HB-4893, As Passed Senate, February 25, 2014

 

 

 

 

 

 

 

 

 

 

 

 

SUBSTITUTE FOR

 

HOUSE BILL NO. 4893

 

 

 

 

 

 

 

 

 

 

 

 

     A bill to amend 1975 PA 238, entitled

 

"Child protection law,"

 

by amending sections 2, 7, and 8d (MCL 722.622, 722.627, and

 

722.628d), section 2 as amended by 2004 PA 563, section 7 as

 

amended by 2011 PA 70, and section 8d as amended by 2006 PA 618.

 

THE PEOPLE OF THE STATE OF MICHIGAN ENACT:

 

     Sec. 2. As used in this act:

 

     (a) "Adult foster care location authorized to care for a

 

child" means an adult foster care family home or adult foster care

 

small group home as defined in section 3 of the adult foster care

 

facility licensing act, 1979 PA 218, MCL 400.703, in which a child

 

is placed in accordance with section 5 of 1973 PA 116, MCL 722.115.

 

     (b) "Attorney" means, if appointed to represent a child under

 

the provisions referenced in section 10, an attorney serving as the

 

child's legal advocate in the manner defined and described in

 

section 13a of chapter XIIA of the probate code of 1939, 1939 PA

 

288, MCL 712A.13a.

 

     (c) "Central registry" means the system maintained at the

 

department that is used to keep a record of all reports filed with

 

the department under this act in which relevant and accurate

 

evidence of child abuse or child neglect is found to exist.

 

     (d) "Central registry case" means a child protective services

 

case that the department classifies under sections 8 and 8d as

 

category I or category II. For a child protective services case

 

that was investigated before July 1, 1999, central registry case

 

means an allegation of child abuse or child neglect that the

 

department substantiated.

 

     (e) "Child" means a person under 18 years of age.

 

     (f) "Child abuse" means harm or threatened harm to a child's

 

health or welfare that occurs through nonaccidental physical or

 

mental injury, sexual abuse, sexual exploitation, or maltreatment,

 

by a parent, a legal guardian, or any other person responsible for

 

the child's health or welfare or by a teacher, a teacher's aide, or

 

a member of the clergy.

 

     (g) "Child care organization" means that term as defined in

 

section 1 of 1973 PA 116, MCL 722.111.

 

     (h) "Child care provider" means an owner, operator, employee,

 

or volunteer of a child care organization or of an adult foster

 

care location authorized to care for a child.

 

     (i) "Child care regulatory agency" means the department of

 

consumer and industry services or a successor state department that

 

is responsible for the licensing or registration of child care

 

organizations or the licensing of adult foster care locations

 

authorized to care for a child.

 

     (j) "Child neglect" means harm or threatened harm to a child's

 

health or welfare by a parent, legal guardian, or any other person

 

responsible for the child's health or welfare that occurs through

 

either of the following:

 

     (i) Negligent treatment, including the failure to provide

 

adequate food, clothing, shelter, or medical care.

 

     (ii) Placing a child at an unreasonable risk to the child's

 

health or welfare by failure of the parent, legal guardian, or

 

other person responsible for the child's health or welfare to

 

intervene to eliminate that risk when that person is able to do so

 

and has, or should have, knowledge of the risk.

 

     (k) "Citizen review panel" means a panel established as

 

required by section 106 of title I of the child abuse prevention

 

and treatment act, Public Law 93-247, 42 U.S.C. 5106a.42 USC 5106a.

 

     (l) "Member of the clergy" means a priest, minister, rabbi,

 

Christian science practitioner, or other religious practitioner, or

 

similar functionary of a church, temple, or recognized religious

 

body, denomination, or organization.

 

     (m) "Controlled substance" means that term as defined in

 

section 7104 of the public health code, 1978 PA 368, MCL 333.7104.

 

     (n) "CPSI system" means the child protective service

 

information system, which is an internal data system maintained

 

within and by the department, and which is separate from the

 

central registry and not subject to section 7.

