The Parental Child Safety Placement Program that has been authorized by statute, and is being implemented through the proposed regulations in 22VAC40-705-200, provides for children at serious risk of harm in their homes a vital and needed alternative both to foster care placement and to the informal out-of-home placements of such children that have been made by local social services departments without the supports that the children, their caregivers and their parents need.  This is great work.  That said, there appear to be a number of key matters that could be addressed in a better way by the proposed regulations (and perhaps by some amendments to relevant Virginia Code sections), and some matters that currently remain unaddressed in the proposed regulations.  Here are my observations and recommendations regarding the regulations as currently drafted: 

Section A:  While this section tracks the language of Virginia Code §63.2-1532, and so is unlikely to be changed unless the Code section is changed, I think it contains incomplete and ultimately misleading language.  The section states that these child safety placements occur when 3 conditions exist: (1) there is an active family assessment or CPS investigation in response to a valid CPS report; (2) the safety assessment finds that the child cannot remain safely in the home; and (3) the parent/guardian “is in agreement with the placement arrangement”.  Section A adds language not found in the statute that emphasizes that the parent/custodian “must willingly agree to voluntarily place their child” with the caregiver under the Placement Agreement. What is missing from this language is the reality that the parent/custodian is “in agreement” with the placement arrangement only (or primarily) as a less restrictive alternative to foster care placement. While §63.2-1533 states that the Agreement must state that the parents/custodians have a right to refuse to enter into the Agreement, the section does not require that the Agreement  explicitly acknowledge the consequence of such refusal: that the child will be placed in foster care.  That is the stark reality that limits just how “voluntary” the placement agreement is.  The language in the statute and in the regulations fails to capture this stark reality, and I think that is a mistake.  More needs to be done to make certain that parents/custodians understand what their rights and obligations are in these situations, and what will happen if they decide to decline to sign a Child Safety Placement Agreement.  The CPS workers must also be certain that, when they approach parents/custodians about such an agreed placement, they are certain they have the evidence to support an emergency removal if the parents refuse a “voluntary” placement outside the home.

Section D: I generally agree with the objections raised by the VLSSE, and joined by others commenting on the proposed regulations, that the current language in Section D requires too much in regard to the specifics of the local department’s determination of the appropriateness of the proposed alternative home for the child.  I support substituting language that tracks the language proposed by VLSSE, but that language should also include a specific requirement to confirm and review the presence of other children in the proposed caregiver home and the potential impact of those children on the safety of the child being placed there.  

A missing section between Sections E and F: The proposed Section G describes the required “facilitated meeting” with the family and the finalization of a Parental Child Safety Placement Agreement at that meeting.  The proposed Section F provides that this meeting must occur within 5 business days of the child’s placement in the caregiver’s home.  VLSSE states in its comments that logistical and staffing issues facing local departments make the 5 business day timeframe unrealistic, and recommends a time frame of 14 calendar days, noting that  “[t]he timeline of 14 days is also consistent with other LDSS program requirements for children entering foster care.”  The problem for me is that, when children are placed in foster care, the Virginia Code has specific provisions that give the department the authority to make all care decisions for the child, and also requires court hearings within a shorter period of time to determine whether the award temporary legal custody of the child to the department should continue.  The proposed regulations make no provision for a temporary agreement that sets out the placement arrangement for the child and who has authority to do what in regard to the child’s care.  Since Section G provides for an additional 3 business days for the parties to sign the placement agreement, we are talking about a total of 8 business days - almost 2 weeks of school - at a minimum before there is a formal agreement.  That is a long time for the child, the caregivers and the parents to be in limbo.  What happens to the schooling of school-age children?  Who has the authority to seek and consent to medical care?  What if the parents decide to change their minds before the facilitated meeting and go to the school to pick up the child?  There need to be provisions for a temporary agreement that will guide - and limit - the parties pending the facilitated meeting.  That is especially true if the period of 14 calendar days (plus another 3 days or more for execution of the agreement) recommended by the VLSSE is adopted.  

