shall schedule a hearing on the petition for adoption
upon request of the petitioner for adoption. Notice of the date, time,
and place of hearing shall be given to the petitioner and any person or agency
whose consent to adoption is required under RCW 26.33.160, unless the person
or agency has waived in writing the right to receive notice of the hearing. If
the child is an Indian child, notice shall also be given to the child's tribe. Notice
shall be given in the manner prescribed by RCW 26.33.310.
(2) Notice of the adoption hearing shall also be given
to any person who or agency which has prepared a pre-placement report. The
notice shall be given in the manner prescribed by RCW 26.33.230.
(3) If the court determines, after review of the petition,
pre-placement and post-placement reports, and other evidence introduced at
the hearing, that all necessary consents to adoption are valid or have been
dispensed with pursuant to RCW 26.33.170 and that the adoption is in the best
interest of the adoptee, and, in the case of an adoption of an Indian child,
that the adoptive parents are within the placement preferences of 25 U.S.C.
Sec. 1915 or good cause to the contrary has been shown on the record, the court
shall enter a decree of adoption pursuant to RCW 26.33.250.
(4) If the court determines the petition should not be
granted because the adoption is not in the best interest of the child, the
court shall make appropriate provision for the care and custody of the child.
(1) Petitions governed by this chapter shall
be served in the manner as set forth in the superior court civil rules. Subsequent
notice, papers, and pleadings may be served in the manner provided in superior
court civil rules.
(2) If personal service on any parent or alleged
father who has not consented to the termination of his or her parental rights
can be given, the summons and notice of hearing on the petition to terminate
parental rights shall be served at least twenty days before the hearing date
if served within the state or thirty days if served outside of this state.
(3) If personal service on the parent or any
alleged father, either within or without this state, cannot be given, notice
shall be given:
(a) By first class and registered mail, mailed at least thirty
days before the hearing to the person's last known address; and
(b) By publication at least once a week for three consecutive weeks
with the first publication date at least thirty days before the hearing. Publication
shall be in a legal newspaper in the city or town of the last known address
within the United States and its territories of the parent or alleged father,
whether within or without this state, or, if no address is known to the petitioner,
publication shall be in the city or town of the last known whereabouts within
the United States and its territories; or if no address or whereabouts are
known to the petitioner or the last known address is not within the United
States and its territories, in the city or town where the proceeding has been
commenced.
(4) Notice and appearance may be waived by
the department, an agency, a parent, or an alleged father before the court
or in a writing signed under penalty of perjury. The waiver shall contain
the current address of the department, agency, parent, or alleged father. The
face of the waiver for a hearing on termination of the parent-child relationship
shall contain language explaining the meaning and consequences of the waiver
and the meaning and consequences of termination of the parent-child relationship. A
person or agency who has executed a waiver shall not be required to appear
except in the case of an Indian child where consent to termination or adoption
must be certified before a court of competent jurisdiction pursuant to 25 U.S.C.
Sec. 1913(a).
(5) If a person entitled to notice is known
to the petitioner to be unable to read or understand English, all notices,
if practicable, shall be given in that person's native language or through
an interpreter.
(6) Where notice to an Indian tribe is to
be provided pursuant to this chapter and the department is not a party to the
proceeding, notice shall be given to the tribe at least ten business days prior
to the hearing by registered mail return receipt requested.
The department shall have the duty to provide child welfare services and
shall:
(1) Develop, administer, supervise, and monitor a coordinated
and comprehensive plan that establishes, aids, and strengthens services for
the protection and care of runaway, dependent, or neglected children.
(2) Within available resources, recruit an adequate number of
prospective adoptive and foster homes, both regular and specialized, i.e. homes
for children of ethnic minority , including Indian homes for Indian children,
sibling groups, handicapped and emotionally disturbed, teens, pregnant and
parenting teens, and annually report to the governor and the legislature concerning
the department's success in:
(a) Meeting the need for adoptive and foster home placements;
(b) Reducing the foster parent turnover rate;
(c) Completing home studies for legally free children; and
(d) Implementing and operating the passport program required by RCW
74.13.285. The report shall include a section entitled "Foster
Home Turn-Over, Causes and Recommendations."
