H*3546 Session 112 (1997-1998)
H*3546(Rat #0227, Act #0130 of 1997) General Bill, By Knotts, Bauer, Koon,
Rice and Whatley
A BILL TO AMEND SECTION 20-7-490(26) AND (27), AS AMENDED, CODE OF LAWS OF
SOUTH CAROLINA, 1976, RELATING TO EMERGENCY CUSTODY OF A CHILD, SO AS TO REFER
TO PROTECTIVE RATHER THAN PHYSICAL CUSTODY AND TO ALLOW ACTION BY LAW
ENFORCEMENT ONLY AS PRESCRIBED; TO AMEND SECTION 20-7-610, AS AMENDED,
RELATING TO PROCEDURES FOR UNDERTAKING EMERGENCY PROTECTIVE CUSTODY, SO AS TO
REQUIRE CONSULTATION WITH THE ACTING LAW ENFORCEMENT OFFICER BEFORE RETURNING
CUSTODY UNLESS AN ALTERNATIVE ARRANGEMENT IS AGREED TO OR THE OFFICER IS
UNAVAILABLE, TO EXTEND THE PERIOD OF EMERGENCY CUSTODY FOR AN ADDITIONAL
TWENTY-FOUR HOURS UNDER CERTAIN CONDITIONS AND FOR AN ADDITIONAL FIVE DAYS IF
NECESSARY TO PLACE THE CHILD WITH A SELECTED PERSON, TO ALLOW THE ACTING
OFFICER TO DEMAND A PROBABLE CAUSE HEARING UNDER CERTAIN CONDITIONS; AND TO
AMEND SECTION 20-7-612 TO REFER TO EMERGENCY PROTECTIVE CUSTODY RATHER THAN
02/27/97 House Introduced and read first time HJ-3
02/27/97 House Referred to Committee on Judiciary HJ-4
04/16/97 House Committee report: Favorable with amendment
Judiciary HJ-12
04/24/97 House Amended HJ-45
04/24/97 House Read second time HJ-53
04/24/97 House Unanimous consent for third reading on next
legislative day HJ-53
04/25/97 House Read third time and sent to Senate HJ-3
04/29/97 Senate Introduced and read first time SJ-6
04/29/97 Senate Referred to Committee on Judiciary SJ-6
05/20/97 Senate Recalled from Committee on Judiciary SJ-7
06/03/97 Senate Amended SJ-144
06/03/97 Senate Read second time SJ-144
06/03/97 Senate Ordered to third reading with notice of
amendments SJ-144
06/04/97 Senate Amended SJ-96
06/04/97 Senate Read third time and returned to House with
amendments SJ-96
06/04/97 House Concurred in Senate amendment and enrolled HJ-147
06/09/97 Ratified R 227
06/13/97 Signed By Governor
06/13/97 Effective date 06/13/97
06/26/97 Copies available
06/26/97 Act No. 130
(A130, R227, H3546)
AN ACT TO AMEND SECTION 20-7-490(26) AND (27), AS
AMENDED, CODE OF LAWS OF SOUTH CAROLINA, 1976,
RELATING TO EMERGENCY CUSTODY OF A CHILD, SO AS TO
REFER TO PROTECTIVE RATHER THAN PHYSICAL CUSTODY
AND TO ALLOW ACTION BY LAW ENFORCEMENT ONLY AS
PRESCRIBED; TO AMEND SECTION 20-7-610, AS AMENDED,
RELATING TO PROCEDURES FOR UNDERTAKING EMERGENCY
PROTECTIVE CUSTODY, SO AS TO REQUIRE CONSULTATION
WITH THE ACTING LAW ENFORCEMENT OFFICER BEFORE
RETURNING CUSTODY UNLESS AN ALTERNATIVE
ARRANGEMENT IS AGREED TO OR THE OFFICER IS
UNAVAILABLE, TO EXTEND THE PERIOD OF EMERGENCY
CUSTODY FOR AN ADDITIONAL TWENTY-FOUR HOURS UNDER
CERTAIN CONDITIONS AND FOR AN ADDITIONAL FIVE DAYS
IF NECESSARY TO PLACE THE CHILD WITH A SELECTED
PERSON, TO ALLOW THE ACTING OFFICER TO DEMAND A
PROBABLE CAUSE HEARING UNDER CERTAIN CONDITIONS;
AND TO AMEND SECTION 20-7-612 TO REFER TO EMERGENCY
PROTECTIVE CUSTODY RATHER THAN PHYSICAL CUSTODY.
Be it enacted by the General Assembly of the State of South Carolina:
Describes emergency protective custody
SECTION 1. Section 20-7-490(26) and (27) of the 1976 Code, as
last amended by Act 450 of 1996, is further amended to read:
"(26) '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."
