Dependency Practice Tip: Strengthening Parent-Child Visitation During Child Welfare Proceedings – HB 1194 Changes to Law and Practice

The 2021 legislative session resulted in a number of bills designed to improve the dependency court system. HB 1194, Strengthening Parent-Child Visitation During Child Welfare Proceedings, was unanimously passed by the House and the Senate, and goes into effect on July 25, 2021. The provisions apply to children placed out of the home of their legal guardian or legal custodian, and addresses Family Time visitation for parents, siblings, legal guardians, and/or legal custodians.

HB 1194 makes significant changes to the court’s role in ordering visitation with the goal of providing the maximum parent, child, and sibling contact possible, while keeping the child safe. A statute-by-statute overview of these changes is detailed further below. Research has shown that regular, meaningful family time expedites permanency and increases the likelihood of reunification.[i] Children and youth who participate in regular visits with their parents have reduced levels of depression and adjust better to their placements, compared to peers with fewer or irregular visits.[ii]  

A key component of the law is the presumption that any previous requirement for supervision or monitoring of visits is no longer necessary, and Family Time visits should proceed unsupervised. The presumption applies at the following stages of the case: 30-day shelter care hearings, orders authorizing continued shelter care, review hearings, and permanency planning hearings. A party asserting that supervision or monitoring is needed must submit a report to court with evidence that removing oversight will make the child unsafe during a visit. The court must make a determination based on that evidence.

The introduction of a supervisor or monitor into a Family Time visit alters the environment in which families come together. Parents and children report that having a supervisor in the room during a visit feels intrusive and changes how families interact. Rather than relying solely on the presence of an observer, all elements of a Family Time Plan should be employed to provide safety in the least restrictive environment possible. DCYF’s Family Time policy requires that each family have an individualized Family Time Plan that specifies the location, frequency, duration, time of day and level of supervision for visits, all of which can be used to minimize safety threats. The court should receive a copy of each family’s plan. 

HB 1194 strengthens Family Time visit requirements in shelter care. The law requires the court to order DCYF to provide regular visits, tailored to meet each families’ needs, recognizing that early and consistent family contact is critical for maintaining parent-child relationships and supporting reunification. In line with this approach, the first visit must occur within 72 hours of removal, including weekends and holidays, unless the court finds that extraordinary circumstances justify a delay. In some instances, the initial visit will have occurred before the 72-hour shelter care hearing.   

The law also requires judicial officers to inform DCYF at all dependency review hearings and permanency planning hearings that a failure to provide court-ordered Family Time visits could result in a finding of no reasonable efforts to finalize the permanent plan.[iii] Further, the law states that a lack of visitation providers will not excuse DCYF from the requirement to provide the visits.

In weighing evidence of safety threats in the context of a Family Time visit, a useful tool available to judicial officers is Child Safety: A Guide for Judges and Attorneys, published by the American Bar Association. The guide provides the following framework for assessing safety:

A child is unsafe when all three elements are established

1. Threats of danger exist within the family that are:
   1. Specific and observable,
   2. Out-of-control,
   3. Immediate or liable to happen soon, and
   4. Will result in severe consequences.
2. The child is vulnerable to such threats, and
3. The parent has insufficient protective capacities to manage or control the threats.

HB 1194 Changes to Shelter Care Provisions (RCW 13.34.065)

• Mandates regular and liberal parent-child and sibling visits in shelter care. The court shall order a visitation plan that is individualized to the needs of the family with the goal of providing the maximum parent, child and sibling contact possible. The law recognizes that early, consistent and frequent visits are crucial to maintaining relationships and supporting reunification. [iv]
• Requires the first parent-child visit to occur within 72 hours, including weekends and holidays, of child coming into DCYF custody. This initial visit must be supervised, if it is in-person, unless DCYF determines supervision is not necessary. The court must find extraordinary circumstances in order to delay the visit.[v].
• Creates a presumption that visits should become unsupervised at all 30-day shelter care hearings and when orders authorizing continued shelter care are entered. To overcome the presumption, a party must submit a report to the court that includes evidence that removal of supervision or monitoring would make the child unsafe during Family Time visits. The court must make a determination as to whether supervision or monitoring must continue.[vi]

HB 1194 Changes to Dependency Provisions (RCW 13.34.136 and RCW 13.34.138)

• Parent-child visits must occur in the least restrictive setting and be unsupervised. The following language was added to the permanency plan of care statute: visitation “must occur in the least restrictive setting and be unsupervised unless the presence of threats or danger to the child requires the constant presence of an adult to ensure the safety of the child.”[vii] 
• Creates a presumption that visitation should become unsupervised at permanency planning and dependency review hearings. To overcome the presumption, a party must submit a report to the court that includes evidence that removal of supervision or monitoring would make the child unsafe during Family Time visits. The court must make a determination as to whether supervision or monitoring must continue.[viii]
• Failure to provide visitation may result in finding that DCYF failed to make reasonable efforts to finalize the permanency plan. The court shall advise DCYF that a “no reasonable efforts” finding may be entered at any dependency review hearing or permanency planning hearing for failure to provide court-ordered visitation.[ix] “The lack of sufficient contracted visitation providers will not excuse the failure to provide court-ordered visitation.”[x]

Interpretation of HB 1194

Questions have been raised about whether or not the presumption of unsupervised visits applies at hearings other than those specifically named in the statute, in particular, the fact finding and dispositional hearings.

