H*4614 Session 111 (1995-1996)
H*4614(Rat #0522, Act #0450 of 1996) General Bill, By Kelley, Allison,
Easterday and Moody-Lawrence
Similar(S 1251)
A Bill to enact the "Child Protection Reform Act of 1996" by amending Section
20-7-110, as amended, Code of Laws of South Carolina, 1976, relating to legal
representation in abuse and neglect proceedings, so as to clarify a reference
to the Department of Social Services; to amend Subarticle 1, Article 7,
Chapter 7, Title 20, as amended, relating to general provisions concerning
abuse and neglect, so as to set forth guiding principles and policies
concerning state intervention in family life and child welfare and to revise
definitions; to amend Subarticle 3, Article 7, Chapter 7, Title 20, as
amended, relating to the identification and reporting of child abuse, so as to
expand persons required to report, to expand medical examinations and tests
authorized to provide immunity to employees of the Department of Social
Services in performing child protective services in good faith; to amend
Section 20-7-610, as amended, relating to emergency protective custody, so as
to revise these procedures and to include emergency physical custody; to add
Section 20-7-612 so as to establish procedures for law enforcement to assist
the Department in taking a child into emergency custody; to add Section
20-7-616 so as to require an agency having sex offender registries to release
information to the Department when an allegedly abused child is residing in an
offender's home.-amended short title
02/14/96 House Introduced and read first time HJ-11
02/14/96 House Referred to Committee on Judiciary HJ-11
03/20/96 House Committee report: Favorable with amendment
Judiciary HJ-51
03/27/96 House Debate adjourned until Tuesday, April 2, 1996 HJ-64
04/02/96 House Debate adjourned until Wednesday, April 3, 1996 HJ-14
04/03/96 House Amended HJ-20
04/03/96 House Debate interrupted HJ-21
04/03/96 House Read second time HJ-26
04/03/96 House Unanimous consent for third reading on next
legislative day HJ-26
04/04/96 House Read third time and sent to Senate HJ-2
04/09/96 Senate Introduced and read first time SJ-9
04/09/96 Senate Referred to Committee on General SJ-9
05/21/96 Senate Committee report: Favorable with amendment
General SJ-18
05/22/96 Senate Amended SJ-39
05/22/96 Senate Read second time SJ-39
05/22/96 Senate Ordered to third reading with notice of
amendments SJ-39
05/23/96 Senate Amended SJ-106
05/23/96 Senate Read third time and returned to House with
amendments SJ-106
05/30/96 House Non-concurrence in Senate amendment HJ-65
05/30/96 Senate Senate insists upon amendment and conference
committee appointed Sens. Moore, Fair, Richter SJ-38
05/30/96 House Conference committee appointed Kelley, Easterday
& Allison HJ-133
05/30/96 House Conference report received and adopted HJ-152
05/30/96 Senate Conference report received and adopted SJ-47
05/30/96 Ordered enrolled for ratification SJ-185
06/13/96 Ratified R 522
06/18/96 Signed By Governor
06/18/96 Effective date 01/01/97
07/09/96 Copies available
07/09/96 Act No. 450
(R522, H4614)
AN ACT TO ENACT THE "CHILD PROTECTION REFORM
ACT OF 1996" BY AMENDING SECTION 20-7-110, AS
AMENDED, CODE OF LAWS OF SOUTH CAROLINA, 1976,
RELATING TO LEGAL REPRESENTATION IN ABUSE AND
NEGLECT PROCEEDINGS, SO AS TO CLARIFY A REFERENCE TO
THE DEPARTMENT OF SOCIAL SERVICES; TO AMEND
SUBARTICLE 1, ARTICLE 7, CHAPTER 7, TITLE 20, AS
AMENDED, RELATING TO GENERAL PROVISIONS CONCERNING
ABUSE AND NEGLECT, SO AS TO SET FORTH GUIDING
PRINCIPLES AND POLICIES CONCERNING STATE
INTERVENTION IN FAMILY LIFE AND CHILD WELFARE AND
TO REVISE DEFINITIONS; TO AMEND SUBARTICLE 3, ARTICLE
7, CHAPTER 7, TITLE 20, AS AMENDED, RELATING TO THE
IDENTIFICATION AND REPORTING OF CHILD ABUSE, SO AS TO
EXPAND PERSONS REQUIRED TO REPORT, TO EXPAND
MEDICAL EXAMINATIONS AND TESTS AUTHORIZED TO
PROVIDE IMMUNITY TO EMPLOYEES OF THE DEPARTMENT OF
SOCIAL SERVICES IN PERFORMING CHILD PROTECTIVE
SERVICES IN GOOD FAITH; TO AMEND SECTION 20-7-610, AS
AMENDED, RELATING TO EMERGENCY PROTECTIVE
CUSTODY, SO AS TO REVISE THESE PROCEDURES AND TO
INCLUDE EMERGENCY PHYSICAL CUSTODY; TO ADD SECTION
20-7-612 SO AS TO ESTABLISH PROCEDURES FOR LAW
ENFORCEMENT TO ASSIST THE DEPARTMENT IN TAKING A
CHILD INTO EMERGENCY CUSTODY; TO ADD SECTION 20-7-616
SO AS TO REQUIRE AN AGENCY HAVING SEX OFFENDER
REGISTRIES TO RELEASE INFORMATION TO THE DEPARTMENT
WHEN AN ALLEGEDLY ABUSED CHILD IS RESIDING IN AN
OFFENDER'S HOME; TO ADD SECTION 20-7-618 SO AS TO
AUTHORIZE A PHYSICIAN OR HOSPITAL TO DETAIN A CHILD
IN EMERGENCY PHYSICAL CUSTODY; TO AMEND SUBARTICLE
7, ARTICLE 7, CHAPTER 7, TITLE 20, AS AMENDED, RELATING
TO INTERVENTION BY CHILD WELFARE AGENCIES, SO AS TO
AUTHORIZE DEVELOPMENT OF TEMPORARY CRISIS
PLACEMENT HOMES, TO AUTHORIZE THE DEPARTMENT TO
CONTRACT FOR THE DELIVERY OF PROTECTIVE SERVICES, TO
REVISE INTERVENTION, INVESTIGATION, REPORTING, AND
RECORDKEEPING AND RELEASING PROCEDURES; TO AMEND
SECTION 20-7-736, AS AMENDED, RELATING TO REMOVAL
PROCEEDINGS AND PROCEDURES, SO AS TO REVISE AND
CLARIFY THESE PROCEEDINGS AND PROCEDURES AND TO
ESTABLISH A PRESUMPTION THAT A NEWBORN IS ABUSED IF
CERTAIN EVIDENCE OF SUBSTANCE ABUSE IS PRESENT; TO
AMEND SECTION 20-7-738, AS AMENDED, RELATING TO
PROCEDURES TO PROVIDE SERVICES IN NONREMOVAL CASES,
SO AS TO REVISE THESE PROCEDURES; TO AMEND SECTION
20-7-762, AS AMENDED, RELATING TO COURT APPROVAL AND
REVIEW OF TREATMENT PLANS, SO AS TO REQUIRE THE
INCLUSION OF TREATMENT GOALS; TO AMEND SECTION
20-7-764, AS AMENDED, RELATING TO COURT APPROVAL OF
PLACEMENT PLAN FOLLOWING REMOVAL, SO AS TO REVISE
CONTENTS OF THE PLAN AND TO PROVIDE FOR AMENDMENT
OF OBJECTIONS TO THE PLAN; TO ADD SECTION 20-7-765 SO
AS TO SPECIFY TREATMENT PLAN CONDITIONS WHEN
SUBSTANCE ABUSE IS INCLUDED IN GROUNDS FOR REMOVAL;
TO AMEND SECTION 20-7-766, AS AMENDED, RELATING TO
COURT REVIEW OF CHILDREN REMOVED FROM THEIR HOMES,
SO AS TO REQUIRE THE COURT TO REVIEW THE
PERMANENCY PLAN AND TO REVISE THE STANDARDS AND
CONTENT OF THE REVIEW; TO AMEND SUBARTICLE 3,
ARTICLE 11, CHAPTER 7, TITLE 20, RELATING TO
TERMINATION OF PARENTAL RIGHTS, SO AS TO REVISE WHO
IS ENTITLED TO LEGAL REPRESENTATION AND TO CLARIFY
THE DISPOSITIONAL POWERS OF THE COURT; TO ADD
SECTION 20-7-2377 SO AS TO AUTHORIZE THE FOSTER CARE
REVIEW BOARD TO PARTICIPATE IN JUDICIAL REVIEWS OF
ABUSED AND NEGLECTED CHILDREN; TO AMEND SECTION
20-7-2379, AS AMENDED, RELATING TO THE FOSTER CARE
REVIEW BOARD, SO AS TO DELETE OBSOLETE PROVISIONS
AND INCLUDE THAT REGULATIONS SHALL INCLUDE
PARTICIPATION IN JUDICIAL REVIEWS; TO AMEND SECTION
20-7-50, AS AMENDED, RELATING TO UNLAWFUL NEGLECT, SO
AS TO REVISE THE STANDARD FOR UNLAWFUL NEGLECT; TO
AMEND SECTION 20-7-70, RELATING TO CRUELTY TO
CHILDREN, SO AS TO INCREASE THE PENALTY FROM ONE
HUNDRED TO TWO HUNDRED DOLLARS AND TO DELETE
OBSOLETE REFERENCES; TO ADD SECTION 20-7-95 SO AS TO
ESTABLISH CRIMINAL IMMUNITY FOR PARENTS OF
INCORRIGIBLE SEVENTEEN-YEAR-OLDS; TO AMEND
SUBARTICLE 4, AS AMENDED, ARTICLE 3, CHAPTER 7, TITLE
20, RELATING TO THE GUARDIAN AD LITEM PROGRAM, SO AS
TO ESTABLISH CRITERIA FOR THE DISCLOSURE OF
INFORMATION AND TO REVISE INTERNAL REFERENCES; AND
TO REPEAL SECTION 20-7-60, RELATING TO ILL-TREATING
CHILDREN; TO REPEAL SECTION 20-7-80, RELATING TO
ABANDONMENT OF CHILDREN; AND TO REPEAL SECTION
20-7-128, RELATING TO THE GUARDIAN AD LITEM PROGRAM
ADVISORY BOARD.
Be it enacted by the General Assembly of the State of South
Carolina:
Act citation
SECTION 1. This act may be cited as the "Child Protection
Reform Act of 1996".
Legal counsel and guardians ad litem required in child abuse
proceedings
SECTION 2. Section 20-7-110 of the 1976 Code, as last amended by
Act 164 of 1993, is further amended to read:
"Section 20-7-110. In all child abuse and neglect
proceedings:
(1) Children must be appointed legal counsel and a guardian ad
litem by the family court. Counsel for the child in no case may be the
same as counsel for the parent, guardian, or other person subject to the
proceeding or any governmental or social agency involved in the
proceeding.
(2) Parents, guardians, or other persons subject to any judicial
proceeding are entitled to legal counsel. Those persons unable to afford
legal representation must be appointed counsel by the family court.
(3) The interests of the State and the Department of Social Services
must be represented by the legal representatives of the Department of
Social Services in any judicial proceeding."
Policy and purpose; definitions
SECTION 3. Subarticle 1, Article 7, Chapter 7, Title 20 of the 1976
Code, as last amended by Act 494 of 1994, is further amended to
read:
"Subarticle 1
General Provisions
Section 20-7-480. (A) Any intervention by the State into family life
on behalf of children must be guided by law, by strong philosophical
underpinnings, and by sound professional standards for practice. Child
Welfare Services must be based on these principles:
(1) Parents have the primary responsibility for and are the primary
resource for their children.
(2) Children should have the opportunity to grow up in a family unit
if at all possible.
(3) State and community agencies have a responsibility to implement
prevention programs aimed at identifying high risk families and to
provide supportive intervention to reduce occurrence of maltreatment.
(4) Services for families should be accessible and designed to
encourage and enable families to adequately deal with their problems
within their own family system.
(5) All child welfare intervention by the State has as its primary goal
the welfare and safety of the child.
(6) Child welfare intervention into a family's life should be structured
so as to avoid a child's entry into the protective service and foster care
systems if at all possible.
(7) The state's child welfare system must be designed to be
child-centered, family-focused, community-based, and culturally
competent in its prevention and protection efforts.
(8) Neighborhoods and communities are the primary source of
opportunities and supports for families and have a primary responsibility
in assuring the safety and vitality of their members.
(9) The Department of Social Services shall collaborate with the
community to identify, support, and treat families in a nonthreatening
manner, in both investigative and family assessment situations.
(10) A family assessment approach, stressing the safety of the child,
building on the strengths of the family, and identifying and treating the
family's needs is the appropriate approach for cases not requiring law
enforcement involvement or the removal of the child.
(11) Only a comparatively small percentage of current child abuse and
neglect reports are criminal in nature or will result in the removal of the
child or alleged perpetrator.
(12) Should removal of a child become necessary, the state's foster
care system must be prepared to provide timely and appropriate
placements for children with relatives or in licensed foster care settings
and to establish a plan which reflects a commitment by the State to
achieving permanency for the child within reasonable timelines.
(13) The Department of Social Services staff who investigates serious
child abuse and neglect reports with law enforcement must be competent
in law enforcement procedures, fact finding, evidence gathering, and
effective social intervention and assessment.
(14) Services should be identified quickly and should build on the
strengths and resources of families and communities.
(B) It is the purpose of this article to:
(1) acknowledge the different intervention needs of families;
(2) establish an effective system of services throughout the State to
safeguard the well-being and development of endangered children and to
preserve and stabilize family life, whenever appropriate;
(3) ensure permanency on a timely basis for children when removal
from their homes is necessary;
(4) establish fair and equitable procedures, compatible with due
process of law to intervene in family life with due regard to the safety
and welfare of all family members; and
(5) establish an effective system of protection of children from
injury and harm while living in public and private residential agencies
and institutions meant to serve them.
Section 20-7-490. When used in this article and unless the specific
context indicates otherwise:
(1) `Child' means a person under the age of eighteen.
