This Act shall be called the “Act to Protect Due Process Rights for Families Facing Potential [CPS] Family Separation.” 

Purpose Statement 

This model law recognizes parents’ due process rights, including the right to counsel, whenever the Agency, without court authority or oversight, facilitates a separation of a child from their parents or legal guardians and arranges for interim caregivers to assume primary responsibility over the child’s care. 

This model law establishes a legal framework to protect the fundamental rights of parents and children and the rights of kinship caregivers outside of the child removal structure established in [state statutory cross-reference]. The framework includes a prohibition on Agency actions to separate parents from their children absent circumstances that would justify, under state law, the Agency taking a child into emergency protective custody, as defined below. The framework also requires that when such circumstances exist the Agency must actively discuss with the parent or guardian, child, and kinship caregiver the terms of any proposed alternative living arrangement, as defined below, including the time frame, the resources to be made available, and the rights and responsibilities of all participants in the arrangement. 

Section 1: Definitions 

A. “Agency” refers to the state/county child protective services agency and its employees, contractual agent, or other individuals working at the behest of such Agency. [In jurisdictions that authorize removal of children by organizations and persons other than child protective services agencies, such organizations and persons should be enumerated as subject to this legislation] 

B. “Alternative living arrangement” refers to any out-of-home-living arrangement for a child, a change in the child’s primary caregiver, or a restriction on a parent or guardian’s contact with the child that occurs during any involvement of the Agency with the family, when such arrangement occurs without the Agency first taking emergency protective custody or without using the legal process for transferring legal custody of a child from the child’s parent or guardian to the state/county child protective services agency, its assigns, or another adult. An alternative living arrangement is only valid if the parent or legal guardian and the interim caregiver affirmatively agree to it and the conditions in the alternative arrangement pursuant to the due process protections required by this [model law]. 

C. “Emergency protective custody” refers to the Agency’s [or other entity’s] authority under state law to remove a child from the care and custody of a parent, legal custodian, or legal guardian, prior to obtaining a court order. “Emergency protective custody” does not include removal of a child from a foster care or other substitute care placement for which the state/county child protective services agency is legally responsible. 

D. “Interim caregiver” refers to any relative or kinship caregiver, as defined by the state, who provides an alternative living arrangement or who participates in the monitoring of a parent whose contact with a child is restricted under an alternative living arrangement. [See Question 8 in Section 8.3A.11 of the Child Welfare Policy Manual for federal guidance on using a broad definition for kin.] 

E.  “Parent or guardian” excludes foster parents and other substitute caregivers who are designated as caregivers for the child under the exclusive authority of the Agency, and includes any parent or legal guardian, legal custodian, and/or person acting in loco parentis who has custodial rights under law 

F. “Restriction” refers to any limitation on a parent, custodian or guardian’s contacts or interactions with a child in their care, custody, or any limitation on such person’s decision-making authority as to the child. 

Section 2. Prohibitions on Agency’s involvement in Alternative Living Arrangements for Children Absent Due Process Protections. 

(1) Unless the Agency obtains a court order or is taking emergency protective custody of the child, no Agency shall communicate to the parent or guardian that their rights to care, custody, contact with or control of the child have been, are being, or will be restricted, or that they are required to abide by any conditions in order to maintain care, custody, contact or control of the child. 

(2) Prohibited Agency communications with a parent or guardian under this section include: threats of adverse action, or promises of a benefit if the parent or guardian takes or refrains from specified actions; directives; demands; or statements suggesting or implying that the parent or guardian has limited authority as to the care, custody, contact with, or control of the child by virtue of the Agency’s involvement. 

(3) Unless the processes in Section III of this Act are followed, the Agency shall refrain from giving suggestions, recommendations, and advice that encourages the parent or guardian to relinquish or accept restrictions on their rights to care, custody, contact with, or control of the child. 

(4) Agency actions that encourage, allow or facilitate alternative living arrangements for the child’s protection shall not occur without the due process protection and informed consent processes set forth in sections III and V. 

(5) No Agency shall engage or request another person, organization, or agency to facilitate the separation of a child from his or her parent or guardian or restrict such parent or guardian’s access to their child, including by filing actions against the parent or guardian except if the processes set forth in Section III of this Act are followed. 

