Current Status Bill Number:998 Type of Legislation:General Bill GB Introducing Body:Senate Introduced Date:19980205 Primary Sponsor:Courtney All Sponsors:Courtney and Holland Drafted Document Number:khg\15390ac.98 Companion Bill Number:4468 Residing Body:Senate Current Committee:Judiciary Committee 11 SJ Subject:Minors, out-of-court statements in family court; Abused, neglected, Social Services Department, Domestic Relations
Body Date Action Description Com Leg Involved
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Senate 19980205 Introduced, read first time, 11 SJ
referred to Committee
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TO AMEND SECTION 19-1-180, AS AMENDED, CODE OF LAWS OF SOUTH CAROLINA, 1976, RELATING TO THE ADMISSIBILITY OF OUT-OF-COURT STATEMENTS BY CERTAIN CHILDREN, SO AS TO EXPAND THE ADMISSIBILITY OF THESE STATEMENTS TO INCLUDE CHILDREN WHO FUNCTION COGNITIVELY, ADAPTIVELY, OR DEVELOPMENTALLY UNDER AGE TWELVE; TO AMEND SECTION 20-7-420, AS AMENDED, RELATING TO THE JURISDICTION OF THE FAMILY COURT, SO AS TO INCLUDE THE AUTHORITY TO HEAR AND DETERMINE ACTIONS CONCERNING CONTROL OF A MINOR, INCLUDING GUARDIANSHIP OF A MINOR; TO AMEND SECTION 20-7-490, AS AMENDED, RELATING TO DEFINITIONS USED IN ARTICLE 7, CHAPTER 7, TITLE 20, SO AS TO ALSO APPLY THESE DEFINITIONS TO OTHER ARTICLES IN THE CHILDREN'S CODE; TO AMEND SECTION 20-7-510, AS AMENDED, RELATING TO PERSONS REQUIRED TO REPORT CHILD ABUSE AND NEGLECT, SO AS TO CLARIFY THAT THE DUTY TO REPORT EXISTS REGARDLESS OF WHO THE REPORTER BELIEVES TO BE THE PERPETRATOR OF THE ABUSE; TO AMEND SECTION 20-7-540, AS AMENDED, RELATING TO IMMUNITY FROM LIABILITY FOR REPORTING CHILD ABUSE OR NEGLECT, SO AS TO EXPAND THE IMMUNITY TO PERSONS WHO PARTICIPATE IN AN INVESTIGATION OF ABUSE OR NEGLECT; TO AMEND SECTION 20-7-545, AS AMENDED, RELATING TO IMMUNITY OF THE DEPARTMENT OF SOCIAL SERVICES PERSONNEL FROM LIABILITY FOR PERFORMING CHILD PROTECTIVE SERVICES OR CHILD WELFARE FUNCTIONS, SO AS TO ALSO INCLUDE CONTRACT EMPLOYEES; TO AMEND SECTION 20-7-610, AS AMENDED, RELATING TO EMERGENCY PROTECTIVE CUSTODY PROCEDURES, SO AS TO REVISE CERTAIN PROCEDURES; TO AMEND SECTION 20-7-618 RELATING TO DETAINMENT OF ABUSED OR NEGLECTED CHILDREN BY MEDICAL PROFESSIONALS WITHOUT PARENTAL CONSENT, SO AS TO CLARIFY THAT SUCH DETAINMENT IS NOT KEEPING A CHILD IN EMERGENCY PHYSICAL CUSTODY; TO AMEND SECTION 20-7-650, AS AMENDED, RELATING TO THE DUTIES OF THE DEPARTMENT OF SOCIAL SERVICES IN CONNECTION WITH CHILD ABUSE AND NEGLECT, SO AS TO CLARIFY THAT THE DEPARTMENT IS NOT REQUIRED TO BEGIN AN INVESTIGATION OF A CHILD WHO DIED OF ABUSE OR NEGLECT WITHIN TWENTY-FOUR HOURS UNLESS OTHER CHILDREN ARE IN THE HOME OR IF THE ALLEGED PERPETRATOR IS THE PARENT OR GUARDIAN AND TO REVISE CERTAIN PROCEDURES WHEN A CHILD IS IN PLACEMENT WITH A RELATIVE; TO AMEND SECTION 20-7-690, AS AMENDED, RELATING TO CONFIDENTIALITY OF ABUSE AND NEGLECT REPORTS AND RECORDS, SO AS TO REVISE CERTAIN PERSONS, AGENCIES, OR ENTITIES WHICH MAY HAVE ACCESS TO THESE REPORTS AND RECORDS AND TO AUTHORIZE THE DEPARTMENT TO DISCLOSE NECESSARY INFORMATION TO PARTICIPANTS IN A FAMILY