(2) `Abused or neglected child' means a child whose death results
from or whose physical or mental health or welfare is harmed or
threatened with harm, as defined by items (3) and (4), by the acts or
omissions of the child's parent, guardian, or other person responsible for
his welfare.
(3) `Harm' to a child's health or welfare can occur when the parent,
guardian, or other person responsible for the child's welfare:
(a) inflicts or allows to be inflicted upon the child physical or
mental injury, including injuries sustained as a result of excessive
corporal punishment, but excluding corporal punishment or physical
discipline which:
(i) is administered by a parent or person in loco parentis;
(ii) is perpetrated for the sole purpose of restraining or
correcting the child;
(iii) is reasonable in manner and moderate in degree;
(iv) has not brought about permanent or lasting damage to the
child;
(v) is not reckless or grossly negligent behavior by the
parents.
(b) commits or allows to be committed against the child a sexual
offense as defined by the laws of this State;
(c) fails to supply the child with adequate food, clothing, shelter,
education as required under Article 1 of Chapter 65 of Title 59,
supervision appropriate to the child's age and development, or health care
though financially able to do so or offered financial or other reasonable
means to do so and the failure to do so has caused physical or mental
injury or presents a significant threat of injury as defined in this section.
For the purpose of this chapter `adequate health care' includes any
medical or nonmedical remedial health care permitted or authorized under
state law.
(d) abandons the child;
(e) encourages, condones, or approves the commission of
delinquent acts by the child and the commission of the acts are shown to
be the result of the encouragement, condonation, or approval.
(4) `Threatened harm' means a substantial risk of harm, as defined by
item (3).
(5) `A person responsible for a child's welfare' includes the child's
parent, guardian, foster parent, an operator, employee, or caregiver, as
defined by Section 20-7-2700, of a public or private residential home,
institution, agency, or child day care facility or an adult who has assumed
the role or responsibility of a parent or guardian for the child, but who
does not necessarily have legal custody of the child. A person whose
only role is as a caregiver and whose contact is only incidental with a
child, such as a babysitter or a person who has only incidental contact but
may not be a caretaker, has not assumed the role or responsibility of a
parent or guardian. An investigation pursuant to Section 20-7-650 must
be initiated when the information contained in a report otherwise
sufficient under this section does not establish whether the person has
assumed the role or responsibility of a parent or guardian for the
child.
(6) `Physical injury' means death or permanent or temporary
disfigurement or impairment of any bodily organ or function.
(7) `Mental injury' means an injury to the intellectual or
psychological capacity of a child as evidenced by a discernible and
substantial impairment of the child's ability to function when the
existence of that impairment is supported by the opinion of a mental
health professional or medical professional.
(8) `Institutional child abuse and neglect' means situations of known
or suspected child abuse or neglect where the person responsible for the
child's welfare is the employee of a public or private residential home,
institution, or agency.
(9) `Protective services unit' means the unit established within the
Department of Social Services which has prime responsibility for state
efforts to strengthen and improve the prevention, identification, and
treatment of child abuse and neglect.
(10) `Subject of the report' means a person who is alleged or
determined to have abused or neglected the child, who is mentioned by
name in a report or finding.
(11) `Suspected report' means all initial reports of child abuse or
neglect received pursuant to this article.
(12) `Unfounded report' means a report made pursuant to this article
for which there is not a preponderance of evidence to believe that the
child is abused or neglected. For the purposes of this article, it is
presumed that all reports are unfounded unless the department determines
otherwise.
(13) `Indicated report' means a report of child abuse or neglect
supported by facts which warrant a finding by a preponderance of
evidence that abuse or neglect is more likely than not to have
occurred.
(14) `Probable cause' means facts and circumstances based upon
accurate and reliable information, including hearsay, that would justify a
reasonable person to believe that a child subject to a report under this
article is abused or neglected.
(15) `Preponderance of evidence' means evidence which, when fairly
considered, is more convincing as to its truth than the evidence in
opposition.
(16) `Department' means the Department of Social Services.
(17) `Child protective investigation' means an inquiry conducted by
the department in response to a report of child abuse or neglect made
pursuant to this article.
(18) `Child protective services' means assistance provided by the
department as a result of indicated reports or affirmative determinations
of child abuse or neglect, including assistance ordered by the family court
or consented to by the family. The objectives of child protective services
are to:
(a) protect the child's safety and welfare; and
(b) maintain the child within the family unless the safety of the
child requires placement outside the home.
(19) `Affirmative determination' means a finding by a preponderance
of evidence that the child was abused or neglected by the person who is
alleged or determined to have abused or neglected the child and who is
mentioned by name in a report or finding. This finding may be made
only by:
(a) the court;
(b) the Department of Social Services upon a final agency decision
in its appeals process; or
(c) waiver by the subject of the report of his right to appeal. If an
affirmative determination is made by the court after an affirmative
determination is made by the Department of Social Services, the court's
finding must be the affirmative determination.
(20) `Court' means the family court.
(21) `Abandonment of a child' means a parent or guardian wilfully
deserts a child or wilfully surrenders physical possession of a child
without making adequate arrangements for the child's needs or the
continuing care of the child.
(22) `Guardianship of a child' means the duty and authority vested in a
person by the family court to make certain decisions regarding a child,
including:
(a) consent to a marriage, enlistment in the armed forces, and
medical and surgical treatment;
(b) represent a child in legal actions and to make other decisions of
substantial legal significance affecting a child; and
(c) rights and responsibilities of legal custody when legal custody
has not been vested by the court in another person, agency, or
institution.
(23) `Legal custody' means the right to the physical custody, care, and
control of a child; the right to determine where the child shall live; the
right and duty to provide protection, food, clothing, shelter, ordinary
medical care, education, supervision, and discipline for a child and in an
emergency to authorize surgery or other extraordinary care. The court
may in its order place other rights and duties with the legal custodian.
Unless otherwise provided by court order, the parent or guardian retains
the right to make decisions of substantial legal significance affecting the
child, including consent to a marriage, enlistment in the armed forces,
and major nonemergency medical and surgical treatment; the obligation
to provide financial support or other funds for the care of the child; and
other residual rights or obligations as may be provided by order of the
court.
(24) `Party in interest' includes the child, the child's attorney and
guardian ad litem, the natural parent, an individual with physical or legal
custody of the child, the foster parent, and the local foster care review
board.
(25) `Physical custody' means the lawful, actual possession and control
of a child.
(26) `Emergency physical custody' means the right to physical custody
of a child for a temporary period of no more than twenty-four hours to
protect the child from imminent danger.
(27) `Emergency protective custody' means the right to exercise
temporary physical and legal custody of a child to protect the child from
imminent danger. Emergency protective custody may be taken only by a
law enforcement officer pursuant to this article."
Child abuse reporting requirements; immunity; privileged
communications
SECTION 4. Subarticle 3, Article 7, Chapter 7, Title 20 of the 1976
Code, as last amended by Section 88I, Act 164 of 1993, is further
amended to read:
"Subarticle 3
Identification
Section 20-7-500. A person seeking assistance in meeting child care
responsibilities may use the services and facilities established by this
article, including the single statewide telephone number and local child
protective services where available. These persons must be referred to
appropriate community resources or agencies, notwithstanding whether
the problem presented involves child abuse or neglect.
Section 20-7-505. The law enforcement officer upon receipt of a
report of domestic violence may report this information to the
Department of Social Services. The department may treat the case as
suspected report of abuse and may investigate the case as in other
allegations of abuse in order to determine if the child has been
harmed.
Section 20-7-510. (A) A physician, nurse, dentist, optometrist,
medical examiner or coroner or an employee of a county medical
examiner's or coroner's office or any other medical, emergency medical
services, mental health, or allied health professional or Christian Science
practitioner, religious healer, school teacher, counselor, principal, assistant
principal, social or public assistance worker, substance abuse treatment
staff, or child care worker in any day care center or foster care facility,
police or law enforcement officer, undertaker, funeral home director or
employee of a funeral home or persons responsible for processing of
films or any judge shall report in accordance with this section when in
the person's professional capacity the person has received information
which gives the person reason to believe that a child's physical or mental
health or welfare has been or may be adversely affected by abuse or
neglect.
(B) Except as provided in subsection (A), any other person who has
reason to believe that a child's physical or mental health or welfare has
been or may be adversely affected by abuse and neglect may report in
accordance with this section.
(C) Reports of child abuse or neglect may be made orally by
telephone or otherwise to the county department of social services or to a
law enforcement agency in the county where the child resides or is found.
Where reports are made pursuant to this section to a law
enforcement agency, the law enforcement agency shall notify the county
department of social services of the law enforcement's response to the
report at the earliest possible time.
Where a county or contiguous counties have established
multicounty child protective services, pursuant to Section 20-7-650, the
county department of social services immediately shall transfer reports
pursuant to this section to the service.
Section 20-7-520. A person required under Section 20-7-510(A) to
report cases of suspected child abuse or neglect, including workers of the
department, who has reason to believe a child has died as the result of
child abuse or neglect, shall report this information to the appropriate
medical examiner or coroner. Any other person who has reason to
believe that a child has died as a result of child abuse or neglect may
report this information to the appropriate medical examiner or coroner.
The medical examiner or coroner shall accept the report for investigation
and shall report his findings to the appropriate law enforcement agency,
circuit solicitor's office, the county department of social services and, if
the institution making a report is a hospital, to the hospital.
Section 20-7-530. A person required to report under Section
20-7-510 may take, or cause to be taken, color photographs of the areas
of trauma visible on a child who is the subject of a report and, if
medically indicated, a physician may cause to be performed a radiological
examination or other medical examinations or tests of the child without
the consent of the child's parents or guardians. All photographs,
negatives, and reports and copies of them must be sent to the department
at the time a report pursuant to Section 20-7-510 is made, or as soon
after the report is made as possible.
Section 20-7-540. A person required or permitted to report pursuant
to this article or who participates in judicial proceedings resulting from
the report, acting in good faith, is immune from civil and criminal
liability which might otherwise result by reason of these actions. In all
such civil or criminal proceedings good faith is rebuttably presumed.
Section 20-7-545. An employee, volunteer, or official of the
Department of Social Services required or authorized to perform child
protective or child welfare-related functions is immune from civil or
criminal liability which might otherwise result by reason of acts or
omissions within the scope of the official duties of the employee,
volunteer, or official, so long as the employee, volunteer, or official acted
in good faith and was not reckless, wilful, wanton, or grossly negligent.
In all such civil or criminal proceedings good faith is rebuttably
presumed. This grant of immunity is cumulative to and does not replace
any other immunity provided under the South Carolina Tort Claims
Act.
Section 20-7-550. The privileged quality of communication between
husband and wife and any professional person and his patient or client,
except that between attorney and client or priest and penitent, is
abrogated and does not constitute grounds for failure to report or the
exclusion of evidence in a civil protective proceeding resulting from a
report pursuant to this article.
Section 20-7-560. A person required to report a case of child abuse
or neglect or a person required to perform any other function under this
article who knowingly fails to do so, or a person who threatens or
attempts to intimidate a witness is guilty of a misdemeanor and, upon
conviction, must be fined not more than five hundred dollars or
imprisoned not more than six months, or both."
Emergency physical or protective custody; placement; investigation;
court orders
SECTION 5. Section 20-7-610 of the 1976 Code, as last amended by
Act 333 of 1994, is further amended to read:
"Section 20-7-610. (A) A law enforcement officer may take
emergency physical custody or emergency protective custody of a child
without the consent of the child's parents, guardians, or others exercising
temporary or permanent control over the child if:
(1) The officer has probable cause to believe that by reason of
abuse or neglect the child's life, health, or physical safety would be in
substantial and imminent danger if the child were not taken into
emergency physical custody or emergency protective custody and there is
not time to apply for a court order pursuant to Section 20-7-736;
(2) The child's parent, parents, or guardian has been arrested or
the child has become lost accidentally and as a result the child's welfare
is threatened due to loss of adult protection and supervision; and
(a) in the circumstances of arrest, the parent, parents, or
guardian does not consent in writing to another person assuming physical
custody of the child;
(b) in the circumstances of a lost child, a search by law
enforcement has not located the parent, parents, or guardian.
It is presumed that the child was taken into emergency physical
custody, unless the officer clearly communicates to the department that
the officer intended to take full emergency protective custody, involving
both legal and physical custody, rather than having the decision
concerning legal custody made after a preliminary investigation as
provided in subsections (D) through (G).
(B) If the child is in need of emergency medical care at the time the
child is taken into emergency physical custody or emergency protective
custody, the officer shall transport the child to an appropriate health care
facility. Emergency medical care may be provided to the child without
consent, as provided in Section 20-7-290. The parent or guardian is
responsible for the cost of any emergency medical care that is provided
to the child. However, the parent or guardian is not responsible for the
cost of medical examinations performed at the request of law
enforcement or the department solely for the purpose of assessing
whether the child has been abused or neglected unless it is determined
that the child has been harmed as defined in this article.
If the child is not in need of emergency medical care, the officer or the
department shall transport the child to a place agreed upon by the
department and law enforcement, and the department within two hours
shall assume physical control of the child and shall place the child in a
licensed foster home or shelter within a reasonable period of time. In no
case may the child be placed in a jail or other secure facility or a facility
for the detention of criminal or juvenile offenders. While the child is in
its custody, the department shall provide for the needs of the child and
assure that a child of school age who is physically able to do so
continues attending school.
(C) When an officer takes a child into emergency physical custody or
emergency protective custody under this section the officer immediately
shall notify the department. The department shall notify the parent,
guardian, or other person exercising temporary or permanent control over
the child as early as reasonably possible of the location of the child
unless there are compelling reasons for believing that disclosure of this
information would be contrary to the best interests of the child.
(D) The department shall conduct within twenty-four hours after the
child is taken into emergency physical custody a preliminary investigation
to determine whether grounds for assuming legal custody of the child
exist and whether reasonable means exist for avoiding removal of the
child from the home of the parent or guardian or for placement of the
child with a relative and means for minimizing the emotional impact on
the child of separation from the child's home and family. During this
time the department, if possible, shall convene, a meeting with the child's
parents or guardian, extended family, and other relevant persons to
discuss the family's problems that led to intervention and possible
corrective actions, including placement of the child.
