Current Status Bill Number:4614 Ratification Number:522 Act Number:450 Type of Legislation:General Bill GB Introducing Body:House Introduced Date:19960214 Primary Sponsor:Kelley All Sponsors:Kelley, Easterday, Allison and Moody-Lawrence Drafted Document Number:pfm\7969ac.96 Companion Bill Number:1251 Date Bill Passed both Bodies:19960530 Date of Last Amendment:19960530 Governor's Action:S Date of Governor's Action:19960618 Subject:Children's Code Reform Act of 1996
Body Date Action Description Com Leg Involved
______ ________ _______________________________________ _______ ____________
------ 19960709 Act No. A450
------ 19960618 Signed by Governor
------ 19960613 Ratified R522
House 19960530 Ordered enrolled for ratification
House 19960530 Conference Committee Report adopted 98 HCC
Senate 19960530 Conference Committee Report adopted 88 SCC
House 19960530 Conference powers granted, 98 HCC Kelley
appointed Reps. to Committee of Easterday
Conference Allison
Senate 19960530 Conference powers granted, 88 SCC Moore
appointed Senators to Committee Richter
of Conference Fair
Senate 19960530 Insists upon amendment
House 19960530 Non-concurrence in Senate amendment
Senate 19960523 Amended, read third time,
returned to House with amendment
Senate 19960522 Amended, read second time,
ordered to third reading
with notice of general amendments
Senate 19960521 Committee report: Favorable with 08 SG
amendment
Senate 19960409 Introduced, read first time, 08 SG
referred to Committee
House 19960404 Read third time, sent to Senate
House 19960403 Unanimous consent for third
reading on the next Legislative day
House 19960403 Amended, read second time
House 19960402 Debate adjourned until
Wednesday, 19960403
House 19960327 Debate adjourned until
Tuesday, 19960402
House 19960320 Committee report: Favorable with 25 HJ
amendment
House 19960214 Introduced, read first time, 25 HJ
referred to Committee
View additional legislative information at the LPITS web site.
(R522, H4614)
AN ACT TO ENACT THE "CHILD PROTECTION REFORM ACT OF 1996" BY AMENDING SECTION 20-7-110, AS AMENDED, CODE OF LAWS OF SOUTH CAROLINA, 1976, RELATING TO LEGAL REPRESENTATION IN ABUSE AND NEGLECT PROCEEDINGS, SO AS TO CLARIFY A REFERENCE TO THE DEPARTMENT OF SOCIAL SERVICES; TO AMEND SUBARTICLE 1, ARTICLE 7, CHAPTER 7, TITLE 20, AS AMENDED, RELATING TO GENERAL PROVISIONS CONCERNING ABUSE AND NEGLECT, SO AS TO SET FORTH GUIDING PRINCIPLES AND POLICIES CONCERNING STATE INTERVENTION IN FAMILY LIFE AND CHILD WELFARE AND TO REVISE DEFINITIONS; TO AMEND SUBARTICLE 3, ARTICLE 7, CHAPTER 7, TITLE 20, AS AMENDED, RELATING TO THE IDENTIFICATION AND REPORTING OF CHILD ABUSE, SO AS TO EXPAND PERSONS REQUIRED TO REPORT, TO EXPAND MEDICAL EXAMINATIONS AND TESTS AUTHORIZED TO PROVIDE IMMUNITY TO EMPLOYEES OF THE DEPARTMENT OF SOCIAL SERVICES IN PERFORMING CHILD PROTECTIVE SERVICES IN GOOD FAITH; TO AMEND SECTION 20-7-610, AS AMENDED, RELATING TO EMERGENCY PROTECTIVE CUSTODY, SO AS TO REVISE THESE PROCEDURES AND TO INCLUDE EMERGENCY PHYSICAL CUSTODY; TO ADD SECTION 20-7-612 SO AS TO ESTABLISH PROCEDURES FOR LAW ENFORCEMENT TO ASSIST THE DEPARTMENT IN TAKING A CHILD INTO EMERGENCY CUSTODY; TO ADD SECTION 20-7-616 SO AS TO REQUIRE AN AGENCY HAVING SEX OFFENDER REGISTRIES TO RELEASE INFORMATION TO THE DEPARTMENT WHEN AN ALLEGEDLY ABUSED CHILD IS RESIDING IN AN OFFENDER'S HOME; TO ADD SECTION 20-7-618 SO AS TO AUTHORIZE A PHYSICIAN OR HOSPITAL TO DETAIN A CHILD IN EMERGENCY PHYSICAL CUSTODY; TO AMEND SUBARTICLE 7, ARTICLE 7, CHAPTER 7, TITLE 20, AS AMENDED, RELATING TO INTERVENTION BY CHILD WELFARE AGENCIES, SO AS TO AUTHORIZE DEVELOPMENT OF TEMPORARY CRISIS PLACEMENT HOMES, TO AUTHORIZE THE DEPARTMENT TO CONTRACT FOR THE DELIVERY OF PROTECTIVE SERVICES, TO REVISE INTERVENTION, INVESTIGATION, REPORTING, AND RECORDKEEPING AND RELEASING PROCEDURES; TO AMEND SECTION 20-7-736, AS AMENDED, RELATING TO REMOVAL PROCEEDINGS AND PROCEDURES, SO AS TO REVISE AND CLARIFY THESE PROCEEDINGS AND PROCEDURES AND TO ESTABLISH A PRESUMPTION THAT A NEWBORN IS ABUSED IF CERTAIN EVIDENCE OF SUBSTANCE ABUSE IS PRESENT; TO AMEND SECTION 20-7-738, AS AMENDED, RELATING TO PROCEDURES TO PROVIDE SERVICES IN NONREMOVAL CASES, SO AS TO REVISE THESE PROCEDURES; TO AMEND SECTION 20-7-762, AS AMENDED, RELATING TO COURT APPROVAL AND REVIEW OF TREATMENT PLANS, SO AS TO REQUIRE THE INCLUSION OF TREATMENT GOALS; TO AMEND SECTION 20-7-764, AS AMENDED, RELATING TO COURT APPROVAL OF PLACEMENT PLAN FOLLOWING REMOVAL, SO AS TO REVISE CONTENTS OF THE PLAN AND TO PROVIDE FOR AMENDMENT OF OBJECTIONS TO THE PLAN; TO ADD SECTION 20-7-765 SO AS TO SPECIFY TREATMENT PLAN CONDITIONS WHEN SUBSTANCE ABUSE IS INCLUDED IN GROUNDS FOR REMOVAL; TO AMEND SECTION 20-7-766, AS AMENDED, RELATING TO COURT REVIEW OF CHILDREN REMOVED FROM THEIR HOMES, SO AS TO REQUIRE THE COURT TO REVIEW THE PERMANENCY PLAN AND TO REVISE THE STANDARDS AND CONTENT OF THE REVIEW; TO AMEND SUBARTICLE 3, ARTICLE 11, CHAPTER 7, TITLE 20, RELATING TO TERMINATION OF PARENTAL RIGHTS, SO AS TO REVISE WHO IS ENTITLED TO LEGAL REPRESENTATION AND TO CLARIFY THE DISPOSITIONAL POWERS OF THE COURT; TO ADD SECTION 20-7-2377 SO AS TO AUTHORIZE THE FOSTER CARE REVIEW BOARD TO PARTICIPATE IN JUDICIAL REVIEWS OF ABUSED AND NEGLECTED CHILDREN; TO AMEND SECTION 20-7-2379, AS AMENDED, RELATING TO THE FOSTER CARE REVIEW BOARD, SO AS TO DELETE OBSOLETE PROVISIONS AND INCLUDE THAT REGULATIONS SHALL INCLUDE PARTICIPATION IN JUDICIAL REVIEWS; TO AMEND SECTION 20-7-50, AS AMENDED, RELATING TO UNLAWFUL NEGLECT, SO AS TO REVISE THE STANDARD FOR UNLAWFUL NEGLECT; TO AMEND SECTION 20-7-70, RELATING TO CRUELTY TO CHILDREN, SO AS TO INCREASE THE PENALTY FROM ONE HUNDRED TO TWO HUNDRED DOLLARS AND TO DELETE OBSOLETE REFERENCES; TO ADD SECTION 20-7-95 SO AS TO ESTABLISH CRIMINAL IMMUNITY FOR PARENTS OF INCORRIGIBLE SEVENTEEN-YEAR-OLDS; TO AMEND SUBARTICLE 4, AS AMENDED, ARTICLE 3, CHAPTER 7, TITLE 20, RELATING TO THE GUARDIAN AD LITEM PROGRAM, SO AS TO ESTABLISH CRITERIA FOR THE DISCLOSURE OF INFORMATION AND TO REVISE INTERNAL REFERENCES; AND TO REPEAL SECTION 20-7-60, RELATING TO ILL-TREATING CHILDREN; TO REPEAL SECTION 20-7-80, RELATING TO ABANDONMENT OF CHILDREN; AND TO REPEAL SECTION 20-7-128, RELATING TO THE GUARDIAN AD LITEM PROGRAM ADVISORY BOARD.
Be it enacted by the General Assembly of the State of South Carolina:
Act citation
SECTION 1. This act may be cited as the "Child Protection Reform Act of 1996".
Legal counsel and guardians ad litem required in child abuse proceedings
SECTION 2. Section 20-7-110 of the 1976 Code, as last amended by Act 164 of 1993, is further amended to read:
"Section 20-7-110. In all child abuse and neglect proceedings:
(1) Children must be appointed legal counsel and a guardian ad litem by the family court. Counsel for the child in no case may be the same as counsel for the parent, guardian, or other person subject to the proceeding or any governmental or social agency involved in the proceeding.
(2) Parents, guardians, or other persons subject to any judicial proceeding are entitled to legal counsel. Those persons unable to afford legal representation must be appointed counsel by the family court.
(3) The interests of the State and the Department of Social Services must be represented by the legal representatives of the Department of Social Services in any judicial proceeding."
Policy and purpose; definitions
SECTION 3. Subarticle 1, Article 7, Chapter 7, Title 20 of the 1976 Code, as last amended by Act 494 of 1994, is further amended to read:
Section 20-7-480. (A) Any intervention by the State into family life on behalf of children must be guided by law, by strong philosophical underpinnings, and by sound professional standards for practice. Child Welfare Services must be based on these principles:
(1) Parents have the primary responsibility for and are the primary resource for their children.
(2) Children should have the opportunity to grow up in a family unit if at all possible.
(3) State and community agencies have a responsibility to implement prevention programs aimed at identifying high risk families and to provide supportive intervention to reduce occurrence of maltreatment.
(4) Services for families should be accessible and designed to encourage and enable families to adequately deal with their problems within their own family system.
(5) All child welfare intervention by the State has as its primary goal the welfare and safety of the child.
(6) Child welfare intervention into a family's life should be structured so as to avoid a child's entry into the protective service and foster care systems if at all possible.
(7) The state's child welfare system must be designed to be child-centered, family-focused, community-based, and culturally competent in its prevention and protection efforts.
(8) Neighborhoods and communities are the primary source of opportunities and supports for families and have a primary responsibility in assuring the safety and vitality of their members.
(9) The Department of Social Services shall collaborate with the community to identify, support, and treat families in a nonthreatening manner, in both investigative and family assessment situations.
(10) A family assessment approach, stressing the safety of the child, building on the strengths of the family, and identifying and treating the family's needs is the appropriate approach for cases not requiring law enforcement involvement or the removal of the child.
(11) Only a comparatively small percentage of current child abuse and neglect reports are criminal in nature or will result in the removal of the child or alleged perpetrator.
(12) Should removal of a child become necessary, the state's foster care system must be prepared to provide timely and appropriate placements for children with relatives or in licensed foster care settings and to establish a plan which reflects a commitment by the State to achieving permanency for the child within reasonable timelines.
(13) The Department of Social Services staff who investigates serious child abuse and neglect reports with law enforcement must be competent in law enforcement procedures, fact finding, evidence gathering, and effective social intervention and assessment.
(14) Services should be identified quickly and should build on the strengths and resources of families and communities.
(B) It is the purpose of this article to:
(1) acknowledge the different intervention needs of families;
(2) establish an effective system of services throughout the State to safeguard the well-being and development of endangered children and to preserve and stabilize family life, whenever appropriate;
(3) ensure permanency on a timely basis for children when removal from their homes is necessary;
(4) establish fair and equitable procedures, compatible with due process of law to intervene in family life with due regard to the safety and welfare of all family members; and
(5) establish an effective system of protection of children from injury and harm while living in public and private residential agencies and institutions meant to serve them.
Section 20-7-490. When used in this article and unless the specific context indicates otherwise:
(1) `Child' means a person under the age of eighteen.
(2) `Abused or neglected child' means a child whose death results from or whose physical or mental health or welfare is harmed or threatened with harm, as defined by items (3) and (4), by the acts or omissions of the child's parent, guardian, or other person responsible for his welfare.
(3) `Harm' to a child's health or welfare can occur when the parent, guardian, or other person responsible for the child's welfare:
(a) inflicts or allows to be inflicted upon the child physical or mental injury, including injuries sustained as a result of excessive corporal punishment, but excluding corporal punishment or physical discipline which:
(i) is administered by a parent or person in loco parentis;
(ii) is perpetrated for the sole purpose of restraining or correcting the child;
(iii) is reasonable in manner and moderate in degree;
(iv) has not brought about permanent or lasting damage to the child;
(v) is not reckless or grossly negligent behavior by the parents.
