Journal of the House of Representatives
of the Second Session of the 111th General Assembly
of the State of South Carolina
being the Regular Session Beginning Tuesday, January 9, 1996

Page Finder Index
| Printed Page 1730, Mar. 27 | Printed Page 1750, Mar. 27 |
Printed Page 1740 . . . . . Wednesday, March 27, 1996
(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."

SECTION 4. Subarticle 3, Article 7, Chapter 7, Title 20 of the 1976 Code, as last amended by Section 88I, Act 164 of 1993, is further amended to read:

"Subarticle 3

Identification

Section 20-7-500. Any 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. Such These persons shall must be referred to appropriate community resources or agencies, notwithstanding whether the problem presented involves child abuse or neglect as defined by this article.

Section 20-7-510. (A) Any 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, or counselor, or other school official, social or public assistance worker, substance abuse treatment staff, or child care worker in any day care center or child caring institution 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 having reason to believe that a child's physical or mental health or welfare has been or may be adversely affected by abuse or neglect is required to report in accordance with this section 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) of this section, 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 made pursuant to this section may be made orally by telephone or otherwise to the county department of social services, or in the alternative, to a law enforcement agency in the county where the child resides or is found.

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(1) Where reports are made pursuant to this section to a law enforcement agency, it the law enforcement agency shall notify the county department of social services of its the law enforcement's response to the report at the earliest possible time.

(2) Where a county or contiguous counties have established local multicounty child protective services, pursuant to Section 20-7-650, the county department of social services shall immediately shall transfer reports pursuant to this section to the service.

Section 20-7-520. Any A person required under subsection (A) of Section 20-7-510(A) to report cases of suspected child abuse or neglect, including workers of the local child protective service agency department, who has reason to believe a child has died as the result of child abuse or neglect, shall report that fact 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 that fact 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 local child protective service agency or county department of social services and, if the institution making a report is a hospital, to the hospital.

Section 20-7-530. Any 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 shall must be sent to the appropriate local child protective service agency or county department of social services department at the time a report pursuant to Section 20-7-510 is made, or as soon thereafter after the report is made as possible.

Section 20-7-540. Any A person required or permitted to report pursuant to this article or who participates in judicial proceedings resulting therefrom from the report, acting in good faith, shall be is immune from civil and criminal liability which might otherwise result by reason of such these actions. In all such civil or criminal proceedings good faith shall be 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

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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.

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 shall does not constitute grounds for failure to report or the exclusion of evidence in any a civil protective proceeding resulting from a report pursuant to this article.

Section 20-7-560. Any A person required to report a case of child abuse or neglect, or any a person required to perform any other function under this article, who knowingly fails to do so, or any a person who threatens or attempts to intimidate a witness shall be is deemed guilty of a misdemeanor and, upon conviction, shall must be fined not more than five hundred dollars or be imprisoned for not more than six months, or both."

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 into protective custody without the consent of the child's parents, guardians, or others exercising temporary or permanent control over the child if:

(1) He The officer has probable cause to believe that by reason of abuse or neglect there exists an imminent danger to 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) 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.

(3) There is not time to apply for a court order pursuant to Section 20-7-736.

(B)(2) The Where a 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, the child may be taken into protective custody pursuant to this section if; and:

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(1)(a) in the circumstances of arrest, the parent, parents, or guardian does not consent in writing within twenty-four hours to another person assuming physical custody of the child;
(2)(b) in the circumstances of a lost child, a search by law enforcement has not located the parent, parents, or guardian within twenty-four hours.

No placement with a parent, an immediate family member, a guardian or a relative is required under this subsection where the law enforcement officer believes in good faith that the placement would expose the child to harm as defined in Section 20-7-490(C) or if the individual cannot or will not take placement of the child within twenty-four hours.

Where a child is held awaiting placement for up to twenty-four hours under this subsection, the local Department of Social Services shall provide up to twenty-four hours of shelter for the child in a licensed foster home or shelter. While the child is under care for this twenty-four hour period in a designated foster home the local Department of Social Services may provide for the routine needs of the child. Upon expiration of the twenty-four hour period during which the child awaits placement and where there is no alternative placement determined by law enforcement to be available under this subsection, the law enforcement officer shall take protective custody of the child as a dependent child or as a suspected abused and neglected child and shall comply with all other provisions of this section. Law enforcement and the South Carolina Department of Social Services jointly shall develop uniform procedures to ensure the orderly implementation of the requirements of this subsection, and those procedures must be submitted to the joint legislative committee on children within sixty days of this subsection's effective date.

(C)(B) When an officer takes custody of a child under this section he shall transport the child to a place previously designated for this purpose by the Family Court of the appropriate judicial circuit. In no case shall the place designated be a facility for the detention of criminal or juvenile offenders. 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

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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.

(D)(C) When an officer takes custody of a child into emergency physical custody or emergency protective custody under this section he the officer shall immediately shall notify the appropriate local child protective service agency and Family Court of the circuit department. and The department shall make every reasonable effort to 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 of the place of custody. The notification shall be in writing and shall include notice of the right to a hearing and right to counsel pursuant to this chapter.

(E)(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

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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.

(E)(H) The department local child protective services agency, upon the notification 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

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to the protection of other children in the home, or other setting where the child was found. The department agency then shall initiate a removal proceeding in the appropriate family court pursuant to Section 20-7-736 on or before the next working day in the appropriate family court after initiating the investigation concerning a child taken into emergency protective custody. If a noncustodial parent is not named as a party, the agency 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 agency department before the pretrial probable cause hearing that the basis of the report of abuse or neglect is unfounded there is not a preponderance of evidence that child abuse or neglect occurred, the agency department may place temporary physical custody of the child with the parent, parents, guardian, immediate family member, or relative, with the agency department retaining legal custody pending the pretrial 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 agency department shall exercise reasonable efforts to expedite the placement of the child with the parent, parents, guardian, immediate family member, or relative.

(I) 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 (J) must be scheduled within seven days of the request to determine whether there was probable cause to take emergency physical custody of the child.

(J) The family court shall schedule a pretrial probable cause hearing to be held within ten days seventy-two hours of the initiation of the proceedings 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, unless If the tenth third day falls upon a Saturday, Sunday, or holiday, then the pretrial 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 pretrial 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, then the pretrial probable cause

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hearing must 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 pretrial probable cause hearing, the family court shall undertake to fulfill the requirements of Section 20-7-110 and shall conduct a prima facie review of emergency action taken or initiated in behalf of the child 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 probable cause for the law enforcement officer to take emergency protective custody of the child. At the pretrial 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 agency's 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 forty thirty-five days of the date of receipt of the removal petition.

(K) An order issued as a result of the probable cause hearing held pursuant to subsection (J) 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.

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An order issued as a result of the probable cause hearing held pursuant to subsection (J) 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.

(L) 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.

(F)(M) The family court may order ex parte that a child be taken into emergency protective 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.

(G)(N) If the court issues such an order it the court shall schedule a pretrial hearing, pursuant to the provisions of Section 20-7-736 and pursuant to the requirements of subsection (D)(C), within ten days seventy-two hours after the child was placed in taken into emergency physical custody.

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(O) 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."

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

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