(E) Before agreeing to or acquiescing in a corrective action that
involves placement of the child with a relative or other person or making
an interim placement with a relative while retaining custody of the child
or as soon as possible after agreeing to or acquiescing in a corrective
action, the department shall secure from the relative or other person and
other adults in the home an affidavit attesting to information necessary to
determine whether a criminal history or history of child abuse or neglect
exists and whether this history indicates there is a significant risk that the
child would be threatened with abuse or neglect in the home of the
relative or other person. As soon as possible, the department shall
confirm the information supplied in the affidavit by checking the Central
Registry of Child Abuse and Neglect, other relevant department records,
county sex offender registries, and records for the preceding five years of
law enforcement agencies in the jurisdiction in which the relative or other
person resides and, to the extent reasonably possible, jurisdictions in
which the relative or other person has resided during that period. The
department must not agree to or acquiesce in a placement if the affidavit
or these records reveal information indicating there is a significant risk
that the child would be threatened with abuse or neglect in the home of
the relative or other person. The relative or other person must consent to
a check of the above records by the department.
(F) If the department determines after the preliminary investigation
that there is probable cause to believe that by reason of abuse or neglect
the child's life, health, or physical safety is in imminent and substantial
danger, the department may assume legal custody of the child without the
consent of the child's parent, guardian, or custodian. The department
shall make every reasonable effort to notify the child's parent, guardian,
or custodian of the location of the child and temporary arrangements for
visitation unless there are compelling reasons why visitation or notice of
the location of the child would be contrary to the best interests of the
child. The notification must be in writing and shall include notice of the
right to a hearing and right to counsel pursuant to this article. Nothing in
this subsection authorizes the department to physically remove a child
from the care of the child's parent or guardian without an order of the
court. The department may exercise the authority to assume legal
custody only after a law enforcement officer has taken emergency
physical custody of the child and the department has conducted a
preliminary investigation pursuant to this section.
(G) If the department concludes after the preliminary investigation
that the child should be returned to the child's parent, guardian, or
custodian, the department shall consult with the law enforcement officer
who took emergency physical custody of the child. If the officer objects
to the return of the child, the department must assume legal custody of
the child until a probable cause hearing can be held.
(H) If a law enforcement officer takes a child into emergency
protective custody, the department shall conduct a preliminary
investigation as provided in this section within seventy-two hours after
the child was taken into emergency protective custody and shall make
recommendations to the family court at the probable cause hearing or
take other appropriate action as provided in this chapter.
(I) The department, upon assuming legal custody of the child or upon
notice from law enforcement that a child has been taken into emergency
protective custody, shall begin a child protective investigation, including
immediate attention to the protection of other children in the home, or
other setting where the child was found. The department shall initiate a
removal proceeding in the appropriate family court pursuant to
Section 20-7-736 on or before the next working day after initiating the
investigation concerning a child taken into emergency protective custody.
If a noncustodial parent is not named as a party, the department shall
exercise every reasonable effort to promptly notify the noncustodial
parent that a removal proceeding has been initiated and of the date and
time of any hearings scheduled pursuant to this section. Upon a
determination by the department before the probable cause hearing that
there is not a preponderance of evidence that child abuse or neglect
occurred, the department may place physical custody of the child with the
parent, parents, guardian, immediate family member, or relative, with the
department retaining legal custody pending the probable cause hearing.
When the facts and circumstances of the report clearly indicate that no
abuse or neglect occurred, the report promptly must be determined to be
unfounded, and the department shall exercise reasonable efforts to
expedite the placement of the child with the parent, parents, guardian,
immediate family member, or relative.
(J) If the child is returned to the child's parent, guardian, or
custodian following the preliminary investigation, a probable cause
hearing must be held if requested by the child's parent, guardian, or
custodian or the department or the law enforcement agency that took
emergency physical custody of the child. The request must be made in
writing to the court within ten days after the child is returned. A
probable cause hearing pursuant to subsection (K) must be scheduled
within seven days of the request to determine whether there was probable
cause to take emergency physical custody of the child.
(K) The family court shall schedule a probable cause hearing to be
held within seventy-two hours of the time the child was taken into
emergency protective custody or within seventy-two hours of the time the
child was taken into emergency physical custody if legal custody
subsequently was assumed by the department. If the third day falls upon
a Saturday, Sunday, or holiday, the probable cause hearing must be held
no later than the next working day. If there is no term of court in the
county when the probable cause hearing must be held, the hearing must
be held in another county in the circuit. If there is no term of family
court in another county in the circuit, the probable cause hearing may be
heard in another court in an adjoining circuit. The probable cause
hearing may be conducted by videoconference at the discretion of the
judge. At the probable cause hearing, the family court shall undertake to
fulfill the requirements of Section 20-7-110 and shall determine whether
there was and remains probable cause for the law enforcement officer to
take emergency physical custody and for the department to assume legal
custody of the child. If emergency protective custody of the child was
taken, the family court shall determine whether there was and remains
probable cause for the law enforcement officer to take emergency
protective custody of the child. At the probable cause hearing, the
respondents may submit affidavits as to facts which are alleged to form
the basis of the removal and to cross-examine the department's witnesses
as to whether there existed probable cause to effect emergency removal.
The hearing to determine whether removal of custody is needed, pursuant
to Section 20-7-736, must be held within thirty-five days of the date of
receipt of the removal petition.
(L) An order issued as a result of the probable cause hearing held
pursuant to subsection (K) concerning a child of whom the department
has assumed legal custody shall contain a finding by the court of whether
reasonable efforts were made by the department to prevent removal of the
child and a finding of whether continuation of the child in the home
would be contrary to the welfare of the child. The order shall state:
(1) the services made available to the family before the department
assumed legal custody of the child and how they related to the needs of
the family;
(2) the efforts of the department to provide services to the family
before assuming legal custody of the child;
(3) why the efforts to provide services did not eliminate the need
for the department to assume legal custody;
(4) whether a meeting was convened as provided in subsection (D),
the persons present, and the outcome of the meeting or, if no meeting
was held, the reason for not holding a meeting;
(5) what efforts were made to place the child with a relative known
to the child or in another familiar environment;
(6) whether the efforts to eliminate the need for the department to
assume legal custody were reasonable including, but not limited to,
whether services were reasonably available and timely, reasonably
adequate to address the needs of the family, reasonably adequate to
protect the child and realistic under the circumstances, and whether
efforts to place the child in a familiar environment were reasonable.
An order issued as a result of the probable cause hearing held pursuant
to subsection (K) concerning a child taken into emergency protective
custody also shall contain the findings required in this subsection unless
the court finds that the department's first contact with the child occurred
under such circumstances that reasonable services would not have
allowed the child to remain safely in the home. If the court finds that
reasonable services would not have allowed the child to remain safely in
the home, the court shall find that removal of the child without services
or without further services was reasonable.
(M) If the court orders the child to remain in the legal custody of the
department at the probable cause hearing, the family court may order
expedited placement of the child with a relative of the first or second
degree. The court shall require the department to check the names of all
adults in the home against the Central Registry of Child Abuse and
Neglect, other relevant records of the department, county sex abuse
registers, and records for the preceding five years of law enforcement
agencies in the jurisdiction in which the person resides and, to the extent
reasonably possible, jurisdictions in which the person has resided during
that period. The court may hold open the record of the probable cause
hearing for twenty-four hours to receive the reports and based on these
reports and other information introduced at the probable cause hearing,
the court may order expedited placement of the child in the home of the
relative. Nothing in this subsection precludes the department from
requesting or the court from ordering pursuant to the department's
request either a full study of the relative's home before placement or the
licensing or approval of the relative's home before placement.
(N) The family court may order ex parte that a child be taken into
emergency physical custody without the consent of parents, guardians, or
others exercising temporary or permanent control over the child if:
(1) The family court judge determines there is probable cause to
believe that by reason of abuse or neglect there exists an imminent and
substantial danger to the child's life, health, or physical safety; and
(2) Parents, guardians, or others exercising temporary or permanent
control over the child are unavailable or do not consent to the child's
removal from their custody.
(O) If the court issues such an order the court shall schedule a
hearing, pursuant to the provisions of Section 20-7-736 and pursuant to
the requirements of subsection (K), within seventy-two hours after the
child was taken into emergency physical custody. If the third day falls
upon a Saturday, Sunday, or holiday, the hearing must be held no later
than the next working day.
(P) The department and local law enforcement agencies shall develop
written protocols to address issues related to emergency physical custody
and emergency protective custody. The protocols shall cover at a
minimum information exchange between the department and local law
enforcement agencies, consultation on decisions to assume legal custody,
and the transfer of responsibility over the child, including mechanisms
and assurances for the department to arrange expeditious placement of the
child."
Removal authority of law enforcement officers; department access to
sex offender registry; medical professional detaining child
SECTION 6. The 1976 Code is amended by adding:
"Section 20-7-612. A law enforcement officer investigating a
case of suspected child abuse or neglect or responding to a request for
assistance by the department as it investigates a case of suspected child
abuse or neglect has authority to take emergency physical custody or
emergency protective custody of the child pursuant to Section 20-7-610
in all counties and municipalities.
Immediately upon taking emergency physical custody or emergency
protective custody, the law enforcement officer shall notify the local
office of the department responsible to the county in which the activity
under investigation occurred.
The department shall designate by policy and procedure the local
department office responsible for procedures required by Section
20-7-610 when a child resides in a county other than the one in which
the activity under investigation occurred. The probable cause hearing
required by Section 20-7-610 may be held in the county of the child's
residence or the county of the law enforcement officer's jurisdiction.
Section 20-7-616. Upon request of the department, an agency having
custody of state or local law enforcement records or county sex offender
registers shall provide the department with access to records or a
summary of records concerning an adult residing in the home of a child
who is the subject of a report of suspected child abuse or neglect or in a
home in which it is proposed that the child be placed.
Section 20-7-618. (A) A physician or hospital to which a child has
been brought for treatment may detain the child in emergency physical
custody for up to twenty-four hours without the consent of the person
responsible for the child's welfare if the physician or hospital:
(1) has reason to believe that the child has been abused or
neglected;
(2) has made a report to a law enforcement agency and the
department pursuant to Section 20-7-510, stating the time the physician
notified the agency or department that the child was being detained until
a law enforcement officer could arrive to determine whether the officer
should take emergency physical custody of the child pursuant to Section
20-7-610; and
(3) has reason to believe that release of the child to the child's
parent, guardian, custodian, or caretaker presents an imminent danger to
the child's life, health, or physical safety. A hospital must designate a
qualified person or persons within the hospital who shall have sole
authority to detain a child on behalf of the hospital.
(B) A physician or hospital that detains a child in good faith as
provided in this section is immune from civil or criminal liability for
detaining the child."
Intervention by child welfare agencies
SECTION 7. Subarticle 7, Article 7, Chapter 7, Title 20 of the 1976
Code, as last amended by Act 95 of 1995, is further amended to read:
"Subarticle 7
Intervention By Child Welfare Agencies
Section 20-7-635. (A) The department is authorized to develop a
network of homes and facilities to use for temporary crisis placements for
children.
(B) Temporary crisis placements may be made with licensed child
welfare agencies including foster homes and residential group facilities.
The department also may use volunteers who are screened by the
department for the sole purpose of these placements. The screening of
volunteer crisis homes shall include Central Registry of Child Abuse and
Neglect and criminal history records checks in accordance with Section
20-7-1642. The department shall develop criteria for screening volunteer
crisis homes through promulgation of regulations in accordance with the
Administrative Procedures Act.
(C) Children in temporary crisis placements are not in the custody of
the department and must not be considered to be in foster care. No
placement of a child in a temporary crisis home or facility may occur
unless it is agreed to by the child's parent, guardian, or custodian and the
department. Temporary crisis placements may last no longer than
seventy-two hours.
Section 20-7-640. (A) The Department of Social Services may
maintain a toll-free number available to persons throughout the State for
the referral of family-related problems, including:
(1) The reporting of known or suspected cases of child abuse or
neglect.
(2) Other problems of a nature which may affect the stability of
family life.
This telephone service shall operate continuously. Upon receipt of a
call involving suspected abuse or neglect, the Department of Social
Services shall transmit the full contents of the report to the appropriate
county department office. Immediately upon transmitting the report the
department shall destroy the contents of the suspected report. Upon
receipt of a call involving other problems of a nature which may affect
the stability of family life, the department shall refer the call to the
appropriate county department office or other service agency where
appropriate.
(B) The department shall have within it a separate organizational unit
administered within the department with qualified staff and resources
sufficient to fulfill the purposes and functions assigned to it by this
article.
(C) The department's responsibilities shall include, but are not limited
to:
(1) assigning and monitoring initial child protection responsibility
through periodic review of services offered throughout the State;
(2) assisting in the diagnosis of child abuse and neglect;
(3) coordinating referrals of known or suspected child abuse and
neglect;
(4) measuring the effectiveness of existing child protection
programs and facilitating research, planning, and program development;
and
(5) establishing and monitoring a statewide Central Registry for
Child Abuse and Neglect.
(D) The county in which the child resides is the legal place of
venue.
(E) The department may promulgate regulations and formulate
policies and methods of administration to carry out effectively child
protective services, activities, and responsibilities.
(F) The department may contract for the delivery of protective
services, family preservation services, foster care services, family
reunification services, adoptions services, and other related services or
programs. The department shall remain responsible for the quality of the
services or programs and shall ensure that each contract contains
provisions requiring the provider to deliver services in accordance with
departmental policies and state and federal law.
Section 20-7-650. (A) It is the purpose of this section to encourage
the voluntary acceptance of any service offered by the department in
connection with child abuse and neglect or another problem of a nature
affecting the stability of family life.
(B) The department must be staffed adequately with persons trained
in the investigation of suspected child abuse and neglect and in the
provision of services to abused and neglected children and their
families.
