Family Rights Act

Liberty Independence & Family Equality

Text Box: The Family Preservation Act of 2006 Drafted January 16, 2006 The General Assembly of the Commonwealth of Pennsylvania hereby enacts as follows: Section 1. Short title. This act shall be known and may be cited as the Family Preservation Act of 2006. Section 2. Legislative findings, purpose and scope. (a) Findings.—The General Assembly hereby finds as follows: (1) The power of the governments of the United States of America and the Commonwealth of Pennsylvania (the Commonwealth) is vested in the People of the United States of America and the People of the Commonwealth (the People), respectively. (2) The People hereby petition the government of the Commonwealth for redress of grievances. (3) Parental rights are so fundamental as to be deemed inalienable. (4) The “liberty interest of parents in the care, custody, and control of their children is perhaps the oldest of the fundamental liberty interests” recognized by the United States Supreme Court in Troxel v Granville, 527 U.S. 1069 (1999). (5) Children are endowed with rights so fundamental as to be deemed inalienable. (6) That among children’s inalienable rights is the right at birth, to bond with the child’s biological parent(s) or if that is not possible, the child’s permanent and legally designated guardian and custodian, and that the deprivation of this right for even a short time can cause irreparable lifetime damage. (7) That among children’s and other family members’ inalienable rights is the right to familial integrity. (8) Children are the future and as such, the compelling interest in the safety and welfare of the children and to preserve the inalienable right to familial integrity are among the Commonwealth’s highest priority. (9) Permanent termination of parental rights has been described as “the family law equivalent of the death penalty in a criminal case.” Therefore, parents “must be afforded every procedural and substantive protection the law allows.” In re Smith (1991), 77 Ohio App.3d 1, 16, 601 N.E. 2d 45, 54. (10) Children and Youth Services agencies and the courts of the Commonwealth have not recognized the rights of individual family members as inalienable and such inalienable rights and due process rights, have not been constitutionally protected in child custody proceedings. (11) Reasonable efforts to preserve familial integrity or reunite families, as mandated by the Adoption and Safe Families Act of 1997 (42 U.S.C. § 671) and the Commonwealth’s Child Protective Services statutes (23 Pa.C.S.A. §§ 6373(a) and (b)) have not been made by Children and Youth Services agencies of the Commonwealth. (12) Absolute or qualified immunity for all government workers and others placed in essential positions pursuant to Child Protective Services statutory mandates, including but not limited to the Adoption and Safe Families Act of 1997 (42 U.S.C. § 671) and the Commonwealth’s Child Protective Services statutes (23 Pa.C.S.A. § 63) and the Juvenile Act (42 Pa.C.S.A. § 63) (collectively, the “CPSL”) have served to deny due accountability when constitutional protections of families and their children have been violated or compromised. (13) Hearings closed to the public in child custody proceedings have not protected families and children, rather, have served to protect government workers and others placed in essential positions pursuant to Child Protective Services from scrutiny. (14) Protecting the identity of a person or persons making reports, pursuant to 23 Pa.C.S.A. § 6340 (c), violates protections granted under the 6th Amendment to the United States Constitution. (15) Federal financial incentives to the Commonwealth and its agencies, incentives to maintain job security pursuant to Child Protective Services, profit incentives to related private industries, financial incentives to foster caregivers, relaxed or non-existent reporting standards, factors enumerated in subsection (a), abuse and extreme excesses of power and authority by those placed in essential positions pursuant to Child Protective Services and many other factors, including but not limited to sexual and other exploitation of children, have overloaded the system beyond its capacity to operate properly and created a fraudulent culture and industry that has become the greatest source of abuse of children and destroyer of families, in direct opposition to its original intent, to protect children and provide services to families in need of services. (b) The purpose of this Act is to: (1) Provide core fundamental due process rights to family members whose integrity is subject to temporary or permanent deprivation. (2) Enforce Child Protective Services, its employees and agents, law enforcement personnel, the courts and all others placed in essential positions pursuant to Child Protective Services in the Commonwealth to perform their mandated and intended function and duties within the confines and provisions of the Constitution of the United States, the Constitution of the Commonwealth of Pennsylvania and all applicable federal, state and local statutes. (c) Scope.