(3) Investigate complaints of any recent act or failure to act
on the part of a parent or caretaker that results in death, serious physical
or emotional harm, or sexual abuse or exploitation, or that presents an imminent
risk of serious harm, and on the basis of the findings of such investigation,
offer child welfare services in relation to the problem to such parents, legal
custodians, or persons serving in loco parentis, and/or bring the
situation to the attention of an appropriate court, or another community agency:
PROVIDED, That an investigation is not required of non-accidental injuries
which are clearly not the result of a lack of care or supervision by the child's
parents, legal custodians, or persons serving in loco parentis. If
the investigation reveals that a crime against a child may have been committed,
the department shall notify the appropriate law enforcement agency.
(4) Offer, on a voluntary basis, family reconciliation services
to families who are in conflict.
(5) Monitor out-of-home placements, on a timely and routine
basis, to assure the safety, well-being, and quality of care being provided
is within the scope of the intent of the legislature as defined in RCW 74.13.010
and 74.15.010, and annually submit a report measuring the extent to which the
department achieved the specified goals to the governor and the legislature.
(6) Have authority to accept custody of children from parents
and to accept custody of children from juvenile courts, where authorized to
do so under law, to provide child welfare services including placement for
adoption, and to provide for the physical care of such children and make payment
of maintenance costs if needed. Except where required by Public Law 95-608
(25 U.S.C. Sec.1915), no private adoption agency which receives children for
adoption from the department shall discriminate on the basis of race, creed,
or color when considering applications in their placement for adoption.
(7) Have authority to provide temporary shelter to children
who have run away from home and who are admitted to crisis residential centers.
(8) Have authority to purchase care for children; and shall
follow in general the policy of using properly approved private agency services
for the actual care and supervision of such children insofar as they are available,
paying for care of such children as are accepted by the department as eligible
for support at reasonable rates established by the department.
(9) Establish a children's services advisory committee which
shall assist the secretary in the development of a partnership plan for utilizing
resources of the public and private sectors, and advise on all matters pertaining
to child welfare, licensing of child care agencies, adoption, and services
related thereto. At least one member shall represent the adoption community.
(10) Have authority to provide
continued foster care or group care for individuals from eighteen through twenty
years of age to enable them to complete their high school or vocational school
program.
(11) Have authority within
funds appropriated for foster care services to purchase care for Indian children
who are in the custody of a federally recognized Indian tribe or tribally licensed
child-placing agency pursuant to parental consent, tribal court order, or state
juvenile court order; and the purchase of such care shall be subject to the
same eligibility standards and rates of support applicable to other children
for whom the department purchases care.
Notwithstanding any other provision of RCW 13.32A.170 through13.32A.200 and
74.13.032 through 74.13.036, or of this section all services to be provided
by the department of social and health services under subsections (4), (6),
and (7) of this section, subject to the limitations of these subsections, may
be provided by any program offering such services funded pursuant to Titles
II and III of the federal juvenile justice and delinquency prevention act of
1974.
(12) Within amounts appropriated
for this specific purpose, provide preventive services to families with children
that prevent or shorten the duration of out-of-home placement.
The department shall not make payment for any child in group care placement
unless the group home is licensed and the department has the custody of the
child and the authority to remove the child in a cooperative manner after at
least seventy-two hours notice to the child care provider; such notice may
be waived in emergency situations. However, this requirement shall not be construed
to prohibit the department from making or mandate the department to make payment
for Indian children placed in facilities licensed by federally recognized Indian
tribes pursuant to chapter 74.15 RCW.