Changes to Pattern Forms

The following changes are being made to the mandatory pattern forms as a result of HB 1194. Updated Shelter Care pattern forms and Dependency pattern forms will be available by July 26, 2021.

• Order to Take Child into Custody and Place in Shelter Care (JU 02.0110)
  • Added4 [ ] The court finds there are extraordinary circumstances the prevent visitation between the [  ] mother [  ] father and the child within the first 72 hours from the child being delivered into custody of DCYF. The circumstances are:
  • Added4 The first visit must take place within 72 hours from the child being delivered into custody of DCYF unless the court made the finding in section 2.4 that extraordinary circumstances exist.

• Order Authorizing Continued Shelter Care (JU 02.0220)
  • Added “[ ] Under the prior court order, visitation between the [  ]  mother  [  ]  father  and the child was [  ] supervised or [  ] monitored. DCYF has presented a report to the court including evidence that establishing that removing visit supervision or monitoring would create a risk to the child’s safety. [  ] Supervision [  ] monitoring of visitation must continue.”

• Order After Hearing: First Dependency Review /Dependency Review/Permanency Planning (JU 3.500)
  • Added “The court advised the petitioner that failure to provide court-ordered visitation may result in a finding that the petitioner failed to make reasonable efforts to finalize the permanency plan.”
  • Added “Under the prior court order, visitation between the [ ]  mother  [  ]  father  and the child was [  ] supervised or [  ] monitored. DCYF has presented a report to the court including evidence that establishing that removing visit supervision or monitoring would create a risk to the child’s safety. [  ] Supervision [  ] monitoring of visitation must continue.

Resources for Judicial Officers and Court Partners

• A helpful HB 1194 Infographic is available on the CITA website here: https://www.wacita.org/hb-1194-training-strengthening-parent-child-visits-during-child-welfare-proceedings/
• Virtual Training on HB 1194 Requirements and Implementation on Wednesday, July 21, 2021 – Click here to register
  
  • This session will be recorded and posted on the CITA website for those who are not able to attend the live session.

DCYF Implementation Activities

DCYF has undertaken the following activities in preparation for implementing the requirements of HB 1194:

• Updating DCYF Safety Assessment and Family Time policies.
• Developed and trained staff on an expedited referral process for the required 72-hour visits.
• Contracted with one provider in each DCYF region to provide supervision and transportation for the newly required 72-hour visit.
• Training caseworkers to assess and articulate safety threats in the context of family time visits.[xi]
• Developed procedure for documenting evidence in support of visit supervision or monitoring in reports to the court. For permanency planning and dependency review hearings, this information will be located in the “Visitation Section” of the Court Report.
• Adjusted contracts with Family Time providers, including increasing the reimbursement rates for transportation only contracts.

Questions about DCYF’s implementation of HB 1194, or Family Time in general, should be directed to Deanna Morrison, Engagement Program Manager, at deanna.morrison@dcyf.wa.gov or 360.999.8248.

 

[i] Children’s Bureau, Factsheet, Parenting a Child Who Has Experienced Trauma, (November 2014), available at: https://www.childwelfare.gov/pubPDFs/child-trauma.pdf; Administration for Children and Families, Information Memorandum, IM-20-02, Family time and visitation for children and youth in out-of-home care, (available at: https://www.acf.hhs.gov/sites/default/files/cb/im2002.pdf), pg 4.

[ii] Id.

[iii] Information about the consequences of a finding of no reasonable efforts to finalize the permanency plan can be found in the Children’s Bureau’s policy manual available at:   https://www.acf.hhs.gov/cwpm/public_html/programs/cb/laws_policies/laws/cwpm/policy_dsp.jsp?citID=142#:~:text=If%20a%20judicial%20determination%20regarding,remains%20ineligible%20until%20such%20a

[iv] 2ESHB 1194, Section 1, adding RCW 13.34.065 (9).

[v] Id.

[vi] 2ESHB 1194, Section 1, amending RCW 13.34.065 (7)(a)).

[vii] 2ESHB 1194, Section 2, at 9-10, amending 13.34.136.     

[viii] 2ESHB 1194, Section 2, at 10; see 2ESHB 1194, section 3, at 15.  

[ix] 2ESHB 1194, section 3, at 17.

[x] Id.