(b) commits or allows to be committed against the child a sexual offense as defined by the laws of this State;
(c) fails to supply the child with adequate food, clothing, shelter, education as required under Article 1 of Chapter 65 of Title 59, supervision appropriate to the child's age and development, or health care though financially able to do so or offered financial or other reasonable means to do so and the failure to do so has caused physical or mental injury or presents a significant threat of injury as defined in this section. For the purpose of this chapter `adequate health care' includes any medical or nonmedical remedial health care permitted or authorized under state law.
(d) abandons the child;
(e) encourages, condones, or approves the commission of delinquent acts by the child and the commission of the acts are shown to be the result of the encouragement, condonation, or approval.
(4) `Threatened harm' means a substantial risk of harm, as defined by item (3).
(5) `A person responsible for a child's welfare' includes the child's parent, guardian, foster parent, an operator, employee, or caregiver, as defined by Section 20-7-2700, of a public or private residential home, institution, agency, or child day care facility or an adult who has assumed the role or responsibility of a parent or guardian for the child, but who does not necessarily have legal custody of the child. A person whose only role is as a caregiver and whose contact is only incidental with a child, such as a babysitter or a person who has only incidental contact but may not be a caretaker, has not assumed the role or responsibility of a parent or guardian. An investigation pursuant to Section 20-7-650 must be initiated when the information contained in a report otherwise sufficient under this section does not establish whether the person has assumed the role or responsibility of a parent or guardian for the child.
(6) `Physical injury' means death or permanent or temporary disfigurement or impairment of any bodily organ or function.
(7) `Mental injury' means an injury to the intellectual or psychological capacity of a child as evidenced by a discernible and substantial impairment of the child's ability to function when the existence of that impairment is supported by the opinion of a mental health professional or medical professional.
(8) `Institutional child abuse and neglect' means situations of known or suspected child abuse or neglect where the person responsible for the child's welfare is the employee of a public or private residential home, institution, or agency.
(9) `Protective services unit' means the unit established within the Department of Social Services which has prime responsibility for state efforts to strengthen and improve the prevention, identification, and treatment of child abuse and neglect.
(10) `Subject of the report' means a person who is alleged or determined to have abused or neglected the child, who is mentioned by name in a report or finding.
(11) `Suspected report' means all initial reports of child abuse or neglect received pursuant to this article.
(12) `Unfounded report' means a report made pursuant to this article for which there is not a preponderance of evidence to believe that the child is abused or neglected. For the purposes of this article, it is presumed that all reports are unfounded unless the department determines otherwise.
(13) `Indicated report' means a report of child abuse or neglect supported by facts which warrant a finding by a preponderance of evidence that abuse or neglect is more likely than not to have occurred.
(14) `Probable cause' means facts and circumstances based upon accurate and reliable information, including hearsay, that would justify a reasonable person to believe that a child subject to a report under this article is abused or neglected.
(15) `Preponderance of evidence' means evidence which, when fairly considered, is more convincing as to its truth than the evidence in opposition.
(16) `Department' means the Department of Social Services.
(17) `Child protective investigation' means an inquiry conducted by the department in response to a report of child abuse or neglect made pursuant to this article.
(18) `Child protective services' means assistance provided by the department as a result of indicated reports or affirmative determinations of child abuse or neglect, including assistance ordered by the family court or consented to by the family. The objectives of child protective services are to:
(a) protect the child's safety and welfare; and
(b) maintain the child within the family unless the safety of the child requires placement outside the home.
(19) `Affirmative determination' means a finding by a preponderance of evidence that the child was abused or neglected by the person who is alleged or determined to have abused or neglected the child and who is mentioned by name in a report or finding. This finding may be made only by:
(a) the court;
(b) the Department of Social Services upon a final agency decision in its appeals process; or
(c) waiver by the subject of the report of his right to appeal. If an affirmative determination is made by the court after an affirmative determination is made by the Department of Social Services, the court's finding must be the affirmative determination.
(20) `Court' means the family court.
(21) `Abandonment of a child' means a parent or guardian wilfully deserts a child or wilfully surrenders physical possession of a child without making adequate arrangements for the child's needs or the continuing care of the child.
(22) `Guardianship of a child' means the duty and authority vested in a person by the family court to make certain decisions regarding a child, including:
(a) consent to a marriage, enlistment in the armed forces, and medical and surgical treatment;
(b) represent a child in legal actions and to make other decisions of substantial legal significance affecting a child; and
(c) rights and responsibilities of legal custody when legal custody has not been vested by the court in another person, agency, or institution.
(23) `Legal custody' means the right to the physical custody, care, and control of a child; the right to determine where the child shall live; the right and duty to provide protection, food, clothing, shelter, ordinary medical care, education, supervision, and discipline for a child and in an emergency to authorize surgery or other extraordinary care. The court may in its order place other rights and duties with the legal custodian. Unless otherwise provided by court order, the parent or guardian retains the right to make decisions of substantial legal significance affecting the child, including consent to a marriage, enlistment in the armed forces, and major nonemergency medical and surgical treatment; the obligation to provide financial support or other funds for the care of the child; and other residual rights or obligations as may be provided by order of the court.
(24) `Party in interest' includes the child, the child's attorney and guardian ad litem, the natural parent, an individual with physical or legal custody of the child, the foster parent, and the local foster care review board.
(25) `Physical custody' means the lawful, actual possession and control of a child.
(26) `Emergency physical custody' means the right to physical custody of a child for a temporary period of no more than twenty-four hours to protect the child from imminent danger.
(27) `Emergency protective custody' means the right to exercise temporary physical and legal custody of a child to protect the child from imminent danger. Emergency protective custody may be taken only by a law enforcement officer pursuant to this article."
Child abuse reporting requirements; immunity; privileged communications
SECTION 4. Subarticle 3, Article 7, Chapter 7, Title 20 of the 1976 Code, as last amended by Section 88I, Act 164 of 1993, is further amended to read:
Section 20-7-500. A person seeking assistance in meeting child care responsibilities may use the services and facilities established by this article, including the single statewide telephone number and local child protective services where available. These persons must be referred to appropriate community resources or agencies, notwithstanding whether the problem presented involves child abuse or neglect.
Section 20-7-505. The law enforcement officer upon receipt of a report of domestic violence may report this information to the Department of Social Services. The department may treat the case as suspected report of abuse and may investigate the case as in other allegations of abuse in order to determine if the child has been harmed.
Section 20-7-510. (A) A physician, nurse, dentist, optometrist, medical examiner or coroner or an employee of a county medical examiner's or coroner's office or any other medical, emergency medical services, mental health, or allied health professional or Christian Science practitioner, religious healer, school teacher, counselor, principal, assistant principal, social or public assistance worker, substance abuse treatment staff, or child care worker in any day care center or foster care facility, police or law enforcement officer, undertaker, funeral home director or employee of a funeral home or persons responsible for processing of films or any judge shall report in accordance with this section when in the person's professional capacity the person has received information which gives the person reason to believe that a child's physical or mental health or welfare has been or may be adversely affected by abuse or neglect.
(B) Except as provided in subsection (A), any other person who has reason to believe that a child's physical or mental health or welfare has been or may be adversely affected by abuse and neglect may report in accordance with this section.
(C) Reports of child abuse or neglect may be made orally by telephone or otherwise to the county department of social services or to a law enforcement agency in the county where the child resides or is found. Where reports are made pursuant to this section to a law enforcement agency, the law enforcement agency shall notify the county department of social services of the law enforcement's response to the report at the earliest possible time.
Where a county or contiguous counties have established multicounty child protective services, pursuant to Section 20-7-650, the county department of social services immediately shall transfer reports pursuant to this section to the service.
Section 20-7-520. A person required under Section 20-7-510(A) to report cases of suspected child abuse or neglect, including workers of the department, who has reason to believe a child has died as the result of child abuse or neglect, shall report this information to the appropriate medical examiner or coroner. Any other person who has reason to believe that a child has died as a result of child abuse or neglect may report this information to the appropriate medical examiner or coroner. The medical examiner or coroner shall accept the report for investigation and shall report his findings to the appropriate law enforcement agency, circuit solicitor's office, the county department of social services and, if the institution making a report is a hospital, to the hospital.
Section 20-7-530. A person required to report under Section 20-7-510 may take, or cause to be taken, color photographs of the areas of trauma visible on a child who is the subject of a report and, if medically indicated, a physician may cause to be performed a radiological examination or other medical examinations or tests of the child without the consent of the child's parents or guardians. All photographs, negatives, and reports and copies of them must be sent to the department at the time a report pursuant to Section 20-7-510 is made, or as soon after the report is made as possible.
Section 20-7-540. A person required or permitted to report pursuant to this article or who participates in judicial proceedings resulting from the report, acting in good faith, is immune from civil and criminal liability which might otherwise result by reason of these actions. In all such civil or criminal proceedings good faith is rebuttably presumed.
Section 20-7-545. An employee, volunteer, or official of the Department of Social Services required or authorized to perform child protective or child welfare-related functions is immune from civil or criminal liability which might otherwise result by reason of acts or omissions within the scope of the official duties of the employee, volunteer, or official, so long as the employee, volunteer, or official acted in good faith and was not reckless, wilful, wanton, or grossly negligent. In all such civil or criminal proceedings good faith is rebuttably presumed. This grant of immunity is cumulative to and does not replace any other immunity provided under the South Carolina Tort Claims Act.
Section 20-7-550. The privileged quality of communication between husband and wife and any professional person and his patient or client, except that between attorney and client or priest and penitent, is abrogated and does not constitute grounds for failure to report or the exclusion of evidence in a civil protective proceeding resulting from a report pursuant to this article.
Section 20-7-560. A person required to report a case of child abuse or neglect or a person required to perform any other function under this article who knowingly fails to do so, or a person who threatens or attempts to intimidate a witness is guilty of a misdemeanor and, upon conviction, must be fined not more than five hundred dollars or imprisoned not more than six months, or both."
Emergency physical or protective custody; placement; investigation; court orders
SECTION 5. Section 20-7-610 of the 1976 Code, as last amended by Act 333 of 1994, is further amended to read:
"Section 20-7-610. (A) A law enforcement officer may take emergency physical custody or emergency protective custody of a child without the consent of the child's parents, guardians, or others exercising temporary or permanent control over the child if:
(1) The officer has probable cause to believe that by reason of abuse or neglect the child's life, health, or physical safety would be in substantial and imminent danger if the child were not taken into emergency physical custody or emergency protective custody and there is not time to apply for a court order pursuant to Section 20-7-736;
(2) The child's parent, parents, or guardian has been arrested or the child has become lost accidentally and as a result the child's welfare is threatened due to loss of adult protection and supervision; and
(a) in the circumstances of arrest, the parent, parents, or guardian does not consent in writing to another person assuming physical custody of the child;
(b) in the circumstances of a lost child, a search by law enforcement has not located the parent, parents, or guardian.
It is presumed that the child was taken into emergency physical custody, unless the officer clearly communicates to the department that the officer intended to take full emergency protective custody, involving both legal and physical custody, rather than having the decision concerning legal custody made after a preliminary investigation as provided in subsections (D) through (G).
(B) If the child is in need of emergency medical care at the time the child is taken into emergency physical custody or emergency protective custody, the officer shall transport the child to an appropriate health care facility. Emergency medical care may be provided to the child without consent, as provided in Section 20-7-290. The parent or guardian is responsible for the cost of any emergency medical care that is provided to the child. However, the parent or guardian is not responsible for the cost of medical examinations performed at the request of law enforcement or the department solely for the purpose of assessing whether the child has been abused or neglected unless it is determined that the child has been harmed as defined in this article.
If the child is not in need of emergency medical care, the officer or the department shall transport the child to a place agreed upon by the department and law enforcement, and the department within two hours shall assume physical control of the child and shall place the child in a licensed foster home or shelter within a reasonable period of time. In no case may the child be placed in a jail or other secure facility or a facility for the detention of criminal or juvenile offenders. While the child is in its custody, the department shall provide for the needs of the child and assure that a child of school age who is physically able to do so continues attending school.
(C) When an officer takes a child into emergency physical custody or emergency protective custody under this section the officer immediately shall notify the department. The department shall notify the parent, guardian, or other person exercising temporary or permanent control over the child as early as reasonably possible of the location of the child unless there are compelling reasons for believing that disclosure of this information would be contrary to the best interests of the child.
(D) The department shall conduct within twenty-four hours after the child is taken into emergency physical custody a preliminary investigation to determine whether grounds for assuming legal custody of the child exist and whether reasonable means exist for avoiding removal of the child from the home of the parent or guardian or for placement of the child with a relative and means for minimizing the emotional impact on the child of separation from the child's home and family. During this time the department, if possible, shall convene, a meeting with the child's parents or guardian, extended family, and other relevant persons to discuss the family's problems that led to intervention and possible corrective actions, including placement of the child.
(E) Before agreeing to or acquiescing in a corrective action that involves placement of the child with a relative or other person or making an interim placement with a relative while retaining custody of the child or as soon as possible after agreeing to or acquiescing in a corrective action, the department shall secure from the relative or other person and other adults in the home an affidavit attesting to information necessary to determine whether a criminal history or history of child abuse or neglect exists and whether this history indicates there is a significant risk that the child would be threatened with abuse or neglect in the home of the relative or other person. As soon as possible, the department shall confirm the information supplied in the affidavit by checking the Central Registry of Child Abuse and Neglect, other relevant department records, county sex offender registries, and records for the preceding five years of law enforcement agencies in the jurisdiction in which the relative or other person resides and, to the extent reasonably possible, jurisdictions in which the relative or other person has resided during that period. The department must not agree to or acquiesce in a placement if the affidavit or these records reveal information indicating there is a significant risk that the child would be threatened with abuse or neglect in the home of the relative or other person. The relative or other person must consent to a check of the above records by the department.
