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Bill 1208

Indicates Matter Stricken

Indicates New Matter

COMMITTEE REPORT

May 22, 2002

    S. 1208

S. Printed 5/22/02--H.

Read the first time April 23, 2002.

    To whom was referred a Bill (S. 1208) to enact "Stephanie's Law"; to amend Section 20-7-510, Code of Laws of South Carolina, 1976, relating to persons required or permitted to report child abuse, etc., respectfully

    That they have duly and carefully considered the same and recommend that the same do pass with amendment:

    Amend the bill, as and if amended, by striking all after the enacting words and inserting:

    SECTION    1.    This part may be cited as "Stephanie's Law".

    SECTION    2.    Section 20-7-510 of the 1976 Code, as last amended by Act 81 of 2001, is further amended by adding appropriately numbered new subsections to read:

    "( )    When a report is referred to the department for an investigation or other response, the department must determine whether previous reports have been made regarding the same child or the same subject of the report. In determining whether previous reports have been made, the department must determine whether there are any suspected, indicated, or unfounded reports maintained pursuant to Section 20-7-650 regarding the same child or the same subject of the report.

    ( )    If the department does not conduct an investigation as a result of information received pursuant to this section, the department must make a record of the information and must classify the record as a Category IV unfounded report in accordance with Section 20-7-650. The department and law enforcement are authorized to use information recorded pursuant to this subsection for purposes of assessing risk and safety if additional contacts are made concerning the child, the family, or the subject of the report."

    SECTION    3.    Section 20-7-650 of the 1976 Code, as last amended by Act 104 of 1999, is further amended to read:

    "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 report may be classified as unfounded Category III and 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 must make a finding within forty-five days after the investigation is reopened.

    This section does not require the department to investigate reports of child abuse or neglect which resulted in the death of the child unless there are other children residing in the home, or a resident of the home is pregnant, or the subject of the report is the parent, guardian, or person responsible for the welfare of another child regardless of whether that child resides in the home.

    (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 must 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 must 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 in 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)    Reports of child abuse and neglect must be classified in the department's data system and records in one of three categories: Suspected, Unfounded, or Indicated. If the report is categorized as unfounded, the entry must further state the classification of unfounded reports as set forth in subsection (H). All initial reports must be considered suspected. Reports must be maintained in the category of suspected for no more than sixty days after the report was received by the department. By the end of the sixty-day time period, suspected reports must be classified as either unfounded or indicated pursuant to the agency's investigation.

    (G)(1)    Indicated findings must be based upon a finding of the facts available to the department that abuse or neglect is supported by there is a preponderance of evidence that the child is an abused or neglected child. 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.

        (2)    If the family court makes a determination or the process described in Section 20-7-655 results in a determination that the indicated finding is not supported by a preponderance of evidence that there was any act of child abuse or neglect, the case classification must be converted to 'unfounded' and subsection (J) applies.

        (3)    If the family court makes a specific determination, or the process described in Section 20-7-655 results in a determination that there is not a preponderance of evidence that the person who was the subject of the report committed an act of child abuse or neglect, but that the child was abused or neglected by an unknown person, the department must maintain the case as an indicated case and access to records of the case may be granted as provided in Section 20-7-690. The department shall not delete from its data system or records information indicating that the person was the subject of the report. The department's data system and records must clearly record the results of the court or administrative proceeding. If the case record and data system included a designation with the name of the subject of the report indicating that the person committed the abuse or neglect, that designation must be removed following the determination that there is not a preponderance of evidence that the subject of the report committed an act of child abuse or neglect.

    (G)(H)        All reports that are not indicated at the conclusion of the investigation and all records of information for which an investigation was not conducted pursuant to Section 20-7-510 must be classified as 'unfounded'. Unfounded reports must be further classified as either Category I, Category II, or Category III, or Category IV.

        (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 investigation did not produce a preponderance of the evidence that the child is an abused or neglected child.

        (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.

        (4)    Category IV unfounded reports are records of information received pursuant to Section 20-7-510, but which were not investigated by the department.

    (H)    Reports of child abuse and neglect must be entered immediately into the department's centralized data system 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 considered 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 accompanied by a description of services being provided as required under subsection (F).

        (2) Affirmative determinations must be 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 in Category I 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 that the report was determined to be unfounded. 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.

    (I)    The Central Registry of Child Abuse and Neglect must not contain information from reports classified as unfounded.

    (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. Information concerning reports classified as unfounded contained in the statewide data system and records must be maintained for not less than five years after the finding. Information contained in unfounded cases is not subject to disclosure under the Freedom of Information Act as provided for in Chapter 4, Title 30. Access to and use of information contained in unfounded cases must be strictly limited to the following purposes and entities:

        (1)    a prosecutor or law enforcement officer or agency, for purposes of investigation of a suspected false report pursuant to Section 20-7-567;

        (2)    the department or a law enforcement officer or agency, for the purpose investigating allegations of abuse or neglect;

        (3)    the department or a law enforcement officer or agency, when information is received that allows the reopening of a Category III unfounded report pursuant to subsection (C);

        (4)    as evidence in a court proceeding, if admissible under the rules of evidence as determined by a judge of competent jurisdiction;

        (5)    a person who is the subject of a report in an action brought by a prosecutor or by the department, if otherwise subject to discovery under the applicable rules of procedure;

        (6)    the department, for program improvement, auditing, and statistical purposes;

        (7)    as authorized in Section 20-7-695; and

        (8)    the Department of Child Fatalities pursuant to Section 20-7-5930.

    (K)    Except as authorized in this section, no person may disseminate or permit dissemination of information maintained pursuant to subsection (J). A person who disseminates or permits dissemination in violation of this subsection 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. A person aggrieved by an unlawful dissemination in violation of this subsection may bring a civil action to recover damages incurred as a result of the unlawful act and to enjoin its dissemination or use.

    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)(L)    At a hearing pursuant to Section 20-7-736 or 20-7-738, at which the court orders that a child be taken or retained in custody or finds that the child was abused or neglected, the court:

        (1)    must order that a person be entered in the Central Registry of Child Abuse and Neglect if it the court finds that there is a preponderance of evidence that the person physically or sexually abused or wilfully or recklessly neglected the child. However, if the only form of physical abuse that is indicated is excessive corporal punishment, the court only may order that the person be entered in the Central Registry if item (2) applies;

        (2)    may order that the person be entered in the Central Registry if it the court finds that there is a preponderance of evidence that the person abused or neglected the child in any manner other than provided for in item (1) and that the nature and circumstances of the abuse indicate that the person would present a significant risk of committing physical or sexual abuse or wilful or reckless neglect if the person were in a position or setting outside of the person's home that involves care of or substantial contact with children.

    (L)(M)        The At the probable cause hearing, the court may order at the probable cause hearing that the person be entered in the Central Registry if there is sufficient evidence to support the findings required by subsection (K).