(C) Within twenty-four hours of the receipt of a report of suspected
child abuse or neglect or within twenty-four hours after the department
has assumed legal custody of a child pursuant to Section 20-7-610(F) or
(G) or within twenty-four hours after being notified that a child has been
taken into emergency protective custody, the department must begin an
appropriate and thorough investigation to determine whether a report of
suspected child abuse or neglect is `indicated' or `unfounded'. The
finding must be made no later than forty-five days from the receipt of
the report. A single extension of no more than fifteen days may be
granted by the director of the department, or the director's designee, for
good cause shown, pursuant to guidelines adopted by the department. If
the investigation cannot be completed because the department is unable to
locate the child or family or for other compelling reason, the
investigation may be reopened at a later date if the child or family is
located or the compelling reason for failure to complete the investigation
is removed. The department shall make a finding within forty-five days
after the investigation is reopened.
(D) The department may file with the family court an affidavit and a
petition to support issuance of a warrant at any time after receipt of a
report. The family court shall issue the warrant if the affidavit and
petition establish probable cause to believe the child is an abused or
neglected child and that the investigation cannot be completed without
issuance of the warrant. The warrant may authorize the department to
interview the child, to inspect the condition of the child, to inspect the
premises where the child may be located or may reside, and to obtain
copies of medical, school, or other records concerning the child.
(E) The department or law enforcement, or both, may interview the
child alleged to have been abused or neglected and any other child in the
household during the investigation. The interviews may be conducted on
school premises, at day care facilities, at the child's home or at other
suitable locations and in the discretion of the department or law
enforcement, or both, may be conducted outside the presence of the
parents. To the extent reasonably possible, the needs and interests of the
child must be accommodated in making arrangements for interviews,
including time, place, method of obtaining the child's presence, and
conduct of the interview. The department or law enforcement, or both,
shall provide notification of the interview to the parents as soon as
reasonably possible during the investigation if notice will not jeopardize
the safety of the child or the course of the investigation. All state, law
enforcement, and community agencies providing child welfare
intervention into a child's life should coordinate their services to
minimize the number of interviews of the child to reduce potential
emotional trauma to the child.
(F) Indicated findings must be based upon a finding of the facts
available to the department that abuse or neglect is supported by a
preponderance of evidence. Indicated findings must include a description
of the services being provided the child and those responsible for the
child's welfare, and all relevant dispositional information.
(G) All reports that are not indicated must be classified as
`unfounded'. Unfounded reports must be further classified as either
Category I, Category II, or Category III.
(1) Category I unfounded reports are those in which abuse and
neglect were ruled out following the investigation. A report falls in this
category if evidence of abuse or neglect as defined in this article was not
found regardless of whether the family had other problems or was in
need of services.
(2) Category II unfounded reports are those in which the evidence
produced by the investigation was inconclusive as to whether abuse or
neglect occurred. A report falls in this category if there is evidence of
abuse or neglect as defined in this article but not enough evidence to
constitute a preponderance of evidence. This category does not include
cases in which the family had other problems that are not within the
definition of abuse and neglect in Section 20-7-490.
(3) Category III unfounded reports are those in which an
investigation could not be completed because the department was unable
to locate the child or family or for some other compelling reason.
(H) Reports of child abuse and neglect must be entered immediately
into the automated statewide Central Registry of Child Abuse and
Neglect. Reports of child abuse and neglect must be entered into the
registry and maintained in the department files in one of four categories:
Suspected, Unfounded, Indicated, or Affirmative Determination. If the
report is categorized as unfounded, the entry must further state the
classification of unfounded report as set forth in subsection (G). All
initial reports must be deemed suspected. Reports of suspected child
abuse and neglect must be maintained for no more than sixty days after
the report was received by the department. On or before the expiration
of that time, reports must be converted into either unfounded or indicated
reports, pursuant to the agency's investigation. Upon an affirmative
determination, indicated reports must be converted to the category of
`affirmative determination'.
(1) Indicated reports must be maintained on the central and local
registries only when accompanied by a description of services being
provided as required under subsection (F).
(2) Affirmative determinations may be maintained by the
department only when accompanied by a description of services being
provided the child and those responsible for his welfare, and relevant
dispositional information.
(I) The names, addresses, and all other identifying characteristics of
persons named in all unfounded reports in Category I maintained in
department files may be used only for auditing and statistical purposes.
All identifying information contained in unfounded reports must be
destroyed immediately after use of the information for auditing and
statistical purposes, and in no case later than one year from the date that
the last report has been determined to be unfounded; however, all
information in the report which is unnecessary for auditing and statistical
purposes must be destroyed immediately upon a determination that the
report is unfounded and the remaining information must be kept strictly
confidential except for auditing and statistical purposes. If an unfounded
report is in Category II or Category III, the report and related information
may be retained by the department in its records for one year for use by
department staff or law enforcement agencies in relation to child abuse
and neglect investigations or proceedings involving the subject of the
report or the same child. The department may not use the information in
records or entries of Category II or III unfounded reports for any purpose
other than child abuse and neglect proceedings involving the same subject
or the same child and auditing and statistical purposes. Notwithstanding
Section 20-7-690 or any other provision of law, no information contained
in unfounded reports may be disclosed under any circumstances, except
that:
(1) the confidentiality and disclosure provisions of this subsection
do not apply to information requested by the Department of Child
Fatalities pursuant to Section 20-7-5930; and the information pertaining
to an unfounded case must be released to the Department of Child
Fatalities when the request is made pursuant to Section 20-7-5930.
(2) information in records concerning Category II or III unfounded
reports may be disclosed to a law enforcement agency investigating a
child abuse or neglect case involving the subject of the report or the same
child.
If an unfounded report is in Category I, only information necessary for
auditing and statistical purposes may be retained in department records or
in the database. As soon as the record has been used for auditing or
statistical purposes, it must be destroyed. All identifying information
must be deleted from the database immediately upon use of the entry for
auditing or statistical purposes. In no case may the record or entry be
kept for more than one year from the date of the report. The department
may not use the information contained in records or entries of Category I
unfounded cases for any purpose other than auditing or statistical
purposes. No information contained in the record or the database
concerning a Category I unfounded case may be disclosed to any person
or entity other than the Department of Child Fatalities pursuant to Section
20-7-5930.
(J) Upon an affirmative determination, the names, addresses, birth
dates, identifying characteristics, and other information of persons named
in indicated reports maintained in agency files must be converted
immediately to the category of `affirmative determination'. The names,
addresses, birth dates, identifying characteristics, and other information
unnecessary for auditing and statistical purposes or persons named in
affirmative determinations of child abuse or neglect maintained in agency
files must be destroyed seven years from the date services are terminated.
Upon a determination that more likely than not a person who is the
subject of a report as defined in Section 20-7-490 did not commit child
abuse or neglect, the name, address, birth date, and other identifying
characteristics of that person must be purged immediately from the
department's files. This provision does not prohibit the department from
maintaining an `indicated report' which contains identifying information
on the child who is the subject of the indicated report and those
responsible for his welfare without identifying a subject of the report or
providing child protective services to the child who is the subject of the
indicated report and those responsible for the child's welfare.
(K) A family court order resulting from proceedings initiated by the
department pursuant to Sections 20-7-738 and 20-7-736 must include a
judicial determination for inclusion in the statewide Central Registry of
Child Abuse and Neglect of whether or not the subject of the report more
likely than not abused or neglected the child.
(L) The department is charged with providing, directing, or
coordinating the appropriate and timely delivery of services to children
found to be abused or neglected and those responsible for their welfare or
others exercising temporary or permanent control over these children.
Services must not be construed to include emergency protective custody
provided for in Section 20-7-736.
(M) In cases where a report has been filed with the Central Registry of
Child Abuse and Neglect, as required by subsection (H), the outcome of
any further proceedings must be entered immediately by the department
into the Central Registry of Child Abuse and Neglect.
(N) The department shall furnish to parents or guardians on a
standardized form the following information as soon as reasonably
possible after commencing the investigation:
(1) the names of the investigators;
(2) the allegations being investigated;
(3) whether the person's name has been recorded by the department
as a suspected perpetrator of abuse or neglect;
(4) the right to inspect department records concerning the
investigation;
(5) statutory and family court remedies available to complete the
investigation and to protect the child if the parent or guardian or subject
of the report indicates a refusal to cooperate;
(6) how information provided by the parent or guardian may be
used.
(7) the possible outcomes of the investigation;
(8) the telephone number and name of a department employee
available to answer questions.
(O) The department shall cooperate with law enforcement agencies
within the area it serves and establish procedures necessary to facilitate
the referral of child protection cases to the department. Where the facts
indicating abuse or neglect also appear to indicate a violation of criminal
law, the department shall notify the appropriate law enforcement agency
of those facts within twenty-four hours of the department's finding for
the purposes of police investigation. The law enforcement agency shall
file a formal incident report at the time it is notified by the department of
the finding. When the intake report is of alleged sexual abuse, the
department must notify the appropriate law enforcement agency within
twenty-four hours of receipt of the report to determine if a joint
investigation is necessary. The law enforcement agency shall file a
formal incident report at the time it is notified of the alleged sexual
abuse. In cases where the agency retains custody of the minor child(ren)
and physical placement of the child(ren) is in the care of relatives the
agency must provide the same services along with financial benefits
provided to other licensed foster care placement and facilities provided
the adult(s) with whom the child is placed meet all qualifications
applicable to foster parents.
(P) The department actively shall seek the cooperation and
involvement of local public and private institutions, groups, and programs
concerned with matters of child protection and welfare within the area it
serves.
(Q) The local office of the department responsible for the county of
the mother's legal residence shall provide, direct, or coordinate the
appropriate and timely delivery of services to children born of
incarcerated mothers where no provision has been made for placement of
the child outside the prison setting. Referral of these cases to the
appropriate local office is the responsibility of the agency or institution
with custody of the mother.
(R) The agency in all instances shall act in accordance with the
policies, procedures, and regulations promulgated and distributed by the
State Department of Social Services pursuant to this chapter.
Section 20-7-652. (A) Upon receipt of a report that a parent or other
person responsible for the welfare of a child will not consent to health
care needed by the child, the department shall investigate pursuant to
Section 20-7-650. Upon a determination by a preponderance of evidence
that adequate health care was withheld for religious reasons or other
reasons reflecting an exercise of judgment by the parent or guardian as to
the best interest of the child, the department may enter a finding that the
child is in need of medical care and that the parent or other person
responsible does not consent to medical care for religious reasons or
other reasons reflecting an exercise of judgment as to the best interests of
the child. The department may not enter a finding by a preponderance of
evidence that the parent or other person responsible for the child has
abused or neglected the child because of the withholding of medical
treatment for religious reasons or for other reasons reflecting an exercise
of judgment as to the best interests of the child. However, the
department may petition the family court for an order finding that
medical care is necessary to prevent death or permanent harm to the
child. Upon a determination that a preponderance of evidence shows that
the child might die or suffer permanent harm, the court may issue its
order authorizing medical treatment without the consent of the parent or
other person responsible for the welfare of the child. The department may
move for emergency relief pursuant to family court rules when necessary
for the health of the child.
(B) Proceedings brought under this section must be considered child
abuse and neglect proceedings only for purposes of appointment of
representation pursuant to Section 20-7-110.
(C) This section does not authorize intervention if the child is under
the care of a physician licensed under Chapter 47, Title 40, who supports
the decision of the parent or guardian as a matter of reasonable medical
judgment.
Section 20-7-655. (A) The Department of Social Services shall
provide a child protective services appeals process for review of indicated
reports not otherwise being brought before the family court for
disposition. The appeals hearing must be scheduled and conducted in
accordance with the department's fair hearing regulations except as to the
date for a final decision.
(B) The state director shall appoint a child protective services appeals
committee for each case decision which is appealed. The committee must
be comprised of three officials or employees of the Department of Social
Services, none of whom may be a resident of or employed by the
department in the county where the case originates or a member of the
investigative unit which investigated the case if the case decision being
appealed involves institutional abuse.
(C) When the department determines that an appeal hearing is needed
pursuant to Section 20-7-690(J), it shall provide notice of the availability
of the hearing to the potential appellant by certified mail. The notice
must inform the person of the right to appeal the case determination and
the date and time of the appeal hearing. The notice must also advise the
appellant of his rights as provided in the department's fair hearing
regulations.
(D) If the department determines that a report of suspected child
abuse or neglect is indicated and the case will not be brought before the
family court for disposition, the department must provide notice of the
case decision to the subject of the report by certified mail. The notice
must inform the subject of the report of the right to appeal the case
decision and that, if he intends to appeal the decision, he must notify the
local child protection agency of his intent in writing within thirty days of
receipt of the notice. If the subject of the report does not notify the
department of his intent to appeal in writing within thirty days of receipt
of the notice, the right to appeal is waived by the subject and the case
decision becomes the affirmative determination.
(E) Within fourteen days after receipt of a notice of intent to appeal,
an interim review of case documentation and the case determination must
be conducted by an appropriate official of the department designated by
the director. The interim review may not delay the scheduling of the
appeals hearing.
(F) The child protective services appeals committee shall determine
whether or not the case determination is supported by a preponderance of
evidence that the subject of the report abused or neglected the child. If
the appeals committee affirms the case determination, the subject has the
right to judicial review in the family court of the jurisdiction in which the
case originated.
(G) Proceedings for judicial review may be instituted by filing a
petition in the family court within thirty days after the final decision of
the department. Copies of the petition must be served upon the
department and all parties of record. Judicial review must be conducted
by the family court in accordance with the standards of review provided
for in Section 1-23-380. The court may enter judgment upon the
pleadings and a certified transcript of the record which must include the
evidence upon which the findings and decisions appealed are based. The
judgment must include a determination of whether by a preponderance of
evidence the subject of the report abused or neglected the child. The
appellant is not entitled to a trial de novo in the family court.
(H) Upon a determination by the interim review, the appeals
committee or the court that there is not a preponderance of evidence that
the subject of the report abused or neglected a child as defined in Section
20-7-490, the name, address, birth date, and other identifying
characteristics of that person must be purged immediately from the
department's files and from the Central Registry of Child Abuse and
Neglect. This subsection does not prohibit the department or the registry
from maintaining an `indicated report' which contains identifying
information on the child who is the subject of the indicated report and
those responsible for the child's welfare without identifying a subject of
the report, and it does not prohibit the department from providing child
protective services to the child who is the subject of an indicated report
and those responsible for the child's welfare.