(F) If the department determines after the preliminary investigation that there is probable cause to believe that by reason of abuse or neglect the child's life, health, or physical safety is in imminent and substantial danger, the department may assume legal custody of the child without the consent of the child's parent, guardian, or custodian. The department shall make every reasonable effort to notify the child's parent, guardian, or custodian of the location of the child and temporary arrangements for visitation unless there are compelling reasons why visitation or notice of the location of the child would be contrary to the best interests of the child. The notification must be in writing and shall include notice of the right to a hearing and right to counsel pursuant to this article. Nothing in this subsection authorizes the department to physically remove a child from the care of the child's parent or guardian without an order of the court. The department may exercise the authority to assume legal custody only after a law enforcement officer has taken emergency physical custody of the child and the department has conducted a preliminary investigation pursuant to this section.
(G) If the department concludes after the preliminary investigation that the child should be returned to the child's parent, guardian, or custodian, the department shall consult with the law enforcement officer who took emergency physical custody of the child. If the officer objects to the return of the child, the department must assume legal custody of the child until a probable cause hearing can be held.
(H) If a law enforcement officer takes a child into emergency protective custody, the department shall conduct a preliminary investigation as provided in this section within seventy-two hours after the child was taken into emergency protective custody and shall make recommendations to the family court at the probable cause hearing or take other appropriate action as provided in this chapter.
(I) The department, upon assuming legal custody of the child or upon notice from law enforcement that a child has been taken into emergency protective custody, shall begin a child protective investigation, including immediate attention to the protection of other children in the home, or other setting where the child was found. The department shall initiate a removal proceeding in the appropriate family court pursuant to Section 20-7-736 on or before the next working day after initiating the investigation concerning a child taken into emergency protective custody. If a noncustodial parent is not named as a party, the department shall exercise every reasonable effort to promptly notify the noncustodial parent that a removal proceeding has been initiated and of the date and time of any hearings scheduled pursuant to this section. Upon a determination by the department before the probable cause hearing that there is not a preponderance of evidence that child abuse or neglect occurred, the department may place physical custody of the child with the parent, parents, guardian, immediate family member, or relative, with the department retaining legal custody pending the probable cause hearing. When the facts and circumstances of the report clearly indicate that no abuse or neglect occurred, the report promptly must be determined to be unfounded, and the department shall exercise reasonable efforts to expedite the placement of the child with the parent, parents, guardian, immediate family member, or relative.
(J) If the child is returned to the child's parent, guardian, or custodian following the preliminary investigation, a probable cause hearing must be held if requested by the child's parent, guardian, or custodian or the department or the law enforcement agency that took emergency physical custody of the child. The request must be made in writing to the court within ten days after the child is returned. A probable cause hearing pursuant to subsection (K) must be scheduled within seven days of the request to determine whether there was probable cause to take emergency physical custody of the child.
(K) The family court shall schedule a probable cause hearing to be held within seventy-two hours of the time the child was taken into emergency protective custody or within seventy-two hours of the time the child was taken into emergency physical custody if legal custody subsequently was assumed by the department. If the third day falls upon a Saturday, Sunday, or holiday, the probable cause hearing must be held no later than the next working day. If there is no term of court in the county when the probable cause hearing must be held, the hearing must be held in another county in the circuit. If there is no term of family court in another county in the circuit, the probable cause hearing may be heard in another court in an adjoining circuit. The probable cause hearing may be conducted by videoconference at the discretion of the judge. At the probable cause hearing, the family court shall undertake to fulfill the requirements of Section 20-7-110 and shall determine whether there was and remains probable cause for the law enforcement officer to take emergency physical custody and for the department to assume legal custody of the child. If emergency protective custody of the child was taken, the family court shall determine whether there was and remains probable cause for the law enforcement officer to take emergency protective custody of the child. At the probable cause hearing, the respondents may submit affidavits as to facts which are alleged to form the basis of the removal and to cross-examine the department's witnesses as to whether there existed probable cause to effect emergency removal. The hearing to determine whether removal of custody is needed, pursuant to Section 20-7-736, must be held within thirty-five days of the date of receipt of the removal petition.
(L) An order issued as a result of the probable cause hearing held pursuant to subsection (K) concerning a child of whom the department has assumed legal custody shall contain a finding by the court of whether reasonable efforts were made by the department to prevent removal of the child and a finding of whether continuation of the child in the home would be contrary to the welfare of the child. The order shall state:
(1) the services made available to the family before the department assumed legal custody of the child and how they related to the needs of the family;
(2) the efforts of the department to provide services to the family before assuming legal custody of the child;
(3) why the efforts to provide services did not eliminate the need for the department to assume legal custody;
(4) whether a meeting was convened as provided in subsection (D), the persons present, and the outcome of the meeting or, if no meeting was held, the reason for not holding a meeting;
(5) what efforts were made to place the child with a relative known to the child or in another familiar environment;
(6) whether the efforts to eliminate the need for the department to assume legal custody were reasonable including, but not limited to, whether services were reasonably available and timely, reasonably adequate to address the needs of the family, reasonably adequate to protect the child and realistic under the circumstances, and whether efforts to place the child in a familiar environment were reasonable.
An order issued as a result of the probable cause hearing held pursuant to subsection (K) concerning a child taken into emergency protective custody also shall contain the findings required in this subsection unless the court finds that the department's first contact with the child occurred under such circumstances that reasonable services would not have allowed the child to remain safely in the home. If the court finds that reasonable services would not have allowed the child to remain safely in the home, the court shall find that removal of the child without services or without further services was reasonable.
(M) If the court orders the child to remain in the legal custody of the department at the probable cause hearing, the family court may order expedited placement of the child with a relative of the first or second degree. The court shall require the department to check the names of all adults in the home against the Central Registry of Child Abuse and Neglect, other relevant records of the department, county sex abuse registers, and records for the preceding five years of law enforcement agencies in the jurisdiction in which the person resides and, to the extent reasonably possible, jurisdictions in which the person has resided during that period. The court may hold open the record of the probable cause hearing for twenty-four hours to receive the reports and based on these reports and other information introduced at the probable cause hearing, the court may order expedited placement of the child in the home of the relative. Nothing in this subsection precludes the department from requesting or the court from ordering pursuant to the department's request either a full study of the relative's home before placement or the licensing or approval of the relative's home before placement.
(N) The family court may order ex parte that a child be taken into emergency physical custody without the consent of parents, guardians, or others exercising temporary or permanent control over the child if:
(1) The family court judge determines there is probable cause to believe that by reason of abuse or neglect there exists an imminent and substantial danger to the child's life, health, or physical safety; and
(2) Parents, guardians, or others exercising temporary or permanent control over the child are unavailable or do not consent to the child's removal from their custody.
(O) If the court issues such an order the court shall schedule a hearing, pursuant to the provisions of Section 20-7-736 and pursuant to the requirements of subsection (K), within seventy-two hours after the child was taken into emergency physical custody. If the third day falls upon a Saturday, Sunday, or holiday, the hearing must be held no later than the next working day.
(P) The department and local law enforcement agencies shall develop written protocols to address issues related to emergency physical custody and emergency protective custody. The protocols shall cover at a minimum information exchange between the department and local law enforcement agencies, consultation on decisions to assume legal custody, and the transfer of responsibility over the child, including mechanisms and assurances for the department to arrange expeditious placement of the child."
Removal authority of law enforcement officers; department access to sex offender registry; medical professional detaining child
SECTION 6. The 1976 Code is amended by adding:
"Section 20-7-612. A law enforcement officer investigating a case of suspected child abuse or neglect or responding to a request for assistance by the department as it investigates a case of suspected child abuse or neglect has authority to take emergency physical custody or emergency protective custody of the child pursuant to Section 20-7-610 in all counties and municipalities.
Immediately upon taking emergency physical custody or emergency protective custody, the law enforcement officer shall notify the local office of the department responsible to the county in which the activity under investigation occurred.
The department shall designate by policy and procedure the local department office responsible for procedures required by Section 20-7-610 when a child resides in a county other than the one in which the activity under investigation occurred. The probable cause hearing required by Section 20-7-610 may be held in the county of the child's residence or the county of the law enforcement officer's jurisdiction.
Section 20-7-616. Upon request of the department, an agency having custody of state or local law enforcement records or county sex offender registers shall provide the department with access to records or a summary of records concerning an adult residing in the home of a child who is the subject of a report of suspected child abuse or neglect or in a home in which it is proposed that the child be placed.
Section 20-7-618. (A) A physician or hospital to which a child has been brought for treatment may detain the child in emergency physical custody for up to twenty-four hours without the consent of the person responsible for the child's welfare if the physician or hospital:
(1) has reason to believe that the child has been abused or neglected;
(2) has made a report to a law enforcement agency and the department pursuant to Section 20-7-510, stating the time the physician notified the agency or department that the child was being detained until a law enforcement officer could arrive to determine whether the officer should take emergency physical custody of the child pursuant to Section 20-7-610; and
(3) has reason to believe that release of the child to the child's parent, guardian, custodian, or caretaker presents an imminent danger to the child's life, health, or physical safety. A hospital must designate a qualified person or persons within the hospital who shall have sole authority to detain a child on behalf of the hospital.
(B) A physician or hospital that detains a child in good faith as provided in this section is immune from civil or criminal liability for detaining the child."
Intervention by child welfare agencies
SECTION 7. Subarticle 7, Article 7, Chapter 7, Title 20 of the 1976 Code, as last amended by Act 95 of 1995, is further amended to read:
Section 20-7-635. (A) The department is authorized to develop a network of homes and facilities to use for temporary crisis placements for children.
(B) Temporary crisis placements may be made with licensed child welfare agencies including foster homes and residential group facilities. The department also may use volunteers who are screened by the department for the sole purpose of these placements. The screening of volunteer crisis homes shall include Central Registry of Child Abuse and Neglect and criminal history records checks in accordance with Section 20-7-1642. The department shall develop criteria for screening volunteer crisis homes through promulgation of regulations in accordance with the Administrative Procedures Act.
(C) Children in temporary crisis placements are not in the custody of the department and must not be considered to be in foster care. No placement of a child in a temporary crisis home or facility may occur unless it is agreed to by the child's parent, guardian, or custodian and the department. Temporary crisis placements may last no longer than seventy-two hours.
Section 20-7-640. (A) The Department of Social Services may maintain a toll-free number available to persons throughout the State for the referral of family-related problems, including:
(1) The reporting of known or suspected cases of child abuse or neglect.
(2) Other problems of a nature which may affect the stability of family life.
This telephone service shall operate continuously. Upon receipt of a call involving suspected abuse or neglect, the Department of Social Services shall transmit the full contents of the report to the appropriate county department office. Immediately upon transmitting the report the department shall destroy the contents of the suspected report. Upon receipt of a call involving other problems of a nature which may affect the stability of family life, the department shall refer the call to the appropriate county department office or other service agency where appropriate.
(B) The department shall have within it a separate organizational unit administered within the department with qualified staff and resources sufficient to fulfill the purposes and functions assigned to it by this article.
(C) The department's responsibilities shall include, but are not limited to:
(1) assigning and monitoring initial child protection responsibility through periodic review of services offered throughout the State;
(2) assisting in the diagnosis of child abuse and neglect;
(3) coordinating referrals of known or suspected child abuse and neglect;
(4) measuring the effectiveness of existing child protection programs and facilitating research, planning, and program development; and
(5) establishing and monitoring a statewide Central Registry for Child Abuse and Neglect.
(D) The county in which the child resides is the legal place of venue.
(E) The department may promulgate regulations and formulate policies and methods of administration to carry out effectively child protective services, activities, and responsibilities.
(F) The department may contract for the delivery of protective services, family preservation services, foster care services, family reunification services, adoptions services, and other related services or programs. The department shall remain responsible for the quality of the services or programs and shall ensure that each contract contains provisions requiring the provider to deliver services in accordance with departmental policies and state and federal law.
Section 20-7-650. (A) It is the purpose of this section to encourage the voluntary acceptance of any service offered by the department in connection with child abuse and neglect or another problem of a nature affecting the stability of family life.
(B) The department must be staffed adequately with persons trained in the investigation of suspected child abuse and neglect and in the provision of services to abused and neglected children and their families.
(C) Within twenty-four hours of the receipt of a report of suspected child abuse or neglect or within twenty-four hours after the department has assumed legal custody of a child pursuant to Section 20-7-610(F) or (G) or within twenty-four hours after being notified that a child has been taken into emergency protective custody, the department must begin an appropriate and thorough investigation to determine whether a report of suspected child abuse or neglect is `indicated' or `unfounded'. The finding must be made no later than forty-five days from the receipt of the report. A single extension of no more than fifteen days may be granted by the director of the department, or the director's designee, for good cause shown, pursuant to guidelines adopted by the department. If the investigation cannot be completed because the department is unable to locate the child or family or for other compelling reason, the investigation may be reopened at a later date if the child or family is located or the compelling reason for failure to complete the investigation is removed. The department shall make a finding within forty-five days after the investigation is reopened.