Section 3. Due Process Protections as to Alternative Living Arrangements 

A. As soon as the Agency decides it possesses grounds for taking emergency protective custody of the child pursuant to [state statutory cross-reference] and it believes that remaining in the home with the parent or guardian without restrictions presents a serious and immediate danger to the child and that an alternative living arrangement is necessary to protect the child [pursuant to the applicable statutory cross-reference for removal standards], the Agency shall provide in writing, and discuss with the parent or guardian, the following due process protections: 

1. the factual grounds for the Agency’s decision, 
2. the legal standard and process by which emergency protective custody is subject to court authorization, 
3. the right to counsel regarding any proposed alternative living arrangement, including the right to appointed counsel for indigent parents or guardians and the process to obtain such counsel, and 
4. the parent(s) or guardian(s)’ right to request that the arrangement be reviewed or revoked at any time, and the process for doing so. 

B. The Agency shall promptly engage parents or guardians and their legal counsel, if obtained, in a discussion of the terms and conditions of the proposed alternative living arrangement as well as provide information about available decision-making meetings or processes regarding the contents and the necessity of the alternative living arrangement. Notice of any decision-making meetings shall include the date, time, and location of such facilitated discussion. 

C. Written notice of the terms and conditions of each specific alternative living arrangement will be provided to the parent or guardian and shall include the following: 

1. The specific action or actions the Agency is requesting of the parent or guardian to reduce or eliminate the immediate danger to the child; 
2. The name and physical address of the interim caregiver caring for the child under this arrangement; 
3. The family contact and [parenting time/visitation] schedule during the alternative living arrangement to include regular visits between the parent or guardian and the child, as well as visitation or contact with siblings, other relatives, or close friends, including the frequency, location, and any supervision of or other restrictions on the visits or contact; 
4. The names, addresses, and contact information of parent(s) or guardian, the authorized child protective services worker and their immediate supervisor, and any interim caregiver; 
5. The proposed length of the alternative living arrangement, with the shortest time practicable, not to exceed [30 days] and which shall conclude on or before an automatic expiration date; 
6. That upon the termination of the alternative living arrangement by the parent or guardian, by the interim caregiver, or by the Agency, the alternative living arrangement will no longer be in effect; 
7. The process by which the child will be returned to the parent’s care in the event of termination of the alternative living arrangement by the interim caregiver; 
8. The Agency’s duties and responsibilities to support the family in providing care for the child to alleviate the need for the separation. This includes explaining what actions will be taken to keep the child safe and who is responsible for taking these actions. The Agency shall provide information regarding eligible benefits and services under [insert legal code cross reference] and make all necessary referrals and connections with referrals; 
9. The expectations and duties of the interim caregiver to provide for the child and support the parent or guardian in their efforts toward reunification; 
10. The parent(s)’ or guardians’ right to modify, revoke, or request a review at any time, and information on the process to do so. Any revocation by the parent or guardian will immediately terminate the arrangement; 
11. These rights set forth in paragraphs 1-9 above must be fully explained to the family in a manner that is understandable to them. 

D. No party shall be required to waive their right to request a prompt judicial hearing to determine if the Agency possesses sufficient grounds for intervention as to the child. The process by which a family can receive such a hearing shall be explained and made available to the parent in writing when the alternative living arrangement is established.  

E. No parent or guardian shall be required to satisfy any requirement that is not directly related to the reduction of the immediate danger to the child.  

F. Without court intervention that grants a change in legal custody to another party, legal custody remains with the parent or guardian.  

G. Agreement by the parent or guardian to enter into an alternative living arrangement shall not be considered as an admission of either the accuracy of the allegation of neglect, abuse, or dependency or the accuracy of the allegation that grounds exist to support a pre- adjudication removal of the child pursuant to [state statutory cross-reference], nor may said agreement by the parent or guardian be used as evidence of neglect, abuse, or dependency in any subsequent judicial proceeding, including private child custody proceedings.  

H. Failure to provide these due process protections will render any alternative living arrangement null and void and the parent shall have the right to care and custody of the child with no Agency-imposed limitations. 

Children’s Rights 

A. Children and youth have the right, in an age-appropriate manner, to be informed of the details of the alternative living arrangement, including where the child will live, for how long, and when and how often they will see their parent or guardian as well as the rights of their parents and their interim caregivers.  

B. Children and youth have the right to provide input, in an age-appropriate manner, on the creation of the alternative arrangement and shall receive a written copy of the alternative arrangement.  

C. Children and youth shall be provided with the name, phone number, and email address of a worker, as well as the name, phone number, and email address for the worker’s supervisor to contact during the alternative living arrangement so that they may contact the Agency if they have any questions or concerns.  