(I) When the appeals procedure is used for institutional abuse cases
investigated by the Department of Social Services, the investigative unit
of the Department of Social Services must receive all notices and the case
documentation review.
Section 20-7-660. (A) The Department of Social Services Protective
Services shall inform all persons required to report under this article of
the nature, problem, and extent of child abuse and neglect and of their
duties and responsibilities in accordance with this article. The department
also, on a continuing basis, shall conduct training programs for
department staff and appropriate training for persons required to report
under this article.
(B) The department, on a continuing basis, shall inform the public of
the nature, problem, and extent of the child abuse and neglect and of the
remedial and therapeutic services available to children and their families.
The department shall encourage families to seek help consistent with
Section 20-7-500.
(C) The department, on a continuing basis, shall actively publicize the
appropriate telephone numbers to receive reports of suspected child abuse
and neglect, including the twenty-four hour, statewide, toll-free telephone
service and respective numbers of the county department offices.
Section 20-7-670. (A) The Department of Social Services is
authorized to receive and investigate reports of abuse and neglect in
residential institutions and foster homes. In no case does the Department
of Social Services have responsibility for investigating allegations of
abuse and neglect in institutions operated by the Department of Social
Services.
(B) The Department of Social Services is authorized to receive
and investigate reports of abuse and neglect occurring in foster homes
supervised by or recommended for licensing by the department or by
child placing agencies. Responsibility for investigating the department's
foster homes must be assigned to a unit or units not responsible for
selecting or licensing its foster homes.
(C) The department shall promulgate regulations consistent with this
authority. The regulations shall cover at a minimum investigation of
reports, notice to the institutions and sponsoring agencies, and remedial
action.
(D) The State Law Enforcement Division is authorized to receive and
investigate reports of institutional abuse and neglect alleged to have
occurred in any institution or foster home operated by the Department of
Juvenile Justice and any institution or day care facility operated by the
Department of Social Services. The State Law Enforcement Division
may promulgate regulations consistent with this authority to investigate
these reports and take remedial action, if necessary.
(E) The Department of Social Services may initiate proceedings in the
circuit court to enjoin the operations of a foster home, an institution, or a
child placing agency or to require other corrective action if necessary for
the safety of the children. The department shall take whatever steps it
considers necessary to inform potential reporters of abuse and neglect of
its responsibilities under this section.
(F) Notwithstanding the provisions of subsection (A) or any other
provision of this article, the Department of Social Services may not
investigate an allegation of abuse or neglect of a child where the child is
in the custody of or a resident of a public or private health facility,
institution, or agency licensed by the Department of Health and
Environmental Control or operated by the Department of Mental Health.
These allegations of abuse and neglect must be investigated by the
ombudsman of the Office of the Governor pursuant to Article 1, Chapter
35, Title 43, and Chapter 38, Title 43.
Section 20-7-680. (A) The purpose of this section is to establish a
system for the identification of abused and neglected children and those
who are responsible for their welfare, to provide a system for the
coordination of reports concerning abused and neglected children, and to
provide data for determining the incidence and prevalence of child abuse
and neglect in this State.
(B) The Department of Social Services shall maintain a Central
Registry of Child Abuse and Neglect within the department's child
protective services unit in accordance with Section 20-7-650. The
registry shall receive and maintain reports of child abuse and neglect, and
it shall release information to persons and agencies only as authorized by
this article. Reports of child abuse and neglect must be maintained on
the registry in one of four categories: Suspected, Unfounded, Indicated,
or Affirmative Determination. If the report is categorized as unfounded,
the entry must further state the classification of unfounded report as set
forth in Section 20-7-650(G). All initial reports must be deemed
suspected. Reports of suspected child abuse and neglect must be
maintained on the registry for no more than sixty days after the report
was received by the department. On or before the expiration of the sixty
days, a report must be converted into either unfounded or indicated,
pursuant to the department's investigation. Upon an affirmative
determination, indicated reports must be converted to the category of
`affirmative determination'.
Indicated reports and affirmative determinations may be maintained
on the Central Registry of Child Abuse and Neglect only when
accompanied by a description of the services being provided the child and
those responsible for the child's welfare, and all relevant disposition
information.
(C) The Department of Social Services shall furnish annually to the
Governor and the General Assembly a report on the incidence and
prevalence of child abuse and neglect in South Carolina, the effectiveness
of services provided throughout the State to protect children from this
harm, and any other data considered instructive.
(D) The names, addresses, birth dates, identifying characteristics,
and other information of persons named in unfounded reports maintained
on the registry must be destroyed immediately upon a determination that
the report is unfounded. However, information concerning persons
named in Category II or III unfounded reports may be retained in other
records of the department as provided for in Section 20-7-650(I).
(E) Upon an affirmative determination, the names, addresses, birth
dates, identifying characteristics, and other information of persons named
in indicated reports must be converted immediately to the category of
affirmative determination. The names, addresses, birth dates, identifying
characteristics, and other information unnecessary for auditing and
statistical purposes of persons named in affirmative determinations of
child abuse or neglect must be destroyed seven years from the date
services are terminated. Upon a determination that there is not a
preponderance of evidence that the subject of a report as defined in
Section 20-7-490 committed child abuse or neglect, the name, address,
birth date, and other identifying characteristics of that person must be
purged immediately from the registry. This subsection does not prohibit
the registry from maintaining an `indicated report' which contains
identifying information on the child who is the subject of the indicated
report and those responsible for the child's welfare without identifying a
subject of the report as defined in Section 20-7-490, and it does not
prohibit the department from providing child protective services to the
child who is the subject of an indicated report and those responsible for
the child's welfare.
Section 20-7-690. (A) All reports made and information collected
pursuant to this article maintained by the Department of Social Services
and the Central Registry of Child Abuse and Neglect are confidential. A
person who disseminates or permits the dissemination of these records
and the information contained in these records except as authorized in
this section, is guilty of a misdemeanor and, upon conviction, must be
fined not more than one thousand five hundred dollars or imprisoned not
more than one year, or both.
(B) The department is authorized to grant access to the records of
indicated cases to the following persons, agencies, or entities:
(1) the ombudsman of the office of the Governor or the Governor's
designee;
(2) a person appointed as the child's guardian ad litem, the attorney
for the child's guardian ad litem, or the child's attorney;
(3) appropriate staff of the department;
(4) a law enforcement agency investigating or prosecuting known
or suspected abuse or neglect of a child or any other crime against a
child, attempting to locate a missing child, investigating or prosecuting
the death of a child, or investigating or prosecuting any other crime
established in or associated with activities authorized under this
article;
(5) a person who is named in a report or investigation pursuant to
this article as having abused or neglected a child, that person's attorney,
and that person's guardian ad litem;
(6) a child ten years of age or older who is the subject of a report,
except in regard to information that the department may determine to be
detrimental to the emotional well-being of the child;
(7) the parents or guardians of a child who is the subject of a
report;
(8) county medical examiners or coroners who are investigating the
death of a child;
(9) the State Child Fatality Advisory Committee and the
Department of Child Fatalities in accordance with the exercise of their
purposes or duties pursuant to Article 26, Chapter 7, Title 20;
(10) family courts conducting proceedings pursuant to this
article;
(11) the parties to a court proceeding in which information in the
records is legally relevant and necessary for the determination of an issue
before the court, if before the disclosure the judge has reviewed the
records in camera, has determined the relevancy and necessity of the
disclosure, and has limited disclosure to legally relevant information
under a protective order;
(12) a grand jury by subpoena upon its determination that access to
the record is necessary in the conduct of its official business;
(13) authorities in other states conducting child abuse and neglect
proceedings or child custody proceedings;
(14) courts in other states conducting child abuse and neglect
investigations or providing child welfare services;
(15) the director or chief executive officer of a child day care
facility, child placing agency, or child caring facility when the records
concern the investigation of an incident of child abuse or neglect that
allegedly was perpetrated by an employee or volunteer of the facility or
agency against a child served by the facility or agency;
(16) a person or agency with authorization to care for, diagnose,
supervise, or treat the child, the child's family, or the person alleged to
have abused or neglected the child;
(17) any person engaged in bona fide research with the written
permission of the state director or the director's designee, subject to
limitations the state director may impose;
(18) multidisciplinary teams impaneled by the department or
impaneled pursuant to statute;
(19) circuit solicitors and their agents investigating or prosecuting
known or suspected abuse or neglect of a child or any other crime against
a child, attempting to locate a missing child, investigating or prosecuting
the death of a child, or investigating or prosecuting any other crime
established in or associated with activities authorized under this
article;
(20) prospective adoptive or foster parents before placement;
(21) the Division for the Review of the Foster Care of Children,
Office of the Governor, for purposes of certifying in accordance with
Section 20-7-2386 that no potential employee or no nominee to and no
member of the state or a local foster care review board is a subject of an
indicated report or affirmative determination.
(22) employees of the Division for the Review of the Foster Care of
Children, Office of the Governor and members of local boards when
carrying out their duties pursuant to Subarticle 4, Article 13; the
department and the division shall limit by written agreement or
regulation, or both, the documents and information to be furnished to the
local boards.
(C) The department may limit the information disclosed to individuals
and entities named in subsection (B)(14), (15), (16), (17), (18), and (20)
to that information necessary to accomplish the purposes for which it is
requested or for which it is being disclosed. Nothing in this subsection
gives to these entities or persons the right to review or copy the complete
case record.
(D) When a request for access to the record comes from an individual
identified in subsection (A)(5), (6), or (7) or that person's attorney, the
department shall review any reports from medical care providers and
mental health care providers to determine whether the report contains
information that does not pertain to the case decision, to the treatment
needs of the family as a whole, or to the care of the child. If the
department determines that these conditions exist, before releasing the
document, the department shall provide a written notice identifying the
report to the requesting party and to the person whose treatment or
assessment was the subject of the report. The notice may be mailed to
the parties involved or to their attorneys or it may be delivered in person.
The notice shall state that the department will release the report after ten
days from the date notice was mailed to all parties and that any party
objecting to release may apply to the court of competent jurisdiction for
relief. When a medical or mental health provider or agency furnishes
copies of reports or records to the department and designates in writing
that those reports or records are not to be further disclosed, the
department must not disclose those documents to persons identified in
subsection (A)(5), (6), or (7) or that person's attorney. The department
shall identify to the requesting party the records or reports withheld
pursuant to this subsection and shall advise the requesting party that he
may contact the medical or mental health provider or agency about
release of the records or reports.
(E) A disclosure pursuant to this section shall protect the identity of
the person who reported the suspected child abuse or neglect. The
department also may protect the identity of any other person identified in
the record if the department finds that disclosure of the information
would be likely to endanger the life or safety of the person. Nothing in
this subsection prohibits the department from subpoenaing the reporter or
other persons to court for the purpose of testimony if the department
determines the individual's testimony is necessary to protect the child; the
fact that the reporter made the report must not be disclosed.
(F) The department is authorized to summarize the outcome of an
investigation to the person who reported the suspected child abuse or
neglect if the person requests the information at the time the report is
made. The department has the discretion to limit the information
disclosed to the reporter based on whether the reporter has an ongoing
professional or other relationship with the child or the family.
(G) The state director of the department or the director's designee
may disclose to the media information contained in child protective
services records if the disclosure is limited to discussion of the
department's activities in handling the case including information placed
in the public domain by other public officials, a criminal prosecution, the
alleged perpetrator or the attorney for the alleged perpetrator, or other
public judicial proceedings. For purposes of this subsection, information
is considered `placed in the public domain' when it has been reported in
the news media, is contained in public records of a criminal justice
agency, is contained in public records of a court of law, or has been the
subject of testimony in a public judicial proceeding.
(H) The state director or the director's designee is authorized to
prepare and release reports of the results of the department's
investigations into the deaths of children in its custody or receiving child
welfare services at the time of death.
(I) Nothing in this section may be construed to waive the confidential
nature of the case record, to waive any statutory or common law
privileges attaching to the department's internal reports or to information
in case records, to create a right to access under the Freedom of
Information Act, or to require the department to search records or
generate reports for purposes of the Freedom of Information Act.
(J) The department is authorized to disclose whether an individual is
named in its records as a perpetrator when screening of an individual's
background is required by statute or regulation for employment or
licensing purposes or is requested in writing by the person being
screened. In cases decided after January 1, 1993, the department may
disclose perpetrator status for licensing and employment purposes only if
an affirmative determination has been made. A perpetrator determination
made before January 1, 1993, may be disclosed for licensing or
employment purposes if the department's records show that the
determination was confirmed by a finding in family court, that the
determination was confirmed by an administrative fair hearing, or that the
subject of the report waived the opportunity for a family court
determination or waived administrative review. Upon request of a person
identified in the record as a perpetrator, the department may review
records of cases indicated before January 1, 1993, and may decide
whether confirmation or waiver occurred, whether the department should
redesignate the person's status, or whether the department should provide
a hearing pursuant to Section 20-7-655. Nothing in this section prevents
the department from using other information in department records when
making licensing or employment decisions.
(K) The department is authorized to maintain in its child day care
regulatory records information about investigations of suspected child
abuse or neglect occurring in child day care facilities.
(1) The department must enter child abuse or neglect investigation
information in its regulatory record from the beginning of the
investigation and must add updated information as it becomes available.
Information in the regulatory records must include at least the date of the
report, the nature of the alleged abuse or neglect, the outcome of the
investigation, any corrective action required, and the outcome of the
corrective action plan.
(2) The department's regulatory records must not contain the
identity of the reporter or of the victim child.
(3) The identity of the perpetrator must not appear in the record
unless the family court has confirmed the department's determination or a
criminal prosecution has resulted in conviction of the perpetrator.
(4) Nothing in this subsection may be construed to limit the
department's authority to use information from investigations of
suspected child abuse or neglect occurring in child day care facilities to
pursue an action to enjoin operation of a facility as provided in Article
13, Subarticle 11.
(5) Record retention provisions applicable to the department's child
protective services case records are not applicable to information
contained in regulatory records concerning investigations of suspected
child abuse or neglect occurring in child day care facilities.