(D) The department may file with the family court an affidavit and a petition to support issuance of a warrant at any time after receipt of a report. The family court shall issue the warrant if the affidavit and petition establish probable cause to believe the child is an abused or neglected child and that the investigation cannot be completed without issuance of the warrant. The warrant may authorize the department to interview the child, to inspect the condition of the child, to inspect the premises where the child may be located or may reside, and to obtain copies of medical, school, or other records concerning the child.
(E) The department or law enforcement, or both, may interview the child alleged to have been abused or neglected and any other child in the household during the investigation. The interviews may be conducted on school premises, at day care facilities, at the child's home or at other suitable locations and in the discretion of the department or law enforcement, or both, may be conducted outside the presence of the parents. To the extent reasonably possible, the needs and interests of the child must be accommodated in making arrangements for interviews, including time, place, method of obtaining the child's presence, and conduct of the interview. The department or law enforcement, or both, shall provide notification of the interview to the parents as soon as reasonably possible during the investigation if notice will not jeopardize the safety of the child or the course of the investigation. All state, law enforcement, and community agencies providing child welfare intervention into a child's life should coordinate their services to minimize the number of interviews of the child to reduce potential emotional trauma to the child.
(F) Indicated findings must be based upon a finding of the facts available to the department that abuse or neglect is supported by a preponderance of evidence. Indicated findings must include a description of the services being provided the child and those responsible for the child's welfare, and all relevant dispositional information.
(G) All reports that are not indicated must be classified as `unfounded'. Unfounded reports must be further classified as either Category I, Category II, or Category III.
(1) Category I unfounded reports are those in which abuse and neglect were ruled out following the investigation. A report falls in this category if evidence of abuse or neglect as defined in this article was not found regardless of whether the family had other problems or was in need of services.
(2) Category II unfounded reports are those in which the evidence produced by the investigation was inconclusive as to whether abuse or neglect occurred. A report falls in this category if there is evidence of abuse or neglect as defined in this article but not enough evidence to constitute a preponderance of evidence. This category does not include cases in which the family had other problems that are not within the definition of abuse and neglect in Section 20-7-490.
(3) Category III unfounded reports are those in which an investigation could not be completed because the department was unable to locate the child or family or for some other compelling reason.
(H) Reports of child abuse and neglect must be entered immediately into the automated statewide Central Registry of Child Abuse and Neglect. Reports of child abuse and neglect must be entered into the registry and maintained in the department files in one of four categories: Suspected, Unfounded, Indicated, or Affirmative Determination. If the report is categorized as unfounded, the entry must further state the classification of unfounded report as set forth in subsection (G). All initial reports must be deemed suspected. Reports of suspected child abuse and neglect must be maintained for no more than sixty days after the report was received by the department. On or before the expiration of that time, reports must be converted into either unfounded or indicated reports, pursuant to the agency's investigation. Upon an affirmative determination, indicated reports must be converted to the category of `affirmative determination'.
(1) Indicated reports must be maintained on the central and local registries only when accompanied by a description of services being provided as required under subsection (F).
(2) Affirmative determinations may be maintained by the department only when accompanied by a description of services being provided the child and those responsible for his welfare, and relevant dispositional information.
(I) The names, addresses, and all other identifying characteristics of persons named in all unfounded reports in Category I maintained in department files may be used only for auditing and statistical purposes. All identifying information contained in unfounded reports must be destroyed immediately after use of the information for auditing and statistical purposes, and in no case later than one year from the date that the last report has been determined to be unfounded; however, all information in the report which is unnecessary for auditing and statistical purposes must be destroyed immediately upon a determination that the report is unfounded and the remaining information must be kept strictly confidential except for auditing and statistical purposes. If an unfounded report is in Category II or Category III, the report and related information may be retained by the department in its records for one year for use by department staff or law enforcement agencies in relation to child abuse and neglect investigations or proceedings involving the subject of the report or the same child. The department may not use the information in records or entries of Category II or III unfounded reports for any purpose other than child abuse and neglect proceedings involving the same subject or the same child and auditing and statistical purposes. Notwithstanding Section 20-7-690 or any other provision of law, no information contained in unfounded reports may be disclosed under any circumstances, except that:
(1) the confidentiality and disclosure provisions of this subsection do not apply to information requested by the Department of Child Fatalities pursuant to Section 20-7-5930; and the information pertaining to an unfounded case must be released to the Department of Child Fatalities when the request is made pursuant to Section 20-7-5930.
(2) information in records concerning Category II or III unfounded reports may be disclosed to a law enforcement agency investigating a child abuse or neglect case involving the subject of the report or the same child.
If an unfounded report is in Category I, only information necessary for auditing and statistical purposes may be retained in department records or in the database. As soon as the record has been used for auditing or statistical purposes, it must be destroyed. All identifying information must be deleted from the database immediately upon use of the entry for auditing or statistical purposes. In no case may the record or entry be kept for more than one year from the date of the report. The department may not use the information contained in records or entries of Category I unfounded cases for any purpose other than auditing or statistical purposes. No information contained in the record or the database concerning a Category I unfounded case may be disclosed to any person or entity other than the Department of Child Fatalities pursuant to Section 20-7-5930.
(J) Upon an affirmative determination, the names, addresses, birth dates, identifying characteristics, and other information of persons named in indicated reports maintained in agency files must be converted immediately to the category of `affirmative determination'. The names, addresses, birth dates, identifying characteristics, and other information unnecessary for auditing and statistical purposes or persons named in affirmative determinations of child abuse or neglect maintained in agency files must be destroyed seven years from the date services are terminated. Upon a determination that more likely than not a person who is the subject of a report as defined in Section 20-7-490 did not commit child abuse or neglect, the name, address, birth date, and other identifying characteristics of that person must be purged immediately from the department's files. This provision does not prohibit the department from maintaining an `indicated report' which contains identifying information on the child who is the subject of the indicated report and those responsible for his welfare without identifying a subject of the report or providing child protective services to the child who is the subject of the indicated report and those responsible for the child's welfare.
(K) A family court order resulting from proceedings initiated by the department pursuant to Sections 20-7-738 and 20-7-736 must include a judicial determination for inclusion in the statewide Central Registry of Child Abuse and Neglect of whether or not the subject of the report more likely than not abused or neglected the child.
(L) The department is charged with providing, directing, or coordinating the appropriate and timely delivery of services to children found to be abused or neglected and those responsible for their welfare or others exercising temporary or permanent control over these children. Services must not be construed to include emergency protective custody provided for in Section 20-7-736.
(M) In cases where a report has been filed with the Central Registry of Child Abuse and Neglect, as required by subsection (H), the outcome of any further proceedings must be entered immediately by the department into the Central Registry of Child Abuse and Neglect.
(N) The department shall furnish to parents or guardians on a standardized form the following information as soon as reasonably possible after commencing the investigation:
(1) the names of the investigators;
(2) the allegations being investigated;
(3) whether the person's name has been recorded by the department as a suspected perpetrator of abuse or neglect;
(4) the right to inspect department records concerning the investigation;
(5) statutory and family court remedies available to complete the investigation and to protect the child if the parent or guardian or subject of the report indicates a refusal to cooperate;
(6) how information provided by the parent or guardian may be used.
(7) the possible outcomes of the investigation;
(8) the telephone number and name of a department employee available to answer questions.
(O) The department shall cooperate with law enforcement agencies within the area it serves and establish procedures necessary to facilitate the referral of child protection cases to the department. Where the facts indicating abuse or neglect also appear to indicate a violation of criminal law, the department shall notify the appropriate law enforcement agency of those facts within twenty-four hours of the department's finding for the purposes of police investigation. The law enforcement agency shall file a formal incident report at the time it is notified by the department of the finding. When the intake report is of alleged sexual abuse, the department must notify the appropriate law enforcement agency within twenty-four hours of receipt of the report to determine if a joint investigation is necessary. The law enforcement agency shall file a formal incident report at the time it is notified of the alleged sexual abuse. In cases where the agency retains custody of the minor child(ren) and physical placement of the child(ren) is in the care of relatives the agency must provide the same services along with financial benefits provided to other licensed foster care placement and facilities provided the adult(s) with whom the child is placed meet all qualifications applicable to foster parents.
(P) The department actively shall seek the cooperation and involvement of local public and private institutions, groups, and programs concerned with matters of child protection and welfare within the area it serves.
(Q) The local office of the department responsible for the county of the mother's legal residence shall provide, direct, or coordinate the appropriate and timely delivery of services to children born of incarcerated mothers where no provision has been made for placement of the child outside the prison setting. Referral of these cases to the appropriate local office is the responsibility of the agency or institution with custody of the mother.
(R) The agency in all instances shall act in accordance with the policies, procedures, and regulations promulgated and distributed by the State Department of Social Services pursuant to this chapter.
Section 20-7-652. (A) Upon receipt of a report that a parent or other person responsible for the welfare of a child will not consent to health care needed by the child, the department shall investigate pursuant to Section 20-7-650. Upon a determination by a preponderance of evidence that adequate health care was withheld for religious reasons or other reasons reflecting an exercise of judgment by the parent or guardian as to the best interest of the child, the department may enter a finding that the child is in need of medical care and that the parent or other person responsible does not consent to medical care for religious reasons or other reasons reflecting an exercise of judgment as to the best interests of the child. The department may not enter a finding by a preponderance of evidence that the parent or other person responsible for the child has abused or neglected the child because of the withholding of medical treatment for religious reasons or for other reasons reflecting an exercise of judgment as to the best interests of the child. However, the department may petition the family court for an order finding that medical care is necessary to prevent death or permanent harm to the child. Upon a determination that a preponderance of evidence shows that the child might die or suffer permanent harm, the court may issue its order authorizing medical treatment without the consent of the parent or other person responsible for the welfare of the child. The department may move for emergency relief pursuant to family court rules when necessary for the health of the child.
(B) Proceedings brought under this section must be considered child abuse and neglect proceedings only for purposes of appointment of representation pursuant to Section 20-7-110.
(C) This section does not authorize intervention if the child is under the care of a physician licensed under Chapter 47, Title 40, who supports the decision of the parent or guardian as a matter of reasonable medical judgment.
Section 20-7-655. (A) The Department of Social Services shall provide a child protective services appeals process for review of indicated reports not otherwise being brought before the family court for disposition. The appeals hearing must be scheduled and conducted in accordance with the department's fair hearing regulations except as to the date for a final decision.
(B) The state director shall appoint a child protective services appeals committee for each case decision which is appealed. The committee must be comprised of three officials or employees of the Department of Social Services, none of whom may be a resident of or employed by the department in the county where the case originates or a member of the investigative unit which investigated the case if the case decision being appealed involves institutional abuse.
(C) When the department determines that an appeal hearing is needed pursuant to Section 20-7-690(J), it shall provide notice of the availability of the hearing to the potential appellant by certified mail. The notice must inform the person of the right to appeal the case determination and the date and time of the appeal hearing. The notice must also advise the appellant of his rights as provided in the department's fair hearing regulations.
(D) If the department determines that a report of suspected child abuse or neglect is indicated and the case will not be brought before the family court for disposition, the department must provide notice of the case decision to the subject of the report by certified mail. The notice must inform the subject of the report of the right to appeal the case decision and that, if he intends to appeal the decision, he must notify the local child protection agency of his intent in writing within thirty days of receipt of the notice. If the subject of the report does not notify the department of his intent to appeal in writing within thirty days of receipt of the notice, the right to appeal is waived by the subject and the case decision becomes the affirmative determination.
(E) Within fourteen days after receipt of a notice of intent to appeal, an interim review of case documentation and the case determination must be conducted by an appropriate official of the department designated by the director. The interim review may not delay the scheduling of the appeals hearing.
(F) The child protective services appeals committee shall determine whether or not the case determination is supported by a preponderance of evidence that the subject of the report abused or neglected the child. If the appeals committee affirms the case determination, the subject has the right to judicial review in the family court of the jurisdiction in which the case originated.
(G) Proceedings for judicial review may be instituted by filing a petition in the family court within thirty days after the final decision of the department. Copies of the petition must be served upon the department and all parties of record. Judicial review must be conducted by the family court in accordance with the standards of review provided for in Section 1-23-380. The court may enter judgment upon the pleadings and a certified transcript of the record which must include the evidence upon which the findings and decisions appealed are based. The judgment must include a determination of whether by a preponderance of evidence the subject of the report abused or neglected the child. The appellant is not entitled to a trial de novo in the family court.
(H) Upon a determination by the interim review, the appeals committee or the court that there is not a preponderance of evidence that the subject of the report abused or neglected a child as defined in Section 20-7-490, the name, address, birth date, and other identifying characteristics of that person must be purged immediately from the department's files and from the Central Registry of Child Abuse and Neglect. This subsection does not prohibit the department or the registry from maintaining an `indicated report' which contains identifying information on the child who is the subject of the indicated report and those responsible for the child's welfare without identifying a subject of the report, and it does not prohibit the department from providing child protective services to the child who is the subject of an indicated report and those responsible for the child's welfare.
(I) When the appeals procedure is used for institutional abuse cases investigated by the Department of Social Services, the investigative unit of the Department of Social Services must receive all notices and the case documentation review.
Section 20-7-660. (A) The Department of Social Services Protective Services shall inform all persons required to report under this article of the nature, problem, and extent of child abuse and neglect and of their duties and responsibilities in accordance with this article. The department also, on a continuing basis, shall conduct training programs for department staff and appropriate training for persons required to report under this article.