 

     (o) "Department" means the family independence

 

agency.department of human services.

 

     (p) "Director" means the director of the department.

 

     (q) "Expunge" means to physically remove or eliminate and

 

destroy a record or report.

 

     (r) "Lawyer-guardian ad litem" means an attorney appointed

 

under section 10 who has the powers and duties referenced by

 

section 10.

 

     (s) "Local office file" means the system used to keep a record

 

of a written report, document, or photograph filed with and

 

maintained by a county or a regionally based office of the

 

department.

 

     (t) "Nonparent adult" means a person who is 18 years of age or

 

older and who, regardless of the person's domicile, meets all of

 

the following criteria in relation to a child:

 

     (i) Has substantial and regular contact with the child.

 

     (ii) Has a close personal relationship with the child's parent

 

or with a person responsible for the child's health or welfare.

 

     (iii) Is not the child's parent or a person otherwise related to

 

the child by blood or affinity to the third degree.

 

     (u) "Person responsible for the child's health or welfare"

 

means a parent, legal guardian, person 18 years of age or older who

 

resides for any length of time in the same home in which the child

 

resides, or, except when used in section 7(2)(e) or 8(8), nonparent

 

adult; or an owner, operator, volunteer, or employee of 1 or more

 

of the following:

 

     (i) A licensed or registered child care organization.

 

     (ii) A licensed or unlicensed adult foster care family home or

 

adult foster care small group home as defined in section 3 of the

 

adult foster care facility licensing act, 1979 PA 218, MCL 400.703.

 

     (iii) A court-operated facility as approved under section 14 of

 

the social welfare act, 1939 PA 280, MCL 400.14.

 

     (v) "Relevant evidence" means evidence having a tendency to

 

make the existence of a fact that is at issue more probable than it

 

would be without the evidence.

 

     (w) "Sexual abuse" means engaging in sexual contact or sexual

 

penetration as those terms are defined in section 520a of the

 

Michigan penal code, 1931 PA 328, MCL 750.520a, with a child.

 

     (x) "Sexual exploitation" includes allowing, permitting, or

 

encouraging a child to engage in prostitution, or allowing,

 

permitting, encouraging, or engaging in the photographing, filming,

 

or depicting of a child engaged in a listed sexual act as defined

 

in section 145c of the Michigan penal code, 1931 PA 328, MCL

 

750.145c.

 

     (y) "Specified information" means information in a children's

 

protective services case record related specifically to the

 

department's actions in responding to a complaint of child abuse or

 

child neglect. Specified information does not include any of the

 

following:

 

     (i) Except as provided in this subparagraph regarding a

 

perpetrator of child abuse or child neglect, personal

 

identification information for any individual identified in a child

 

protective services record. The exclusion of personal

 

identification information as specified information prescribed by

 

this subparagraph does not include personal identification

 

information identifying an individual alleged to have perpetrated

 

child abuse or child neglect, which allegation has been classified

 

as a central registry case.

 

     (ii) Information in a law enforcement report as provided in

 

section 7(8).

 

     (iii) Any other information that is specifically designated as

 

confidential under other law.

 

     (iv) Any information not related to the department's actions in

 

responding to a report of child abuse or child neglect.

 

     (z) "Structured decision-making tool" means the department

 

document labeled "DSS-4752 (P3) (3-95)" or a revision of that

 

document that better measures the risk of future harm to a child.

 

     (aa) "Substantiated" means a child protective services case

 

classified as a central registry case.

 

     (bb) "Unsubstantiated" means a child protective services case

 

the department classifies under sections 8 and 8d as category III,

 

category IV, or category V.

 

     Sec. 7. (1) The department shall maintain a statewide,

 

electronic central registry to carry out the intent of this act.