Prescribes conditions and procedures for undertaking emergency
protective custody of a child
SECTION 2. Section 20-7-610 of the 1976 Code, as last amended by
Act 450 of 1996, is further amended to read:
"Section 20-7-610. (A) A law enforcement officer may take
emergency protective custody of a child without the consent of the child's
parents, guardians, or others exercising temporary or permanent control
over the child if:
(1) the officer has probable cause to believe that by reason of abuse
or neglect the child's life, health, or physical safety is in substantial and
imminent danger if the child is not taken into emergency physical custody
or emergency protective custody and there is not time to apply for a court
order pursuant to Section 20-7-736. 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 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;
(2) the child's parent, parents, or guardian has been arrested or the
child has become lost accidentally and as a result the child's welfare is
threatened due to loss of adult protection and supervision; and
(a) in the circumstances of arrest, the parent, parents, or guardian
does not consent in writing to another person assuming physical custody
of the child;
(b) in the circumstances of a lost child, a search by law
enforcement has not located the parent, parents, or guardian.
(B) If the child is in need of emergency medical care at the time the
child is taken into emergency protective custody, the officer shall
transport the child to an appropriate health care facility. Emergency
medical care may be provided to the child without consent, as provided
in Section 20-7-290. The parent or guardian is responsible for the cost of
emergency medical care that is provided to the child. However, the parent
or guardian is not responsible for the cost of medical examinations
performed at the request of law enforcement or the department solely for
the purpose of assessing whether the child has been abused or neglected
unless it is determined that the child has been harmed as defined in this
article.
If the child is not in need of emergency medical care, the officer or the
department shall transport the child to a place agreed upon by the
department and law enforcement, and the department within two hours
shall assume physical control of the child and shall place the child in a
licensed foster home or shelter within a reasonable period of time. In no
case may the child be placed in a jail or other secure facility or a facility
for the detention of criminal or juvenile offenders. While the child is in
its custody, the department shall provide for the needs of the child and
assure that a child of school age who is physically able to do so continues
attending school.
(C) When an officer takes a child into emergency protective custody
under this section, the officer immediately shall notify the department.
The department shall notify the parent, guardian, or other person
exercising temporary or permanent control over the child as early as
reasonably possible of the location of the child unless there are
compelling reasons for believing that disclosure of this information would
be contrary to the best interests of the child.
(D) The department shall conduct within twenty-four hours after the
child is taken into emergency protective custody by law enforcement or
pursuant to ex parte order a preliminary investigation to determine
whether grounds for assuming legal custody of the child exist and whether
reasonable means exist for avoiding removal of the child from the home
of the parent or guardian or for placement of the child with a relative and
means for minimizing the emotional impact on the child of separation
from the child's home and family. During this time the department, if
possible, shall convene a meeting with the child's parents or guardian,
extended family, and other relevant persons to discuss the family's
problems that led to intervention and possible corrective actions,
including placement of the child.
(E) Before agreeing to or acquiescing in a corrective action that
involves placement of the child with a relative or other person or making
an interim placement with a relative while retaining custody of the child
or as soon as possible after agreeing to or acquiescing in a corrective
action, the department shall secure from the relative or other person and
other adults in the home an affidavit attesting to information necessary to
determine whether a criminal history or history of child abuse or neglect
exists and whether this history indicates there is a significant risk that the
child would be threatened with abuse or neglect in the home of the
relative or other person. As soon as possible, the department shall
confirm the information supplied in the affidavit by checking the Central
Registry of Child Abuse and Neglect, other relevant department records,
county sex offender registries, and records for the preceding five years of
law enforcement agencies in the jurisdiction in which the relative or other
person resides and, to the extent reasonably possible, jurisdictions in
which the relative or other person has resided during that period. The
department must not agree to or acquiesce in a placement if the affidavit
or these records reveal information indicating there is a significant risk
that the child would be threatened with abuse or neglect in the home of
the relative or other person. The relative or other person must consent to
a check of the above records by the department.
(F) If the department determines after the preliminary investigation
that there is probable cause to believe that by reason of abuse or neglect
the child's life, health, or physical safety is in imminent and substantial
danger, the department may assume legal custody of the child without the
consent of the child's parent, guardian, or custodian. The department shall
make every reasonable effort to notify the child's parent, guardian, or
custodian of the location of the child and shall make arrangements for
temporary visitation unless there are compelling reasons why visitation
or notice of the location of the child would be contrary to the best interests
of the child. The notification must be in writing and shall include notice
of the right to a hearing and right to counsel pursuant to this article.