D. Children and youth shall be informed about any available legal representation or advocates that exist for youth.  

E. As agreed upon pursuant to III. C.3, children and youth will have regular family time/visitation and contact with the child’s parents, legal guardians, siblings, other relatives, or close friends. These contact plans will be included in the written alternative living arrangement.  

F. Siblings who live together and are part of an alternative living arrangement should be kept together whenever possible.  

G. Efforts will be made to keep the child enrolled in their same school and with the same service providers whenever possible. 

Interim Caregiver’s Rights 

(1) The Agency shall discuss the option of becoming an interim caregiver with identified kin, including providing them information regarding their rights, responsibilities, legal and financial options, benefits, and resources available to care for the child under an alternative living arrangement. The interim caregiver must be advised of the application procedures and potential length of the process to obtain benefits during the alternative living arrangement. This communication must be clear that this is not a licensed [kinship] foster home placement. The interim caregiver shall be provided with information regarding the option to pursue becoming a licensed [kinship] foster parent, in the future, if the child enters care.  

(2) The Agency shall inform the proposed interim caregiver that prior to entering into an alternative living arrangement a check of their home and background will be conducted.  

(3) No alternative living arrangement will be executed without active participation and affirmative agreement of the interim caregiver.  

(4) The Agency shall provide the interim caregiver a copy of the written alternative arrangement to include the conditions of the agreement, the obligations of the Agency, the parent and guardian’s rights and obligations, as well as the requirements and expectations of the interim caregiver. The alternative arrangement is only valid if the parent or legal guardian and the interim caregiver affirmatively agree to the conditions in the alternative arrangement.  

(5) The Agency shall inform the interim caregiver of their right to consult with legal counsel or advocate in connection with their decision whether to care for the child.  

(6) The Agency has an affirmative obligation to assist the interim caregiver with meeting the child’s health and educational needs. The Agency shall assist the interim caregiver with obtaining any documentation or other resources necessary to care for the child, keep or enroll the child in school, obtain necessary medical and dental care, maintain or obtain housing, and ensure the stability of the placement. This includes all financial resources for which the interim caregiver may be eligible and any assistance necessary to ensure the child is added to any residential lease held by the interim caregiver.  

(7)The Agency shall inform the proposed interim caregiver that they have the right to decline to care or continue caring for the child at any time and that decision alone shall not result in any adverse action against the caregiver, such as the bringing of a neglect case against the caregiver or future disqualification as a formal or informal resource for the child and family. Any decision to decline care for the child under an alternative living  arrangement shall not be included in an assessment of their ability to care for the child in the future, including consideration as a kinship foster parent. 

Obligations of the Agency and Judicial Administration 

(1) The Agency shall record the alternative living arrangement provisions in the child’s case records.  

(2) The Agency shall work with the parent and legal guardian to determine what assessments, services, benefits, and supports are needed to either keep the child in the home or safely return the child to the home. The Agency shall inform and assist the parent or guardian in obtaining identified services and benefits during the period in which the alternative care arrangement is in effect and upon return of the child. This includes all available financial, medical, and educational benefits available to care for the child, as well as support services and referrals for services required under the alternative living arrangement.  

(3) The Agency shall conduct a local, state, and, when possible, federal criminal background check, of the alternative caregiver (including the sex offender registry) and safety check of the alternative home, prior to placement whenever possible or no later than 48 hours after placement, to consider what if any impact this history has on their ability to safely care for the child. The results of these checks will be provided to the interim caregiver. The jurisdiction’s foster home licensing standards should not be applied to the safety check of this proposed alternative caregiver, as the child is not in the custody of the Agency.  

(4) The Agency shall determine and document how the proposed alternative living arrangement can meet the needs of the child. The Agency will determine, provide and facilitate the necessary services, support, and documentation to ensure the interim caregiver can meet the needs of the child. The Agency will inform and assist the interim caregivers in obtaining all services and benefits during the period in which the alternative care arrangement is in effect. This includes expediting all available financial, medical, and educational benefits available to care for the child, as well as support services and referrals for services required under the alternative living arrangement. When possible the Agency will provide any concrete assistance such as bedding, car seats, etc.  

(5) The Agency will make every effort to protect the children’s rights, as referenced above in section IV. 

(6) The Agency will arrange with the interim caregiver and the parent or guardian the process by which the child will be returned to the parent’s care in the event of termination of the alternative living arrangement by the interim caregiver. 