—The scope of this Act applies to any case whereby family integrity is subject to temporary or permanent deprivation in any program or activity that receives federal financial assistance. Section 3. Definitions. As used in this Act: (1) “hearing” means any judicial or administrative hearing. (2) “agency” means any state or local government unit or sub-unit. (3) “child” means any person under 18 years of age. (4) “family” means any permanent unit consisting of a child and the child’s legal custodial guardian and caretaker, recognized by the Commonwealth as one or both biological parents or adoptive parents. This definition is not applicable to any non-permanent custodial unit. (5) “imminent danger” means any circumstance whereby a child is in immediate danger of serious physical injury or death from his surroundings. (6) “exigent circumstances” means any unforeseen and unsafe emergency situation that requires immediate intervention. (7) “alleviate danger” means removing the person who is alleged to potentially be a threat to cause physical harm to a child or removing the child and the child’s family from an environment that may potentially cause physical harm to a child and temporarily place the child and the child’s family together in a safe environment. Section 4. Forced separation of children and removal from their home. Except in cases of imminent danger or exigent circumstances as defined in Section 3 of this Act and no action can be immediately taken to alleviate said danger or emergency situation, or court order issued under the provisions of this Act, and the nature of the emergency is such that it does not permit time to seek a warrant or court order, the forced separation of a child from the child’s family or removal from the child’s home by any law enforcement officer, agent or employee of any government agency of the Commonwealth, shall cause that person to be subject to criminal and/or civil liability. Section 5. Section 6340 (c) of Title 23 is repealed. Section 6. Hearings open to the public. (a) Upon the request of the parent, guardian or custodian of the child, the right to have proceedings open to the public shall be guaranteed in the following circumstances: (1) In any hearing petitioned for the purpose of awarding temporary or permanent custody of the child to another person. (2) In any hearing petitioned for the purpose of determining if a child is or has been deprived, neglected or otherwise placed at risk of physical, mental and/or emotional damage. (b) Notwithstanding subsection (a), a judge may, upon consideration of written motion and papers filed in opposition, exclude the public if it is determined, by a preponderance of the evidence that the safety of the child would be in jeopardy by a public hearing. (c) If the public is excluded from the hearing, any person or persons requested and enumerated by the parent, guardian or custodian of the child may attend the closed hearing unless the judge finds that the attendance of any person or persons is not in the best interests of the child. Section 7. Trial by Jury. Upon request of a parent, guardian or custodian of the child, the right to a trial by jury shall be guaranteed in any hearing to determine temporary or permanent custody of a child or to determine if a child has been deprived, neglected or otherwise placed at risk of physical, mental and/or emotional damage. Section 8. Interviews of children. (a) Under no circumstances shall a child be interviewed by any law enforcement officer, agent or employee of any government agency of the Commonwealth or mental health or medical professional who interviews a child for the purposes of investigation without the express written consent and presence of the parent, guardian or custodian of the child or the child’s attorney, except as provided in subsection (b). (b) If there is reasonable belief that the perpetrator of abuse of a child is under investigation, the express written consent and presence of the alleged perpetrator shall not be required. (c) Any law enforcement officer, agent or employee of any government agency of the Commonwealth or mental health or medical professional who interviews a child for the purposes of investigation, shall electronically and/or digitally cause to be made an audio and visual recording of all questioning of and interviews with the child. (d) Pursuant to subsection (c), all statements made by the child shall be captured on a videotape or collection of videotapes which combine to continuously reflect the contemporaneous images of both the interrogator and child during the entire relevant period of communication. (e) All recordings made pursuant to subsection (b) shall be made available to the parent, guardian or custodian of the child no later than fourteen (14) days prior to any hearing for the purpose of awarding temporary or permanent custody of the child to another person or any hearing for the purpose of determining if a child is or has been deprived, neglected or otherwise placed at risk of physical, mental and/or emotional damage. Section 9. Documentation and record keeping. (a) Notwithstanding any other provision of law, in any proceeding for the purpose of awarding temporary or permanent custody of the child to another person or for the purpose of determining if a child is or has been deprived, neglected or otherwise placed at risk of physical, mental and/or emotional damage, meticulous, detailed and dated records shall be maintained at all times by the appropriate agency or person assigned, pursuant to: (1) Evidence, including but not limited to the provisions of 55 Pa.C.S.A § 3130.35 (placement provision and reunification services), supporting any and all actions taken to ensure that reasonable efforts were diligently made to maintain familial integrity or to return a child who is in state custody, to the child’s home as soon as reasonably possible. (2) Evidence supporting that all the powers and duties of the Guardian ad litem for a child in court proceedings as mandated by 42 Pa.C.S.A. § 6311 (b) have been fulfilled in good faith. (3) Evidence supporting that any and all other procedures, functions and or duties have been fulfilled in good faith and in the best interest of the child and that the constitutional and all other statutory rights of individual family members have been protected at all times. (b) Any missing, inadequate