Nothing in this subsection authorizes the department to physically remove
a child from the care of the child's parent or guardian without an order of
the court. The department may exercise the authority to assume legal
custody only after a law enforcement officer has taken emergency
protective custody of the child or the family court has granted emergency
protective custody by ex parte order, and the department has conducted
a preliminary investigation pursuant to this section.
(G) If emergency protective custody of the child was taken by a law
enforcement officer pursuant to subsection (A), and the department
concludes after the preliminary investigation that the child should be
returned to the child's parent, guardian, or custodian, the department shall
consult with the law enforcement officer who took emergency protective
custody unless the department and the law enforcement agency have
agreed to an alternative procedure. If the officer objects to the return of
the child, the department must assume legal custody of the child until a
probable cause hearing can be held. The alternative procedure agreed to
by the department and the law enforcement agency may provide that the
child must be retained in custody if the officer cannot be contacted,
conditions under which the child may be returned home if the officer
cannot be contacted, other persons within the law enforcement agency
who are to be consulted instead of the officer, or other procedures. If no
alternative procedure has been agreed to and the department is unable to
contact the law enforcement officer after reasonable efforts to do so, the
department shall consult with the officer's designee or the officer's
agency.
(H) The period of emergency protective custody may be extended for
up to twenty-four additional hours if:
(1) the department concludes that the child is to be placed with a
relative or other person instead of taking legal custody of the child;
(2) the department requests the appropriate law enforcement agency
to check for records concerning the relative or other person, or any adults
in that person's home; and
(3) the law enforcement agency notifies the department that the
extension is needed to enable the law enforcement agency to complete its
record check before the department's decision on whether to take legal
custody of the child.
(I) If within the twenty-four hours following removal of the child:
(1) the department has identified a specified relative or other person
with whom it has determined that the child is to be placed instead of the
department's taking legal custody of the child; and
(2) both the relative or other person with whom the child is to be
placed and the child's parent or guardian have agreed to the placement, the
department may retain physical custody of the child for no more than five
additional days if necessary to enable the relative or other person to make
travel or other arrangements incident to the placement. If the placement
does not occur as planned, the department immediately must determine
whether to assume legal custody of the child and file a petition as
provided in subsection (K). The department shall assure that the child is
given age-appropriate information about the plans for placement and any
subsequent changes in those plans at the earliest feasible time.
(J) If a law enforcement officer clearly states to the department at the
time the officer delivers physical control of the child to the department
that the child is not to be returned to the home or placed with a relative
before a probable cause hearing regardless of the outcome of a
preliminary investigation, the department immediately must take legal
custody of the child. In this case, at a minimum, the department shall
conduct a preliminary investigation as provided in this section within
seventy-two hours after the child was taken into emergency protective
custody and shall make recommendations concerning return of the child
to the home or placement with a relative or other person to the family
court at the probable cause hearing or take other appropriate action as
provided in this chapter.
(K) The department, upon assuming legal custody of the child, shall
begin a child protective investigation, including immediate attention to the
protection of other children in the home, or other setting where the child
was found. The department shall initiate a removal proceeding in the
appropriate family court pursuant to Section 20-7-736 on or before the
next working day after initiating the investigation. If a noncustodial
parent is not named as a party, the department shall exercise every
reasonable effort to promptly notify the noncustodial parent that a
removal proceeding has been initiated and of the date and time of any
hearings scheduled pursuant to this section. Upon a determination by the
department before the probable cause hearing that there is not a
preponderance of evidence that child abuse or neglect occurred, the
department may place physical custody of the child with the parent,
parents, guardian, immediate family member, or relative, with the
department retaining legal custody pending the probable cause hearing.
When the facts and circumstances of the report clearly indicate that no
abuse or neglect occurred, the report promptly must be determined to be
unfounded, and the department shall exercise reasonable efforts to
expedite the placement of the child with the parent, parents, guardian,
immediate family member, or relative.
(L) If the child is returned to the child's parent, guardian, or custodian
following the preliminary investigation, a probable cause hearing must be
held if requested by the child's parent, guardian, or custodian or the
department or the law enforcement agency that took emergency protective
custody of the child. The request must be made in writing to the court
within ten days after the child is returned. A probable cause hearing
pursuant to subsection (K) must be scheduled within seven days of the
request to determine whether there was probable cause to take emergency
physical custody of the child.
