The Pennsylvania FAMILY INTEGRITY ACT
An Act to support Pennsylvania 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 Pennsylvania:
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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