ARIZONA HOUSE OF REPRESENTATIVES

Fifty-sixth Legislature

Second Regular Session

 

HB 2361: DCS; removal of children

Sponsor: Representative Diaz, LD 19

Committee on Health & Human Services

Overview

Allows a court to order an alternative to temporary out-of-home care for a child before a preliminary protective hearing is held and repeals language relating to the Arizona Department of Child Safety (DCS) taking a child into temporary custody.

History

Taking into Temporary Custody

A child is required to be taken into temporary custody pursuant to one of the following: 1) an order of the superior court; 2) the consent of the child's parent or guardian; or 3) by a peace officer, a child welfare investigator or a child safety worker, without a court order, if temporary custody is clearly necessary to protect the child because exigent circumstances exist. The superior court, on a dependency petition filed by specified personnel, may issue an order authorizing DCS to take temporary custody of a child on finding that probable cause exists to believe that temporary custody is clearly necessary to protect the child from suffering abuse or neglect and is contrary to the child's welfare to remain in the home.

A person who takes a child into custody because an exigent circumstance exists, is required to immediately have the child forensically interviewed by a person who is trained in forensic interviewing and may have the child examined by a physician or health care provider who has specific training in evaluations of child abuse. Taking a child in to temporary custody because an exigent circumstance exists cannot exceed 12 hours. A child who is taken into temporary custody cannot be held in a police station, jail or lockup where adults or juveniles who are charged with or convicted of a crime are detained.  A child cannot remain in temporary custody for more than 72 hours excluding Saturdays, Sundays and holidays unless a dependency petition is filed.

Exigent circumstances means there is probable cause to believe that the child is likely to suffer serious harm in the time it would take to obtain a court order for removal and either of the following is true: 1) there is no less intrusive alternative to taking temporary custody of the child that would reasonably and sufficiently protect the child's health or safety; or 2)  probable cause exists to believe that the child is a victim of sexual abuse or abuse involving serious physical injury that can be diagnosed only by a physician or a health care provider who has specific training in evaluations of child abuse (A.R.S. § 8-821).

 

 

 

 

Preliminary Protective Hearings

The court is required to hold a preliminary protective hearing to review the taking into temporary custody of a child no fewer than five days nor more than seven days after the child is taken into custody, excluding Saturdays, Sundays and holidays. At the hearing, the court: 1) is required to receive a report of any agreement reached for placement of a child; 2) is required to provide an opportunity for the child's parent or guardian, if present, and any other person who has relevant knowledge, to provide relevant testimony; 3) may limit testimony and evidence that is beyond the scope of the removal of a child; 4) may take into consideration as a mitigating factor the participation of the parent in the Health Families Program; 5) is required to take into consideration as a mitigating factor the availability of reasonable services to the parent or guardian to prevent or eliminate the need for removal of the child and the effort of the parent or guardian to obtain and participate in these services; 6) inform the child's parent or guardian that the hearing may result in further proceedings to terminate parental rights; 7) order the parent or guardian to provide the court with the names, the type of relationship and all available information necessary to locate persons who are related to the child or who have a significant relationship with the child; 8) inform the parent that substantially neglecting or willfully refusing to remedy the circumstances that cause the child to be in an out-of-home placement, including refusing to participate in reunification services, is grounds for termination of parental rights to a child; 9) give paramount consideration to the health and safety of the child; 10) determine whether the department is attempting to identify and assess placement of the child with a grandparent or another member of the child's extended family including a person who has a significant relationship with the child; and 11) inform a foster parent, a preadoptive parent or a member of the child's extended family with whom the department has placed the child of the right to be heard in any proceeding to be held with respect to the child.

If the child is not returned to the parents or guardian at the hearing, the court is required to do the following: 1) enter orders regarding the placement of the child pending the determination of the dependency petition and visitation, if any; 2) if a relative is identified as a possible placement for the child, notify the relative of the right to be heard in any proceeding to be held with respect to the child; and 3) determine if the tasks and services set forth in the case plan are reasonable and necessary to carry out the case plan (A.R.S. § 8-824).

Provisions

Removal of a Child

1.   ☐ Prop 105 (45 votes) ☐ Prop 108 (40 votes) ☐ Emergency (40 votes) ☐ Fiscal NoteRemoves the ability for a child safety worker, if there is probable cause to believe that exigent circumstances exist, to take all lawful measures to protect a child before providing a notice of rights to parents. (Sec. 1)

2.   Removes the ability for a child welfare investigator or a child safety worker to take a child into temporary custody without a court order if it is clearly necessary to protect the child because exigent circumstances exist. (Sec. 2)

3.   Expands the term exigent circumstances to mean there is probable cause to believe that a child is likely to suffer harm in the time it would take to obtain a court order for removal if that child is a victim of trafficking of persons for forced labor or services or is a victim of child sex trafficking. (Sec. 2)

4.   Removes language regarding what must occur in order for DCS to remove a child from the custody of their parents. (Sec. 3)

Alternatives to Temporary Out-of-Home Care

5.   Allows, notwithstanding any other law, a court to order an alternative to temporary out-of-home care before a preliminary protective hearing is held. (Sec. 4)

6.   Allows an order for an alternative to temporary out-of-home care to include one or more of the following:

a)   a voluntary agreement between the child's parent, guardian or custodian and DCS for the child to remain in the home before a preliminary protective hearing;

b)   a temporary protective order that imposes conditions or limitations on the conduct of the parent, guardian or custodian;

c) a requirement that DCS provide services that are designed to allow the child to remain in the child's home; or

d)   a temporary agreement between the parent, guardian or custodian of the child and DCS that the child be placed with a relative before a preliminary protective hearing. (Sec. 4)

7.   Specifies that a temporary protective order that imposes conditions or limitations may require a parent, guardian or custodian to do any of the following:

a)   prohibit access to the child by a specific individual;

b)   refrain from offensive conduct against the child;

c) provide proper care and maintenance of the home in which the child resides;

d)   cooperate in good faith with DCS;

e)   refrain from behavior or the omission of behavior that may render the home in which the child resides unfit; or

f) ensure the child attends school regularly. (Sec. 4)

8.   Requires the court to authorize a temporary agreement if the court finds that it would not be in the best interest of the child to remain in their home. (Sec. 4)

9.   Directs the court, if it authorizes a temporary agreement, to make all findings regarding the best interests of the child in writing and order DCS to provide a preliminary assessment of the relative who will provide temporary care for the child. (Sec. 4)

10.  Requires the preliminary assessment to include all of the following:

a)   a visit to the relative's home where the child will temporarily live;

b)   an in-state criminal background check of the relative and any other adults living in the home where the child will temporarily live;

c) a search of the internet sex offender website for the relative the child will temporarily live with and any other adult living in the home; and

d)   a search of the Department of Corrections inmate database. (Sec. 4)

11.  Mandates that an alternative to temporary out-of-home care order remains in effect until modified by the court or until the court holds a preliminary protective hearing. (Sec. 4)

12.  Permits the court to continue to enforce the alternative to temporary out-of-home care order after a preliminary protective hearing. (Sec. 4)

13.  Makes technical and conforming changes. (Sec. 1 and 3)

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17.                    HB 2361

18.  Initials AG/MT    Page 0 Health & Human Services

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