    (M)(N)     At any time following receipt of a report, the department may petition the family court for an order directing that the person named as perpetrator be entered in the Central Registry of Child Abuse and Neglect. The petition must have attached a written case summary stating facts sufficient to establish by a preponderance of the evidence that the person named as perpetrator abused or neglected the child and that the nature and circumstances of the abuse indicate that the person named as perpetrator would present a significant risk of committing physical or sexual abuse or wilful or reckless neglect if placed in a position or setting outside of the person's home that involves care of or substantial contact with children. The department shall must serve a copy of the petition and summary on the person named as perpetrator. The petition shall must include a statement that the judge shall must rule based on the facts stated in the petition unless the clerk of court or the clerk's designee receives a written request for a hearing from the person named as perpetrator within five days after service of the petition. The name, address, and telephone number of the clerk of court or the clerk's designee must be stated in the petition. If the person named as perpetrator requests a hearing, the court shall must schedule a hearing on the merits of the allegations in the petition and summary to be held no later than five working days following the request.

    (N)(O)    The department must seek an order placing a person in the Central Registry pursuant to subsection (K), (L), or (M) in all cases in which the department concludes that there is a preponderance of evidence that the person committed sexual abuse.

    (O)(P)    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.

    (P)(Q)    In cases where a person has been placed in the Central Registry of Child Abuse and Neglect, the outcome of any further proceedings must be entered immediately by the department into the Central Registry of Child Abuse and Neglect. If it is determined that a report is unfounded, the department must immediately purge information identifying that person as a perpetrator from the registry and from department records as provided in Section 20-7-680(D) and (E).

    (Q)(R)        The department must 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; and

        (8)    the telephone number and name of a department employee available to answer questions.

    (R)(S)    The department must 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 must 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 must 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 must file a formal incident report at the time it is notified of the alleged sexual abuse. The law enforcement agency must provide to the department copies of incident reports generated in any case reported to law enforcement by the department and in any case in which the officer responsible for the case knows the department is involved with the family or the child. The law enforcement officer must make reasonable efforts to advise the department of significant developments in the case, such as disposition in summary court, referral of a juvenile to the Department of Juvenile Justice, arrest or detention, trial date, and disposition of charges. The department must include in its records copies of incident reports provided under this section and must record the disposition of charges.

    (S)(T)    The department actively must 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.

    (T)(U)        The local office of the department responsible for the county of the mother's legal residence must 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 having custody of the mother.

    (U)(V)        In all instances, the agency in all instances must act in accordance with the policies, procedures, and regulations promulgated and distributed by the State Department of Social Services pursuant to this chapter."

    SECTION    4.    Section 20-7-655 of the 1976 Code, as last amended by Act 450 of 1996, is further amended to read:

    "Section 20-7-655.    (A)    The Department of Social Services shall purpose of this section is to provide a child protective services appeals process for review of indicated reports that have been indicated pursuant to Section 20-7-650 and are not otherwise being brought before the family court for disposition and for reports indicated and entered in the Central Registry pursuant to Section 20-7-670 and not 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. This process is available only to the person determined to have abused or neglected the child.

    (B)    The state director shall appoint a child protective services appeals committee hearing officer to conduct a contested case hearing 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 The hearing officer shall prepare recommended findings of fact and conclusions of law for review by the state director or the state director's designee who shall render the final decision. The designee under this subsection must not be a person who was involved in making the original case decision or who conducted the interim review of the original case decision. The purpose of the hearing is to determine whether there is a preponderance of evidence that the appellant was responsible for abuse or neglect of the child.

    (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. If a person requests an appeal under this section and the family court has determined that the person is responsible for abuse or neglect of the child, an appeal pursuant to this section is not available. If the family court reaches such a determination after the initiation of the appeal provided for in this section, the department shall terminate the appeal upon receipt of an order that disposes of the issue. If a proceeding is pending in the family court that may result in a finding that will dispose of an appeal under this section, the department shall stay the appeal pending the court's decision.

    (D)    If the department determines that a report of suspected child abuse or neglect is indicated and the case will not be brought before department is not taking the case to the family court for disposition, or if the case was entered in the Central Registry pursuant to Section 20-7-670 and the department is not taking the case to family court for disposition, the department must shall provide notice of the case decision by certified mail to the subject of the report by certified mail person determined to have abused or neglected the child. The notice must inform the subject of the report person 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 department of his intent in writing within thirty days of receipt of the notice. The notice also must advise the person that the appeal process is for the purpose of determining whether a preponderance of evidence supports the case decision that the person abused or neglected the child. If the subject of the report person 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 person and the case decision becomes the affirmative determination final.

    (E)    Within fourteen days after receipt of a notice of intent to appeal, an appropriate official of the department designated by the director must conduct 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 contested case hearing. If the official conducting the interim review decides that the determination against the appellant is not supported by a preponderance of evidence, this decision must be reflected in the department's case record and database as provided in Section 20-7-650(G)(2) or (3). If the person's name was in the Central Registry as a result of a determination pursuant to Section 20-7-670 and the interim review results in a reversal of the decision that supports that entry, the person's name must be removed from the Central Registry.

    (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. After a contested case hearing, if the state director or the director's designee decides that the determination against the appellant is not supported by a preponderance of evidence, this decision must be reflected in the department's case record and database as provided in Section 20-7-650(G)(2) or (3). If the person's name was in the Central Registry as a result of a determination pursuant to Section 20-7-670 and the state director or the director's designee reverses the decision that supports that entry, the person's name must be removed from the Central Registry. If the state director or the director's designee affirms the determination against the appellant, the appellant has the right to seek judicial review in the family court of the jurisdiction in which the case originated.

    (G)    Proceedings for judicial review may be instituted by filing An appellant seeking judicial review shall file a petition in the family court within thirty days after the final decision of the department. Copies The appellant shall serve a copy of the petition must be served upon the department and all parties of record. Judicial review must be conducted by. The family court shall conduct a judicial review 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 the decision of the department that a preponderance of evidence shows that the subject of the report appellant abused or neglected the child should be affirmed or reversed. 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    5.    Section 20-7-680 of the 1976 Code, as last amended by Act 132 of 1997, is further amended to read:

    "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. To further these purposes, the department must maintain one or more statewide data systems concerning cases reported to it pursuant to this article.

    (B)    The Department of Social Services must maintain a Central Registry of Child Abuse and Neglect within the department's child protective services unit in accordance with Sections 20-7-650, 20-7-670, and 17-25-135. Perpetrators of child abuse and neglect must be entered in the registry only by order of a court as provided for in Sections 20-7-650 and 17-25-135, or as provided for in Section 20-7-670. Each entry in the registry must be accompanied by information further identifying the person, including, but not limited to, the person's date of birth, address, and any other identifying characteristics, and describing the abuse or neglect committed by the person.

    (C)    The Department of Social Services shall must 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 name, address, birth date, identifying characteristics, and other information of a person named in a report must be removed from department records and the central registry immediately upon a determination by the department or the court that the report is unfounded, except as provided in Section 20-7-650(I). The Central Registry of Child Abuse and Neglect must not contain information from reports classified as unfounded. Other department records and databases must treat unfounded cases as provided for in Section 20-7-650.