 

     (2) Unless made public as specified information released under

 

section 7d, a written report, document, or photograph filed with

 

the department as provided in this act is a confidential record

 

available only to 1 or more of the following:

 

     (a) A legally mandated public or private child protective

 

agency investigating a report of known or suspected child abuse or

 

child neglect or a legally mandated public or private child

 

protective agency or foster care agency prosecuting a disciplinary

 

action against its own employee involving child protective services

 

or foster records.

 

     (b) A police or other law enforcement agency investigating a

 

report of known or suspected child abuse or child neglect.

 

     (c) A physician who is treating a child whom the physician

 

reasonably suspects may be abused or neglected.

 

     (d) A person legally authorized to place a child in protective

 

custody when the person is confronted with a child whom the person

 

reasonably suspects may be abused or neglected and the confidential

 

record is necessary to determine whether to place the child in

 

protective custody.

 

     (e) A person, agency, or organization, including a

 

multidisciplinary case consultation team, authorized to diagnose,

 

care for, treat, or supervise a child or family who is the subject

 

of a report or record under this act, or who is responsible for the

 

child's health or welfare.

 

     (f) A person named in the report or record as a perpetrator or

 

alleged perpetrator of the child abuse or child neglect or a victim

 

who is an adult at the time of the request, if the identity of the

 

reporting person is protected as provided in section 5.

 

     (g) A court for the purposes of determining the suitability of

 

a person as a guardian of a minor or that otherwise determines that

 

the information is necessary to decide an issue before the court.

 

In the event of a child's death, a court that had jurisdiction over

 

that child under section 2(b) of chapter XIIA of the probate code

 

of 1939, 1939 PA 288, MCL 712A.2.

 

     (h) A grand jury that determines the information is necessary

 

to conduct the grand jury's official business.

 

     (i) A person, agency, or organization engaged in a bona fide

 

research or evaluation project. The person, agency, or organization

 

shall not release information identifying a person named in the

 

report or record unless that person's written consent is obtained.

 

The person, agency, or organization shall not conduct a personal

 

interview with a family without the family's prior consent and

 

shall not disclose information that would identify the child or the

 

child's family or other identifying information. The department

 

director may authorize the release of information to a person,

 

agency, or organization described in this subdivision if the

 

release contributes to the purposes of this act and the person,

 

agency, or organization has appropriate controls to maintain the

 

confidentiality of personally identifying information for a person

 

named in a report or record made under this act.

 

     (j) A lawyer-guardian ad litem or other attorney appointed as

 

provided by section 10.

 

     (k) A child placing agency licensed under 1973 PA 116, MCL

 

722.111 to 722.128, for the purpose of investigating an applicant

 

for adoption, a foster care applicant or licensee or an employee of

 

a foster care applicant or licensee, an adult member of an

 

applicant's or licensee's household, or other persons in a foster

 

care or adoptive home who are directly responsible for the care and

 

welfare of children, to determine suitability of a home for

 

adoption or foster care. The child placing agency shall disclose

 

the information to a foster care applicant or licensee under 1973

 

PA 116, MCL 722.111 to 722.128, or to an applicant for adoption.

 

     (l) Family division of circuit court staff authorized by the

 

court to investigate foster care applicants and licensees,

 

employees of foster care applicants and licensees, adult members of

 

the applicant's or licensee's household, and other persons in the

 

home who are directly responsible for the care and welfare of

 

children, for the purpose of determining the suitability of the

 

home for foster care. The court shall disclose this information to

 

the applicant or licensee.

 

     (m) Subject to section 7a, a standing or select committee or

 

appropriations subcommittee of either house of the legislature

 

having jurisdiction over child protective services matters.

 

     (n) The children's ombudsman appointed under the children's

 

ombudsman act, 1994 PA 204, MCL 722.921 to 722.932.

 

     (o) A child fatality review team established under section 7b

 

and authorized under that section to investigate and review a child

 

death.

 

     (p) A county medical examiner or deputy county medical

 

examiner appointed under 1953 PA 181, MCL 52.201 to 52.216, for the

 

purpose of carrying out his or her duties under that act.