or other failure to properly maintain documents or records pursuant to subsection (a) is subject to remedies available under the provisions of this Act and as deemed appropriate by the Family Advocate. Section 10. Evidence in fact-finding hearings. (a) Only evidence that is competent, material and relevant may be admitted in a fact-finding hearing. Only evidence pertaining to interviews with a child and obtained pursuant to Section 8 of this Act may be admitted in a fact-finding hearing. (c) Pursuant to subsection (b), evidence obtained from a child who is suffering from a mental disability or who was, at the time of the interview, under the influence of any mind altering substance, shall not be admissible in a fact-finding hearing. (d) Evidence pursuant to Section 9 (a) of this Act must be made available and admitted to the court in a fact-finding hearing. (e) Evidence pursuant to Section 13 of this Act must be made available and admitted to the court in a fact-finding hearing, if applicable. (f) Any determination at the conclusion of a fact-finding hearing that a respondent did commit an act or acts must be based on proof beyond a reasonable doubt. For this purpose, an uncorroborated confession made out of court by a respondent is deemed insufficient and inadmissible evidence. Section 11. Right to a speedy trial. (a) Upon request of a parent, guardian or custodian of the child, the right to a speedy trial shall be guaranteed in any hearing for the purpose of awarding temporary or permanent custody of the child to another person or any hearing for the purpose of determining if a child is or has been deprived, neglected or otherwise placed at risk of physical, mental and/or emotional damage. (b) If the right to a speedy trial has been exercised pursuant to subsection (a), in no event shall the hearing shall be conducted beyond the thirtieth day after a petition for such hearing has been formally requested. Section 12. Waiver of rights. The rights of a parent, guardian or custodian of the child pursuant to this Act cannot be waived, neither can parental rights be terminated, if said waiver is due to: (1) Mistake; (2) Fraud; (3) Undue influence; or (4) Duress. Section 13. Mandated child removal risk assessment. (a) Prior to determining, in a hearing, if a child is to be removed from his or her home, a comprehensive and detailed report must be made by a person or persons assigned to investigate and report the risk of removal of the child from his or her home and the report must be submitted to the court for substantial consideration. (b) Pursuant to subsection (a), the risk assessment report must: (1) Specify the particular risks to be considered; and (2) Specify reasonable argument and evidence that weighs factors including but not limited to the emotional trauma to the child and his family likely to result from separation, the risk that the child will experience multiple placements and the heightened risk that the child may be abused or neglected in foster or other care and while in state custody. Section 14. Court ordered separation of children and removal from their home. In extreme circumstances where a child is found by the court to be in danger of harm by remaining in the custody and care of a parent, guardian or custodian of the child and cannot remain at home: (a) All reasonable efforts must be made to place the child in a home that will be most familiar and comfortable to the child and in the following order of priority: (1) With the grandparent(s). (2) With a relative in order of closeness of relationship. (3) With a family friend. (4) With a neighbor. (5) With a foster parent. (b) Pursuant to subsection (a), the party or parties must consent to: (1) Take the child into temporary custody; and (2) A reasonable background check; and (3) An inspection of their home. (c) Pursuant to subsection (b) all must be approved by a government investigator or agent assigned for that purpose. All persons who take a child into temporary custody must receive financial, medical and other assistance equal to those foster parents receive in foster care programs and are similarly situated. (e) All reasonable efforts must be made to alleviate the circumstance(s) that caused the court to order said separation and removal of the child and reunite the child with the child’s parent, guardian or custodian as soon as reasonably possible. Section 15. Immunity and liability. (a) Notwithstanding any other provision of law, the immunity of any law enforcement officer or any agent or any employee of any government agency of the Commonwealth, authorized to initiate or conduct investigations or proceedings shall not apply to those who knowingly violate the constitutional rights and/or statutory right of a parent, guardian or custodian of the child or a child. (b) Notwithstanding any other provision of law, any law enforcement officer or any agent or any employee of any government agency of the Commonwealth, authorized to initiate or conduct investigations or proceedings who knowingly violates the constitutional rights of a parent, guardian or custodian of the child or a child shall be subject to criminal liability. (c) Notwithstanding any other provision of law, any law enforcement officer or any agent or any employee of any government agency of the Commonwealth, authorized to initiate or conduct investigations or proceedings who knowingly engages in an act or acts enumerated by 18 U.S.C. § 1962 shall be subject to all the statutory provisions and liabilities set forth under the Racketeer Influenced Corruption Organization (RICO) 18 U.S.C. §§ 1963-1968. (d) Notwithstanding any other provision of law, any agent or any employee of any government agency of the Commonwealth, placed in essential positions