(B) The department, on a continuing basis, shall inform the public of the nature, problem, and extent of the child abuse and neglect and of the remedial and therapeutic services available to children and their families. The department shall encourage families to seek help consistent with Section 20-7-500.
(C) The department, on a continuing basis, shall actively publicize the appropriate telephone numbers to receive reports of suspected child abuse and neglect, including the twenty-four hour, statewide, toll-free telephone service and respective numbers of the county department offices.
Section 20-7-670. (A) The Department of Social Services is authorized to receive and investigate reports of abuse and neglect in residential institutions and foster homes. In no case does the Department of Social Services have responsibility for investigating allegations of abuse and neglect in institutions operated by the Department of Social Services.
(B) The Department of Social Services is authorized to receive and investigate reports of abuse and neglect occurring in foster homes supervised by or recommended for licensing by the department or by child placing agencies. Responsibility for investigating the department's foster homes must be assigned to a unit or units not responsible for selecting or licensing its foster homes.
(C) The department shall promulgate regulations consistent with this authority. The regulations shall cover at a minimum investigation of reports, notice to the institutions and sponsoring agencies, and remedial action.
(D) The State Law Enforcement Division is authorized to receive and investigate reports of institutional abuse and neglect alleged to have occurred in any institution or foster home operated by the Department of Juvenile Justice and any institution or day care facility operated by the Department of Social Services. The State Law Enforcement Division may promulgate regulations consistent with this authority to investigate these reports and take remedial action, if necessary.
(E) The Department of Social Services may initiate proceedings in the circuit court to enjoin the operations of a foster home, an institution, or a child placing agency or to require other corrective action if necessary for the safety of the children. The department shall take whatever steps it considers necessary to inform potential reporters of abuse and neglect of its responsibilities under this section.
(F) Notwithstanding the provisions of subsection (A) or any other provision of this article, the Department of Social Services may not investigate an allegation of abuse or neglect of a child where the child is in the custody of or a resident of a public or private health facility, institution, or agency licensed by the Department of Health and Environmental Control or operated by the Department of Mental Health. These allegations of abuse and neglect must be investigated by the ombudsman of the Office of the Governor pursuant to Article 1, Chapter 35, Title 43, and Chapter 38, Title 43.
Section 20-7-680. (A) The purpose of this section is to establish a system for the identification of abused and neglected children and those who are responsible for their welfare, to provide a system for the coordination of reports concerning abused and neglected children, and to provide data for determining the incidence and prevalence of child abuse and neglect in this State.
(B) The Department of Social Services shall maintain a Central Registry of Child Abuse and Neglect within the department's child protective services unit in accordance with Section 20-7-650. The registry shall receive and maintain reports of child abuse and neglect, and it shall release information to persons and agencies only as authorized by this article. Reports of child abuse and neglect must be maintained on the registry in one of four categories: Suspected, Unfounded, Indicated, or Affirmative Determination. If the report is categorized as unfounded, the entry must further state the classification of unfounded report as set forth in Section 20-7-650(G). All initial reports must be deemed suspected. Reports of suspected child abuse and neglect must be maintained on the registry for no more than sixty days after the report was received by the department. On or before the expiration of the sixty days, a report must be converted into either unfounded or indicated, pursuant to the department's investigation. Upon an affirmative determination, indicated reports must be converted to the category of `affirmative determination'.
Indicated reports and affirmative determinations may be maintained on the Central Registry of Child Abuse and Neglect only when accompanied by a description of the services being provided the child and those responsible for the child's welfare, and all relevant disposition information.
(C) The Department of Social Services shall furnish annually to the Governor and the General Assembly a report on the incidence and prevalence of child abuse and neglect in South Carolina, the effectiveness of services provided throughout the State to protect children from this harm, and any other data considered instructive.
(D) The names, addresses, birth dates, identifying characteristics, and other information of persons named in unfounded reports maintained on the registry must be destroyed immediately upon a determination that the report is unfounded. However, information concerning persons named in Category II or III unfounded reports may be retained in other records of the department as provided for in Section 20-7-650(I).
(E) Upon an affirmative determination, the names, addresses, birth dates, identifying characteristics, and other information of persons named in indicated reports must be converted immediately to the category of affirmative determination. The names, addresses, birth dates, identifying characteristics, and other information unnecessary for auditing and statistical purposes of persons named in affirmative determinations of child abuse or neglect must be destroyed seven years from the date services are terminated. Upon a determination that there is not a preponderance of evidence that the subject of a report as defined in Section 20-7-490 committed child abuse or neglect, the name, address, birth date, and other identifying characteristics of that person must be purged immediately from the registry. This subsection does not prohibit the registry from maintaining an `indicated report' which contains identifying information on the child who is the subject of the indicated report and those responsible for the child's welfare without identifying a subject of the report as defined in Section 20-7-490, and it does not prohibit the department from providing child protective services to the child who is the subject of an indicated report and those responsible for the child's welfare.
Section 20-7-690. (A) All reports made and information collected pursuant to this article maintained by the Department of Social Services and the Central Registry of Child Abuse and Neglect are confidential. A person who disseminates or permits the dissemination of these records and the information contained in these records except as authorized in this section, is guilty of a misdemeanor and, upon conviction, must be fined not more than one thousand five hundred dollars or imprisoned not more than one year, or both.
(B) The department is authorized to grant access to the records of indicated cases to the following persons, agencies, or entities:
(1) the ombudsman of the office of the Governor or the Governor's designee;
(2) a person appointed as the child's guardian ad litem, the attorney for the child's guardian ad litem, or the child's attorney;
(3) appropriate staff of the department;
(4) a law enforcement agency investigating or prosecuting known or suspected abuse or neglect of a child or any other crime against a child, attempting to locate a missing child, investigating or prosecuting the death of a child, or investigating or prosecuting any other crime established in or associated with activities authorized under this article;
(5) a person who is named in a report or investigation pursuant to this article as having abused or neglected a child, that person's attorney, and that person's guardian ad litem;
(6) a child ten years of age or older who is the subject of a report, except in regard to information that the department may determine to be detrimental to the emotional well-being of the child;
(7) the parents or guardians of a child who is the subject of a report;
(8) county medical examiners or coroners who are investigating the death of a child;
(9) the State Child Fatality Advisory Committee and the Department of Child Fatalities in accordance with the exercise of their purposes or duties pursuant to Article 26, Chapter 7, Title 20;
(10) family courts conducting proceedings pursuant to this article;
(11) the parties to a court proceeding in which information in the records is legally relevant and necessary for the determination of an issue before the court, if before the disclosure the judge has reviewed the records in camera, has determined the relevancy and necessity of the disclosure, and has limited disclosure to legally relevant information under a protective order;
(12) a grand jury by subpoena upon its determination that access to the record is necessary in the conduct of its official business;
(13) authorities in other states conducting child abuse and neglect proceedings or child custody proceedings;
(14) courts in other states conducting child abuse and neglect investigations or providing child welfare services;
(15) the director or chief executive officer of a child day care facility, child placing agency, or child caring facility when the records concern the investigation of an incident of child abuse or neglect that allegedly was perpetrated by an employee or volunteer of the facility or agency against a child served by the facility or agency;
(16) a person or agency with authorization to care for, diagnose, supervise, or treat the child, the child's family, or the person alleged to have abused or neglected the child;
(17) any person engaged in bona fide research with the written permission of the state director or the director's designee, subject to limitations the state director may impose;
(18) multidisciplinary teams impaneled by the department or impaneled pursuant to statute;
(19) circuit solicitors and their agents investigating or prosecuting known or suspected abuse or neglect of a child or any other crime against a child, attempting to locate a missing child, investigating or prosecuting the death of a child, or investigating or prosecuting any other crime established in or associated with activities authorized under this article;
(20) prospective adoptive or foster parents before placement;
(21) the Division for the Review of the Foster Care of Children, Office of the Governor, for purposes of certifying in accordance with Section 20-7-2386 that no potential employee or no nominee to and no member of the state or a local foster care review board is a subject of an indicated report or affirmative determination.
(22) employees of the Division for the Review of the Foster Care of Children, Office of the Governor and members of local boards when carrying out their duties pursuant to Subarticle 4, Article 13; the department and the division shall limit by written agreement or regulation, or both, the documents and information to be furnished to the local boards.
(C) The department may limit the information disclosed to individuals and entities named in subsection (B)(14), (15), (16), (17), (18), and (20) to that information necessary to accomplish the purposes for which it is requested or for which it is being disclosed. Nothing in this subsection gives to these entities or persons the right to review or copy the complete case record.
(D) When a request for access to the record comes from an individual identified in subsection (A)(5), (6), or (7) or that person's attorney, the department shall review any reports from medical care providers and mental health care providers to determine whether the report contains information that does not pertain to the case decision, to the treatment needs of the family as a whole, or to the care of the child. If the department determines that these conditions exist, before releasing the document, the department shall provide a written notice identifying the report to the requesting party and to the person whose treatment or assessment was the subject of the report. The notice may be mailed to the parties involved or to their attorneys or it may be delivered in person. The notice shall state that the department will release the report after ten days from the date notice was mailed to all parties and that any party objecting to release may apply to the court of competent jurisdiction for relief. When a medical or mental health provider or agency furnishes copies of reports or records to the department and designates in writing that those reports or records are not to be further disclosed, the department must not disclose those documents to persons identified in subsection (A)(5), (6), or (7) or that person's attorney. The department shall identify to the requesting party the records or reports withheld pursuant to this subsection and shall advise the requesting party that he may contact the medical or mental health provider or agency about release of the records or reports.
(E) A disclosure pursuant to this section shall protect the identity of the person who reported the suspected child abuse or neglect. The department also may protect the identity of any other person identified in the record if the department finds that disclosure of the information would be likely to endanger the life or safety of the person. Nothing in this subsection prohibits the department from subpoenaing the reporter or other persons to court for the purpose of testimony if the department determines the individual's testimony is necessary to protect the child; the fact that the reporter made the report must not be disclosed.
(F) The department is authorized to summarize the outcome of an investigation to the person who reported the suspected child abuse or neglect if the person requests the information at the time the report is made. The department has the discretion to limit the information disclosed to the reporter based on whether the reporter has an ongoing professional or other relationship with the child or the family.
(G) The state director of the department or the director's designee may disclose to the media information contained in child protective services records if the disclosure is limited to discussion of the department's activities in handling the case including information placed in the public domain by other public officials, a criminal prosecution, the alleged perpetrator or the attorney for the alleged perpetrator, or other public judicial proceedings. For purposes of this subsection, information is considered `placed in the public domain' when it has been reported in the news media, is contained in public records of a criminal justice agency, is contained in public records of a court of law, or has been the subject of testimony in a public judicial proceeding.
(H) The state director or the director's designee is authorized to prepare and release reports of the results of the department's investigations into the deaths of children in its custody or receiving child welfare services at the time of death.
(I) Nothing in this section may be construed to waive the confidential nature of the case record, to waive any statutory or common law privileges attaching to the department's internal reports or to information in case records, to create a right to access under the Freedom of Information Act, or to require the department to search records or generate reports for purposes of the Freedom of Information Act.
(J) The department is authorized to disclose whether an individual is named in its records as a perpetrator when screening of an individual's background is required by statute or regulation for employment or licensing purposes or is requested in writing by the person being screened. In cases decided after January 1, 1993, the department may disclose perpetrator status for licensing and employment purposes only if an affirmative determination has been made. A perpetrator determination made before January 1, 1993, may be disclosed for licensing or employment purposes if the department's records show that the determination was confirmed by a finding in family court, that the determination was confirmed by an administrative fair hearing, or that the subject of the report waived the opportunity for a family court determination or waived administrative review. Upon request of a person identified in the record as a perpetrator, the department may review records of cases indicated before January 1, 1993, and may decide whether confirmation or waiver occurred, whether the department should redesignate the person's status, or whether the department should provide a hearing pursuant to Section 20-7-655. Nothing in this section prevents the department from using other information in department records when making licensing or employment decisions.
(K) The department is authorized to maintain in its child day care regulatory records information about investigations of suspected child abuse or neglect occurring in child day care facilities.
(1) The department must enter child abuse or neglect investigation information in its regulatory record from the beginning of the investigation and must add updated information as it becomes available. Information in the regulatory records must include at least the date of the report, the nature of the alleged abuse or neglect, the outcome of the investigation, any corrective action required, and the outcome of the corrective action plan.
(2) The department's regulatory records must not contain the identity of the reporter or of the victim child.
(3) The identity of the perpetrator must not appear in the record unless the family court has confirmed the department's determination or a criminal prosecution has resulted in conviction of the perpetrator.
(4) Nothing in this subsection may be construed to limit the department's authority to use information from investigations of suspected child abuse or neglect occurring in child day care facilities to pursue an action to enjoin operation of a facility as provided in Article 13, Subarticle 11.
(5) Record retention provisions applicable to the department's child protective services case records are not applicable to information contained in regulatory records concerning investigations of suspected child abuse or neglect occurring in child day care facilities.
(L) All reports made available to persons pursuant to this section must indicate whether or not an appeal is pending on the report pursuant to Section 20-7-655.
Section 20-7-695. (A) Notwithstanding other provisions of the law affecting confidentiality of child protective services records and use and disclosure of records of unfounded cases, records concerning unfounded reports must be retained and disclosed as provided in this section.