 

     (q) A citizen review panel established by the department.

 

Access under this subdivision is limited to information the

 

department determines is necessary for the panel to carry out its

 

prescribed duties.

 

     (r) A child care regulatory agency.

 

     (s) A foster care review board for the purpose of meeting the

 

requirements of 1984 PA 422, MCL 722.131 to 722.139a.

 

     (t) A local friend of the court office.

 

     (3) Subject to subsection (9), a person or entity to whom

 

information described in subsection (2) is disclosed shall make the

 

information available only to a person or entity described in

 

subsection (2). This subsection does not require a court proceeding

 

to be closed that otherwise would be open to the public.

 

     (4) If the department classifies a report of suspected child

 

abuse or child neglect as a central registry case, the department

 

shall maintain a record in the central registry and, within 30 days

 

after the classification, shall notify in writing each person who

 

is named in the record as a perpetrator of the child abuse or child

 

neglect. The notice shall be sent by registered or certified mail,

 

return receipt requested, and delivery restricted to the addressee.

 

The notice shall set forth the person's right to request expunction

 

of the record and the right to a hearing if the department refuses

 

the request. The notice shall state that the record may be released

 

under section 7d. The notice shall not identify the person

 

reporting the suspected child abuse or child neglect.

 

     (5) A person who is the subject of a report or record made

 

under this act may request the department to amend an inaccurate

 

report or record from the central registry and local office file. A

 

person who is the subject of a report or record made under this act

 

may request the department to expunge from the central registry a

 

report or record in which no relevant and accurate evidence of

 

abuse or neglect is found to exist by requesting a hearing under

 

subsection (6). A report or record filed in a local office file is

 

not subject to expunction except as the department authorizes, if

 

considered in the best interest of the child.

 

     (6) If the department refuses a request for amendment or

 

expunction under subsection (5), or fails to act within 30 days

 

after receiving the request, A person who is the subject of a

 

report or record made under this act may, within 180 days from the

 

date of service of notice of the right to a hearing, request the

 

department hold a hearing to review the request for amendment or

 

expunction. If the hearing request is made within 180 days of the

 

notice, the department shall hold a hearing to determine by a

 

preponderance of the evidence whether the report or record in whole

 

or in part should be amended or expunged from the central registry.

 

on the grounds that the report or record is not relevant or

 

accurate evidence of abuse or neglect. The hearing shall be held

 

before a hearing officer appointed by the department and shall be

 

conducted as prescribed by the administrative procedures act of

 

1969, 1969 PA 306, MCL 24.201 to 24.328. The department may, for

 

good cause, hold a hearing under this subsection if the department

 

determines that the person who is the subject of the report or

 

record submitted the request for a hearing within 60 days after the

 

180-day notice period expired.

 

     (7) If the investigation of a report conducted under this act

 

fails to disclose evidence of does not show child abuse or child

 

neglect by a preponderance of evidence, or if a court dismisses a

 

petition based on the merits of the petition filed under section

 

2(b) of chapter XIIA of the probate code of 1939, 1939 PA 288, MCL

 

712A.2, because the petitioner has failed to establish that the

 

child comes within the jurisdiction of the court, the information

 

identifying the subject of the report shall be expunged from the

 

central registry. If a preponderance of evidence of abuse or

 

neglect exists, or if a court takes jurisdiction of the child under

 

section 2(b) of chapter XIIA of the probate code of 1939, 1939 PA

 

288, MCL 712a.2, the department shall maintain the information in

 

the central registry as follows:

 

     (a) Except as provided in subdivision (b), for a person listed

 

as a perpetrator in category I or II under section 8d, either as a

 

result of an investigation or as a result of the reclassification

 

of a case, the department shall maintain the information in the

 

central registry for 10 years.