GROUP CONFERENCE; TO AMEND SECTION 20-7-765 RELATING TO FOSTER CARE TREATMENT PLAN REQUIREMENTS REGARDING SUBSTANCE ABUSE, SO AS TO CHANGE THE TERM "TREATMENT PLAN" TO "PLACEMENT PLAN"; TO AMEND SECTION 20-7-766, AS AMENDED, RELATING TO THE PERMANENCY PLANNING HEARING FOR CHILDREN IN FOSTER CARE, SO AS TO PROVIDE THAT A SUPPLEMENTAL REPORT MUST BE ATTACHED TO A MOTION FOR A REVIEW RATHER THAN TO A SUMMONS AND COMPLAINT; TO AMEND SECTION 20-7-1572, AS AMENDED, RELATING TO TERMINATION OF PARENTAL RIGHTS, SO AS TO ADD AS A GROUND FOR TERMINATION, CONVICTION FOR CERTAIN CRIMES AGAINST THE PERSON, INCLUDING CRIMINAL DOMESTIC VIOLENCE; TO AMEND SECTION 20-7-2376, AS AMENDED, RELATING TO FUNCTIONS AND POWERS OF LOCAL FOSTER CARE REVIEW BOARDS, SO AS TO REQUIRE THE BOARDS TO SUBMIT TO THE COURT WRITTEN REPORTS, DISTINCTIVE FROM OTHER DOCUMENTS IN THE FILE; TO AMEND SECTION 59-63-31 RELATING TO GROUNDS FOR ATTENDING A PUBLIC SCHOOL IN A DISTRICT WITHOUT CHARGE IF THE CHILD IS IN THE CUSTODY OF THE DEPARTMENT OF SOCIAL SERVICES, SO AS TO REVISE THESE GROUNDS; TO AMEND JOINT RESOLUTION 157 OF 1997 RELATING TO THE PILOT CHILD PROTECTIVE SERVICES SYSTEM, SO AS TO CLARIFY THAT THE EVALUATION REQUIRED TO BE CONDUCTED IS THE ONLY EVALUATION THAT MUST BE PERFORMED BY THE DEPARTMENT OF SOCIAL SERVICES IN COUNTIES PARTICIPATING IN THE PILOT AND TO EXPAND FROM THIRTY TO FORTY-FIVE DAYS THE TIME WITHIN WHICH A DETERMINATION MUST BE MADE FOR A CASE TO BE REFERRED TO THE PILOT SYSTEM.
Be it enacted by the General Assembly of the State of South Carolina:
SECTION 1. Section 19-1-180(A) of the 1976 Code, as added by Act 649 of 1988, is amended to read:
"(A) An out-of-court statement made by a child who is under twelve years of age or who functions cognitively, adaptively, or developmentally under the age of twelve at the time of the a family court proceeding brought pursuant to Section 20-7-610 or 20-7-736 Title 20 concerning an act of abuse or neglect as defined by Section 20-7-490 that is not otherwise admissible in evidence is admissible in the family court proceeding if the requirements of this section are met regardless of whether it would be otherwise admissible."
SECTION 2. Section 20-7-420 of the 1976 Code, as last amended by Act 71 of 1997, is further amended by adding an appropriately numbered item at the end to read:
"( ) To hear and determine actions concerning control of the person of a minor, including guardianship of the minor."
SECTION 3. That portion of Section 20-7-490 of the 1976 Code preceding the enumerated items and as last amended by Act 450 of 1996 is further amended to read:
"When used in this article , or in Article 9, Article 11, or Subarticle 7 of Article 13, and unless the specific context indicates otherwise:"
SECTION 4. Section 20-7-510(A) of the 1976 Code, as last amended by Act 450 of 1996, is further amended by adding at the end:
"If the reporter believes that a child has been abused or neglected by someone other than the child's parent, guardian, or other person responsible for the child's welfare, the report must be made to the appropriate law enforcement agency by the reporter."
