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SPONSOR: |
Rep. M. Smith & Sen. Blevins |
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Reps.
Gilligan, Bolden, Heffernan, Jaques, Kowalko, Schooley, B. Short, Walker,
Willis, Wilson; Sens. Cloutier, Ennis, Henry, Sokola, Sorenson, Venables |
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HOUSE OF REPRESENTATIVES 146th GENERAL ASSEMBLY |
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HOUSE SUBSTITUTE NO. 1 FOR HOUSE BILL NO. 371 |
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AN ACT TO AMEND TITLE 16 OF THE DELAWARE CODE RELATING TO INVESTIGATING THE ABUSE OF CHILDREN. |
Section 1.
Amend § 901, Title 16 of the Delaware Code by making insertions as shown
by underlining and deletions as shown by strike through as follows:
It is the intent of the General Assembly that the primary
purpose of the The
child welfare policy
of this State shall be serve to ensure advance the
best interests and secure the safety of the child, including while
preserving the family unit whenever the safety of the child is not
jeopardized. The child welfare policy of this State extends to all child
victims, whether victims of intra-familial or extra-familial abuse and neglect.
To that end it is the purpose of this chapter to provide,
among other things, (i) provides for comprehensive and protective
services for abused and neglected children by mandating, (ii)
mandates that reports of such child abuse or neglect be made
to the appropriate authorities and by requiring the, and (iii)
requires various agencies in Delaware’s child protection system to seek
and promote work together to ensure the safety of children who are
the subject of such reports of abuse or neglect by conducting coordinated
investigations or, judicial proceedings and family assessments,
and by providing necessary services.
It shall further be the purpose of This chapter to provide also provides for
the protection of all children in facilities or organizations
primarily concerned with child welfare and care that are required to be
licensed under Delaware law whose primary concern is that of child welfare
and care by requiring the Attorney General Delaware Department of
Justice to notify any such facility in cases where an employee of
such a facility, or any other person associated with such,
the facility has been charged with or convicted of an offense involving
child sexual abuse.
Section 2.
Amend § 902, Title 16 of the Delaware Code by making insertions as shown
by underlining and deletions as shown by strike through as follows:
As used in this chapter, the following terms mean:
(1) "Abuse" or "abused child" is as defined in
§ 901 of Title 10.
(2) "Baby" shall mean a child not more than 14 days old, except
that for hospitals and their employees and volunteers, "baby" shall
mean a child reasonably believed to be not more than 14 days old.
(3) "Child" shall mean any person who has not reached that
person's own 18th birthday.
(4) "Child Protection Registry" or "Registry" means a
collection of information as described in subchapter II of this chapter about
persons who have been substantiated for abuse or neglect as provided in
subchapter II of this chapter or who were substantiated between August 1, 1994,
and February 1, 2003.
(5) "Child welfare proceeding" means any Family Court
proceeding and subsequent appeal therefrom involving custody, visitation,
guardianship, termination of parental rights, adoption or other related
petitions that involve a dependent, neglected or abused child or a child at
risk of same as determined by the Family Court.
(6) “Conviction” or “convicted” means entry of a plea of guilty or nolo
contendere, regardless of whether the plea was subsequently discharged or
dismissed under the first offenders domestic violence diversion program
pursuant to § 1024 of Title 10, or under the first offenders controlled
substances diversion program pursuant to § 4767 of this title, or of a Robinson
plea, or of a probation before judgment discharge without judgment of
conviction notwithstanding the provisions of § 4218(f) of Title 11, or a
finding of guilt after trial, or a finding of not guilty after trial as a
result of the defense of mental disease or defect pursuant to Title 11, or
adjudication of delinquency for conduct which if committed by an adult, would
constitute a crime; or “conviction” or “convicted” under similar proceedings of
another state, territory or jurisdiction.
(7) “Department” shall mean the Department of Services for
Children, Youth and Their Families.
(7)(8) “Director”
shall mean the Director of the Division of Family Services of the Department of
Services for Children, Youth and Their Families.
(8)(9) “Division”
shall mean the Division of Family Services of the Department of Services for
Children, Youth and Their Families.