    (E)    The names, addresses, birth dates, identifying characteristics, and other information unnecessary for auditing and statistical purposes of persons named in the registry or department records of indicated cases other than the Central Registry of Child Abuse and Neglect must be destroyed seven years from the date services are terminated. This section does not prohibit the department from maintaining an 'indicated report case' 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 person as perpetrator, 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.

    (F)    Information in the central registry and other department records may be released only as authorized in Section 20-7-690 or as otherwise specifically authorized by statute. Information in records of the department other than the Central Registry of Child Abuse and Neglect must not be used for screening potential employees or volunteers of any public or private entity, except as specifically provided by Section 20-7-690 or as otherwise provided by statute. However, nothing in this section prevents the department from using other information in its records when making decisions associated with administration or delivery of the department's programs and services."

    SECTION    1.    Section 20-7-110 of the 1976 Code, as last amended by Act 450 of 1996, is further amended to read:

    "Section 20-7-110.    In all child abuse and neglect and voluntary placement 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."

    SECTION    2.    Section 20-7-121 of the 1976 Code, as last amended by Act 450 of 1996, is further amended to read:

    "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 or extension of voluntary placement agreements or proceedings within the family court, pursuant to Section 20-7-110. This program must be administered by the Office of the Governor."

    SECTION    3.    Section 20-7-490 of the 1976 Code, as last amended by Act 104 of 1999, is further amended to read:

    "Section 20-7-490.    When used in this article, or in Article 9, Article 11, or subarticle 7 of Article 13, 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 'Child abuse or neglect' occurs 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 or engages in acts or omissions which present a substantial risk of physical or mental injury to the child, 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 or engages in acts or omissions that present a substantial risk that a sexual offense as defined in the laws of this State would be committed against the child;

        (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 or presents a substantial risk of causing physical or mental injury or presents a significant threat of injury as defined in this section. However, a child's absences from school may not be considered abuse or neglect unless the school has made efforts to bring about the child's attendance and those efforts were unsuccessful because of the parents refusal to cooperate. 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.;

        (f)    has committed abuse or neglect as described in subsections (a) through (e) such that a child who subsequently becomes part of the person's household is at substantial risk of one of those forms of abuse or neglect.

    (4)    'Threatened harm' means a substantial risk of harm, as defined by item (3).

    (5)(3)    '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 daycare 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 If 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, the department may use information gathered by law enforcement responding to the incident to determine whether to initiate an investigation. If this information is not available within twenty-four hours following receipt of the report or if law enforcement is not investigating the incident, an investigation pursuant to Section 20-7-650 must be initiated.

    (6)(4)    'Physical injury' means death or permanent or temporary disfigurement or impairment of any bodily organ or function.

    (7)(5)    'Mental injury' means an injury to the intellectual, emotional, or psychological capacity or functioning 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 to a reasonable degree of medical certainty.

    (8)(6)    '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)(7)    '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)(8)    '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)(9)    'Suspected report' means all initial reports of child abuse or neglect received pursuant to this article.

    (12)(10)    '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)(11)    '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)(12)    '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)(13)    'Preponderance of evidence' means evidence which, when fairly considered, is more convincing as to its truth than the evidence in opposition.

    (16)(14)    'Department' means the Department of Social Services.

    (17)(15)    '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)(16)    '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)(17)    'Court' means the family court.

    (21)(18)    '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)(19)    '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 consenting to a marriage, enlistment in the armed forces, and medical and surgical treatment;

        (b)    represent representing 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)(20)    '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)(21)    '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)(22)    'Physical custody' means the lawful, actual possession and control of a child.

    (26)(23)    'Emergency protective 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.

    Emergency protective custody may be taken only by a law enforcement officer pursuant to this article."

    SECTION    4.    The 1976 Code is amended by adding:

        "Section 20-7-570.    (A)    If the family court determines pursuant to Section 20-7-695 that a person has made a report of suspected child abuse or neglect maliciously or in bad faith or if a person has been found guilty of making a false report pursuant to Section 20-7-567, the department may bring a civil action to recover the costs of the department's investigation and proceedings associated with the investigation, including attorney's fees. The department also is entitled to recover costs and attorney's fees incurred in the civil action authorized by this section. Whether to bring a civil action pursuant to this section is in the sole discretion of the department.

    (B)    If the family court determines pursuant to Section 20-7-695 that a person has made a false report of suspected child abuse or neglect maliciously or in bad faith or if a person has been found guilty of making a false report pursuant to Section 20-7-567 a person who was subject of the false report has a civil cause of action against the person who made the false report and is entitled to recover from the person who made the false report such relief as may be appropriate, including:

        (1)    actual damages;

        (2)    punitive damages; and

        (3)    a reasonable attorney's fee and other litigation costs reasonably incurred."

    SECTION    5.    Section 20-7-610(A)(1) of the 1976 Code, as last amended by Act 104 of 1999, is further amended to read:

    "(1) the officer has probable cause to believe that by reason of abuse or neglect the child's life, health, or physical safety is in substantial and imminent danger if the child is not taken into emergency protective custody, and there is not time to apply for a court order pursuant to Section 20-7-736. When a child is taken into emergency protective custody following an incident of excessive corporal punishment, and the only injury to the child is external lesions or minor bruises, other children in the home shall not be taken into emergency protective custody solely on account of the injury of one child through excessive corporal punishment. However, the officer may take emergency protective custody of other children in the home if a threat substantial risk of harm to them is further indicated by factors including, but not limited to, a prior history of domestic violence or other abuse in the home, alcohol or drug abuse if known or evident at the time of the initial contact, or other circumstances indicative of danger to the children;"

    SECTION    6.    Section 20-7-635(C) of the 1976 Code, as added by Act 450 of 1996, is amended to read:

    "(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    7.    The 1976 Code is amended by adding:

    "Section 20-7-637.    (A)    The department may accept the voluntary placement of a child in the legal custody of the department by the child's parent or guardian. It is in the discretion of the department whether to accept the placement and the department shall develop criteria for voluntary placement. The department and the parent or guardian must sign a written voluntary placement agreement that explains the rights and obligations of the parent or guardian and the department.

    (B)    When a child enters the custody of the department pursuant to a voluntary placement agreement, the department and the parent or guardian must develop a placement plan pursuant to Section 20-7-764 and the parties must comply with the permanency planning hearing requirements of Section 20-7-766.

    (C)    The voluntary placement is a temporary arrangement. The placement may not last more than 180 days without a court finding pursuant to this section that extending the placement is in the best interest of the child. In any such proceeding, the child shall have representation by a guardian ad litem pursuant to Section 20-7-110. The department shall attach to the petition a written summary of the circumstances of the placement and the reasons for the extension and a placement plan for review and approval in accordance with Section 20-7-764. The consent of the parent or guardian and the child's guardian ad litem must also be provided in writing to the court. The court may issue its order based on the petition and supporting documentation or may order a hearing. To extend the voluntary placement, the court's order must be issued within the first 180 days from the date of the original placement.