SECTION 5. Section 20-7-540 of the 1976 Code, as last amended by Act 450 of 1996, is further amended to read:
"Section 20-7-540. A person required or permitted to report pursuant to this article or who participates in an investigation or 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. Immunity under this section extends to full disclosure by the person of facts which gave the person reason to believe that the child's physical or mental health or welfare had been or might be adversely affected by abuse or neglect."
SECTION 6. Section 20-7-545 of the 1976 Code, as amended by Act 101 of 1997, is further amended to read:
"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 or an individual with whom the department has contracted to convene family group conferences or a law enforcement officer 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, convener, officer, or official, so long as the employee, volunteer, convener, officer, 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 7. Section 20-7-610(A)(1), (I)(2), (M), and (N) of the 1976 Code, as last amended by Act 130 of 1997, is further amended to read:
"(1) the officer has probable cause to believe that by reason of abuse or neglect the child's life, health, or physical safety is in substantial and imminent danger if the child is not taken into emergency physical custody or emergency protective custody, and there is not time to apply for a court order pursuant to Section 20-7-736. When a child is taken into emergency protective custody following an incident of excessive corporal punishment, and the only injury to the child is external lesions or minor bruises, other children in the home shall not be taken into emergency protective custody solely on account of the injury of one child through excessive corporal punishment. However, the officer may take emergency protective custody of other children in the home if a threat of harm to them is further indicated by factors including, but not limited to, a prior history of domestic violence or other abuse in the home, alcohol or drug abuse if known or evident at the time of the initial contact, or other circumstances indicative of danger to the children;"
"(2) both the relative or other person with whom the child is to be placed and the child's parent or guardian have agreed to the placement, the department may retain physical custody of the child for no more than five additional days if necessary to enable the relative or other person to make travel or other arrangements incident to the placement. A probable cause hearing pursuant to subsection (M) shall not be held unless the placement fails to occur as planned within the five-day period or the child's parent or guardian makes a written request for a hearing to the department. Upon receipt of a written request for a hearing from the child's parent or guardian, the department shall schedule a hearing for the next date on which the family court is scheduled to hear probable cause hearings. If the placement does not occur as planned within the five-day period, the department immediately must determine whether to assume legal custody of the child and file a petition as provided in subsection (K). The department shall assure that the child is given age-appropriate information about the plans for placement and any subsequent changes in those plans at the earliest feasible time."
"(M) The family court shall schedule a probable cause hearing to be held within seventy-two hours of the time the child was taken into emergency protective custody. If the third day falls upon a Saturday, Sunday, or holiday, the probable cause hearing must be held no later than the next working day. If there is no term of court in the county when the probable cause hearing must be held, the hearing must be held in another county in the circuit. If there is no term of family court in another county in the circuit, the probable cause hearing may be heard in another court in an adjoining circuit. The probable cause hearing may be conducted by video conference at the discretion of the judge. At the probable cause hearing, the family court shall undertake to fulfill the requirements of Section 20-7-110 and shall determine whether there was probable cause for taking emergency protective custody and for the department to assume legal custody of the child and shall determine whether probable cause to retain legal custody of the child remains at the time of the hearing. At the probable cause hearing, the respondents may submit affidavits as to facts which are alleged to form the basis of the removal and to cross-examine the department's witnesses as to whether there existed probable cause to effect emergency removal. The hearing on the merits 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. At the probable cause hearing, the court shall set the time and date for the hearing on the merits. Because of its jurisdictional nature, the hearing on the merits may be continued only where exceptional circumstances exist, and the hearing must be completed within sixty-five days following receipt of the removal petition. The time frames provided for in this section are for the protection of the rights of the child and the child's parent, guardian, or other person responsible for the child's welfare, and they may be waived only on motion of one of these parties.