(B) The alleged perpetrator in an unfounded report who has reason to believe that the report was made maliciously or in bad faith has the right to request in writing that records of the report be retained by the department for up to two years from the date of the case decision. The written request must be received by the department within thirty days of the person's receiving notice of the case decision. A person exercising this right may request a copy of the record of the unfounded case and the department shall provide a copy of the record, subject to subsection (C).
(C) The department shall disclose to persons exercising the rights afforded them under this section whether the report was made anonymously. However, the identity of a reporter must not be made available to the person except by order of the family court.
(D) An alleged perpetrator in an unfounded case who believes the report was made maliciously or in bad faith may petition the family court to determine whether there is probable cause to believe that the reporter acted maliciously or in bad faith. The court shall determine probable cause based on an in camera review of the case record and oral or written argument, or both. If the court finds probable cause, the identity of the reporter must be disclosed to the moving party.
(E) Notwithstanding other provisions of the law affecting confidentiality of child protective services records and use and disclosure of records of unfounded cases, a court conducting civil or criminal proceedings resulting from disclosures authorized by this section may order the department to release the record to any party to the case or the law enforcement."
Removal proceedings and procedures; constitution of abuse of newborn child
SECTION 8. Section 20-7-736 of the 1976 Code, as last amended by Act 333 of 1994, is further amended to read:
"Section 20-7-736. (A) The family court has exclusive jurisdiction over all proceedings held pursuant to this article.
(B) Upon investigation of a report received under Section 20-7-650 or at any time during the delivery of services by the department, the department may petition the family court to remove the child from custody of the parent, guardian, or other person legally responsible for the child's welfare if the department determines by a preponderance of evidence that the child is an abused or neglected child and that the child cannot be protected from unreasonable risk of harm affecting the child's life, physical health or safety, or mental well-being without removal. If a noncustodial parent is not named as a party in the removal petition, the agency shall exercise every reasonable effort to promptly notify the noncustodial parent that a removal proceeding has been initiated and of the date and time of any hearings scheduled pursuant to this section.
(C) The petition shall contain a full description of the reasons why the child cannot be protected adequately in the custody of the parent or guardian, including facts supporting the department's allegation that the child is an abused or neglected child as defined in Section 20-7-490 and that retention of the child in or return of the child to the home would place the child at unreasonable risk of harm affecting the child's life, physical health or safety, or mental well-being and the child cannot reasonably be protected from this harm without being removed, a description of the condition of the child, any previous efforts to work with the parent or guardian, in-home treatment programs which have been offered and proven inadequate, and the attitude of the parent or guardian towards placement of the child in an alternative setting. The petition also shall contain a statement of the harms the child is likely to suffer as a result of removal and a description of the steps that will be taken to minimize the harm to the child that may result upon removal.
(D) Whether or not the petition for removal includes a petition for termination of parental rights, the petition shall contain a notice informing the parents of the potential effect of the hearing on their parental rights and a notice to all interested parties that objections to the sufficiency of a placement plan, if ordered, or of any recommendations for provisions in the plan or court order must be raised at the hearing. The notice must be printed in boldface print or in all upper case letters and set off in a box.
If the petition includes a petition for termination of parental rights, the notice shall state: `As a result of this hearing, you could lose your rights as a parent.'
If the petition does not include a petition for termination of parental rights, the notice shall state: `At this hearing the court may order a treatment plan. If you fail to comply with the plan, you could lose your rights as a parent.'
(E) Upon receipt of a removal petition under this section, the family court shall schedule a hearing to be held within thirty-five days of the date of receipt to determine whether removal is necessary. The parties to the petition must be served with a summons and notices of right to counsel and the hearing date and time along with the petition. Personal jurisdiction over the parties is effected if they are served at least seventy-two hours before the hearing. No responsive pleading to the petition is required. The court may authorize service by publication in appropriate cases and may waive the thirty-five days requirement when necessary to achieve service. A party may waive service or appear voluntarily.
(F) A child must not be removed from the custody of the parent or guardian unless the court finds that the allegations of the petition are supported by a preponderance of evidence including a finding that the child is an abused or neglected child as defined in Section 20-7-490 and that retention of the child in or return of the child to the home would place the child at unreasonable risk of harm affecting the child's life, physical health or safety, or mental well-being and the child cannot reasonably be protected from this harm without being removed.
(G) It is presumed that a newborn child is an abused or neglected child as defined in Section 20-7-490 and that the child cannot be protected from further harm without being removed from the custody of the mother upon proof that:
(1) a blood or urine test of the child at birth or a blood or urine test of the mother at birth shows the presence of any amount of a controlled substance or a metabolite of a controlled substance unless the presence of the substance or the metabolite is the result of medical treatment administered to the mother of the infant or the infant, or
(2) the child has a medical diagnosis of fetal alcohol syndrome; and
(3) a blood or urine test of another child of the mother or a blood or urine test of the mother at the birth of another child showed the presence of any amount of a controlled substance or a metabolite of a controlled substance unless the presence of the substance or the metabolite was the result of medical treatment administered to the mother of the infant or the infant, or
(4) another child of the mother has the medical diagnosis of fetal alcohol syndrome.
This presumption may be rebutted by proof that the father or another adult who will assume the role of parent is available and suitable to provide care for the child in the home of the mother. The father or the other adult must be made a party to the action and subject to the court's order establishing the conditions for maintaining the child in the mother's home. This statutory presumption does not preclude the court from ordering removal of a child upon other proof of alcohol or drug abuse or addiction by the parent or person responsible for the child who has harmed the child or threatened the child with harm.
(H) The petition for removal may include a petition for termination of parental rights.
(I) If the court removes custody of the child, the court's order shall contain a finding by the court of whether reasonable efforts were made by the department to prevent removal of the child and a finding of whether continuation of the child in the home would be contrary to the welfare of the child. The order shall state:
(1) the services made available to the family before the removal of the child and how they related to the needs of the family;
(2) the efforts of the agency to provide these services to the family before removal;
(3) why the efforts to provide services did not eliminate the need for removal; and
(4) whether the efforts to eliminate the need for removal were reasonable including, but not limited to, whether they were reasonably available and timely, reasonably adequate to address the needs of the family, reasonably adequate to protect the child and realistic under the circumstances. If the department's first contact with the child occurred under such circumstances that reasonable services would not have allowed the child to remain safely in the home, the court shall find that removal of the child without services or without further services was reasonable."
Protective services while child remains in home
SECTION 9. Section 20-7-738 of the 1976 Code, as added by Act 164 of 1993, is amended to read:
"Section 20-7-738. (A) Upon investigation of a report under Section 20-7-650 or at any time during the delivery of services by the department, the department may petition the family court for authority to intervene and provide protective services without removal of custody if the department determines by a preponderance of evidence that the child is an abused or neglected child and that the child cannot be protected from harm without intervention.
(B) The petition shall contain a full description of the basis for the department's belief that the child cannot be protected adequately without department intervention, including a description of the condition of the child, any previous efforts by the department to work with the parent or guardian, treatment programs which have been offered and proven inadequate, and the attitude of the parent or guardian towards intervention and protective services.
(C) Upon receipt of a petition under this section, the family court shall schedule a hearing to be held within thirty-five days of the filing date of receipt to determine whether intervention is necessary.
The parties to the petition must be served with a summons and notices of right to counsel and of the hearing date and time along with the petition. Personal jurisdiction over the parties is effected if they are served at least seventy-two hours before the hearing. No responsive pleading to the petition is required. The court may authorize service by publication in appropriate cases and may waive the thirty-five days requirement when necessary to achieve service. A party may waive service or appear voluntarily.
(D) Intervention and protective services must not be ordered unless the court finds that the allegations of the petition are supported by a preponderance of the evidence including a finding that the child is an abused or neglected child as defined in Section 20-7-490 and the child cannot be protected from further harm without intervention."
Court approval and review of treatment plans
SECTION 10. Section 20-7-762 of the 1976 Code, as last amended by Part II, Act 164 of 1993, is further amended to read:
"Section 20-7-762. (A) At the close of a hearing pursuant to Section 20-7-738 or 20-7-736 and upon a finding that the child shall remain in the home and that protective services shall continue, the family court shall review and approve a treatment plan designed to alleviate any danger to the child and to aid the parents so that the child will not be endangered in the future.
(B) The plan must be prepared by the department and shall detail any changes in parental behavior or home conditions that must be made and any services which will be provided to the family to ensure, to the greatest extent possible, that the child will not be endangered. Whenever possible, the plan must be prepared with the participation of the parents, the child, and any other agency or individual that will be required to provide services. The plan must be submitted to the court at the hearing. If any changes in the plan are ordered, the department shall submit a revised plan to the court within two weeks of the hearing, with copies to the parties and legal counsel. Any dispute regarding the plan must be resolved by the court. The terms of the plan must be included as part of the court order. The court order shall specify a date when treatment goals must be achieved and court jurisdiction ends, unless the court specifically finds that the matter must be brought back before the court for further review before the case may be closed. If the order requires further court review before case closure, the order shall specify a time limit for holding the next hearing.
(C) Unless services are to terminate earlier, the department shall schedule a review hearing before the court at least once every twelve months to establish whether the conditions which required the initial intervention exist. If the conditions no longer exist, the court shall order termination of protective services, and the court's jurisdiction shall end. If the court finds that the conditions which required the initial intervention are still present, it shall establish:
(1) what services have been offered to or provided to the parents;
(2) whether the parents are satisfied with the delivery of services;
(3) whether the department is satisfied with the cooperation given to the department by the parents;
(4) whether additional services should be ordered and additional treatment goals established; and
(5) the date when treatment goals must be achieved and court jurisdiction ends.
The court order shall specify a date upon which jurisdiction will terminate automatically, which must be no later than eighteen months after the initial intervention. Jurisdiction may be extended pursuant to a hearing on motion by any party, if the court finds that there is clear and convincing evidence that the child is threatened with harm absent a continuation of services."
Removal and court approved placement plan after removal
SECTION 11. Section 20-7-764 of the 1976 Code, as last amended by Act 333 of 1994, is further amended to read:
"Section 20-7-764. (A) If the court orders that a child be removed from the custody of the parent or guardian, the court must approve a placement plan. A plan must be presented to the court for its approval at the removal hearing or within ten days after the removal hearing. If the plan is presented subsequent to the removal hearing, the court shall hold a hearing on the plan if requested by a party. The plan must be a written document prepared by the department. To the extent possible, the plan must be prepared with the participation of the parents or guardian of the child, the child, and any other agency or individual that will be required to provide services in order to implement the plan.
(B) The placement plan shall include, but is not limited to:
(1) the specific reasons for removal of the child from the custody of the parent or guardian, and the changes that must be made before the child may be returned, including:
(a) the nature of the harm or threatened harm that necessitated removal, a description of the problems or conditions in the home that caused the harm or threatened harm, and the reason why the child could not be protected without removal.
(b) the nature of the changes in the home and family situation that must be made in order to correct the problems and conditions that necessitated removal, time frames for accomplishing these objectives, and means for measuring whether the objectives have been accomplished. The objectives stated in this part of the plan must relate to problems and circumstances serious enough to justify removal. The plan must be oriented to correcting these problems and circumstances in the shortest possible time in order to expedite the child's return to the home.
(c) specific actions to be taken by the parents or guardian of the child to accomplish the objectives identified in subitem (b) and time frames for taking these actions.
(2) Other conditions in the home that warrant state intervention, but would not alone have been sufficient to warrant removal, and the changes that must be made in order to terminate intervention, including:
(a) the nature of the harm or threatened harm that justifies state intervention and a description of the problems or conditions of the home that caused the harm or threatened harm.
(b) the nature of the changes in the home and family situation that must be made in order to correct the problems and conditions that caused the harm or threatened harm, time frames for accomplishing these objectives, and means for measuring whether the objectives have been accomplished.
(c) specific actions to be taken by the parents or guardian of the child to accomplish the objectives identified in subitem (b) and time frames for taking these actions.
(3) The social and other services to be provided or made available to the parents, guardian, or other relevant adult to assist the parents or guardian in accomplishing the objectives.
(4) The financial responsibilities and obligations, if any, of the parents or guardian for the support of the child during the placement.
(5) The visitation rights and obligations of the parents, guardian, siblings, or other relatives of the child during the placement. The plan shall provide for as much contact as is reasonably possible and consistent with the best interests of the child between the child and the child's parents, guardian, siblings, and other appropriate relatives with whom the child has a close relationship including visitation and participation of the parents or guardian in the care of the child while the child is in placement.
(6) The nature and location of the placement for the child unless disclosure of the location of the placement would be contrary to the best interest of the child. The placement must be as close to the child's home as is reasonably possible, unless placement at a greater distance is necessary to promote the child's well-being. In the absence of good cause to the contrary, preference must be given to placement with a relative or other person who is known to the child and has a constructive and caring relationship with the child.
(7) The social and other supportive services to be provided to the child and the foster parents including counseling or other services to assist the child in dealing with the effects of separation from the child's home and family.
(8) If the parents or guardian were not involved in the development of the plan, the nature of the agency's efforts to secure parental participation.
(9) Notice to the parents or guardians that failure to substantially accomplish the objectives stated in the plan within the time frames provided may result in termination of parental rights, subject to notice and a hearing as provided in Subarticle 3, Article 11.