    (D)    A voluntary placement is revocable by the parent or guardian who entered into the agreement and by the department. To effect the revocation, either party must provide written notice at least forty-eight hours in advance of the date the child would be returned to the parent or guardian.

    (E)    If a child who is in the custody of the department pursuant to a voluntary placement agreement is abandoned by the child's parent or guardian, the child must be treated as being in emergency protective custody, without the necessity for complying with the procedures in Section 20-7-610(A) or (P). Within 24 hours after determining that the child has been abandoned, the department shall initiate a removal proceeding in the appropriate family court pursuant to Section 20-7-736, and the court shall proceed as provided in Section 20-7-610(K) through (O).

    (F)    When a party revokes the agreement, if the voluntary placement agreement or an extension is the basis for the department having custody, the foster care provider is entitled to receive notice of the intent to move the child as soon as reasonably possible. Foster parents who provide care for a child placed pursuant to this section may not appeal the return of the child to the parent or guardian.

    (G)    Nothing in this section limits the authority of the department to proceed pursuant to Section 20-7-736 for removal of custody or the authority of the court in instances of abuse or neglect or suspected abuse or neglect."

    SECTION    8.    Section 20-7-670 of the 1976 Code, as last amended by Part II, Section 6A of Act 1 of 2001, is further amended to read:

    "Section 20-7-670.    (A)    The Department of Social Services is authorized to receive and investigate reports of abuse and neglect of children who reside in or receive care or supervision in residential institutions and, foster homes, and child daycare facilities. Responsibility for investigating these entities must be assigned to a unit or units not responsible for selecting or licensing these entities. 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 subject to this section are those which are supervised by or recommended for licensing by the department or by child placing agencies to determine whether the report is indicated or unfounded. Indicated reports must be based upon a finding that abuse or neglect is supported by a preponderance of the evidence available to the department. The determination that a report is indicated may be appealed, as provided in Section 20-7-655. 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 receive and investigate these reports.

    (E)    The Department of Social Services may initiate proceedings in the circuit court to enjoin the operations of a foster home, an institution, a child daycare facility 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. The family court retains jurisdiction to hear cases brought by the department for the protection of children residing in a facility, institution, or home subject to this section when the child resides there because of the child's relationship to the owner or operator of the home or a caregiver residing in the home.

    (F)    The Department of Social Services must investigate an allegation of abuse or neglect of a child where the child is in the custody of or a resident of a residential treatment facility or intermediate care facility for the mentally retarded licensed by the Department of Health and Environmental Control or operated by the Department of Mental Health.

    (G)    The Department of Social Services has access to facilities for the purpose of conducting investigations and has authority to request and receive written statements, documents, exhibits, and other information pertinent to an investigation including, but not limited to, hospital records. The appropriate officials, agencies, departments, and political subdivisions of the State must assist and cooperate with the court and the Department of Social Services in furtherance of the purposes of this section.

    (H)    The Department of Social Services may file with the family court an affidavit and a petition to support issuance of a warrant at any time during an investigation. The family court must 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 premises of the child, to inspect the premise where the child may be located or may reside, and to obtain copies of medical, school, or other records necessary for investigation of the allegations of abuse or neglect.

    (I)    When the investigation performed pursuant to this section results in a determination that an individual has harmed a child or threatened a child with harm, as defined in Section 20-7-490, the name of that individual must be entered immediately in the Central Registry of Child Abuse and Neglect. The department must notify the individual in writing by certified mail that his name has been entered in the registry, of his right to request an appeal of the decision to enter his name in the registry, and of the possible ramifications regarding future employment and licensing if he allows his name to remain in the registry. The procedures set forth in Section 20-7-655 apply when an individual challenges the entry of his name in the registry and challenges of the entry in the registry pursuant to this subsection must be given expedited review in the appellate process."

    SECTION    9. Section 20-7-690 of the 1976 Code, as last amended by Act 104 of 1999, is further amended by adding at the end:

    "(N)(1)    Reports, working documents, and records created by or for the department are confidential and privileged when these reports, documents, and records were created:

            (a)    as part of its qualitative review of a county department's child welfare case files to assess child welfare practice and render technical assistance; or

            (b)    as a result of reviews conducted pursuant to the department's child death protocol.

        (2)    These reports, documents, and records are not subject to discovery, subpoena, or introduction into evidence in any civil proceeding against the department or its employees acting in their official capacity.

        (3)    These reports, documents, and records are not subject to release under the South Carolina Freedom of Information Act.

        (4)    Meetings occurring as part of the qualitative review process and the child death protocol process are closed to the public.

        (5)    No person participating in these processes may be required to testify in any civil action as to any findings, opinions, recommendations, evaluations, or other action resulting from or developed during these processes.

        (6)    The state director has the authority to release information contained in reports, documents, and records governed by this subsection to other government officials if the director determines the information pertains to a matter within the scope of that official's responsibility.

        (7)    The department shall release information contained in these reports, documents, and records to the Department of Child Fatalities pursuant to Section 20-7-5930 upon request.

        (8)    This subsection does not make privileged or confidential those public reports prepared and issued pursuant to Section 43-1-115 or Section 20-7-690(H).

        (9)    Information, documents, reports, or records that are not created by or for the department's internal review processes described in this subsection do not become immune from discovery or from use in a civil action because they were used in an internal review.

        (10)    Release of material pursuant to (6) or (7) does not abrogate the duty to maintain confidentiality or the privilege established elsewhere in this section."

    SECTION    10.    Section 20-7-762 of the 1976 Code, as last amended by Act 450 of 1996, 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 service 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 changes in parental behavior, home conditions, and safety planning for the child 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 the 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."

    SECTION    11.    Section 20-7-766 of the 1976 Code, as last amended by Act 104 of 1999, 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 motion 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. An action for permanency planning must be brought pursuant to this section for a child who enters the custody of the department by any mechanism, including Section 20-7-637, 20-7-610, 20-7-736, or 20-7-1700. If the child entered care pursuant to a voluntary placement agreement or relinquishment for adoption and no court action is pending concerning the child, the department may initiate the permanency planning hearing with a summons and petition for review. All parties must be served with the summons and petition at least ten days before the hearing and no responsive pleading is required.

    (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 (G);

        (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)    At the permanency planning hearing the court shall review the department's plan, for achieving permanence for the child. If the department's plan does not return the child home to his parents, the court must outline the compelling reasons for the permanent plan as provided in subsection (G). If the court selects one of the options provided in subsection (G), the court's order must outline compelling reasons for the plan.

