37-1-166 - Orders committing or retaining a child within the custody of the department of children's services Required determinations.
37-1-166. Orders committing or retaining a child within the custody of the department of children's services Required determinations.
(a) At any proceeding of a juvenile court, prior to ordering a child committed to or retained within the custody of the department of children's services, the court shall first determine whether reasonable efforts have been made to:
(1) Prevent the need for removal of the child from such child's family; or
(2) Make it possible for the child to return home.
(b) Whenever a juvenile court is making the determination required by subsection (a), the department has the burden of demonstrating that reasonable efforts have been made to prevent the need for removal of the child or to make it possible for the child to return home.
(c) To enable the court to determine whether such reasonable efforts have been made, the department, in a written affidavit to the court in each proceeding where the child's placement is at issue, shall answer each of the following questions:
(1) Is removal of the child from such child's family necessary in order to protect the child, and, if so, then what is the specific risk or risks to the child or family that necessitates removal of the child?;
(2) What specific services are necessary to allow the child to remain in the home or to be returned to the home?;
(3) What services have been provided to assist the family and the child so as to prevent removal or to reunify the family?; and
(4) Has the department had the opportunity to provide services to the family and the child, and, if not, then what are the specific reasons why services could not have been provided?
(d) Whenever a juvenile court is making a determination required by subsection (a), based on all the facts and circumstances presented, the court must find whether:
(1) There is no less drastic alternative to removal;
(2) Reasonable efforts have been made to prevent the need for removal of the child from such child's family or to make it possible for the child to return home; and
(3) Continuation of the child's custody with the parent or legal guardian is contrary to the best interests of the child.
(e) All parties involved in each proceeding shall receive a copy of the department's affidavit and shall have an opportunity to respond as allowed by law.
(f) Unless emergency removal is necessary, the department shall be provided no more than thirty (30) days to investigate or offer services to the family and child in cases where the petition is not filed by the department.
(g) (1) As used in this section, reasonable efforts means the exercise of reasonable care and diligence by the department to provide services related to meeting the needs of the child and the family. In determining reasonable efforts to be made with respect to a child, as described in this subdivision (g)(1), and in making such reasonable efforts, the child's health and safety shall be the paramount concern.
(2) Except as provided in subdivision (g)(4), reasonable efforts shall be made to preserve and reunify families:
(A) Prior to the placement of a child in foster care, to prevent or eliminate the need for removing the child from the child's home; and
(B) To make it possible for a child to safely return to the child's home.
(3) If continuation of reasonable efforts of the type described in subdivision (g)(2) is determined to be inconsistent with the permanency plan for the child, reasonable efforts shall be made to place the child in a timely manner in accordance with the permanency plan, and to complete whatever steps are necessary to finalize the permanent placement of the child.
(4) Reasonable efforts of the type described in subdivision (g)(2) shall not be required to be made with respect to a parent of a child if a court of competent jurisdiction has determined that:
(A) The parent has subjected the child that is the subject of the petition or any sibling or half-sibling of the child who is the subject of the petition or any other child residing temporarily or permanently in the home to aggravated circumstances as defined in § 36-1-102;
(B) As set out in § 36-1-113, the parent has:
(i) Committed murder of any sibling or half-sibling of the child who is the subject of the petition or any other child residing temporarily or permanently in the home;
(ii) Committed voluntary manslaughter of any sibling or half-sibling of the child who is the subject of the petition or any other child residing temporarily or permanently in the home;
(iii) Aided or abetted, attempted, conspired, or solicited to commit such a murder or such a voluntary manslaughter of the child or any sibling or half-sibling of the child who is the subject of the petition or any other child residing temporarily or permanently in the home; or
(iv) Committed a felony assault that results in serious bodily injury to the child or any sibling or half-sibling of the child who is the subject of the petition or any other child residing temporarily or permanently in the home; or
(C) The parental rights of the parent to a sibling or half-sibling have been terminated involuntarily;
(5) If reasonable efforts of the type described in subdivision (g)(2) are not made with respect to a child as a result of a determination made by a court of competent jurisdiction in accordance with subdivision (g)(4):
(A) A permanency hearing shall be held for the child within thirty (30) days after the determination; and
(B) Reasonable efforts shall be made to place the child in a timely manner in accordance with the permanency plan, and to complete whatever steps are necessary to finalize the permanent placement of the child.
(6) Reasonable efforts to place a child for adoption or with a legal guardian may be made concurrently with reasonable efforts of the type described in subdivision (g)(2).
[Acts 1992, ch. 587, § 1; 1996, ch. 1079, § 73; 1998, ch. 1097, § 12.]