(C) The placement plan clearly shall state the conditions necessary to bring about return of the child and the reasonable efforts that will be made by the department to reunite the child with the child's family. `Reasonable efforts' include location of the placement and visitation arrangements as well as services to the parents or guardian and the child.
(D) The court shall approve the plan only if it finds that:
(1) the plan is consistent with the court's order placing the child in the custody of the department;
(2) the plan is consistent with the requirements for the content of a placement plan set forth in subsection (B);
(3) if the parents or guardian of the child did not participate in the development of the plan, that the department made reasonable efforts to secure their participation; and
(4) the plan is meaningful and designed to address facts and circumstances upon which the court based the order of removal.
If the court determines that any of these criteria are not satisfied, the court shall require that necessary amendments to the plan be submitted to the court within a specified time but no later than seven days. A hearing on the amended plan must be held if requested by a party.
(E) The court shall include in its order and shall advise defendants on the record that failure to substantially accomplish the objectives stated in the plan within the time frames provided may result in termination of parental rights, subject to notice and a hearing as provided in Subarticle 3, Article 11.
(F) The department immediately shall give a copy of the plan to the parents or guardian of the child, and any other parties identified by the court including the child if the court considers it appropriate. If a copy of the plan is not given to the child, the department shall provide the child with age-appropriate information concerning the substance of the plan unless the court finds that disclosure of any part of the plan to the child would be inconsistent with the child's best interests. A copy of any part of the plan that directly pertains to the foster family or the foster child must be provided to the foster parents.
(G) The plan may be amended at any time if all parties agree regarding the revisions, and the revisions are approved by the court. The amended plan must be submitted to the court with a written explanation for the proposed change. The plan also may be amended by the court upon motion of a party after a hearing based on evidence demonstrating the need for the amendment. A copy of the amended plan immediately must be given to the parties specified in subsection (F). Any additions to the elements set forth in subsections (B)(1)(b) and (c) must relate to problems or conditions that are serious enough to justify removal of the child from the home based on the criteria in Section 20-7-736(F).
(H) Any objections to the sufficiency of a plan or the process by which a plan was developed must be made at the hearing on the plan. Failure to request a hearing or to enter an objection at the hearing constitutes a waiver of the objection. The sufficiency of the plan or of the process for developing the plan may not be raised as an issue in a proceeding for termination of parental rights under Subarticle 3, Article 11.
(I) Upon petition of a party in interest, the court may order the state or county director or other authorized representative of the department to show cause why the agency should not be required to provide services in accordance with the plan. A person who fails to comply with an order may be held in contempt and subject to appropriate sanctions imposed by the court."
Treatment plan requirements regarding substance abuse
SECTION 12. The 1976 Code is amended by adding:
"Section 20-7-765. (A) When the conditions justifying removal pursuant to Section 20-7-736 include the addiction of the parent or abuse by the parent of controlled substances, the court may require as part of the treatment plan ordered pursuant to Section 20-7-764:
(1) The parent successfully must complete a treatment program operated by the Department of Alcohol and Other Drug Abuse Services or another treatment program approved by the department before return of the child to the home;
(2) Any other adult person living in the home who has been determined by the court to be addicted to or abusing controlled substances or alcohol and whose conduct has contributed to the parent's addiction or abuse of controlled substances or alcohol successfully must complete a treatment program approved by the department before return of the child to the home; and
(3) The parent or other adult, or both, identified in item (2) must submit to random testing for substance abuse and must be alcohol or drug free for a period of time to be determined by the court before return of the child. The parent or other adult identified in item (2) must continue random testing for substance abuse and must be alcohol or drug free for a period of time to be determined by the court after return of the child before the case will be authorized closed.
(B) Results of tests ordered pursuant to this section must be submitted to the department and are admissible only in family court proceedings brought by the department."
Permanency planning and court review
SECTION 13. Section 20-7-766 of the 1976 Code, as last amended by Act 7 of 1995, is further amended to read:
"Section 20-7-766. (A) The family court must review the status of a child placed in foster care upon pleadings filed by the department to determine a permanent plan for the child. The permanency planning hearing must be held no later than one year after the date the child was first placed in foster care. At the initial permanency planning hearing, the court shall review the status of the child and the progress being made toward the child's return home or toward any other permanent plan approved at the removal hearing. The court's order shall make specific findings in accordance with this section.
(B) The department shall attach a supplemental report to the pleadings which contain at least:
(1) that information necessary to support findings required in subsection (F);
(2) the recommended permanent plan and suggested timetable for attaining permanence; and
(3) any reports of the local foster care review board which pertain to the child. The department may use the same form for the supplemental report, reports from the department to the local foster care review board, and reports compiled for internal department reviews.
(C) If the court determines at the permanency planning hearing that the return of the child to the child's parent would not cause an unreasonable risk of harm to the child's life, physical health or safety, or mental well-being, the court shall order the child returned to the child's parent. The court may order a specified period of supervision and services not to exceed twelve months. When determining whether the return of the child would cause an unreasonable risk of harm, the court shall consider all evidence and the supplemental report including whether the parent has substantially complied with the terms and conditions of the plan approved pursuant to Section 20-7-764.
(D) If the court determines at the permanency planning hearing that the child should not be returned to the child's parent, the court's order shall require the department to file a petition to terminate parental rights to the child not later than sixty days after receipt of the order, unless the department demonstrates to the court that initiating termination of parental rights is clearly not in the child's best interest because one or more of the conditions specified under subsection (E) exists requiring a different disposition.
(E) If the department demonstrates under subsection (D) that termination of parental rights is clearly not in the child's best interest, and if the court determines that the:
(1) best interest of the child would be served, the court may order that custody or legal guardianship, or both, be placed with a suitable member of the child's extended family or a suitable nonrelative. The court may order a specified period of supervision and services not to exceed twelve months;
(2) child has special needs or circumstances and that a permanent foster caregiver has been identified by the department, the court may order that the child be placed in permanent foster care with a specified caregiver. If the child is under ten years of age, the special needs or circumstances must be shown by clear and convincing evidence;
(3) best interests of the child would be served and that the child may be returned to the parents within a specified, reasonable time not to exceed six months and without an unreasonable risk of harm to the child as provided for in subsection (C), the court may order an extension of the plan approved pursuant to Section 20-7-764 or may order compliance with a modified plan;
(4) child has attained the age of sixteen and is unwilling to accept or unable to adapt to a permanent placement, the court may extend foster care to provide services needed to assist the child to make the transition to independent living; or
(5) child has physical, mental, or psychological problems or special treatment needs and must remain in a specialized foster care setting or that the child is unwilling to accept or unable to adapt to a permanent placement, the court may extend foster care.
(F) If the child is not returned to the parent, in addition to the findings required under subsection (D) or (E), the court shall specify in its order:
(i) what services have been provided to or offered to the parents to facilitate reunification;
(ii) the compliance or lack of compliance by all parties to the plan approved pursuant to Section 20-7-764;
(iii) the extent to which the parents have visited or supported the child and any reasons why visitation or support has not occurred or has been infrequent;
(iv) whether previous services should continue and whether additional services are needed to facilitate reunification, identifying the services and specifying the expected date for completion, which must be less than six months from the date of the order;
(v) whether return of the child can be expected and identification of the changes the parent must make in circumstances, conditions, or behavior to remedy the causes of the child's placement or retention in foster care;
(vi) whether the child's foster care is to continue for a specified time and, if so, how long;
(vii) if the child has attained the age of sixteen, the services needed to assist the child to make the transition to independent living;
(viii) whether the child's current placement is appropriate; and
(ix) whether the department has made reasonable efforts to assist the parents in remedying the causes of the child's placement or retention in foster care.
(G) After the permanency planning hearing, if the child is retained in foster care, future permanency planning hearings must be conducted in accordance with this subsection.
If the child is retained in foster care and the agency is required to initiate termination of parental rights proceedings, the termination of parental rights hearing may serve as the next permanency planning hearing.
If the child is retained in permanent foster care with an identified caregiver, no further permanency planning hearings are necessary if the child is fourteen years of age or older.
If the court ordered extended foster care for the purpose of reunification with the parent, the court must select a permanent plan for the child other than another extension for reunification purposes at the next permanency planning hearing. The hearing must be held on or before the date specified in the plan for expected completion of the plan; in no case may the hearing be held any later than six months from the date of the last court order. The court also must fulfill the remaining requirements of subsections (A) through (F).
After the termination of parental rights hearing, the requirements of Section 20-7-1574 must be met. Permanency planning hearings must be held annually, starting with the date of the termination of parental rights hearing. No further permanency planning hearings may be required after filing a decree of adoption of the child.
If the court places custody or guardianship with the parent, extended family member, or suitable nonrelative and a period of services and supervision is authorized, services and supervision automatically terminate on the date specified in the court order. Before the termination date, the department or the guardian ad litem may file a petition with the court for a review hearing on the status of the placement. Filing of the petition stays termination of the case until further order from the court. If the court finds clear and convincing evidence that the child will be threatened with harm if services and supervision do not continue, the court may extend the period of intervention for a specified time. The court's order shall specify the services and supervision necessary to reduce or eliminate the risk of harm to the child.
If the child is retained in foster care to pursue a plan of independent living, future permanency planning hearings must be held annually.
If the child is retained in foster care because of special needs or characteristics of the child as specified in subsection (E)(5), and the child is ten years of age or under, future permanency planning hearings must be held every six months to determine whether these special needs or characteristics still exist or whether another disposition is appropriate.
If the child is retained in foster care because of special needs or characteristics of the child specified in subsection (E)(5) and the child is more than ten years of age, future permanency planning hearings must be held annually to determine whether these special needs or characteristics still exist or whether another disposition is appropriate.
(H) All proceedings provided for in this section must be initiated by filing of a summons and complaint with a supplemental report attached. The summons, complaint, supplemental report, and notice of the hearing must be served upon all named parties at least forty days before the hearing.
(I) A named party, the child's guardian ad litem, or the local foster care review board may file a motion for review of the case at any time. Any other party in interest may move to intervene in the case pursuant to the rules of civil procedure and if the motion is granted, may move for review. Parties in interest include, but are not limited to, the individual or agency with legal custody or placement of the child and the foster parent. The notice of motion and motion for review must be served on the named parties at least ten days before the hearing date. The motion shall state the reason for review of the case and the relief requested."
Termination of parental rights
SECTION 14. Subarticle 3, Article 11, Chapter 7, Title 20 of the 1976 Code, as last amended by Act 476 of 1992, is further amended to read:
Section 20-7-1560. The purpose of this subarticle is to establish procedures for the reasonable and compassionate termination of parental rights where children are abused, neglected, or abandoned in order to protect the health and welfare of these children and make them eligible for adoption by persons who will provide a suitable home environment and the love and care necessary for a happy, healthful, and productive life.
Section 20-7-1562. The family court has exclusive jurisdiction over all proceedings held pursuant to this subarticle. For purposes of this subarticle jurisdiction may continue until the child becomes eighteen years of age, unless emancipated earlier.
Section 20-7-1564. A petition seeking termination of parental rights may be filed by the Department of Social Services or any interested party.
Section 20-7-1566. A petition for the termination of parental rights must set forth the:
(1) basis of the court's jurisdiction;
(2) name, sex, date, and place of birth of the child, if known;
(3) name and address of the petitioner and the petitioner's relationship to the child;
(4) names, dates of birth, and addresses of the parents, if known;
(5) names and addresses of a:
(i) legal guardian of the child; or
(ii) person or agency having legal custody of the child; and
(6) grounds on which termination of parental rights are sought and the underlying factual circumstances.
Section 20-7-1568. A summons and petition for termination of parental rights must be filed with the court and served on:
(1) the child;
(2) the parents of the child; and
(3) an agency with placement or custody of the child.
Section 20-7-1570. (A) Parents, guardians, or other persons subject to a termination of parental rights action are entitled to legal counsel. Those persons unable to afford legal representation must be appointed counsel by the family court, unless the defendant is in default.
(B) A child subject to any judicial proceeding under this subarticle must be appointed a guardian ad litem by the family court. If a guardian ad litem who is not an attorney finds that appointment of counsel is necessary to protect the rights and interests of the child, an attorney must be appointed. If the guardian ad litem is an attorney, the judge shall determine on a case by case basis whether counsel is required for the guardian ad litem. However, counsel must be appointed for the guardian ad litem in any case that is contested.
Section 20-7-1572. The family court may order the termination of parental rights upon a finding of one or more of the following grounds and a finding that termination is in the best interest of the child:
(1) The child or another child in the home has been harmed as defined in Section 20-7-490, and because of the severity or repetition of the abuse or neglect, it is not reasonably likely that the home can be made safe within twelve months. In determining the likelihood that the home can be made safe, the parent's previous abuse or neglect of the child or another child in the home may be considered;
(2) The child has been removed from the parent pursuant to Section 20-7-736, has been out of the home for a period of six months, and the parent has not remedied the conditions which caused the removal;
(3) The child has lived outside the home of either parent for a period of six months, and during that time the parent has wilfully failed to visit the child. The court may attach little or no weight to incidental visitations, but it must be shown that the parent was not prevented from visiting by the party having custody or by court order. The distance of the child's placement from the parent's home must be taken into consideration when determining the ability to visit;
(4) The child has lived outside the home of either parent for a period of six months, and during that time the parent has wilfully failed to support the child. Failure to support means that the parent has failed to make a material contribution to the child's care. A material contribution consists of either financial contributions according to the parent's means or contributions of food, clothing, shelter, or other necessities for the care of the child according to the parent's means. The court may consider all relevant circumstances in determining whether or not the parent has wilfully failed to support the child, including requests for support by the custodian and the ability of the parent to provide support;
(5) The presumptive legal father is not the biological father of the child, and the welfare of the child can best be served by termination of the parental rights of the presumptive legal father; or
(6) The parent has a diagnosable condition unlikely to change within a reasonable time including, but not limited to, alcohol or drug addiction, mental deficiency, mental illness, or extreme physical incapacity, and the condition makes the parent unlikely to provide minimally acceptable care of the child. It is presumed that the parent's condition is unlikely to change within a reasonable time upon proof that the parent has been required by the department or the family court to participate in a treatment program for alcohol or drug addiction, and the parent has failed two or more times to complete the program successfully or has refused at two or more separate meetings with the department to participate in a treatment program.