    (C)(D)    If the court determines at the permanency planning hearing that the child may be safely maintained in the home in 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, 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 child should be returned, 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)(E)    Except as provided in subsection (E)(F), if the court determines at the permanency planning hearing that the child should not be returned to the child's parent at that time, 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. If a petition to terminate parental rights is to be filed, the department must exercise and document every reasonable effort to promote and expedite the adoptive placement and adoption of the child, including a thorough adoption assessment and child-specific recruitment. Adoptive placements must be diligently sought for the child and failure to do so solely because a child is classified as 'special needs' is expressly prohibited. No adoption may be delayed or denied solely on these special needs. If the department demonstrates to the court that terminating parental rights is clearly not in the child's best interest and one or more of the conditions specified under subsection (F)(G) exists, a different disposition may be required. For purposes of this subsection:

        (1)    'thorough adoption assessment' means conducting and documenting face-to-face interviews with the child, foster care providers, and other significant parties; and

        (2)    'child specific recruitment' means recruiting an adoptive placement targeted to meet the individual needs of the specific child including, but not be limited to, use of the media, use of photo listings, and any other in-state or out-of-state resources which may be utilized to meet the specific needs of the child, unless there are extenuating circumstances that indicate that these efforts are not in the best interest of the child.

    (E)(F)    If the court determines that the child may be returned to the parent as provided for in subsection (C)(D) within a specified reasonable time not to exceed six eighteen months after the child was placed in foster care and that the best interests of the child will be served and if the court finds that initiating termination of parental rights is not in the best interests of the child, the court may order an extension of the plan approved pursuant to Section 20-7-764 or may order compliance with a modified plan.

    (F)(G)    After assessing the viability of adoption, if the department demonstrates 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; however,. A home study on the relative or nonrelative must be submitted to the court for consideration before placement. 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 fourteen years of age, the special needs or circumstances must be shown by clear and convincing evidence;

        (3)    child has attained the age of sixteen, reasonable efforts to place the child adoptively have been exhausted, and the child 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

        (4)    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 pending implementation of a permanent plan.

    (G)(H)    If the child is not returned to the parent, in addition to the findings required under subsection (D)(E) or (F)(G), 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 no longer than eighteen months from the date the child was placed in foster care;

        (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 safe and 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.; and

        (x)    the steps the department is taking to promote and expedite the adoptive placement and to finalize the adoption of the child, including documentation of child specific recruitment efforts.

    (H)(I)    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 (G)(H).

    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 (F)(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 (F)(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.

    If the child is retained in foster care pursuant to a permanent plan other than termination of parental rights and adoption, reunification, custody or guardianship with an extended family member or suitable nonrelative, future permanency planning hearings must be held annually, unless the child is younger than ten years of age. Permanency planning hearings must be held every six months for children younger than ten years of age or children with a permanent plan of termination of parental rights and adoption who remain in the custody of the department.

    (I)(J)    A supplemental report must be attached to a motion filed pursuant to subsection (A). The supplemental report and notice of the hearing must be served upon all named parties at least forty ten days before the hearing.

    (J)(K)    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.

    (K)(L)    The pendency of an appeal concerning a child in foster care does not deprive the court of jurisdiction to hear a case pursuant to this section. The court shall retain jurisdiction to review the status of the child and may act on matters not affected by the appeal."

    SECTION    12.    Section 20-7-768(C) of the 1976 Code, as added by Act 391 of 1998, is amended to read:

    "(C)    This section does not apply:

        (1)    to a child for whom the family court has found that initiation of termination of parental rights is not in the best interests of the child, after applying the criteria of Section 20-7-766(C), (E), or (F)(D), (F), or (G) to select a permanent plan for the child from Section 20-7-766(C), (E), or (F)(D), (F), or (G), and that this finding and permanent plan constitute a compelling reason for not initiating termination of parental rights;

    (2)    if the family court finds that the department has not afforded services to the parents provided for in the treatment placement plan approved pursuant to Section 20-7-764 in a manner that was consistent with the time periods in the plan, or that court hearings have been delayed in such a way as to interfere with the initiation, delivery, or completion of services, but only if:

        (a)    the parent did not delay the court proceedings without cause or delay or refuse the services;

        (b)    successful completion of the services in question may allow the child to be returned as provided for in Section 20-7-766(C)(D) within the extension period; and

        (c)    the case is not one for which the court has made a determination that reasonable efforts to preserve or reunify the family are not necessary pursuant to Section 20-7-763."

    SECTION    13.    Section 20-7-1572(7) of the 1976 Code, as last amended by Act 391 of 1998, is further amended to read:

    "(7)    The child has been abandoned as defined in Section 20-7-490(21)(18);"

    SECTION    14.    Section 20-7-1642 of the 1976 Code, as last amended by Act 391 of 1998, is further amended by adding at the end:

    "(C)    This section does not prevent placement when a conviction or plea for one of the crimes enumerated in subsection (A) has been pardoned. However, notwithstanding the entry of a pardon, the department or other entity making placement or licensing decisions may consider all information available, including the person's pardoned convictions or pleas and the circumstances surrounding them, to determine whether the applicant is unfit or unsuited to provide foster care services."

    SECTION    15.    The 1976 Code is amended by adding:

    "Section 20-7-2265.    When a provision of law or regulation provides for a criminal history background check in connection with licensing, placement, service as a volunteer, or employment with a child welfare agency, the provision of law or regulation may not operate to prevent licensing, placement, service as a volunteer, or employment when a conviction or plea of guilty or nolo contendere has been pardoned. However, notwithstanding the entry of a pardon, the department, child welfare agency, or employer may consider all information available, including the person's pardoned convictions or pleas and the circumstances surrounding them, to determine whether the person is unfit or unsuited for licensing, placement, service as a volunteer, or employment."

    SECTION    16.    Section 20-7-2725(A) of the 1976 Code, as last amended by Act 221 of 2000, is further amended by adding at the end:

    "This section does not prevent employment or provision of caregiver services when a conviction or plea for one of the crimes enumerated in this subsection has been pardoned. However, notwithstanding the entry of a pardon, an operator or the department may consider all information available, including the person's pardoned convictions or pleas and the circumstances surrounding them, to determine whether the applicant is unfit or unsuited for employment or to provide caregiver services."

    SECTION    17.    Section 20-7-2730(E) of the 1976 Code, as last amended by Act 54 of 1995, is further amended by adding at the end:

    "This section does not prevent licensing when a conviction or plea for one of the crimes enumerated in this subsection has been pardoned. However, notwithstanding the entry of a pardon, the department may consider all information available, including the person's pardoned convictions or pleas and the circumstances surrounding them, to determine whether the person is unfit or unsuited to be an operator."

    SECTION    18.    Section 20-7-2740(D) of the 1976 Code, as last amended by Act 54 of 1995, is further amended by adding at the end:

    "This section does not prevent renewal when a conviction or plea for one of the crimes enumerated in this subsection has been pardoned. However, notwithstanding the entry of a pardon, the department may consider all information available, including the person's pardoned convictions or pleas and the circumstances surrounding them, to determine whether the person is unfit or unsuited to be an operator."

    SECTION    19.    Section 20-7-2800(D) of the 1976 Code, as last amended by Act 54 of 1995, is further amended by adding at the end:

    "This section does not prevent approval when a conviction or plea for one of the crimes enumerated in this subsection has been pardoned. However, notwithstanding the entry of a pardon, the department may consider all information available, including the person's pardoned convictions or pleas and the circumstances surrounding them, to determine whether the person is unfit or unsuited as an applicant or to be an operator, caregiver, or employee."