(7) The Agency shall comply with the request by the parent or guardian to revoke or modify the alternative living arrangement, unless it determines that compliance would necessitate the taking of emergency protective custody. In such an event, the Agency shall respond no later than [one business day] from the parent’s request for immediate reunification or modification. If the child is not immediately returned or the agreement modified, the Agency shall schedule or facilitate an immediate judicial hearing for the parent to challenge the basis for the continued alternative living agreement. 

(8) The Agency shall comply with a request by the interim caregiver to revoke or modify the alternative living arrangement. In such an event, the Agency shall respond no later than 

(9) [one business day] from the interim caregiver’s request for immediate revocation or modification. 

(10) The offering or creating of an alternative living arrangement shall not be deemed reasonable efforts to prevent removal, or preserve or reunify the family. 

(11) Prior to the expiration of the alternative living arrangement, the Agency will ensure that arrangements are made for the return of the child to the parent or legal guardian. The Agency will work with the parent or guardian to access all necessary services, supports, and benefits to meet the needs of the child. If the child cannot be immediately returned to the parent or the legal guardian, the Agency may decide to facilitate an immediate judicial hearing to seek removal. 

(12) To effectuate the parent’s right to counsel under III.A.3., the Agency shall immediately notify the existing jurisdiction’s system for appointing counsel to parents in all alternative living situations as established in neglect/abuse/dependency cases pursuant to [statutory cross-reference] of the alternative living arrangement and the need for provision of counsel for the parent. 

(13) The Judicial Administration shall establish a program for providing appointed counsel within 24 hours of notice from the Agency. Appointment of counsel shall continue until the later of (a) the closure of the Agency’s case regarding the family; (b) the end of an alternative living arrangement; or (c) the closure of any judicial proceeding which follows an alternative living arrangement. The scope of appointment shall include representation of the parent (a) regarding any alternative living arrangement and (b) in any judicial proceeding which follows an alternative living arrangement. 

Data Tracking and Reporting   

A. The Agency shall maintain data capturing any alternative living arrangement made for the care of any child.

B. The Agency shall collect the following data regarding alternative living arrangements, and in total, and compile an annual report for the preceding calendar year on such data with respect to each local social services district: 

1. total number of alternative living arrangements offered and total number established during the period;  
2. total number of children who were the subject of alternative living arrangement;  
3. total number of children in an alternative living arrangement at the end of the calendar year, and, for such children, the mean and median number of days they have been in such arrangements;  
4. total number of children for whom an alternative living arrangement ended during calendar year, and, for such children, the mean and median number of days they were in such arrangements, and whether the alternative living arrangement ended by (a) returning to a parent, (b) the interim caregiver indicated by the alternative living arrangement obtaining legal custody of the child, (c) the initiation by the Agency of a case alleging neglect or abuse of the child, or (d) any other means; 
5. total number of alternative living arrangements made during an investigation and the number of cases that were ultimately indicated or substantiated, as defined by state law, not indicated or substantiated, as defined by state law; 
6. number of children placed with (a) one parent, (b) a relative, (c) fictive kin, (d) a host family, or (e) other adult pursuant to an alternative living arrangement;  
7. total number of children who were returned home from an alternative living arrangement;  
8. total number of children removed pursuant to emergency protective custody [authority cross-reference] while an alternative living arrangement was in effect;  
9. total number of children who were the subject of a family court petition filed by the Agency alleging neglect or abuse by a parent pursuant to [statutory cross- reference] while an alternative living arrangement and the number of these children whose petition resulted in a change in custody;  
10. total number of children who were the subject of a family court petition filed by the Agency alleging neglect or abuse by an interim caregiver pursuant to [statutory cross-reference] while an alternative living arrangement and the number of these children whose petition resulted in a change in custody;  
11. total number of children who were the subject of a private custody or guardianship proceeding initiated while an alternative living arrangement was in effect;  
12. a descriptive list of preventive services and their utilization rates that were provided to parents, children and interim caregivers who were the subject of an alternative living arrangement agreement; and  
13. any other information the Agency may deem necessary to include. 

C. Such information required by paragraph (B) shall be disaggregated by age, sex, race, ethnicity, allegation type, county, and zip code, to the extent practicable.  

D. No later than 90 days following the end of each calendar year, the Agency shall publish the report on its website and submit such report to the governor and the legislature. 

Effective date 

This law shall become effective no later than…