Section G: This section, which addresses the agreement forged in the facilitated meeting, does not address anything about the content of the agreement but instead says only that it must contain what is set out in §63.1-1533 of the Virginia Code.  It indicates that a “form” for the Agreement will be developed by DSS and included in the Child and Family Services Manual.  It is not clear from the language in Section G what discretion, if any, a local department has to deviate from the form developed for the Manual.  That should be specifically addressed.  

Subsection A(2) of §63.2-1533 states that the placement agreement must make provisions for the following: “The responsibilities of the child's parent, guardian, or legal custodian and the caregiver, including a plan for how the caregiver will access necessary medical treatment, mental health services, and appropriate educational services for the child.”  While this requirement is both necessary and appropriate, it appears to assume that the parties can work out on their own such arrangements as school attendance and authorization for medical care.  I don’t think this is really possible without additional help from the legislature.  For example, since legal custody of the child is not being transferred from the parent/custodian to the caregiver, the child’s legal residence remains the home of the parent/custodian.  As a result, the child’s required school district and school for attendance remains the district and school zone in which the parent/custodian resides, and the parent/custodian remains the sole authority to communicate with school officials regarding the child.  Title 22.1 needs to be amended to recognize this child placement arrangement and to allow flexibility in regard to the school the child attends and the ability of the caregiver as well as the parent to communicate with school staff regarding the child.  Currently, Virginia Code §22.1-3.4 has special provisions allowing flexibility in the enrollment and placement of children who are placed in foster care.  It is my opinion that parental child safety placement agreements cannot require similar flexibility from school systems, and most school systems would say that the current law does not give them the authority to allow such flexibility.  There should also be exploration of whether amendments to the Virginia Code would make it easier for caregivers under these agreements to seek and obtain medical care for the child placed with them.  At a minimum, the regulations and and the Manual should provide for a Power of Attorney document in which the parent/custodian can grant agent authority to the caregivers for the care of the child, with the POA merely citing the Parental Child Safety Placement statute as the basis for this grant of agency without having to include all the specifics of why the child is not in the physical custody of the parent/custodian.  I note again that, under the current regulations, there would not even be a placement agreement until the child has been with the caregivers for two weeks or more.  That’s unacceptable, and places an unreasonable burden on the caregivers. There needs to be provision for temporary arrangements prior to the facilitated meeting, and there needs to be sufficient statutory authority to enable the caregivers to meet the needs of the child placed in their care. 

Subsection B(1) of § 63.2-1533 states that the placement agreement “shall” contain a statement that the child’s parent/custodian is voluntarily consenting to the placement and that such consent is not an admission of abuse or neglect of the child.  Again, this voluntariness is in the context of the local department’s communication that, if the parent/custodian does not consent to the caregiver placement, the department will place the child in foster care and file a petition with the local JDR Court alleging child abuse and neglect.  That information should also be in the agreement, along with the fact that a hearing on the petition, at which the parents will be entitled to representation by legal counsel, will be held within 7 days of the child’s placement in foster care.  (This observation applies equally to the required statement in the agreement that the parent/custodian has the right to refuse to enter into the agreement.)

Subsection B(2) of § 63.2-1533 states that the placement agreement “shall” contain a statement that “the agreement may be terminated by any party, at any time, and for any reason,” and that  “upon such termination, the local department may take actions to protect the child, including the removal of the child pursuant to the provisions of this title.”  The statute does not require any prior notice by the terminating party to the other parties.  What prevents a parent from appearing at the caregiver’s home, or at the child’s school, and announcing that the parent is terminating the agreement and taking physical custody of the child at that moment?  The local department is going to have a hard time catching up with the parent in those circumstances, especially if the parent decides to leave town.  While the regulations might ultimately provide a prior notice requirement (which they currently don’t provide), which would enable the local department to take protective action before damage is done, there is a serious question whether such a requirement is enforceable, since the statute makes no provision for requiring prior notice before termination. 