    SECTION    20.    Section 20-7-2810(D) of the 1976 Code, as last amended by Act 444 of 1996, is further amended by adding at the end:

    "This section does not prevent renewal when a conviction or plea for one of the crimes enumerated in this subsection has been pardoned. However, notwithstanding the entry of a pardon, the department may consider all information available, including the person's pardoned convictions or pleas and the circumstances surrounding them, to determine whether the person is unfit or unsuited as an applicant or to be an operator, caregiver, or employee."

    SECTION    21.    Section 20-7-2850(D) of the 1976 Code, as last amended by Act 444 of 1996, is further amended by adding at the end:

    "This section does not operate to prevent registration or renewal when a conviction or plea for one of the crimes enumerated in this subsection has been pardoned. However, notwithstanding the entry of a pardon, the department may consider all information available, including the person's pardoned convictions or pleas and the circumstances surrounding them, to determine whether the person is unfit or unsuited to be an operator, caregiver, employee, or to be living in the family daycare home."

    SECTION    22.    Section 20-7-2900(C) of the 1976 Code, as last amended by Act 220 of 2000, is further amended by adding at the end:

    "This section does not prevent licensing or registration or renewal when a conviction or plea for one of the crimes enumerated in this subsection has been pardoned. However, notwithstanding the entry of a pardon, the department may consider all information available, including the person's pardoned convictions or pleas and the circumstances surrounding them, to determine whether the person is unfit or unsuited to be an operator, caregiver, employee."

    SECTION    23.    Section 20-7-3097(A) of the 1976 Code, as last amended by Act 444 of 1996, is further amended by adding at the end:

    "This section does not prevent employment when a conviction or plea for one of the crimes listed has been pardoned. However, notwithstanding the entry of a pardon, the department may consider all information available, including the person's pardoned convictions or pleas and the circumstances surrounding them, to determine whether the applicant is unfit or unsuited for employment."

    SECTION    24.    Section 20-7-3010 of the 1976 Code, as amended by Part II, Section 79A. G of Act 164 of 1993, is further amended to read:

    "Section 20-7-3010.    The department is empowered to seek an injunction against the continuing operation of a child day care facility in the family circuit court having jurisdiction over the county in which the facility is located:

    (1)    when a facility is operating without a license or statement of registration;

    (2)    when there is any violation of this subarticle or of the regulations promulgated by the department which threatens serious harm to children in the child day care facility;

    (3)    when an operator has repeatedly violated this subarticle or the regulations of the department."

    SECTION    25.    Section 20-7-2920 of the 1976 Code is repealed.

    SECTION    1.    The 1976 Code is amended by adding:

    "Section 20-1-110.    No common law marriage entered into in this State after December 31, 2002, is valid. Otherwise valid common law marriages entered into before January 1, 2003, are not affected by this section and continue to be recognized in this State."

    SECTION    2.    Section 20-1-360 of the 1976 Code is repealed.

    SECTION    1.    Section 2-1-180 of the 1976 Code is amended to read:

    "Section 2-1-180.    The regular annual session of the General Assembly shall adjourn sine die each year not later than 5:00 p.m. on the first second Thursday in June May. In any year that the House of Representatives fails to give third reading to the annual General Appropriations Bill by March thirty-first fifteenth, the date of sine die adjournment is extended by one statewide day for each statewide day after March thirty-first fifteenth that the House of Representatives fails to give the bill third reading. The session may also be extended by concurrent resolution adopted by a two-thirds vote of both the Senate and House of Representatives. During the time between 5:00 p.m. on the first second Thursday in June May and the extended sine die adjournment date, as set forth herein, no legislation or other business may be considered except the General Appropriations Bill and any matters approved for consideration by a concurrent resolution adopted by two-thirds vote in both houses."

    SECTION    1A.    Whereas, the State of South Carolina believes it appropriate for school boards and school districts to permit graduating students to participate in graduation ceremonies by offering short opening or closing student messages, or both, in order to promote student freedom of expression and afford them the opportunity to contribute to their graduation ceremonies;

    Whereas, the State of South Carolina believes it appropriate for school boards and school districts to permit students to participate in school athletic events by offering short opening or closing student messages, or both, in order to promote student freedom of expression and afford them the opportunity to contribute to school athletic events;

    Whereas, the State of South Carolina is neutral with respect to the content of the student messages delivered, and requires the same neutrality of school boards and school districts acting under this bill;

    Whereas, the State of South Carolina recognizes that "government may not coerce anyone to support or participate in religion or its exercise, or otherwise act in any way which 'establishes a [state] religion,'" see Lee v. Weisman, 505 U.S. 577, 587 (1992) (citation omitted), and does not intend by this bill to encourage or discourage religious, non-religious, or anti-religious expression;

    Whereas, the General Assembly forbids school boards and school districts acting under this bill to recommend, monitor, review, or censor opening or closing student messages, accord Adler v. Duval Cty. Sch. Bd., 250 F.3d 1330, 1336-37 (11th Cir. 2001); and

    Whereas, this bill does not signify the General Assembly's sense of the limits of constitutional law nor preempt school boards and school districts from exercising a constitutional right to permit more expansive student speech at school events, but represents a "safe harbor" which the State of South Carolina will defend.

    SECTION    2.    This Part may be cited as the "South Carolina Student-Led Messages Act".

    SECTION    3.    The 1976 Code is amended by adding:

    "Section 59-1-441.    (A)    The governing body of a school board or school district may adopt a policy that permits any or all of the five graduating students with the highest academic standing at a high school to deliver a brief opening or closing message, or both, at the high school's graduation exercises.

    (B)    If any or all of these students give an opening or closing message, or both, the content of that message must be prepared or selected by the student and may not be recommended, monitored, reviewed or censored by a member of the governing body of the school district, its officers, or employees."

    SECTION    4.    The 1976 Code is amended by adding:

    "Section 59-1-442.    (A)    The governing body of a school board or school district may adopt a policy that permits the captains of athletic teams at a high school, or their student designees, to deliver a brief opening or closing message, or both, at school-sponsored athletic events.

    (B)    If the team captains or their student designees give an opening or closing message, or both, the content of that message must be prepared or selected by the student and may not be recommended, monitored, reviewed or censored by a member of the governing body of the school district, its officers, or employees."

    SECTION    5.    If any section, subsection, paragraph, subparagraph, sentence, clause, phrase, or word of this Part is for any reason held to be unconstitutional or invalid, such holding shall not affect the constitutionality or validity of the remaining portions of this Part, the General Assembly hereby declaring that it would have passed this Part, and each and every section, subsection, paragraph, subparagraph, sentence, clause, phrase, and word thereof, irrespective of the fact that any one or more other sections, subsections, paragraphs, subparagraphs, sentences, clauses, phrases, or words hereof may be declared to be unconstitutional, invalid, or otherwise ineffective.