For the purpose of chapter 74.15 RCW and RCW 74.13.031, and unless otherwise
clearly indicated by the context thereof, the following terms shall mean:
(1) "Agency" means any
person, firm, partnership, association, corporation, or facility which
receives children, expectant mothers, or persons with developmental disabilities
for control, care, or maintenance outside their own homes, or which places,
arranges the placement of, or assists in the placement of children, expectant
mothers, or persons with developmental disabilities for foster care or placement
of children for adoption, and shall include the following irrespective of
whether there is compensation to the agency or to the children, expectant
mothers or persons with developmental disabilities for services rendered:
(a) "Child day-care center" means
an agency which regularly provides care for a group of children for periods
of less than twenty-four hours;
(b) "Child-placing agency" means
an agency which places a child or children for temporary care, continued
care, or for adoption;
(c)"Community facility" means a group care facility
operated for the care of juveniles committed to the department under RCW
13.40.185. A county detention facility that houses juveniles committed to
the department under RCW 13.40.185 pursuant to a contract with the department
is not a community facility;
(d) "Crisis residential center" means
an agency which is a temporary protective residential facility operated
to perform the duties specified in chapter 13.32A RCW, in the manner provided
in RCW 74.13.032 through 74.13.036;
(e) "Family day-care provider" means
a child day-care provider who regularly provides child day care for not
more than twelve children in the provider's home in the family living quarters;
(f) "Foster-family home" means an agency
which regularly provides care on a twenty-four hour basis to one or more
children, expectant mothers, or persons with developmental disabilities in
the family abode of the person or persons under whose direct care and supervision
the child, expectant mother, or person with a developmental disability is
placed;
(g) "Group-care facility" means
an agency, other than a foster-family home, which is maintained and operated
for the care of a group of children on a twenty-four hour basis;
(h) “HOPE center” means an agency
licensed by the secretary to provide temporary residential placement and
other services to street youth. A street youth may remain in a HOPE center
for thirty days while services are arranged and permanent placement is
coordinated. No street youth may stay longer than thirty days unless approved
by the department and any additional days approved by the department must
be based on the unavailability of a long-term placement option. A street
youth whose parent wants him or her returned to home may remain in a HOPE
center until his or her parent arranges return of the youth, not longer.
All other street youth must have court approval under chapter 13.34 or 13.32A
RCW to remain in a HOPE center up to thirty days;
(i) "Maternity service" means an agency
which provides or arranges for care or services to expectant mothers, before
or during confinement, or which provides care as needed to mothers and
their infants after confinement;
(j) “Responsible living skills program” means
an agency licensed by the secretary that provides residential and transitional
living services to persons ages sixteen to eighteen who are dependent under
chapter 13.34 RCW and who have been unable to live in his or her legally
authorized residence and, as a result, the minor lived outdoors or in another
unsafe location not intended for occupancy by the minor. Dependent minors
ages fourteen and fifteen may be eligible if no other placement alternative
is available and the department approves the placement;
(k) "Service provider" means
the entity that operates a community facility.
(2) "Agency" shall not
include the following:
(a) Persons related to the child, expectant mother, or
person with developmental disability in the following ways:
(i) Any blood relative, including those of half-blood,
and including first cousins, nephews or nieces, and persons of preceding generations
as denoted by prefixes of grand, great, or great-great;
(ii) Stepfather, stepmother, stepbrother, and stepsister;
(iii) A person who legally adopts a
child or the child's parent as well as the natural and other legally adopted
children of such persons, and other relatives of the adoptive parents in accordance
with state law;
(iv) Spouses of any persons
named in (i), (ii), or (iii) of this subsection (2)(a), even after the marriage
is terminated; or
(v) Extended
family members, as defined by the law or custom of the Indian child's tribe
or, in the absence of such law or custom, a person who has reached the age
of eighteen and who is the Indian child's grandparent, aunt or uncle, brother
or sister, brother-in-law or sister-in-law, niece or nephew, first or second
cousin, or stepparent who provides care in the family abode on a twenty-four-hour
basis to an Indian child as defined in 25 U.S.C. Sec. 1903(4);
(b) Persons who are legal guardians of the child, expectant
mother, or persons with developmental disabilities;
(c) Persons who care for a neighbor's or friend's
child or children, with or without compensation, where:
(i) The person providing care for periods of less
than twenty-four hours does not conduct such activity on an ongoing, regularly