(L) All reports made available to persons pursuant to this section must
indicate whether or not an appeal is pending on the report pursuant to
Section 20-7-655.
Section 20-7-695. (A) Notwithstanding other provisions of the law
affecting confidentiality of child protective services records and use and
disclosure of records of unfounded cases, records concerning unfounded
reports must be retained and disclosed as provided in this section.
(B) The alleged perpetrator in an unfounded report who has reason to
believe that the report was made maliciously or in bad faith has the right
to request in writing that records of the report be retained by the
department for up to two years from the date of the case decision. The
written request must be received by the department within thirty days of
the person's receiving notice of the case decision. A person exercising
this right may request a copy of the record of the unfounded case and the
department shall provide a copy of the record, subject to subsection
(C).
(C) The department shall disclose to persons exercising the rights
afforded them under this section whether the report was made
anonymously. However, the identity of a reporter must not be made
available to the person except by order of the family court.
(D) An alleged perpetrator in an unfounded case who believes the
report was made maliciously or in bad faith may petition the family court
to determine whether there is probable cause to believe that the reporter
acted maliciously or in bad faith. The court shall determine probable
cause based on an in camera review of the case record and oral or written
argument, or both. If the court finds probable cause, the identity of the
reporter must be disclosed to the moving party.
(E) Notwithstanding other provisions of the law affecting
confidentiality of child protective services records and use and disclosure
of records of unfounded cases, a court conducting civil or criminal
proceedings resulting from disclosures authorized by this section may
order the department to release the record to any party to the case or the
law enforcement."
Removal proceedings and procedures; constitution of abuse of
newborn child
SECTION 8. Section 20-7-736 of the 1976 Code, as last amended by
Act 333 of 1994, is further amended to read:
"Section 20-7-736. (A) The family court has exclusive
jurisdiction over all proceedings held pursuant to this article.
(B) Upon investigation of a report received under Section 20-7-650 or
at any time during the delivery of services by the department, the
department may petition the family court to remove the child from
custody of the parent, guardian, or other person legally responsible for
the child's welfare if the department determines by a preponderance of
evidence that the child is an abused or neglected child and that the child
cannot be protected from unreasonable risk of harm affecting the child's
life, physical health or safety, or mental well-being without removal. If a
noncustodial parent is not named as a party in the removal petition, the
agency shall exercise every reasonable effort to promptly notify the
noncustodial parent that a removal proceeding has been initiated and of
the date and time of any hearings scheduled pursuant to this section.
(C) The petition shall contain a full description of the reasons why the
child cannot be protected adequately in the custody of the parent or
guardian, including facts supporting the department's allegation that the
child is an abused or neglected child as defined in Section 20-7-490 and
that retention of the child in or return of the child to the home would
place the child at unreasonable risk of harm affecting the child's life,
physical health or safety, or mental well-being and the child cannot
reasonably be protected from this harm without being removed, a
description of the condition of the child, any previous efforts to work
with the parent or guardian, in-home treatment programs which have
been offered and proven inadequate, and the attitude of the parent or
guardian towards placement of the child in an alternative setting. The
petition also shall contain a statement of the harms the child is likely to
suffer as a result of removal and a description of the steps that will be
taken to minimize the harm to the child that may result upon
removal.
(D) Whether or not the petition for removal includes a petition for
termination of parental rights, the petition shall contain a notice
informing the parents of the potential effect of the hearing on their
parental rights and a notice to all interested parties that objections to the
sufficiency of a placement plan, if ordered, or of any recommendations
for provisions in the plan or court order must be raised at the hearing.
The notice must be printed in boldface print or in all upper case letters
and set off in a box.
If the petition includes a petition for termination of parental rights, the
notice shall state: `As a result of this hearing, you could lose your rights
as a parent.'
If the petition does not include a petition for termination of parental
rights, the notice shall state: `At this hearing the court may order a
treatment plan. If you fail to comply with the plan, you could lose your
rights as a parent.'
(E) Upon receipt of a removal petition under this section, the family
court shall schedule a hearing to be held within thirty-five days of the
date of receipt to determine whether removal is necessary. The parties to
the petition must be served with a summons and notices of right to
counsel and the hearing date and time along with the petition. Personal
jurisdiction over the parties is effected if they are served at least
seventy-two hours before the hearing. No responsive pleading to the
petition is required. The court may authorize service by publication in
appropriate cases and may waive the thirty-five days requirement when
necessary to achieve service. A party may waive service or appear
voluntarily.
(F) A child must not be removed from the custody of the parent or
guardian unless the court finds that the allegations of the petition are
supported by a preponderance of evidence including a finding that the
child is an abused or neglected child as defined in Section 20-7-490 and
that retention of the child in or return of the child to the home would
place the child at unreasonable risk of harm affecting the child's life,
physical health or safety, or mental well-being and the child cannot
reasonably be protected from this harm without being removed.
(G) It is presumed that a newborn child is an abused or neglected
child as defined in Section 20-7-490 and that the child cannot be
protected from further harm without being removed from the custody of
the mother upon proof that:
(1) a blood or urine test of the child at birth or a blood or urine
test of the mother at birth shows the presence of any amount of a
controlled substance or a metabolite of a controlled substance unless the
presence of the substance or the metabolite is the result of medical
treatment administered to the mother of the infant or the infant, or
(2) the child has a medical diagnosis of fetal alcohol syndrome;
and
(3) a blood or urine test of another child of the mother or a blood
or urine test of the mother at the birth of another child showed the
presence of any amount of a controlled substance or a metabolite of a
controlled substance unless the presence of the substance or the
metabolite was the result of medical treatment administered to the mother
of the infant or the infant, or
(4) another child of the mother has the medical diagnosis of fetal
alcohol syndrome.
This presumption may be rebutted by proof that the father or another
adult who will assume the role of parent is available and suitable to
provide care for the child in the home of the mother. The father or the
other adult must be made a party to the action and subject to the court's
order establishing the conditions for maintaining the child in the mother's
home. This statutory presumption does not preclude the court from
ordering removal of a child upon other proof of alcohol or drug abuse or
addiction by the parent or person responsible for the child who has
harmed the child or threatened the child with harm.
(H) The petition for removal may include a petition for termination of
parental rights.
(I) If the court removes custody of the child, the court's order shall
contain a finding by the court of whether reasonable efforts were made
by the department to prevent removal of the child and a finding of
whether continuation of the child in the home would be contrary to the
welfare of the child. The order shall state:
(1) the services made available to the family before the removal of
the child and how they related to the needs of the family;
(2) the efforts of the agency to provide these services to the family
before removal;
(3) why the efforts to provide services did not eliminate the need
for removal; and
(4) whether the efforts to eliminate the need for removal were
reasonable including, but not limited to, whether they were reasonably
available and timely, reasonably adequate to address the needs of the
family, reasonably adequate to protect the child and realistic under the
circumstances. If the department's first contact with the child occurred
under such circumstances that reasonable services would not have
allowed the child to remain safely in the home, the court shall find that
removal of the child without services or without further services was
reasonable."
Protective services while child remains in home
SECTION 9. Section 20-7-738 of the 1976 Code, as added by Act
164 of 1993, is amended to read:
"Section 20-7-738. (A) Upon investigation of a report under
Section 20-7-650 or at any time during the delivery of services by the
department, the department may petition the family court for authority to
intervene and provide protective services without removal of custody if
the department determines by a preponderance of evidence that the child
is an abused or neglected child and that the child cannot be protected
from harm without intervention.
(B) The petition shall contain a full description of the basis for the
department's belief that the child cannot be protected adequately without
department intervention, including a description of the condition of the
child, any previous efforts by the department to work with the parent or
guardian, treatment programs which have been offered and proven
inadequate, and the attitude of the parent or guardian towards intervention
and protective services.
(C) Upon receipt of a petition under this section, the family court
shall schedule a hearing to be held within thirty-five days of the filing
date of receipt to determine whether intervention is necessary.
The parties to the petition must be served with a summons and
notices of right to counsel and of the hearing date and time along with
the petition. Personal jurisdiction over the parties is effected if they are
served at least seventy-two hours before the hearing. No responsive
pleading to the petition is required. The court may authorize service by
publication in appropriate cases and may waive the thirty-five days
requirement when necessary to achieve service. A party may waive
service or appear voluntarily.
(D) Intervention and protective services must not be ordered unless
the court finds that the allegations of the petition are supported by a
preponderance of the evidence including a finding that the child is an
abused or neglected child as defined in Section 20-7-490 and the child
cannot be protected from further harm without intervention."
Court approval and review of treatment plans
SECTION 10. Section 20-7-762 of the 1976 Code, as last amended by
Part II, Act 164 of 1993, is further amended to read:
"Section 20-7-762. (A) At the close of a hearing pursuant to
Section 20-7-738 or 20-7-736 and upon a finding that the child shall
remain in the home and that protective services shall continue, the family
court shall review and approve a treatment plan designed to alleviate any
danger to the child and to aid the parents so that the child will not be
endangered in the future.
(B) The plan must be prepared by the department and shall detail any
changes in parental behavior or home conditions that must be made and
any services which will be provided to the family to ensure, to the
greatest extent possible, that the child will not be endangered. Whenever
possible, the plan must be prepared with the participation of the parents,
the child, and any other agency or individual that will be required to
provide services. The plan must be submitted to the court at the hearing.
If any changes in the plan are ordered, the department shall submit a
revised plan to the court within two weeks of the hearing, with copies to
the parties and legal counsel. Any dispute regarding the plan must be
resolved by the court. The terms of the plan must be included as part of
the court order. The court order shall specify a date when treatment goals
must be achieved and court jurisdiction ends, unless the court specifically
finds that the matter must be brought back before the court for further
review before the case may be closed. If the order requires further court
review before case closure, the order shall specify a time limit for
holding the next hearing.
(C) Unless services are to terminate earlier, the department shall
schedule a review hearing before the court at least once every twelve
months to establish whether the conditions which required the initial
intervention exist. If the conditions no longer exist, the court shall order
termination of protective services, and the court's jurisdiction shall end.
If the court finds that the conditions which required the initial
intervention are still present, it shall establish:
(1) what services have been offered to or provided to the
parents;
(2) whether the parents are satisfied with the delivery of
services;
(3) whether the department is satisfied with the cooperation given
to the department by the parents;
(4) whether additional services should be ordered and additional
treatment goals established; and
(5) the date when treatment goals must be achieved and court
jurisdiction ends.
The court order shall specify a date upon which jurisdiction will
terminate automatically, which must be no later than eighteen months
after the initial intervention. Jurisdiction may be extended pursuant to a
hearing on motion by any party, if the court finds that there is clear and
convincing evidence that the child is threatened with harm absent a
continuation of services."
Removal and court approved placement plan after removal
SECTION 11. Section 20-7-764 of the 1976 Code, as last amended by
Act 333 of 1994, is further amended to read:
"Section 20-7-764. (A) If the court orders that a child be
removed from the custody of the parent or guardian, the court must
approve a placement plan. A plan must be presented to the court for its
approval at the removal hearing or within ten days after the removal
hearing. If the plan is presented subsequent to the removal hearing, the
court shall hold a hearing on the plan if requested by a party. The plan
must be a written document prepared by the department. To the extent
possible, the plan must be prepared with the participation of the parents
or guardian of the child, the child, and any other agency or individual
that will be required to provide services in order to implement the
plan.
(B) The placement plan shall include, but is not limited to:
(1) the specific reasons for removal of the child from the custody
of the parent or guardian, and the changes that must be made before the
child may be returned, including:
(a) the nature of the harm or threatened harm that necessitated
removal, a description of the problems or conditions in the home that
caused the harm or threatened harm, and the reason why the child could
not be protected without removal.
(b) the nature of the changes in the home and family situation
that must be made in order to correct the problems and conditions that
necessitated removal, time frames for accomplishing these objectives, and
means for measuring whether the objectives have been accomplished. The
objectives stated in this part of the plan must relate to problems and
circumstances serious enough to justify removal. The plan must be
oriented to correcting these problems and circumstances in the shortest
possible time in order to expedite the child's return to the home.
(c) specific actions to be taken by the parents or guardian of the
child to accomplish the objectives identified in subitem (b) and time
frames for taking these actions.
(2) Other conditions in the home that warrant state intervention,
but would not alone have been sufficient to warrant removal, and the
changes that must be made in order to terminate intervention,
including:
(a) the nature of the harm or threatened harm that justifies state
intervention and a description of the problems or conditions of the home
that caused the harm or threatened harm.
(b) the nature of the changes in the home and family situation
that must be made in order to correct the problems and conditions that
caused the harm or threatened harm, time frames for accomplishing these
objectives, and means for measuring whether the objectives have been
accomplished.
(c) specific actions to be taken by the parents or guardian of the
child to accomplish the objectives identified in subitem (b) and time
frames for taking these actions.
(3) The social and other services to be provided or made available
to the parents, guardian, or other relevant adult to assist the parents or
guardian in accomplishing the objectives.
(4) The financial responsibilities and obligations, if any, of the
parents or guardian for the support of the child during the placement.
(5) The visitation rights and obligations of the parents, guardian,
siblings, or other relatives of the child during the placement. The plan
shall provide for as much contact as is reasonably possible and consistent
with the best interests of the child between the child and the child's
parents, guardian, siblings, and other appropriate relatives with whom the
child has a close relationship including visitation and participation of the
parents or guardian in the care of the child while the child is in
placement.
(6) The nature and location of the placement for the child unless
disclosure of the location of the placement would be contrary to the best
interest of the child. The placement must be as close to the child's home
as is reasonably possible, unless placement at a greater distance is
necessary to promote the child's well-being. In the absence of good
cause to the contrary, preference must be given to placement with a
relative or other person who is known to the child and has a constructive
and caring relationship with the child.
(7) The social and other supportive services to be provided to the
child and the foster parents including counseling or other services to
assist the child in dealing with the effects of separation from the child's
home and family.
(8) If the parents or guardian were not involved in the development
of the plan, the nature of the agency's efforts to secure parental
participation.