(N) An order issued as a result of the probable cause hearing held pursuant to subsection (K) concerning a child of whom the department has assumed legal custody shall contain a finding by the court of whether reasonable efforts were made by the department to prevent removal of the child and a finding of whether continuation of the child in the home would be contrary to the welfare of the child. The order shall state:
(1) the services made available to the family before the department assumed legal custody of the child and how they related to the needs of the family;
(2) the efforts of the department to provide services to the family before assuming legal custody of the child;
(3) why the efforts to provide services did not eliminate the need for the department to assume legal custody;
(4) whether a meeting was convened as provided in subsection (D), the persons present, and the outcome of the meeting or, if no meeting was held, the reason for not holding a meeting;
(5) what efforts were made to place the child with a relative known to the child or in another familiar environment;
(6) whether the efforts to eliminate the need for the department to assume legal custody were reasonable including, but not limited to, whether services were reasonably available and timely, reasonably adequate to address the needs of the family, reasonably adequate to protect the child and realistic under the circumstances, and whether efforts to place the child in a familiar environment were reasonable.
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."
SECTION 8. That portion of Section 20-7-618(A) of the 1976 Code preceding the enumerated text and as added by Act 450 of 1996 is amended to read:
"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:"
SECTION 9. Section 20-7-650(C) of the 1976 Code, as last amended by Act 450 of 1996, is further amended by adding at the end:
"This section does not require the department to investigate reports of child abuse or neglect which resulted in the death of the child unless there are other children residing in the home or a resident of the home is pregnant or the subject of the report is the parent, guardian, or person responsible for the welfare of another child regardless of whether that child resides in the home."
SECTION 10. Section 20-7-650(R) of the 1976 Code, as amended by Act 132 of 1997, is further amended to read:
"(R) The department must cooperate with law enforcement agencies within the area it serves and establish procedures necessary to facilitate the referral of child protection cases to the department. Where the facts indicating abuse or neglect also appear to indicate a violation of criminal law, the department must notify the appropriate law enforcement agency of those facts within twenty-four hours of the department's finding for the purposes of police investigation. The law enforcement agency must file a formal incident report at the time it is notified by the department of the finding. When the intake report is of alleged sexual abuse, the department must notify the appropriate law enforcement agency within twenty-four hours of receipt of the report to determine if a joint investigation is necessary. The law enforcement agency must file a formal incident report at the time it is notified of the alleged sexual abuse. In cases where the agency retains custody of the minor children and physical placement of the children 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 adults with whom the child is placed meet all qualifications applicable to foster parents."
SECTION 11. Section 20-7-690(B) (6), (7), (13), and (14), (C) and (D) of the 1976 Code, as last amended by Act 450 of 1996, are further amended to read:
"(6) a child ten fourteen years of age or older who is the subject of a report named in a report as a victim of child abuse or neglect, 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 named in a report as a victim of child abuse or neglect;
(13) authorities in other states conducting child abuse and neglect proceedings or child custody proceedings investigations or providing child welfare services;
(14) courts in other states conducting child abuse and neglect investigations or providing child welfare services proceedings or child custody proceedings;
(C) The department may limit the information disclosed to individuals and entities named in subsection (B) (13), (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)(B)(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)(B)(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."
SECTION 12. Section 20-7-690 of the 1976 Code, as last amended by Act 450 of 1996, is further amended by adding an appropriately lettered subsection at the end to read:
"( ) The department may disclose to participants in a family group conference relevant information concerning the child or family or other relevant information to the extent that the department determines that the disclosure is necessary to accomplish the purpose of the family group conference. Participants in the family group conference must be instructed to maintain the confidentiality of information disclosed by the agency."
SECTION 13. That portion of Section 20-7-765(A) of the 1976 Code preceding the enumerated items and as added by Act 450 of 1996 is amended to read:
"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 placement plan ordered pursuant to Section 20-7-764:"
SECTION 14. Section 20-7-766(H) of the 1976 Code, as last amended by Act 450 of 1996, is further amended to read:
"(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, A supplemental report must be attached to a motion filed pursuant to subsection (A). The supplemental report, and notice of the hearing must be served upon all named parties at least forty days before the hearing."
SECTION 15. Section 20-7-1572 of the 1976 Code, as last amended by Act 22 of 1997, is further amended by adding an appropriately numbered item at the end to read:
"( ) The parent has been convicted of or pled guilty or nolo contendere to an offense against the person as provided for in Title 16, Chapter 3, criminal domestic violence as defined in Section 16-25-20, criminal domestic violence of a high and aggravated nature as defined in Section 16-25-65, or the common law offense of assault and battery of a high and aggravated nature, and the act on which the conviction or the plea of guilty or nolo contendere was based involved physical abuse of a child of the parent which resulted in the child's death or admission to the hospital for in-patient care."