Section 20-7-1574. (A) If the court finds that a ground for termination, as provided for in Section 20-7-1572, exists, the court may issue an order forever terminating parental rights to the child. Where the petitioner is an authorized agency, the court shall place the child in the custody of the petitioner or other child-placing agency for adoption and shall require the submission of a plan for permanent placement of the child within ninety days after the close of the proceedings to the court and to the child's guardian ad litem. Within an additional ninety days the agency shall submit a report to the court and to the guardian ad litem on the implementation of the plan. The court, on its own motion, may schedule a hearing to review the progress of the implementation of the plan.
(B) If the court finds that no ground for termination exists and the child is in the custody of the Department of Social Services, the order denying termination must specify a new permanent plan for the child or order a hearing on a new permanent plan.
(C) If the court determines that an additional permanency hearing is not needed, the court may order:
(1) the child returned to the child's parent if the parent has counterclaimed for custody and the court determines that the return of the child to the parent would not cause an unreasonable risk of harm to the child's life, physical health or safety, or mental well-being. The court may order a specified period of supervision and services not to exceed twelve months.
(2) a disposition provided for in Section 20-7-766(E) if the court determines that the child should not be returned to a parent.
(D) If the court determines that an additional permanency hearing is required, the court's order shall schedule a permanency hearing to be held within fifteen days of the date the order is filed. The court's order must be sufficient to continue jurisdiction over the parties without any need for filing or service of pleadings by the department.
The permanency hearing must be held before the termination of parental rights trial judge if reasonably possible.
At the hearing, the department shall present a proposed disposition and permanent plan in accordance with Section 20-7-766. No supplemental report may be required. The hearing and any order issuing from the hearing shall conform to Section 20-7-766.
If the court approves retention of the child in foster care pursuant to Section 20-7-766(E)(iii), any new plan for services and placement of the child must conform to the requirements of Section 20-7-764. Section 20-7-764 requires the plan to address conditions that necessitated removal of the child, but the plan approved pursuant to this subsection shall address conditions that necessitate retention of the child in foster care.
Section 20-7-1576. (A) An order terminating the relationship between parent and child under this subarticle divests the parent and the child of all legal rights, powers, privileges, immunities, duties, and obligations with respect to each other, except the right of the child to inherit from the parent. A right of inheritance is terminated only by a final order of adoption.
(B) The relationship between a parent and child may be terminated with respect to one parent without affecting the relationship between the child and the other parent.
Section 20-7-1578. This subarticle must be liberally construed in order to ensure prompt judicial procedures for freeing minor children from the custody and control of their parents by terminating the parent-child relationship. The interests of the child shall prevail if the child's interest and the parental rights conflict.
Section 20-7-1580. All papers and records pertaining to a termination of parental rights are confidential and all court records must be sealed and opened only upon order of the judge for good cause shown.
Section 20-7-1582. The provisions of this subarticle do not, except as specifically provided, modify or supersede the general adoption laws of this State."
Foster Care Review Board to participate in judicial reviews
SECTION 15. The 1976 Code is amended by adding:
"Section 20-7-2377. The Foster Care Review Board may participate in judicial reviews pursuant to Sections 20-7-736, 20-7-766, and 20-7-1562 but shall file a motion to intervene if it intends to become a party to the action."
Foster Care Review Board; duties and procedures, including judicial review
SECTION 16. Section 20-7-2379 of the 1976 Code, as last amended by Act 277 of 1996, is further amended to read:
"Section 20-7-2379. (A) There is created, as part of the Office of the Governor, the Division for Review of the Foster Care of Children. The division must be supported by a board consisting of seven members, all of whom must be past or present members of local review boards. There must be one member from each congressional district and one member from the State at large, all appointed by the Governor with the advice and consent of the Senate.
(B) Terms of office for the members of the board are for four years and until their successors are appointed and qualify. Appointments must be made by the Governor for terms of four years to expire on June thirtieth of the appropriate year.
(C) The board shall elect from its members a chairman who shall serve for two years. Four members of the board constitute a quorum for the transaction of business. Members of the board shall receive per diem, mileage, and subsistence as provided by law for members of boards, commissions, and committees while engaged in the work of the board.
(D) The board shall meet at least quarterly and more frequently upon the call of the division director to review and coordinate the activities of the local review boards and make recommendations to the General Assembly with regard to foster care policies, procedures, and deficiencies of public and private agencies which arrange for foster care of children as determined by the review of cases provided for in Section 20-7-2376(A) and (B). These recommendations must be included in an annual report, filed with the General Assembly, of the activities of the state office and local review boards.
(E) The board, upon recommendation of the division director, shall promulgate regulations to carry out the provisions of this subarticle. These regulations shall provide for and must be limited to procedures for: reviewing reports and other necessary information at state, county, and private agencies and facilities; scheduling of reviews and notification of interested parties; conducting local review board and board of directors' meetings; disseminating local review board recommendations, including reporting to the appropriate family court judges the status of judicially approved treatment plans; participating and intervening in family court proceedings; and developing policies for summary review of children privately placed in privately-owned facilities or group homes.
(F) The Governor may employ a division director to serve at the Governor's pleasure who may be paid an annual salary to be determined by the Governor. The director may be removed pursuant to Section 1-3-240. The director shall employ staff as is necessary to carry out this subarticle, and the staff must be compensated in an amount and in a manner as may be determined by the Governor.
(G) This subarticle may not be construed to provide for subpoena authority."
Criminal abuse and neglect
SECTION 17. Section 20-7-50 of the 1976 Code, as last amended by Act 184 of 1993, is further amended to read:
"Section 20-7-50. (A) It is unlawful for a person who has charge or custody of a child, who is the parent or guardian of a child, or who is responsible for the care and support of a child to:
(1) place the child at unreasonable risk of harm affecting the child's life, physical or mental health, or safety;
(2) do or cause to be done unlawfully or maliciously any bodily harm to the child so that the life or health of the child is endangered or likely to be endangered; or
(3) wilfully abandon the child.
(B) A person who violates subsection (A) is guilty of a felony and for each offense, upon conviction, must be fined in the discretion of the court or imprisoned not more than ten years, or both."
Cruelty to children
SECTION 18. Section 20-7-70 of the 1976 Code is amended to read:
"Section 20-7-70. Whoever cruelly ill-treats, deprives of necessary sustenance or shelter, or inflicts unnecessary pain or suffering upon a child or causes the same to be done, whether the person is the parent or guardian or has charge or custody of the child, for every offense, is guilty of a misdemeanor and, upon conviction, must be imprisoned not more than thirty days or fined not more than two hundred dollars, at the discretion of the magistrate."
Parental immunity in cases of incorrigibility of seventeen-year-olds
SECTION 19. The 1976 Code is amended by adding:
"Section 20-7-95. A parent, guardian, or other person responsible for the care and support of a child may not be charged with unlawful neglect of a child, cruelty to a child, failure to provide reasonable support of a child, or a similar offense based on the exclusion from the home of a seventeen-year-old child where there is a demonstrable record that the child is incorrigible (beyond the control of parents)."
Guardian ad Litem Program; reports and disclosure of information; funding
SECTION 20. Subarticle 4, Article 3, Chapter 7, Title 20 of the 1976 Code, as last amended by Act 181 of 1993, is further amended to read:
Section 20-7-121. There is created the South Carolina Guardian ad Litem Program to serve as a statewide system to provide training and supervision to volunteers who serve as court-appointed special advocates for children in abuse and neglect proceedings within the family court, pursuant to Section 20-7-110. This program must be administered by the Office of the Governor.
Section 20-7-122. The responsibilities and duties of a guardian ad litem are to:
(1) represent the best interests of the child;
(2) advocate for the welfare and rights of a child involved in an abuse or neglect proceeding;
(3) conduct an independent assessment of the facts, the needs of the child, and the available resources within the family and community to meet those needs;
(4) maintain accurate, written case records;
(5) provide the family court with a written report, consistent with the rules of evidence and the rules of the court, which includes without limitation evaluation and assessment of the issues brought before the court and recommendations for the case plan, the wishes of the child, if appropriate, and subsequent disposition of the case;
(6) monitor compliance with the orders of the family court and to make the motions necessary to enforce the orders of the court or seek judicial review;
(7) protect and promote the best interests of the child until formally relieved of the responsibility by the family court.
Section 20-7-123. No person may be appointed as a guardian ad litem for a child in an abuse or neglect proceeding who has been convicted of any crime listed in Chapter 3 of Title 16, Offenses Against the Person, in Chapter 15 of Title 16, Offenses Against Morality and Decency, in Article 3 of Chapter 53 of Title 44, Narcotics and Controlled Substances, or for the crime of contributing to the delinquency of a minor, provided for in Section 16-17-490.
Section 20-7-124. (A) The guardian ad litem is charged in general with the duty of representation of the child's best interests. After appointment by the family court to a case involving an abused or neglected child, the guardian ad litem shall receive appropriate notice of all court hearings and proceedings regarding the child. The obligation of the guardian ad litem to the court is a continuing one and continues until formally relieved by the court.
(B) The guardian ad litem is authorized to:
(1) conduct an independent assessment of the facts;
(2) confer with and observe the child involved;
(3) interview persons involved in the case;
(4) participate on any multidisciplinary evaluation team for the case on which the guardian ad litem has been appointed;
(5) make recommendations to the court concerning the child's welfare;
(6) make motions necessary to enforce the orders of the court, seek judicial review, or petition the court for relief on behalf of the child.
(C) The guardian ad litem is authorized through counsel to introduce, examine, and cross-examine witnesses in any proceeding involving the child and participate in the proceedings to any degree necessary to represent the child adequately.
Section 20-7-125. All reports made and information collected as described in Section 20-7-690(A) must be made available to the guardian ad litem by the Department of Social Services. Upon proof of appointment as guardian ad litem and upon the guardian ad litem request, access to information must be made available to the guardian ad litem by the appropriate medical and dental authorities, psychologists, social workers, counselors, schools, and any agency providing services to the child.
Section 20-7-126. (A) All reports and information collected pursuant to this subarticle maintained by the Guardian ad Litem Program are confidential except as provided for in Section 20-7-690(C). A person who disseminates or permits the unauthorized dissemination of the information is guilty of contempt of court and, upon conviction, may be fined or imprisoned, or both, pursuant to Section 20-7-1350.
(B) The name, address, and other identifying characteristics of a person named in a report determined to be judicially unfounded must be destroyed one year from the date of the determination. The name, address, and other identifying characteristics of any person named in a report determined to be judicially indicated must be destroyed seven years from the date that the guardian ad litem formally is relieved of responsibility as guardian ad litem by the family court.
(C) The Director of the Guardian ad Litem Program or the director's designee may disclose to the media information contained in child protective services records if disclosure is limited to discussion of the program's activities in handling the case. The program may incorporate into its discussion of the handling of the case any information placed in the public domain by other public officials, a criminal prosecution, the alleged perpetrator or the attorney for the alleged perpetrator, or other public judicial proceedings. For purposes of this subsection, information is considered `placed in the public domain' when it has been reported in the news media, is contained in public records of a criminal justice agency, is contained in public records of a court of law, or has been the subject of testimony in a public judicial proceeding.
Section 20-7-127. After participating in the training program of the Guardian ad Litem Program, a person who is appointed to serve as guardian ad litem and serves without compensation is not liable for any civil damages for any personal injury as a result of any act or omission by the person in the discharge of the responsibilities of a guardian ad litem if the person acts in good faith and is not guilty of gross negligence.
Section 20-7-129. The General Assembly shall provide the funds necessary to carry out the provisions of Sections 20-7-121 through 20-7-127 and 20-7-690(B)(5)."
Severability clause
SECTION 21. (A) If a provision of this act or the application of a provision of this act to a person or circumstance is held invalid, or if a provision of this act is found to be in conflict with federal statutes or regulations, that invalidity or conflict does not affect the other provisions of this act and to this end the provisions are severable.
(B) It is the intent of this section that no federal funding may be jeopardized by any provision of this act. If a provision should be determined to place this funding at risk, that provision must be:
(1) construed and applied in such a way as to conform to federal requirements; or
(2) is invalid and provisions of law in effect before the passage of this act apply.
Repeal
SECTION 22. Sections 20-7-60, 20-7-80, and 20-7-128 of the 1976 Code are repealed.
Time effective
SECTION 23. This act takes effect January 1, 1997.
In the Senate House June 13, 1996.
Robert L. Peeler,
President of the Senate
David H. Wilkins,
Speaker of the House of
Representatives
Approved the 18th day of June, 1996.
David M. Beasley,
Governor
Printer's Date -- June 27, 1996 -- S.