scheduled basis for the purpose of engaging in business, which includes, but
is not limited to, advertising such care; or
(ii) The parent and person providing care on a twenty-four-hour
basis have agreed to the placement in writing and the state is not providing
any payment for the care;
(d) Parents on a mutually cooperative basis exchange care
of one another's children;
(e) A person, partnership, corporation, or other entity that
provides placement or similar services to exchange students or international
student exchange visitors or persons who have the care of an exchange student
in their home;
(f) Nursery schools or kindergartens which are engaged
primarily in educational work with preschool children and in which no child
is enrolled on a regular basis for more than four hours per day;
(g) Schools, including boarding schools, which are engaged
primarily in education, operate on a definite school year schedule, follow
a stated academic curriculum, accept only school-age children and do not accept
custody of children;
(h) Seasonal camps of three months' or less duration engaged
primarily in recreational or educational activities;
(i) Hospitals licensed pursuant to chapter 70.41
RCW when performing functions defined in chapter 70.41 RCW, nursing homes licensed
under chapter 18.51 RCW and boarding homes licensed under chapter 18.20 RCW;
(j) Licensed physicians or lawyers;
(k) Facilities providing care to children for periods
of less than twenty-four hours whose parents remain on the premises to participate
in activities other than employment;
(l) Facilities approved and certified under chapter
71A.22 RCW;
(m) Any agency having been in operation in this state ten years prior to
June 8, 1967, and not seeking or accepting moneys or assistance from any state
or federal agency, and is supported in part by an endowment or trust fund;
(n) Persons who have a child in their home for purposes of adoption,
if the child was placed in such home by a licensed child-placing agency, an
authorized public or tribal agency or court or if a pre-placement report has
been filed under chapter 26.33 RCW and the placement has been approved by the
court;
(o) An agency operated by any unit of local, state, or
federal government or an agency, located within the boundaries of a federally
recognized Indian reservation, licensed by the Indian tribe;
(p) An agency located on a federal military reservation,
except where the military authorities request that such agency be subject to
the licensing requirements of this chapter.
(3) "Department" means
the state department of social and health services.
(4) "Juvenile" means
a person under the age of twenty-one who has been sentenced to a term of
confinement under the supervision of the department under RCW 13.40.185.
(5) "Probationary license" means
a license issued as a disciplinary measure to an agency that has previously
been issued a full license but is out of compliance with licensing standards.
(6) "Requirement" means
any rule, regulation, or standard of care to be maintained by an agency.
(7) "Secretary" means
the secretary of social and health services.
(8) “Street youth” means
a person under the age of eighteen who lives outdoors or in another unsafe
location not intended for occupancy by a minor and who is not residing
with his or her parent or at his or her legally authorized residence.
(9) “Transitional living services” means
at a minimum, to the extent funds are available, the following:
(a) Educational
services, including basic literacy and computational skills training, either
in local alternative or public high schools or in a high school equivalency
program that leads to obtaining a high school equivalency degree;
(b) Assistance
and counseling related to obtaining vocational training or higher education,
job readiness, job search assistance, and placement programs;
(c) Counseling
and instruction in life skills such as money management, home management, consumer
skills, parenting, health care, access to community resources, and transportation
and housing options;
(d) Individual
and group counseling; and
(e) Establishing
networks with federal agencies and state and local organizations such as the
United States department of labor, employment and training administration programs
including the job training partnership act which administers private industry
councils and the job corps; vocational rehabilitation; and volunteer programs.
Except as provided in RCW 74.15.190, it shall hereafter be unlawful for any
agency to receive children, expectant mothers or developmentally disabled persons
for supervision or care, or arrange for the placement of such persons, unless
such agency is licensed as provided in chapter 74.15 RCW.
The state of Washington recognizes the authority of Indian tribes within
the state to license agencies, located within the boundaries of a federally
recognized Indian reservation, to receive children for control, care, and maintenance
outside their own homes, or to place, receive, arrange the placement of, or
assist in the placement of children for foster care or adoption. The
department and state licensed child-placing agencies may place children in
tribally licensed facilities if the requirements of RCW 74.15.030 (2)(b) and
(3) and supporting rules are satisfied before placing the children in such
facilities by the department or any state licensed child-placing agency.
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