    SECTION    1.    The 1976 Code is amended by adding:

    "Section 22-5-920.    (A)    As used in this section, 'conviction' includes a guilty plea, a plea of nolo contendere, or the forfeiting of bail.

    (B)    Following a first offense conviction as a youthful offender, the defendant after fifteen years from the date of the conviction may apply, or cause someone acting on his behalf to apply, to the circuit court for an order expunging the records of the arrest and conviction. However, this section does not apply to an offense involving the operation of a motor vehicle, to a violation of Title 50 or the regulations promulgated under it for which points are assessed, suspension provided for, or enhanced penalties for subsequent offenses authorized, to an offense classified as a violent crime in Section 16-1-60, or to an offense contained in Chapter 25 of Title 16, except as otherwise provided in Section 16-25-30. If the defendant has had no other conviction during the fifteen-year period following the first offense conviction as a youthful offender, the circuit court may issue an order expunging the records. No person may have his records expunged under this section more than once. A person may have his record expunged even though the conviction occurred before the effective date of this section.

    (C)    After the expungement, the South Carolina Law Enforcement Division is required to keep a nonpublic record of the offense and the date of its expungement to ensure that no person takes advantage of the rights permitted by this section more than once. This nonpublic record is not subject to release under Section 34-11-95, the Freedom of Information Act, or another provision of law, except to those authorized law enforcement or court officials who need this information in order to prevent the rights afforded by this section from being taken advantage of more than once."

    SECTION    1.    This act takes effect upon approval by the Governor except Part III which takes effect January 1, 2003./

    Renumber sections to conform.

    Amend totals and title to conform.

JAMES H. HARRISON for Committee.

TO ENACT "STEPHANIE'S LAW"; TO AMEND SECTION 20-7-510, CODE OF LAWS OF SOUTH CAROLINA, 1976, RELATING TO PERSONS REQUIRED OR PERMITTED TO REPORT CHILD ABUSE AND NEGLECT, SO AS TO REQUIRE THE DEPARTMENT OF SOCIAL SERVICES TO DETERMINE WHETHER PREVIOUS REPORTS HAVE BEEN MADE REGARDING A CHILD OR SUBJECT OF A REPORT AND TO REQUIRE THE DEPARTMENT TO MAINTAIN A RECORD OF INFORMATION RECEIVED THAT IS NOT INVESTIGATED; TO AMEND SECTION 20-7-650, RELATING TO DUTIES OF LOCAL CHILD PROTECTIVE AGENCIES, SO AS TO RE-CATEGORIZE UNFOUNDED REPORTS; TO AMEND SECTION 20-7-655, RELATING TO THE CHILD PROTECTIVE SERVICES APPEALS PROCESS, SO AS TO DELETE THE REQUIREMENT THAT CERTAIN RECORDS BE PURGED; AND TO AMEND SECTION 20-7-680, RELATING TO THE CENTRAL REGISTRY OF CHILD ABUSE AND NEGLECT, SO AS TO PROVIDE THAT THE CENTRAL REGISTRY OF CHILD ABUSE AND NEGLECT MUST NOT CONTAIN INFORMATION FROM REPORTS CLASSIFIED AS UNFOUNDED.

Be it enacted by the General Assembly of the State of South Carolina:

SECTION    1.    This act may be cited as "Stephanie's Law".

SECTION    2.    Section 20-7-510 of the 1976 Code, as amended by Act 81 of 2001, is further amended by adding appropriately numbered new subsections to read:

    "( )    When a report is referred to the department for an investigation or other response, the department must determine whether previous reports have been made regarding the same child or the same subject of the report. In determining whether previous reports have been made, the department must determine whether there are any suspected, indicated, or unfounded reports maintained pursuant to Section 20-7-650 regarding the same child or the same subject of the report.

    ( )    If the department does not conduct an investigation as a result of information received pursuant to this section, the department must make a record of the information and must classify the record as a Category III unfounded report in accordance with Section 20-7-650. The department and law enforcement are authorized to use information recorded pursuant to this subsection for purposes of assessing risk and safety if additional contacts are made concerning the child, the family, or the subject of the report."

SECTION    3.    Section 20-7-650 of the 1976 Code, as amended by Act 104 of 1999, is further amended to read:

    "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 report may be classified as unfounded Category II and 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 must make a finding within forty-five days after the investigation is reopened.

    This section does not require the department to investigate reports of child abuse or neglect which resulted in the death of the child unless there are other children residing in the home, or a resident of the home is pregnant, or the subject of the report is the parent, guardian, or person responsible for the welfare of another child regardless of whether that child resides in the home.

    (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 must 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 must 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 in 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)    Reports of child abuse and neglect must be classified in the department's data system and records in one of three categories: Suspected, Unfounded, or Indicated. If the report is categorized as unfounded, the entry must further state the classification of unfounded reports as set forth in subsection (H). All initial reports must be considered suspected. Reports must be maintained in the category of suspected for no more than sixty days after the report was received by the department. By the end of the sixty-day time period, suspected reports must be classified as either unfounded or indicated pursuant to the agency's investigation.

    (G)(1)    Indicated findings must be based upon a finding of the facts available to the department that abuse or neglect is supported by there is a preponderance of evidence that the child is an abused or neglected child. 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.

        (2)    If the family court makes a determination or the process described in Section 20-7-655 results in a determination that the indicated finding is not supported by a preponderance of evidence that there was any act of child abuse or neglect, the case classification must be converted to 'unfounded' and subsection (J) applies.

        (3)    If the family court makes a specific determination, or the process described in Section 20-7-655 results in a determination that there is not a preponderance of evidence that the person who was the subject of the report committed an act of child abuse or neglect, but that the child was abused or neglected by an unknown person, the department must maintain the case as an indicated case and access to records of the case may be granted as provided in Section 20-7-690. However, the department's data system and records must be amended so that they do not identify the person as a perpetrator of abuse or neglect. The department must grant access to the entire record, including information identifying the person as a perpetrator of abuse or neglect, if requested by any of the parties listed in items (1) through (8) of subsection (J) of this section.

    (G)(H)        All reports that are not indicated at the conclusion of the investigation and all records of information for which an investigation was not conducted pursuant to Section 20-7-510 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 the investigation did not produce a preponderance of the evidence that the child is an abused or neglected child.

        (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)(2)    Category III II 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.

        (3)    Category III unfounded reports are records of information received pursuant to Section 20-7-510, but which were not investigated by the department.

    (H)    Reports of child abuse and neglect must be entered immediately into the department's centralized data system 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 considered 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 accompanied by a description of services being provided as required under subsection (F).

(2) Affirmative determinations must be 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 in Category I 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 that the report was determined to be unfounded. 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.

    (I)    The Central Registry of Child Abuse and Neglect must not contain information from reports classified as unfounded.