(9) Notice to the parents or guardians that failure to substantially
accomplish the objectives stated in the plan within the time frames
provided may result in termination of parental rights, subject to notice
and a hearing as provided in Subarticle 3, Article 11.
(C) The placement plan clearly shall state the conditions necessary to
bring about return of the child and the reasonable efforts that will be
made by the department to reunite the child with the child's family.
`Reasonable efforts' include location of the placement and visitation
arrangements as well as services to the parents or guardian and the
child.
(D) The court shall approve the plan only if it finds that:
(1) the plan is consistent with the court's order placing the child in
the custody of the department;
(2) the plan is consistent with the requirements for the content of a
placement plan set forth in subsection (B);
(3) if the parents or guardian of the child did not participate in the
development of the plan, that the department made reasonable efforts to
secure their participation; and
(4) the plan is meaningful and designed to address facts and
circumstances upon which the court based the order of removal.
If the court determines that any of these criteria are not satisfied, the
court shall require that necessary amendments to the plan be submitted to
the court within a specified time but no later than seven days. A hearing
on the amended plan must be held if requested by a party.
(E) The court shall include in its order and shall advise defendants on
the record that failure to substantially accomplish the objectives stated in
the plan within the time frames provided may result in termination of
parental rights, subject to notice and a hearing as provided in Subarticle
3, Article 11.
(F) The department immediately shall give a copy of the plan to the
parents or guardian of the child, and any other parties identified by the
court including the child if the court considers it appropriate. If a copy
of the plan is not given to the child, the department shall provide the
child with age-appropriate information concerning the substance of the
plan unless the court finds that disclosure of any part of the plan to the
child would be inconsistent with the child's best interests. A copy of any
part of the plan that directly pertains to the foster family or the foster
child must be provided to the foster parents.
(G) The plan may be amended at any time if all parties agree
regarding the revisions, and the revisions are approved by the court. The
amended plan must be submitted to the court with a written explanation
for the proposed change. The plan also may be amended by the court
upon motion of a party after a hearing based on evidence demonstrating
the need for the amendment. A copy of the amended plan immediately
must be given to the parties specified in subsection (F). Any additions to
the elements set forth in subsections (B)(1)(b) and (c) must relate to
problems or conditions that are serious enough to justify removal of the
child from the home based on the criteria in Section 20-7-736(F).
(H) Any objections to the sufficiency of a plan or the process by
which a plan was developed must be made at the hearing on the plan.
Failure to request a hearing or to enter an objection at the hearing
constitutes a waiver of the objection. The sufficiency of the plan or of
the process for developing the plan may not be raised as an issue in a
proceeding for termination of parental rights under Subarticle 3, Article
11.
(I) Upon petition of a party in interest, the court may order the state
or county director or other authorized representative of the department to
show cause why the agency should not be required to provide services in
accordance with the plan. A person who fails to comply with an order
may be held in contempt and subject to appropriate sanctions imposed by
the court."
Treatment plan requirements regarding substance abuse
SECTION 12. The 1976 Code is amended by adding:
"Section 20-7-765. (A) When the conditions justifying
removal pursuant to Section 20-7-736 include the addiction of the parent
or abuse by the parent of controlled substances, the court may require as
part of the treatment plan ordered pursuant to Section 20-7-764:
(1) The parent successfully must complete a treatment program
operated by the Department of Alcohol and Other Drug Abuse Services
or another treatment program approved by the department before return
of the child to the home;
(2) Any other adult person living in the home who has been
determined by the court to be addicted to or abusing controlled
substances or alcohol and whose conduct has contributed to the parent's
addiction or abuse of controlled substances or alcohol successfully must
complete a treatment program approved by the department before return
of the child to the home; and
(3) The parent or other adult, or both, identified in item (2) must
submit to random testing for substance abuse and must be alcohol or drug
free for a period of time to be determined by the court before return of
the child. The parent or other adult identified in item (2) must continue
random testing for substance abuse and must be alcohol or drug free for a
period of time to be determined by the court after return of the child
before the case will be authorized closed.
(B) Results of tests ordered pursuant to this section must be submitted
to the department and are admissible only in family court proceedings
brought by the department."
Permanency planning and court review
SECTION 13. Section 20-7-766 of the 1976 Code, as last amended by
Act 7 of 1995, is further amended to read:
"Section 20-7-766. (A) The family court must review the
status of a child placed in foster care upon pleadings filed by the
department to determine a permanent plan for the child. The permanency
planning hearing must be held no later than one year after the date the
child was first placed in foster care. At the initial permanency planning
hearing, the court shall review the status of the child and the progress
being made toward the child's return home or toward any other
permanent plan approved at the removal hearing. The court's order shall
make specific findings in accordance with this section.
(B) The department shall attach a supplemental report to the pleadings
which contain at least:
(1) that information necessary to support findings required in
subsection (F);
(2) the recommended permanent plan and suggested timetable for
attaining permanence; and
(3) any reports of the local foster care review board which pertain
to the child. The department may use the same form for the
supplemental report, reports from the department to the local foster care
review board, and reports compiled for internal department reviews.
(C) If the court determines at the permanency planning hearing that
the return of the child to the child's parent would not cause an
unreasonable risk of harm to the child's life, physical health or safety, or
mental well-being, the court shall order the child returned to the child's
parent. The court may order a specified period of supervision and
services not to exceed twelve months. When determining whether the
return of the child would cause an unreasonable risk of harm, the court
shall consider all evidence and the supplemental report including whether
the parent has substantially complied with the terms and conditions of the
plan approved pursuant to Section 20-7-764.
(D) If the court determines at the permanency planning hearing that
the child should not be returned to the child's parent, the court's order
shall require the department to file a petition to terminate parental rights
to the child not later than sixty days after receipt of the order, unless the
department demonstrates to the court that initiating termination of
parental rights is clearly not in the child's best interest because one or
more of the conditions specified under subsection (E) exists requiring a
different disposition.
(E) If the department demonstrates under subsection (D) that
termination of parental rights is clearly not in the child's best interest,
and if the court determines that the:
(1) best interest of the child would be served, the court may order
that custody or legal guardianship, or both, be placed with a suitable
member of the child's extended family or a suitable nonrelative. The
court may order a specified period of supervision and services not to
exceed twelve months;
(2) child has special needs or circumstances and that a permanent
foster caregiver has been identified by the department, the court may
order that the child be placed in permanent foster care with a specified
caregiver. If the child is under ten years of age, the special needs or
circumstances must be shown by clear and convincing evidence;
(3) best interests of the child would be served and that the child
may be returned to the parents within a specified, reasonable time not to
exceed six months and without an unreasonable risk of harm to the child
as provided for in subsection (C), the court may order an extension of the
plan approved pursuant to Section 20-7-764 or may order compliance
with a modified plan;
(4) child has attained the age of sixteen and is unwilling to accept
or unable to adapt to a permanent placement, the court may extend foster
care to provide services needed to assist the child to make the transition
to independent living; or
(5) child has physical, mental, or psychological problems or special
treatment needs and must remain in a specialized foster care setting or
that the child is unwilling to accept or unable to adapt to a permanent
placement, the court may extend foster care.
(F) If the child is not returned to the parent, in addition to the
findings required under subsection (D) or (E), the court shall specify in
its order:
(i) what services have been provided to or offered to the parents
to facilitate reunification;
(ii) the compliance or lack of compliance by all parties to the
plan approved pursuant to Section 20-7-764;
(iii) the extent to which the parents have visited or supported the
child and any reasons why visitation or support has not occurred or has
been infrequent;
(iv) whether previous services should continue and whether
additional services are needed to facilitate reunification, identifying the
services and specifying the expected date for completion, which must be
less than six months from the date of the order;
(v) whether return of the child can be expected and identification
of the changes the parent must make in circumstances, conditions, or
behavior to remedy the causes of the child's placement or retention in
foster care;
(vi) whether the child's foster care is to continue for a specified
time and, if so, how long;
(vii) if the child has attained the age of sixteen, the services
needed to assist the child to make the transition to independent living;
(viii) whether the child's current placement is appropriate;
and
(ix) whether the department has made reasonable efforts to assist
the parents in remedying the causes of the child's placement or retention
in foster care.
(G) After the permanency planning hearing, if the child is retained in
foster care, future permanency planning hearings must be conducted in
accordance with this subsection.
If the child is retained in foster care and the agency is required to
initiate termination of parental rights proceedings, the termination of
parental rights hearing may serve as the next permanency planning
hearing.
If the child is retained in permanent foster care with an identified
caregiver, no further permanency planning hearings are necessary if the
child is fourteen years of age or older.
If the court ordered extended foster care for the purpose of
reunification with the parent, the court must select a permanent plan for
the child other than another extension for reunification purposes at the
next permanency planning hearing. The hearing must be held on or
before the date specified in the plan for expected completion of the plan;
in no case may the hearing be held any later than six months from the
date of the last court order. The court also must fulfill the remaining
requirements of subsections (A) through (F).
After the termination of parental rights hearing, the requirements of
Section 20-7-1574 must be met. Permanency planning hearings must be
held annually, starting with the date of the termination of parental rights
hearing. No further permanency planning hearings may be required after
filing a decree of adoption of the child.
If the court places custody or guardianship with the parent, extended
family member, or suitable nonrelative and a period of services and
supervision is authorized, services and supervision automatically
terminate on the date specified in the court order. Before the termination
date, the department or the guardian ad litem may file a petition with the
court for a review hearing on the status of the placement. Filing of the
petition stays termination of the case until further order from the court.
If the court finds clear and convincing evidence that the child will be
threatened with harm if services and supervision do not continue, the
court may extend the period of intervention for a specified time. The
court's order shall specify the services and supervision necessary to
reduce or eliminate the risk of harm to the child.
If the child is retained in foster care to pursue a plan of independent
living, future permanency planning hearings must be held annually.
If the child is retained in foster care because of special needs or
characteristics of the child as specified in subsection (E)(5), and the child
is ten years of age or under, future permanency planning hearings must
be held every six months to determine whether these special needs or
characteristics still exist or whether another disposition is appropriate.
If the child is retained in foster care because of special needs or
characteristics of the child specified in subsection (E)(5) and the child is
more than ten years of age, future permanency planning hearings must be
held annually to determine whether these special needs or characteristics
still exist or whether another disposition is appropriate.
(H) All proceedings provided for in this section must be initiated by
filing of a summons and complaint with a supplemental report attached.
The summons, complaint, supplemental report, and notice of the hearing
must be served upon all named parties at least forty days before the
hearing.
(I) A named party, the child's guardian ad litem, or the local foster
care review board may file a motion for review of the case at any time.
Any other party in interest may move to intervene in the case pursuant to
the rules of civil procedure and if the motion is granted, may move for
review. Parties in interest include, but are not limited to, the individual
or agency with legal custody or placement of the child and the foster
parent. The notice of motion and motion for review must be served on
the named parties at least ten days before the hearing date. The motion
shall state the reason for review of the case and the relief
requested."
Termination of parental rights
SECTION 14. Subarticle 3, Article 11, Chapter 7, Title 20 of the 1976
Code, as last amended by Act 476 of 1992, is further amended to
read:
"Subarticle 3
Termination of Parental Rights
Section 20-7-1560. The purpose of this subarticle is to establish
procedures for the reasonable and compassionate termination of parental
rights where children are abused, neglected, or abandoned in order to
protect the health and welfare of these children and make them eligible
for adoption by persons who will provide a suitable home environment
and the love and care necessary for a happy, healthful, and productive
life.
Section 20-7-1562. The family court has exclusive jurisdiction over all
proceedings held pursuant to this subarticle. For purposes of this
subarticle jurisdiction may continue until the child becomes eighteen
years of age, unless emancipated earlier.
Section 20-7-1564. A petition seeking termination of parental rights
may be filed by the Department of Social Services or any interested
party.
Section 20-7-1566. A petition for the termination of parental rights
must set forth the:
(1) basis of the court's jurisdiction;
(2) name, sex, date, and place of birth of the child, if known;
(3) name and address of the petitioner and the petitioner's
relationship to the child;
(4) names, dates of birth, and addresses of the parents, if known;
(5) names and addresses of a:
(i) legal guardian of the child; or
(ii) person or agency having legal custody of the child; and
(6) grounds on which termination of parental rights are sought and
the underlying factual circumstances.
Section 20-7-1568. A summons and petition for termination of parental
rights must be filed with the court and served on:
(1) the child;
(2) the parents of the child; and
(3) an agency with placement or custody of the child.
Section 20-7-1570. (A) Parents, guardians, or other persons subject
to a termination of parental rights action are entitled to legal counsel.
Those persons unable to afford legal representation must be appointed
counsel by the family court, unless the defendant is in default.
(B) A child subject to any judicial proceeding under this subarticle
must be appointed a guardian ad litem by the family court. If a guardian
ad litem who is not an attorney finds that appointment of counsel is
necessary to protect the rights and interests of the child, an attorney must
be appointed. If the guardian ad litem is an attorney, the judge shall
determine on a case by case basis whether counsel is required for the
guardian ad litem. However, counsel must be appointed for the guardian
ad litem in any case that is contested.
Section 20-7-1572. The family court may order the termination of
parental rights upon a finding of one or more of the following grounds
and a finding that termination is in the best interest of the child:
(1) The child or another child in the home has been harmed as
defined in Section 20-7-490, and because of the severity or repetition of
the abuse or neglect, it is not reasonably likely that the home can be
made safe within twelve months. In determining the likelihood that the
home can be made safe, the parent's previous abuse or neglect of the
child or another child in the home may be considered;
(2) The child has been removed from the parent pursuant to Section
20-7-736, has been out of the home for a period of six months, and the
parent has not remedied the conditions which caused the removal;
(3) The child has lived outside the home of either parent for a period
of six months, and during that time the parent has wilfully failed to visit
the child. The court may attach little or no weight to incidental
visitations, but it must be shown that the parent was not prevented from
visiting by the party having custody or by court order. The distance of
the child's placement from the parent's home must be taken into
consideration when determining the ability to visit;
(4) The child has lived outside the home of either parent for a period
of six months, and during that time the parent has wilfully failed to
support the child. Failure to support means that the parent has failed to
make a material contribution to the child's care. A material contribution
consists of either financial contributions according to the parent's means
or contributions of food, clothing, shelter, or other necessities for the care
of the child according to the parent's means. The court may consider all
relevant circumstances in determining whether or not the parent has
wilfully failed to support the child, including requests for support by the
custodian and the ability of the parent to provide support;
(5) The presumptive legal father is not the biological father of the
child, and the welfare of the child can best be served by termination of
the parental rights of the presumptive legal father; or
(6) The parent has a diagnosable condition unlikely to change within
a reasonable time including, but not limited to, alcohol or drug addiction,
mental deficiency, mental illness, or extreme physical incapacity, and the
condition makes the parent unlikely to provide minimally acceptable care
of the child. It is presumed that the parent's condition is unlikely to
change within a reasonable time upon proof that the parent has been
required by the department or the family court to participate in a
treatment program for alcohol or drug addiction, and the parent has failed
two or more times to complete the program successfully or has refused at
two or more separate meetings with the department to participate in a
treatment program.