SECTION 16. Section 20-7-2376(A) of the 1976 Code, as last amended by Act 39 of 1987, is further amended to read:
"(A) To review every six months but no less frequently than once every six months the cases of children who have resided in public foster care for a period of more than four consecutive months and to review every six months the cases of children who have resided in private foster care for a period of more than six consecutive months to determine what efforts have been made by the supervising agency or child caring facility to acquire a permanent home for the child. Following review of a case pursuant to this section, the local foster care review board shall submit a written report and recommendations to the court concerning the case. In order that the report and recommendations of the foster care review board be easily identifiable and accessible by the judge, they must be visually distinct from other documents in the case file in their coloring or other prominent aspect. A child's return home for temporary placements, trial placements, visits, holidays, weekend visits, or changes from one foster care placement to another must not be construed to mean a break or lapse in determination of a consecutive four-month period for children in public foster care or six-month period for children in private foster care;"
SECTION 17. Section 59-63-31 of the 1976 Code, as added by Act 163 of 1991, is amended to read:
"Section 59-63-31. (A) Children within the ages prescribed in Section 59-63-20 also are entitled to attend the public schools of a school district, without charge, if:
(1) the child resides with one of the following who is a resident of the school district:
(a) a person who is not the child's parent or legal guardian to whom the child's custody has been awarded by a court of competent jurisdiction;
(b) a foster parent or in a residential community-based care facility licensed by the Department of Social Services or operated by the Department of Social Services or the Department of Youth Services; or
(c) the child resides with an adult resident of the school district as a result of:
(i) the death, serious illness, or incarceration of a parent or legal guardian;
(ii) the relinquishment by a parent or legal guardian of the complete control of the child as evidenced by the failure to provide substantial financial support and parental guidance;
(iii) abuse or neglect by a parent or legal guardian;
(iv) the physical or mental condition of a parent or legal guardian is such that he or she cannot provide adequate care and supervision of the child; or
(v) a parent's or legal guardian's homelessness, as that term is defined by Public Law 100-77;
(2) the child is emancipated and resides in the school district; or
(3) the child is homeless or is a child of a homeless individual, as defined in Public Law 100-77, as amended.
In addition to the above requirements of this section subsection, the child shall also satisfy the requirements of Section 59-63-30(d) and (e).
(B) A child within the ages prescribed in Section 59-63-20 is entitled to continue attending a particular public school or a successor school in the same school district without charge if:
(1) the child has been attending the school or a predecessor school prior to being taken into custody by the Department of Social Services or prior to being moved from one placement to another by the department;
(2) the Department of Social Services places the child outside the school district or school attendance zone in a foster home or residential community-based facility licensed or operated by the department; and
(3) the Department of Social Services has determined that it is in the child's best interest for the child to continue attending the school and that transportation for the child to and from the school is reasonably available."
SECTION 18. Section 1(C) of Joint Resolution 157 of 1997 is amended by adding at the end:
"Notwithstanding any other provision of law, the evaluation provided for in this subsection is the only evaluation or performance audit of the child protective services system that is required to be conducted by the department in counties participating in the pilot."
SECTION 19. Section 3(A) of Joint Resolution 157 of 1997 is amended to read:
"(A) In cases determined to be appropriate for an assessment track, the department must within twenty-four hours after acceptance of the report commence an assessment to determine whether or not the child is an abused or neglected child as defined in Section 20-7-490 of the 1976 Code and, if so, to identify and facilitate the provision of services to minimize the threat of future abuse and neglect. This determination must be made within thirty days after the assessment is commenced forty-five days after acceptance of the report. If the department determines that children in the home have not been abused or neglected, the case must be closed. When closing a case, the department may refer the family to appropriate service providers or provide written information to the family concerning problems identified in the assessment. An assessment does not require an indication of abuse or neglect by the department or placement of the alleged perpetrator on the Central Registry of Child Abuse and Neglect."
SECTION 20. This act takes effect upon approval by the Governor.