    (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. Information concerning reports classified as unfounded contained in the statewide data system and records must be maintained for not less than five years after the finding. Access to use of information in unfounded cases is not subject to disclosure under the Freedom of Information Act as contained in Chapter 4, Title 30 and must be strictly limited to the following purposes and entities:

        (1)    a prosecutor or law enforcement officer or agency, for purposes of investigation of a suspected false report pursuant to Section 20-7-567;

        (2)    the department or a law enforcement officer or agency, for the purpose investigating allegations of abuse or neglect;

        (3)    the department or a law enforcement officer or agency, when information is received that allows the reopening of a Category II unfounded report pursuant to subsection (C) of this section;

        (4)    as evidence in a court proceeding, if otherwise admissible under the rules of evidence;

        (5)    a person who is the subject of a report in an action brought by a prosecutor or by the department, if otherwise subject to discovery under the applicable rules of procedure;

        (6)    the department, for program improvement, auditing, and statistical purposes;

        (7)    as authorized in Section 20-7-695; and

        (8)    the Department of Child Fatalities pursuant to Section 20-7-5930.

    (K)    Except as authorized in this section, no person may disseminate or permit dissemination of information maintained pursuant to subsections (G) and (J). A person who disseminates or permits dissemination in violation of this subsection 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. A person aggrieved by an unlawful dissemination in violation of this subsection may bring a civil action to recover damages incurred as a result of the unlawful act and to enjoin its dissemination or use.

    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)(L)    At a hearing pursuant to Section 20-7-736 or 20-7-738, at which the court orders that a child be taken or retained in custody or finds that the child was abused or neglected, the court:

        (1)    must order that a person be entered in the Central Registry of Child Abuse and Neglect if it the court finds that there is a preponderance of evidence that the person physically or sexually abused or wilfully or recklessly neglected the child. However, if the only form of physical abuse that is indicated is excessive corporal punishment, the court only may order that the person be entered in the Central Registry if item (2) applies;

        (2)    may order that the person be entered in the Central Registry if it the court finds that there is a preponderance of evidence that the person abused or neglected the child in any manner other than provided for in item (1) and that the nature and circumstances of the abuse indicate that the person would present a significant risk of committing physical or sexual abuse or wilful or reckless neglect if the person were in a position or setting outside of the person's home that involves care of or substantial contact with children.

    (L)(M)        The At the probable cause hearing, the court may order at the probable cause hearing that the person be entered in the Central Registry if there is sufficient evidence to support the findings required by subsection (K).

    (M)(N)     At any time following receipt of a report, the department may petition the family court for an order directing that the person named as perpetrator be entered in the Central Registry of Child Abuse and Neglect. The petition must have attached a written case summary stating facts sufficient to establish by a preponderance of the evidence that the person named as perpetrator abused or neglected the child and that the nature and circumstances of the abuse indicate that the person named as perpetrator would present a significant risk of committing physical or sexual abuse or wilful or reckless neglect if placed in a position or setting outside of the person's home that involves care of or substantial contact with children. The department shall must serve a copy of the petition and summary on the person named as perpetrator. The petition shall must include a statement that the judge shall must rule based on the facts stated in the petition unless the clerk of court or the clerk's designee receives a written request for a hearing from the person named as perpetrator within five days after service of the petition. The name, address, and telephone number of the clerk of court or the clerk's designee must be stated in the petition. If the person named as perpetrator requests a hearing, the court shall must schedule a hearing on the merits of the allegations in the petition and summary to be held no later than five working days following the request.

    (N)(O)    The department must seek an order placing a person in the Central Registry pursuant to subsection (K), (L), or (M) in all cases in which the department concludes that there is a preponderance of evidence that the person committed sexual abuse.

    (O)(P)    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.

    (P)(Q)    In cases where a person has been placed in the Central Registry of Child Abuse and Neglect, the outcome of any further proceedings must be entered immediately by the department into the Central Registry of Child Abuse and Neglect. If it is determined that a report is unfounded, the department must immediately purge information identifying that person as a perpetrator from the registry and from department records as provided in Section 20-7-680(D) and (E).

    (Q)(R)        The department must 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; and

        (8)    the telephone number and name of a department employee available to answer questions.

    (R)(S)    The department must 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 must 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 must 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 must file a formal incident report at the time it is notified of the alleged sexual abuse. The law enforcement agency must provide to the department copies of incident reports generated in any case reported to law enforcement by the department and in any case in which the officer responsible for the case knows the department is involved with the family or the child. The law enforcement officer must make reasonable efforts to advise the department of significant developments in the case, such as disposition in summary court, referral of a juvenile to the Department of Juvenile Justice, arrest or detention, trial date, and disposition of charges. The department must include in its records copies of incident reports provided under this section and must record the disposition of charges.

    (S)(T)    The department actively must 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.

    (T)(U)        The local office of the department responsible for the county of the mother's legal residence must 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 having custody of the mother.

    (U)(V)        The In all instances, the agency in all instances must act in accordance with the policies, procedures, and regulations promulgated and distributed by the State Department of Social Services pursuant to this chapter."

SECTION    4.    Section 20-7-655 of the 1976 Code is amended to read:

    "Section 20-7-655.    (A)    The Department of Social Services shall must 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 must 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 necessary pursuant to Section 20-7-690(J), it shall the department must 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 must 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)(H)    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    4.    Section 20-7-680 of the 1976 Code is amended to read:

    "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. To further these purposes, the department must maintain one or more statewide data systems concerning cases reported to it pursuant to this article.

    (B)    The Department of Social Services must maintain a Central Registry of Child Abuse and Neglect within the department's child protective services unit in accordance with Sections 20-7-650, 20-7-670, and 17-25-135. Perpetrators of child abuse and neglect must be entered in the registry only by order of a court as provided for in Sections 20-7-650 and 17-25-135, or as provided for in Section 20-7-670. Each entry in the registry must be accompanied by information further identifying the person, including, but not limited to, the person's date of birth, address, and any other identifying characteristics, and describing the abuse or neglect committed by the person.

    (C)    The Department of Social Services shall must 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 name, address, birth date, identifying characteristics, and other information of a person named in a report must be removed from department records and the central registry immediately upon a determination by the department or the court that the report is unfounded, except as provided in Section 20-7-650(I). The Central Registry of Child Abuse and Neglect must not contain information from reports classified as unfounded. Other department records and databases must treat unfounded cases as provided for in Section 20-7-650.

    (E)    The names, addresses, birth dates, identifying characteristics, and other information unnecessary for auditing and statistical purposes of persons named in the registry or department records other than the Central Registry of Child Abuse and Neglect must be destroyed seven years from the date services are terminated. This section 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 the child's welfare without identifying a person as perpetrator, 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.

    (F)    Information in the central registry and other department records may be released only as authorized in Section 20-7-690 or as otherwise specifically authorized by statute. Information in records of the department other than the Central Registry of Child Abuse and Neglect must not be used for screening potential employees or volunteers of any public or private entity, except as specifically provided by Section 20-7-690 or as otherwise provided by statute. However, nothing in this section prevents the department from using other information in its records when making decisions associated with administration or delivery of the department's programs and services."

SECTION    5.    This act takes effect upon approval by the Governor.

This web page was last updated on Thursday, June 25, 2009 at 2:07 P.M.