 

     (b) For a person listed as a perpetrator in category I or II

 

under section 8d that involved any of the circumstances listed in

 

section 17(1) or 18(1), the department shall maintain the

 

information in the central registry until the department receives

 

reliable information that the perpetrator of the abuse or neglect

 

is dead. For the purpose of this subdivision, "reliable information"

 

includes, but is not limited to, information obtained using the

 

United States social security death index database.

 

     (c) For a person who is the subject of a report or record made

 

under this act before the effective date of the amendatory act that

 

added this subdivision, the following applies:

 

     (i) Except as provided in subparagraph (ii), for a person listed

 

as perpetrator in category I or II under section 8d either as a

 

result of an investigation or as a result of the reclassification

 

of a case, the department may remove the information for a person

 

described in this subparagraph after 10 years without a request for

 

amendment or expunction.

 

     (ii) For a person listed as a perpetrator in category I or II

 

under section 8d that involved any of the circumstances listed in

 

section 17(1) or 18(1), the department shall maintain the

 

information in the central registry until the department receives

 

reliable information that the perpetrator of the child abuse or

 

child neglect is dead. For the purpose of this subparagraph,

 

"reliable information" includes, but is not limited to, information

 

obtained using the United States social security death index

 

database.

 

     (8) In releasing information under this act, the department

 

shall not include a report compiled by a police agency or other law

 

enforcement agency related to an ongoing investigation of suspected

 

child abuse or child neglect. This subsection does not prevent the

 

department from releasing reports of convictions of crimes related

 

to child abuse or child neglect.

 

     (9) A member or staff member of a citizen review panel shall

 

not disclose identifying information about a specific child

 

protection case to an individual, partnership, corporation,

 

association, governmental entity, or other legal entity. A member

 

or staff member of a citizen review panel is a member of a board,

 

council, commission, or statutorily created task force of a

 

governmental agency for the purposes of section 7 of 1964 PA 170,

 

MCL 691.1407. Information obtained by a citizen review panel is not

 

subject to the freedom of information act, 1976 PA 442, MCL 15.231

 

to 15.246.

 

     (10) An agency obtaining a confidential record under

 

subsection (2)(a) may seek an order from the court having

 

jurisdiction over the child or from the family division of the

 

Ingham county circuit court that allows the agency to disseminate

 

confidential child protective services or foster care information

 

to pursue sanctions for alleged dereliction, malfeasance, or

 

misfeasance of duty against an employee of the agency, to a

 

recognized labor union representative of the employee's bargaining

 

unit, or to an arbitrator or an administrative law judge who

 

conducts a hearing involving the employee's alleged dereliction,

 

malfeasance, or misfeasance of duty to be used solely in connection

 

with that hearing. Information released under this subsection shall

 

be released in a manner that maintains the greatest degree of

 

confidentiality while allowing review of employee performance.

 

     Sec. 8d. (1) For the department's determination required by

 

section 8, the categories, and the departmental response required

 

for each category, are the following:

 

     (a) Category V - services not needed. Following a field

 

investigation, the department determines that there is no evidence

 

of child abuse or child neglect.

 

     (b) Category IV - community services recommended. Following a

 

field investigation, the department determines that there is not a

 

preponderance of evidence of child abuse or child neglect, but the

 

structured decision-making tool indicates that there is future risk

 

of harm to the child. The department shall assist the child's

 

family in voluntarily participating in community-based services

 

commensurate with the risk to the child.

 

     (c) Category III - community services needed. The department

 

determines that there is a preponderance of evidence of child abuse

 

or child neglect, and the structured decision-making tool indicates

 

a low or moderate risk of future harm to the child. The department

 

shall assist the child's family in receiving community-based

 

services commensurate with the risk to the child. If the family

 

does not voluntarily participate in services, or the family

 

voluntarily participates in services, but does not progress toward

 

alleviating the child's risk level, the department shall consider

 

reclassifying the case as category II.