pursuant to CPSL, who knowingly violates provisions and obligations under the CPSL, is subject to immediate suspension or termination of employment and suspension or termination of any applicable license and any civil or criminal liability. (e) Notwithstanding any other provision of law, the civil immunity of any law enforcement officer or any agent or any employee of any government agency of the Commonwealth, authorized to initiate or conduct investigations or proceedings shall not extend to any of the following: (1) Perjury; (2) Fabrication of evidence; (3) Failure to disclose known exculpatory evidence; (4) Obtaining testimony by duress, fraud, or undue influence; (5) Any other act or acts not committed in good faith. (f) Notwithstanding any other provision of law, any law enforcement officer or any agent or any employee of any government agency of the Commonwealth who induces a parent, guardian or custodian of the child to waive any of his or her rights under this Act by: (1) Fraud; (2) Undue influence; (3) Duress; or (4) Any other act or acts not committed in good faith Shall be subject to civil liability. Section 16. The Family Advocate. A Legislative Committee of the Commonwealth shall be established to enact and create the Office of the Family Advocate and elected position of Family Advocate, pursuant to the provisions of the Family Advocate Act, incorporated into this Section of the Family Preservation Act of 2006, to preside over the Citizen’s Rights Review Board for the Commonwealth in no more than ninety (90) days from the effective day this Act. Section 17. Right to a Review. Upon request of any adult who is or was subject to any proceeding for the purpose of awarding temporary or permanent custody of the child to another person or any hearing for the purpose of determining if a child is or has been deprived, neglected or otherwise placed at risk of physical, mental and/or emotional damage, is hereby guaranteed the right to a complete and thorough review of the case by the Citizen’s Rights Review Board. Section 18. Restitution. (a) Pursuant to findings by the Citizen’s Rights Review Board, in the review of a case pursuant to Section 17 of this Act, the Commonwealth shall set aside a monetary fund for the purpose of awarding appropriate monetary restitution to those who have incurred financial and other damages (the Victims) pursuant to the illegal practices of any law enforcement officer or any agent or any employee of any government agency of the Commonwealth, authorized to initiate or conduct investigations or proceedings who knowingly violates the constitutional and/or other statutory rights of a parent, guardian or custodian of the child or a child. (b) Pursuant to subsection (a), an independent panel of arbitrators shall be established to determine the amount of restitution to be paid to the Victims. (c) Victims who seek and are awarded restitution pursuant to this section of this Act waive their right to file a civil suit in any court of law for damages, as found by the Citizen’s Rights Review Board pursuant to Section 17 of this Act. Section 19. Damages. Notwithstanding any other provision under this Act, in the case of a determination by a court or jury of any violation of the rights of a parent, guardian or custodian of the child under this Act, damages shall be presumed. Section 20. Conflict and severability. (a) If any provision of this Act or an amendment made by this Act, or any application of such provision to any person or circumstance, is in conflict with any statute or provision of the Commonwealth’s Child Protective Services statutes (23 Pa.C.S.A. § 63) or the Juvenile Act (42 Pa.C.S.A. § 63), this Act shall supersede and/or take precedence. Any such conflict discovered herein shall cause the appropriate statute or provision to be amended to conform to the provisions of this Act. (b) If any provision of this Act or an amendment made by this Act, or any application of such provision to any person or circumstance, is held to be unconstitutional, the remainder of this Act, the amendments made by this Act, and the application of the provision to any other person or circumstance shall not be affected. Section 21. Distribution. (a) The complete unabridged text of this Act shall be distributed to all government workers and others placed in essential positions pursuant to child protective services. (b) The complete unabridged text of this Act shall be distributed to all persons subject to any proceeding for the purpose of awarding temporary or permanent custody of the child to another person or any hearing for the purpose of determining if a child is or has been deprived, neglected or otherwise placed at risk of physical, mental and/or emotional damage. (c) The provisions of subsections (a) and (b) shall be completed no later than thirty (30) days from the effective date of this Act. (d) Pursuant to 23 Pa.C.S.A. § 6338 (Investigation of Reports), the complete unabridged text of this Act shall be distributed to all persons immediately upon becoming subject to any proceeding for the purpose of awarding temporary or permanent custody of the child to another person or any hearing for the purpose of determining if a child is or has been deprived, neglected or otherwise placed at risk of physical, mental and/or emotional damage. Section 22. This Act shall take effect in sixty (60) days. © 2006 We The People

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The Family Preservation Act

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The liberty interest of parents in the care, custody, and control of their children is perhaps the oldest of the fundamental liberty interests. United States Supreme Court in Troxel v Granville, 527 U.S. 1069 (1999)