(M) The family court shall schedule a probable cause hearing to be
held within seventy-two hours of the time the child was taken into
emergency protective custody. If the third day falls upon a Saturday,
Sunday, or holiday, the probable cause hearing must be held no later than
the next working day. If there is no term of court in the county when the
probable cause hearing must be held, the hearing must be held in another
county in the circuit. If there is no term of family court in another county
in the circuit, the probable cause hearing may be heard in another court in
an adjoining circuit. The probable cause hearing may be conducted by
video conference at the discretion of the judge. At the probable cause
hearing, the family court shall undertake to fulfill the requirements of
Section 20-7-110 and shall determine whether there was probable cause
for taking emergency protective custody and for the department to assume
legal custody of the child and shall determine whether probable cause to
retain legal custody of the child remains at the time of the hearing. At the
probable cause hearing, the respondents may submit affidavits as to facts
which are alleged to form the basis of the removal and to cross-examine
the department's witnesses as to whether there existed probable cause to
effect emergency removal. The hearing to determine whether removal of
custody is needed, pursuant to Section 20-7-736, must be held within
thirty-five days of the date of receipt of the removal petition.
(N) An order issued as a result of the probable cause hearing held
pursuant to subsection (K) concerning a child of whom the department has
assumed legal custody shall contain a finding by the court of whether
reasonable efforts were made by the department to prevent removal of the
child and a finding of whether continuation of the child in the home
would be contrary to the welfare of the child. The order shall state:
(1) the services made available to the family before the department
assumed legal custody of the child and how they related to the needs of
the family;
(2) the efforts of the department to provide services to the family
before assuming legal custody of the child;
(3) why the efforts to provide services did not eliminate the need for
the department to assume legal custody;
(4) whether a meeting was convened as provided in subsection (D),
the persons present, and the outcome of the meeting or, if no meeting was
held, the reason for not holding a meeting;
(5) what efforts were made to place the child with a relative known
to the child or in another familiar environment;
(6) whether the efforts to eliminate the need for the department to
assume legal custody were reasonable including, but not limited to,
whether services were reasonably available and timely, reasonably
adequate to address the needs of the family, reasonably adequate to
protect the child and realistic under the circumstances, and whether efforts
to place the child in a familiar environment were reasonable.
(O) If the court orders the child to remain in the legal custody of the
department at the probable cause hearing, the family court may order
expedited placement of the child with a relative of the first or second
degree. The court shall require the department to check the names of all
adults in the home against the Central Registry of Child Abuse and
Neglect, other relevant records of the department, county sex abuse
registers, and records for the preceding five years of law enforcement
agencies in the jurisdiction in which the person resides and, to the extent
reasonably possible, jurisdictions in which the person has resided during
that period. The court may hold open the record of the probable cause
hearing for twenty-four hours to receive the reports and based on these
reports and other information introduced at the probable cause hearing,
the court may order expedited placement of the child in the home of the
relative. Nothing in this subsection precludes the department from
requesting or the court from ordering pursuant to the department's request
either a full study of the relative's home before placement or the licensing
or approval of the relative's home before placement.
(P) The family court may order ex parte that a child be taken into
emergency protective custody without the consent of parents, guardians,
or others exercising temporary or permanent control over the child if:
(1) the family court judge determines there is probable cause to
believe that by reason of abuse or neglect there exists an imminent and
substantial danger to the child's life, health, or physical safety; and
(2) parents, guardians, or others exercising temporary or permanent
control over the child are unavailable or do not consent to the child's
removal from their custody.
(Q) If the court issues such an order, the department shall conduct a
preliminary investigation and otherwise proceed as provided in this
section.
(R) The department and local law enforcement agencies shall develop
written protocols to address issues related to emergency protective
custody. The protocols shall cover at a minimum information exchange
between the department and local law enforcement agencies, consultation
on decisions to assume legal custody, and the transfer of responsibility
over the child, including mechanisms and assurances for the department
to arrange expeditious placement of the child."
Allows law officer to take action
SECTION 3. Section 20-7-612 of the 1976 Code, as added by Act 450
of 1996, is amended to read:
"Section 20-7-612. A law enforcement officer investigating a
case of suspected child abuse or neglect or responding to a request for
assistance by the department as it investigates a case of suspected child
abuse or neglect has authority to take emergency protective custody of the
child pursuant to Section 20-7-610 in all counties and municipalities.
Immediately upon taking emergency protective custody, the law
enforcement officer shall notify the local office of the department
responsible to the county in which the activity under investigation
occurred.
The department shall designate by policy and procedure the local
department office responsible for procedures required by Section
20-7-610 when a child resides in a county other than the one in which the
activity under investigation occurred. The probable cause hearing
required by Section 20-7-610 may be held in the county of the child's
residence or the county of the law enforcement officer's
jurisdiction."
Time effective
SECTION 4. This act takes effect upon approval by the Governor.
Approved the 13th day of June, 1997. |