 

     (d) Category II - child protective services required. The

 

department determines that there is evidence of child abuse or

 

child neglect, and the structured decision-making tool indicates a

 

high or intensive risk of future harm to the child. The department

 

shall open a protective services case and provide the services

 

necessary under this act. The department shall also list the

 

perpetrator of the child abuse or child neglect, based on the

 

report that was the subject of the field investigation, on the

 

central registry as provided in section 7(7), either by name or as

 

"unknown" if the perpetrator has not been identified.

 

     (e) Category I - court petition required. The department

 

determines that there is evidence of child abuse or child neglect

 

and 1 or more of the following are true:

 

     (i) A court petition is required under another provision of

 

this act.

 

     (ii) The child is not safe and a petition for removal is

 

needed.

 

     (iii) The department previously classified the case as category

 

II and the child's family does not voluntarily participate in

 

services.

 

     (iv) There is a violation, involving the child, of a crime

 

listed or described in section 8a(1)(b), (c), (d), or (f) or of

 

child abuse in the first or second degree as prescribed by section

 

136b of the Michigan penal code, 1931 PA 328, MCL 750.136b.

 

     (2) In response to a category I classification, the department

 

shall do all of the following:

 

     (a) If a court petition is not required under another

 

provision of this act, submit a petition for authorization by the

 

court under section 2(b) of chapter XIIA of the probate code of

 

1939, 1939 PA 288, MCL 712A.2.

 

     (b) Open a protective services case and provide the services

 

necessary under this act.

 

     (c) List the perpetrator of the child abuse or child neglect,

 

based on the report that was the subject of the field

 

investigation, on the central registry as provided in section 7(7),

 

either by name or as "unknown" if the perpetrator has not been

 

identified.

 

     (3) The department is not required to use the structured

 

decision-making tool for a nonparent adult who resides outside the

 

child's home who is the victim or alleged victim of child abuse or

 

child neglect or for an owner, operator, volunteer, or employee of

 

a licensed or registered child care organization or a licensed or

 

unlicensed adult foster care family home or adult foster care small

 

group home as those terms are defined in section 3 of the adult

 

foster care facility licensing act, 1979 PA 218, MCL 400.703.

 

     (4) If following a field investigation the department

 

determines that there is a preponderance of evidence that an

 

individual listed in subsection (3) was the perpetrator of child

 

abuse or child neglect, the department shall list the perpetrator

 

of the child abuse or child neglect on the central registry as

 

provided in section 7(7).

 

     (5) The department shall furnish a written report described in

 

subsection (6) to the appropriate legislative standing committees

 

and the house and senate appropriations subcommittees for the

 

department within 4 months after each of the following time

 

periods:

 

     (a) Beginning October 1, 2005 and ending September 30, 2006.

 

     (b) Beginning October 1, 2006 and ending September 30, 2007.

 

     (c) Beginning October 1, 2007 and ending September 30, 2008.

 

     (6) The department shall include in a report required by

 

subsection (5) at least all of the following information regarding

 

all families that were classified in category III at some time

 

during the time period covered by the report:

 

     (a) The total number of families classified in category III.

 

     (b) The number of cases in category III closed or reclassified

 

during the time period covered by the report categorized as

 

follows:

 

     (i) The number of cases referred to voluntary community

 

services and closed with no additional monitoring.

 

     (ii) The number of cases referred to voluntary community

 

services and monitored for up to 90 days.

 

     (iii) The number of cases for which the department entered more

 

than 1 determination that there was evidence of child abuse or

 

neglect.

 

     (iv) The number of cases that the department reclassified from

 

category III to category II.

 

     (v) The number of cases that the department reclassified from

 

category III to category I.

 

     (vi) The number of cases that the department reclassified from

 

category III to category I that resulted in a removal.

 

     (c) For the periods described in subsection (5)(b) and (c),

 

the number of cases that the department reclassified in each of

 

subparagraphs (iv), (v), and (vi) of subdivision (b) that were

 

referred to and provided voluntary community services before being

 

reclassified by the department.

 

     Enacting section 1. This amendatory act takes effect 180 days

 

after the date it is enacted into law.