FAMILY INTEGRITY ACT ARKANSAS

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The FAMILY INTEGRITY ACT

 

An Act to support Arkansas families through Child In Need of Care proceedings which emphasizes placement with extended family, involves parents in the needs of the removed child, strengthens judicial oversight, further protects the child through an assignment of rights and promotes integrity of all parties.

 

Whereas This state holds as self-evident, the constitutionally protected right of privacy to parent one’s child and protect one’s family without government interference except where there is substantial risk that the health, welfare, or safety of a child is imminent.

 

Whereas The importance of family, family heritage, and the right for children to grow up living with and knowing their biological family and extended family is the foundation of this state. 

 

Whereas The removal of a child from their family and extended family should occur only as a last resort to protect the child and for no other reason.

 

Whereas Ignoring the fundamental and constitutional right to parent has long term, lasting, harmful effects on children, family and the community.

 

Whereas Placement in foster care causes known emotional trauma to children that is irreversible and such trauma must be avoided by use of family placement when circumstances present that prevent a child from safely living at home.

 

Now therefore:

 

Be it enacted by the Legislature of the State of Arkansas:

 

Obligations and Authority of the Courts:

 

The Court shall never lose the right to remove the child from a placement selected by the State agency notwithstanding any state law that gives the state agency the exclusive right to place child in any setting at their sole discretion.

 

No court shall accept a stipulation from a parent that compromises their constitutional right to parent, without fully going through the detailed stipulation, ascertaining the truth of the facts by affirmation, and informing the parent of the impact of the stipulation, including the obligation of continuing financial support due to the State and potential termination of parental rights on the record.

 

There shall be no secret or ex parte communication with the court by agency attorneys, court appointed special advocates, guardian ad litems, attorney ad litems, or otherwise prior to or during an investigation or prosecution, including any filing with the Court.

 

Obligation of State Agency and those appointed by the State:

 

The State must make appropriate notifications to parents, so as not to violate the Constitutional Rights of any parent subject to investigation or prosecution.

 

Each parent involved in an agency investigation or court proceeding shall be provided a copy of every court document, agency record, evaluation, drug screen, report, medical record, and any other documents filed, used, or related to their case regardless of the source of the document within ten days of the creation of the document.

 

Each parent shall be provided a copy of all interviews, whether taken of children, witnesses, or professionals and whether documented by note taking, audio, or video recording, regardless of the source conducting the interview (including CASA workers and GALs) within ten days of the interview.

 

 No state agency shall “indicate” or otherwise ascertain the status of a parent as an abuser of a child without a full evidentiary hearing specific to the matter of placing the parent on the public abuse registry and obtaining a ruling from the Court that the case warrants listing on such a registry.

 

No parent shall be placed on ANY publicly accessible list for indicated child abuser prior to a full evidentiary hearing and all Appeal options have been exhausted.

 

Court appointed advocates and guardian ad litems shall not interview children without the express permission of the parent and must make video or audio record of those interviews which shall be subject to discovery.

 

The removal from the home must include an articulable, immediate threat of serious harm. The facts of which shall be verified and the source of all information shall be disclosed if the same is to be used against the parent without independent investigation and confirmation.

 

In the event the State moves for removal of a child, the State will seek out of home placement with immediate, or extended biological family, which provides the highest level of emotional stability for a child facing removal from their parent(s) and primary home. Foster care can only be used as a last resort.

 

In the event of removal from parents, that State shall not automatically enroll the child in Medicaid but must obtain insurance coverage information from the parent and where medical coverage provides for adequate medical care then the child shall remain solely on the private insurance plan and continue services with the primary care and other physicians that have treatment history with the child for the purpose of continuity of care and to provide the Court with a comprehensive medical history on child, before and after removal.

 

Foster care placement in emergency situations may occur but shall end within 12 hours upon notice by parent of named family or friend placement under Parental Rights Section V-2. Should the State oppose such placement, the State must file for an Emergency Hearing and provide a Sworn Affidavit that outlines the reasons for such opposition and demonstrate that it poses an articulable and serious threat of harm to the child so that the Court can determine if foster care shall continue or if parents desire for family or friend placement will be upheld. The hearing must take place within 10 calendar days of the removal or the State must comply with the parent’s selection for placement.

 

No attorney shall accept a court appointment for representation unless they are trained in defending parents and have secured liability insurance for negligence in their representation. Any attorney who accepts an appointment is verifying his competence in that area of law. Said counsel have no immunity.

 

No immunity shall be provided to court appointed special advocates or guardian ad litems as they are expected to maintain integrity, competence, and knowledge and to serve in their capacity without bias or prejudice. They shall also be expected to secure liability insurance for their respective negligence. They shall also be subject to liability under civil rights litigation and intentional torts.

 

Any state agency employee who is found by the Court to have knowingly, willfully, or recklessly misrepresented any fact to the court shall be immediately removed from working on the case and the State shall refer the complaint to the District Attorney’s Office for review and prosecution, as appropriate. Any parent may raise this issue with the Court by motion indicating where and how the false information was provided or used and supported by affidavit of the parent describing how said information was false.

 

All agencies, guardian ad litems, court appointed special advocates, and attorneys shall preserve all communication, including electronic. There shall be no attorney client privilege for the communication of court appointed special advocates regarding their investigation and all records shall be provided to the parents within five days of written request. There shall be no attorney client privilege for the guardian ad litem regarding the investigation and prosecution in any court action. Their records and communications shall be provided to the parents within five days of written request.