Subsection K(1)(b): This subsection states that if the local department determines that an in-home services case needs to remain in place in order for the child to safely return home but the parent/custodian declines to accept such services, the department “must seek a protective order or other appropriate court action” to order continued services.  It should be noted that the Virginia Code does not authorize a local department to file a petition simply seeking a protective order for the supervised return of a child to parental care.  § 16.1-253, which addresses protective orders for children, states that the JDR Court may enter a preliminary protective order “upon the motion of any person…pending there final determination of any matter before the Court.”  There has to be a matter before the JDR Court that is within that Court’s statutorily authorized jurisdiction first, and a motion for a protective order can be requested in regard to that “matter”.  For a local department, that matter is usually an allegation that a child is an abused or neglected child, and a protective order is requested to ensure the safety of the child pending final hearing.    While § 63.2-1506(B)(6) authorizes local departments in family assessment cases to “[p]etition the Court for services deemed necessary,” the Juvenile Code does not give the JDR Court jurisdiction over family assessment matters, and in fact the Juvenile Code makes no mention of or reference to family assessments anywhere; nor does it make any reference to parent child safety placement agreements and requests for orders of child protection following the termination of those agreements.  While Virginia Cod § 63.2-1535(B)(2) states that a local department “may” “seek a child protective order or other court action” to require ongoing in-home services, that language has to be read in harmony with the jurisdiction section of the Juvenile Code.  Since the JDR Court is solely a creature of statute, its jurisdiction cannot extend beyond what is specifically granted to it in Title 16.1.  Consequently, in my opinion, a protective order would have to be sought through a child abuse/neglect petition, which in turn would require that the matter be an “investigation,” not a “family assessment,” by the local department.  (Relatedly, Virginia Code § 16.1-241.3 states that the JDR Court can assume jurisdiction over a case of a substance exposed infant and enter an order to protect the child only if the local department alleges in a petition that “an investigation” has been commenced.  There is no mention of a family assessment or parental placement agreement.)  

Subsection K(2):  This section tracks the language in Virginia Code § 63.2-1535(C), which states that “[i]f it is determined that the child cannot be safely returned home at the conclusion of the parental child safety placement agreement, the local department shall seek removal of the child from the child's parent, guardian, or legal custodian, upon a petition alleging abuse or neglect pursuant to § 16.1-251 or 16.1-252."  (I do not understand the opposition of the VLSSE to this language in Subsection K(2), since that language tracks the statute’s language.).  Also tracking the language of the statute, Subsection K(2) provides that, if the court “denies removal of the child,” the local department “shall seek a child protective order to provide continued services for the child and the child's parent, guardian, or legal custodian to ensure the child's safety and welfare. If the child protective order is granted, the case shall remain open as an In-Home Services case.”  Neither the statute nor the regulations specify how the local department must “seek” such a protective order.  I suggest that it’s important to have a shared understanding of when and how the protective order is sought in this situation.  Unfortunately, the relevant language in the Virginia Code is vague in regard to this.  I note the following: (1) § 16.1-252(F) explicitly states “in addition to” entering a preliminary removal order the JDR Court may enter a preliminary protective order pursuant to § 16.1-253 imposing requirements and conditions as authorized in that section for the protection of the child.  (2) § 16.1-262(G) states: “The preliminary removal order and any preliminary protective order issued shall remain in full force and effect pending the adjudicatory hearing.”  Unfortunately, 16.1-252 does not specifically state that, if the Court denies removal of the child from the home, it may instead enter a preliminary protective order to ensure the child’s safety.  Nonetheless, as noted earlier, § 16.1-253 authorizes the JDR Court to enter a preliminary protective order “[u]pon the motion of any person or upon the Court’s own motion …after a hearing, if necessary to protect a child's life, health, safety or normal development pending the final determination of any matter before the court.”  My view is that the preliminary removal hearing would be a hearing at which the Court, upon its own motion or the motion of a party, could enter a preliminary protective order after denying removal of the child from the parent/custodian.  There should not be a need for additional pleadings.  I suspect that there is no consensus on this, and I submit that consensus should be sought and achieved, even if it requires a clarifying code amendment.  That will make life a little easier for everyone in managing these cases.