Section 20-7-1574. (A) If the court finds that a ground for
termination, as provided for in Section 20-7-1572, exists, the court may
issue an order forever terminating parental rights to the child. Where the
petitioner is an authorized agency, the court shall place the child in the
custody of the petitioner or other child-placing agency for adoption and
shall require the submission of a plan for permanent placement of the
child within ninety days after the close of the proceedings to the court
and to the child's guardian ad litem. Within an additional ninety days the
agency shall submit a report to the court and to the guardian ad litem on
the implementation of the plan. The court, on its own motion, may
schedule a hearing to review the progress of the implementation of the
plan.
(B) If the court finds that no ground for termination exists and the
child is in the custody of the Department of Social Services, the order
denying termination must specify a new permanent plan for the child or
order a hearing on a new permanent plan.
(C) If the court determines that an additional permanency hearing is
not needed, the court may order:
(1) the child returned to the child's parent if the parent has
counterclaimed for custody and the court determines that the return of the
child to the parent would not cause an unreasonable risk of harm to the
child's life, physical health or safety, or mental well-being. The court
may order a specified period of supervision and services not to exceed
twelve months.
(2) a disposition provided for in Section 20-7-766(E) if the court
determines that the child should not be returned to a parent.
(D) If the court determines that an additional permanency hearing is
required, the court's order shall schedule a permanency hearing to be
held within fifteen days of the date the order is filed. The court's order
must be sufficient to continue jurisdiction over the parties without any
need for filing or service of pleadings by the department.
The permanency hearing must be held before the termination of
parental rights trial judge if reasonably possible.
At the hearing, the department shall present a proposed disposition and
permanent plan in accordance with Section 20-7-766. No supplemental
report may be required. The hearing and any order issuing from the
hearing shall conform to Section 20-7-766.
If the court approves retention of the child in foster care pursuant to
Section 20-7-766(E)(iii), any new plan for services and placement of the
child must conform to the requirements of Section 20-7-764. Section
20-7-764 requires the plan to address conditions that necessitated removal
of the child, but the plan approved pursuant to this subsection shall
address conditions that necessitate retention of the child in foster care.
Section 20-7-1576. (A) An order terminating the relationship between
parent and child under this subarticle divests the parent and the child of
all legal rights, powers, privileges, immunities, duties, and obligations
with respect to each other, except the right of the child to inherit from
the parent. A right of inheritance is terminated only by a final order of
adoption.
(B) The relationship between a parent and child may be terminated
with respect to one parent without affecting the relationship between the
child and the other parent.
Section 20-7-1578. This subarticle must be liberally construed in order
to ensure prompt judicial procedures for freeing minor children from the
custody and control of their parents by terminating the parent-child
relationship. The interests of the child shall prevail if the child's interest
and the parental rights conflict.
Section 20-7-1580. All papers and records pertaining to a termination
of parental rights are confidential and all court records must be sealed
and opened only upon order of the judge for good cause shown.
Section 20-7-1582. The provisions of this subarticle do not, except as
specifically provided, modify or supersede the general adoption laws of
this State."
Foster Care Review Board to participate in judicial reviews
SECTION 15. The 1976 Code is amended by adding:
"Section 20-7-2377. The Foster Care Review Board may
participate in judicial reviews pursuant to Sections 20-7-736, 20-7-766,
and 20-7-1562 but shall file a motion to intervene if it intends to become
a party to the action."
Foster Care Review Board; duties and procedures, including judicial
review
SECTION 16. Section 20-7-2379 of the 1976 Code, as last amended
by Act 277 of 1996, is further amended to read:
"Section 20-7-2379. (A) There is created, as part of the Office
of the Governor, the Division for Review of the Foster Care of Children.
The division must be supported by a board consisting of seven members,
all of whom must be past or present members of local review boards.
There must be one member from each congressional district and one
member from the State at large, all appointed by the Governor with the
advice and consent of the Senate.
(B) Terms of office for the members of the board are for four years
and until their successors are appointed and qualify. Appointments must
be made by the Governor for terms of four years to expire on June
thirtieth of the appropriate year.
(C) The board shall elect from its members a chairman who shall
serve for two years. Four members of the board constitute a quorum for
the transaction of business. Members of the board shall receive per diem,
mileage, and subsistence as provided by law for members of boards,
commissions, and committees while engaged in the work of the
board.
(D) The board shall meet at least quarterly and more frequently upon
the call of the division director to review and coordinate the activities of
the local review boards and make recommendations to the General
Assembly with regard to foster care policies, procedures, and deficiencies
of public and private agencies which arrange for foster care of children as
determined by the review of cases provided for in Section 20-7-2376(A)
and (B). These recommendations must be included in an annual report,
filed with the General Assembly, of the activities of the state office and
local review boards.
(E) The board, upon recommendation of the division director, shall
promulgate regulations to carry out the provisions of this subarticle.
These regulations shall provide for and must be limited to procedures for:
reviewing reports and other necessary information at state, county, and
private agencies and facilities; scheduling of reviews and notification of
interested parties; conducting local review board and board of directors'
meetings; disseminating local review board recommendations, including
reporting to the appropriate family court judges the status of judicially
approved treatment plans; participating and intervening in family court
proceedings; and developing policies for summary review of children
privately placed in privately-owned facilities or group homes.
(F) The Governor may employ a division director to serve at the
Governor's pleasure who may be paid an annual salary to be determined
by the Governor. The director may be removed pursuant to Section
1-3-240. The director shall employ staff as is necessary to carry out this
subarticle, and the staff must be compensated in an amount and in a
manner as may be determined by the Governor.
(G) This subarticle may not be construed to provide for subpoena
authority."
Criminal abuse and neglect
SECTION 17. Section 20-7-50 of the 1976 Code, as last amended by
Act 184 of 1993, is further amended to read:
"Section 20-7-50. (A) It is unlawful for a person who has
charge or custody of a child, who is the parent or guardian of a child, or
who is responsible for the care and support of a child to:
(1) place the child at unreasonable risk of harm affecting the
child's life, physical or mental health, or safety;
(2) do or cause to be done unlawfully or maliciously any bodily
harm to the child so that the life or health of the child is endangered or
likely to be endangered; or
(3) wilfully abandon the child.
(B) A person who violates subsection (A) is guilty of a felony and for
each offense, upon conviction, must be fined in the discretion of the court
or imprisoned not more than ten years, or both."
Cruelty to children
SECTION 18. Section 20-7-70 of the 1976 Code is amended to
read:
"Section 20-7-70. Whoever cruelly ill-treats, deprives of
necessary sustenance or shelter, or inflicts unnecessary pain or suffering
upon a child or causes the same to be done, whether the person is the
parent or guardian or has charge or custody of the child, for every
offense, is guilty of a misdemeanor and, upon conviction, must be
imprisoned not more than thirty days or fined not more than two hundred
dollars, at the discretion of the magistrate."
Parental immunity in cases of incorrigibility of
seventeen-year-olds
SECTION 19. The 1976 Code is amended by adding:
"Section 20-7-95. A parent, guardian, or other person
responsible for the care and support of a child may not be charged with
unlawful neglect of a child, cruelty to a child, failure to provide
reasonable support of a child, or a similar offense based on the exclusion
from the home of a seventeen-year-old child where there is a
demonstrable record that the child is incorrigible (beyond the control of
parents)."
Guardian ad Litem Program; reports and disclosure of information;
funding
SECTION 20. Subarticle 4, Article 3, Chapter 7, Title 20 of the 1976
Code, as last amended by Act 181 of 1993, is further amended to
read:
"Subarticle 4
South Carolina Guardian ad Litem Program
Section 20-7-121. There is created the South Carolina Guardian ad
Litem Program to serve as a statewide system to provide training and
supervision to volunteers who serve as court-appointed special advocates
for children in abuse and neglect proceedings within the family court,
pursuant to Section 20-7-110. This program must be administered by the
Office of the Governor.
Section 20-7-122. The responsibilities and duties of a guardian ad
litem are to:
(1) represent the best interests of the child;
(2) advocate for the welfare and rights of a child involved in an
abuse or neglect proceeding;
(3) conduct an independent assessment of the facts, the needs of the
child, and the available resources within the family and community to
meet those needs;
(4) maintain accurate, written case records;
(5) provide the family court with a written report, consistent with the
rules of evidence and the rules of the court, which includes without
limitation evaluation and assessment of the issues brought before the
court and recommendations for the case plan, the wishes of the child, if
appropriate, and subsequent disposition of the case;
(6) monitor compliance with the orders of the family court and to
make the motions necessary to enforce the orders of the court or seek
judicial review;
(7) protect and promote the best interests of the child until formally
relieved of the responsibility by the family court.
Section 20-7-123. No person may be appointed as a guardian ad litem
for a child in an abuse or neglect proceeding who has been convicted of
any crime listed in Chapter 3 of Title 16, Offenses Against the Person, in
Chapter 15 of Title 16, Offenses Against Morality and Decency, in
Article 3 of Chapter 53 of Title 44, Narcotics and Controlled Substances,
or for the crime of contributing to the delinquency of a minor, provided
for in Section 16-17-490.
Section 20-7-124. (A) The guardian ad litem is charged in general
with the duty of representation of the child's best interests. After
appointment by the family court to a case involving an abused or
neglected child, the guardian ad litem shall receive appropriate notice of
all court hearings and proceedings regarding the child. The obligation of
the guardian ad litem to the court is a continuing one and continues until
formally relieved by the court.
(B) The guardian ad litem is authorized to:
(1) conduct an independent assessment of the facts;
(2) confer with and observe the child involved;
(3) interview persons involved in the case;
(4) participate on any multidisciplinary evaluation team for the case
on which the guardian ad litem has been appointed;
(5) make recommendations to the court concerning the child's
welfare;
(6) make motions necessary to enforce the orders of the court, seek
judicial review, or petition the court for relief on behalf of the child.
(C) The guardian ad litem is authorized through counsel to introduce,
examine, and cross-examine witnesses in any proceeding involving the
child and participate in the proceedings to any degree necessary to
represent the child adequately.
Section 20-7-125. All reports made and information collected as
described in Section 20-7-690(A) must be made available to the guardian
ad litem by the Department of Social Services. Upon proof of
appointment as guardian ad litem and upon the guardian ad litem request,
access to information must be made available to the guardian ad litem by
the appropriate medical and dental authorities, psychologists, social
workers, counselors, schools, and any agency providing services to the
child.
Section 20-7-126. (A) All reports and information collected pursuant
to this subarticle maintained by the Guardian ad Litem Program are
confidential except as provided for in Section 20-7-690(C). A person
who disseminates or permits the unauthorized dissemination of the
information is guilty of contempt of court and, upon conviction, may be
fined or imprisoned, or both, pursuant to Section 20-7-1350.
(B) The name, address, and other identifying characteristics of a
person named in a report determined to be judicially unfounded must be
destroyed one year from the date of the determination. The name,
address, and other identifying characteristics of any person named in a
report determined to be judicially indicated must be destroyed seven
years from the date that the guardian ad litem formally is relieved of
responsibility as guardian ad litem by the family court.
(C) The Director of the Guardian ad Litem Program or the director's
designee may disclose to the media information contained in child
protective services records if disclosure is limited to discussion of the
program's activities in handling the case. The program may incorporate
into its discussion of the handling of the case any information placed in
the public domain by other public officials, a criminal prosecution, the
alleged perpetrator or the attorney for the alleged perpetrator, or other
public judicial proceedings. For purposes of this subsection, information
is considered `placed in the public domain' when it has been reported in
the news media, is contained in public records of a criminal justice
agency, is contained in public records of a court of law, or has been the
subject of testimony in a public judicial proceeding.
Section 20-7-127. After participating in the training program of the
Guardian ad Litem Program, a person who is appointed to serve as
guardian ad litem and serves without compensation is not liable for any
civil damages for any personal injury as a result of any act or omission
by the person in the discharge of the responsibilities of a guardian ad
litem if the person acts in good faith and is not guilty of gross
negligence.
Section 20-7-129. The General Assembly shall provide the funds
necessary to carry out the provisions of Sections 20-7-121 through
20-7-127 and 20-7-690(B)(5)."
Severability clause
SECTION 21. (A) If a provision of this act or the application of a
provision of this act to a person or circumstance is held invalid, or if a
provision of this act is found to be in conflict with federal statutes or
regulations, that invalidity or conflict does not affect the other provisions
of this act and to this end the provisions are severable.
(B) It is the intent of this section that no federal funding may be
jeopardized by any provision of this act. If a provision should be
determined to place this funding at risk, that provision must be:
(1) construed and applied in such a way as to conform to federal
requirements; or
(2) is invalid and provisions of law in effect before the passage of
this act apply.
Repeal
SECTION 22. Sections 20-7-60, 20-7-80, and 20-7-128 of the 1976
Code are repealed.
Time effective
SECTION 23. This act takes effect January 1, 1997.
In the Senate House June 13, 1996.
Robert L. Peeler,
President of the Senate
David H. Wilkins,
Speaker of the House of
Representatives
Approved the 18th day of June, 1996.
David M. Beasley,
Governor
Printer's Date -- June 27, 1996 -- S.
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