 

Requirements that are imposed upon a parent shall be in written form indicating all necessary information for the parent to achieve the required task within a date certain.

 

No agency or appointee by the State shall require or demand anything of a parent that is not fully documented and approved by the Court.

 

Services shall not be provided by the same contractor who shall have competing interests in the outcome of any investigation or litigation regarding the constitutional right to parent, i.e. no foster care agency who profits from the placement of children in foster care shall serve as an agency providing family preservation services as to do so it a direct conflict of interest.

 

Children’s Rights:

 

To have the Court preserve the child’s ability to remain with their parent when allegations made fail to show an articulable and serious threat of harm exists, understanding that removal from parents is known to cause substantial psychological harm to a child.

 

To have the Court preserve the child’s ability to remain with biological family, extended family and family friends when remaining at home with their parent is not possible.

 

To have the Court assure that foster care is only being used as a last resort and not as a primary placement.

 

To be protected from coercion and threat used as a tactic to elicit information from the child.

 

To be protected from anyone attempting to make the child feel unwanted or unloved by the parent.

 

Children shall not be interviewed without the permission of their parent unless the agency has clear articulable evidence of a serious threat of harm to the child. In the event, the agency shall seek a court order, documenting the facts by affidavit to justify this intervention and the interview shall be conducted in the presence of an adult not associated with the Department.

 

Every child interview shall be recorded by audio or video recording and maintained by the department. If video is not available then the department must allow the parents attorney, or in the case the parent is not represented, a witness of the parents choosing to be available during the audio recorded interview. Interviews must be provided to the parents and their legal counsel or to the parent if acting in their own defense within ten days.

 

Interviews shall be conducted by a person licensed and trained to conduct forensic interviews of children. The interviewer is required to inform the child being interviewed that he/she is not required to talk to the state agency worker or law enforcement.

 

Should the case require removal of the child and the parent of the child makes no recommendation for placement OR the parent is deceased, unable or unavailable to make a recommendation then a biological family member who can demonstrate they were an active participant in the child’s life will be given primary consideration for placement via Petition for Custody to the Court. Barring the State’s ability to prove to the Court that such placement with the biological family member filing the petition poses an articulable and serious threat of harm the State will be required to make biological family placement.

 

Any child removed from a home shall have the maximum amount of time possible of continued contact with their parent during the term of removal. The Court shall ensure that the parent’s time is maximized. Failure to do so shall be considered a final order and is a basis for immediate review by a higher court.

 

All appellate reviews in cases involving the removal of a child from a parent shall be expedited and the court shall clear their docket to accommodate the hearing schedule at the pleasure of the parents and their attorney.

 

The agency and the Court is required to assess any parent for disabilities which would qualify them for protection under the American with Disabilities Act. Upon such assessment, the parent shall be provided reasonable accommodations for parenting which shall include the active participation by family members to assist in parent responsibilities.

 

Parents’ Rights:

 

Each parent is entitled to be informed that they have a Fourth Amendment right against unlawful search and seizure before any government agency worker or law enforcement can enter their home and that they have the absolute right to refuse entry and to refuse to be interviewed. Each waiver shall be in writing, signed by the parent, and a copy provided to the parent. No parent shall be threatened or coerced into allowing entry into their home or interview of themselves or their child for failing or refusing to waive those rights.

 

Parents shall have the right to video and audio record all interviews, meetings, contact, and hearings, whether agency of court hearings, as a matter of record and they shall be advised of their right to do so prior to the commencement of the proceeding. The unavailability of a recording mechanism shall constitute grounds for continuance upon request of the parents or their counsel.

 

Each parent at risk of losing the right to the care and custody of their child through intervention of a state agency has the absolute right to select a caretaker for the child which shall be approved by the Court absent a showing that such placement poses an articulable and serious threat of harm to the child. This placement shall not revoke the parents’ superior right to parent.

 

Each parent shall be informed, in the event of foster care placement, if the foster parent intends to seek adoption of their child.

 

No parent shall be taxed with fees and costs of court appointed attorneys and guardian ad litems in an amount that exceeds the state approved payment of fees for indigent parents.

 

No parent shall be required to pay child support to the state when a child is placed in custody. Any parent who directs their funds to the hiring and retention of counsel instead of making payments of support to any third party, shall not be punished with contempt nor shall the failure to make payments be a basis for termination of parental rights whether to the state or a third party.

 

No parent shall have their right to parent interfered with without a showing beyond a reasonable doubt based on expert testimony that the child has been subjected to substantial harm.

 

No parent shall have their right to parent interfered with on basis of predictive negligence or predictive abuse.

 

So long as a parent has parental rights, the parent is entitled to notice and to attend every medical appointment of the child. The parents are also entitled to the child’s records within ten days of the treatment or assessment. A parent is also entitled to all mental health and counseling notes and records of the child within ten days of the treatment or assessment. A parent maintains the right to oppose treatment and may seek an intervention by the Court for alternative treatment, including medication and therapies. The Court will allow the parent to seek alternative opinion for the care and treatment of the child for good cause on a preponderance of evidence standard. The parent will have access to the child and all records for this purpose. The state will pay for the alternative review unless the Court finds that the parent is abusing the process.

 

All parents have the right to rebuttal expert testimony which shall be paid up to the state allowed level for criminal felonies. Parents shall not be restricted to seeking experts within a limited geographic area.

 



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