(9)(10) “Family
assessment and services” shall mean a case management approach by the Division
of Family Services that provides for a prompt assessment of a child and the
child's family and the circumstances of the reported incident (including the
known history of the child and/or the alleged perpetrator) when there has been
a report to the Division that the child was a victim of abuse or neglect, or at
risk of maltreatment by a person responsible for that child's care, custody or
control. Family assessment and services shall be used in conjunction with the
investigation approach defined in paragraph (713) of this section
but may not supplant it in circumstances which require an investigation. The
family assessment response shall focus on the integrity and preservation of the
family and shall assess the status of the child and the family in terms of the
risk of abuse and neglect and, if necessary, plan and provide for the provision
of community-based services to reduce the risk and to otherwise support the
family.
(10)(11) “Good
faith” shall be presumed in the absence of evidence of malice or willful
misconduct.
(11)(12) “Internal
information system” shall mean an electronic system of maintaining information
related to all reports of abuse, neglect, investigations, family assessments,
services and other relevant information.
(12)(13)
“Investigation” shall mean the collection of evidence in response to a report
of abuse, neglect, or risk of maltreatment by a person responsible for that
child's care, custody or control in order to determine if a child has been
abused, neglected, or is at risk of maltreatment. The Division shall develop
protocols for its investigations that focus on ensuring the well-being and
safety of the child. The Division may conduct an investigation in response to
any report of abuse, neglect, or risk of maltreatment but shall conduct an
investigation as enumerated under § 906(g)(3) of this title.
(14) “Investigation Coordinator” shall mean a Department
employee, appointed by the Secretary, who is responsible for tracking each
reported case of alleged child abuse or neglect, and monitoring within the
Department’s multidisciplinary tracking system each case involving the death
of, or serious injury to, a child, or allegations of sexual abuse of a child,
from inception to final criminal and civil disposition.
(15) “Multidisciplinary tracking system” shall mean an
electronic system which the Investigation Coordinator utilizes to track and
monitor each case involving the death of, or serious injury to, a child, or
allegations of sexual abuse of a child, from inception to final criminal and
civil disposition.
(13)(16) “Neglect”
or “neglected child” is as defined in § 901 of Title 10.
(17) “Physical injury” as defined in § 222 of Title 11.
(14)(18) “Report”
shall mean the communication of an allegation of child abuse or neglect to the
Division pursuant to § 903 or § 905 of this title;
(19) “Serious physical injury” as defined in § 222 of Title
11.
(20) “Sexual abuse” as defined in § 901 of Title 10.
(15)(21) “Special
Investigator” shall mean a Division employee, appointed by the Secretary, who
performs abuse and neglect investigations and possesses additional
qualifications and authority as defined by § 9016 of Title 29.
(16)(22)
“Substantiation” means a finding by a preponderance of the evidence that abuse
or neglect has occurred.
(17)(23) “Those
responsible for the care, custody and control of the child” or “care, custody
and control” is as defined in § 901 of Title 10.
Section 3. Amend § 905, Title 16 of the Delaware Code by
making insertions as shown by underlining and deletions as shown by strike
through as follows:
(a) The Division shall establish
and maintain a 24-hour statewide toll-free telephone report line operating at all
times and capable of receiving all reports of alleged abuse and neglect as
defined in § 901 of Title 10.
(b) The Division shall maintain a
Child Protection Registry and an internal information system as defined by §
902 of this title. Reports unsubstantiated
may shall be kept in the internal information system by the Division
at its discretion.
(c) Every report of
child abuse or neglect made to the Division shall be entered in the Division’s
internal information system and each such report involving the death of,
serious physical injury to, or allegations of sexual abuse of a child shall
also be entered in the Department’s multi-disciplinary tracking system.
(c)(d)
Although reports may be made anonymously, the Division shall in all cases,
after obtaining relevant information regarding alleged abuse or neglect,
request the name and address of any person making a report.
(d)(e)
Upon receipt of a report, the Division shall immediately communicate such
report to its appropriate Division staff, after a check has been made with the
internal information system to determine whether previous reports have been
made regarding actual or suspected abuse or neglect of the subject child, or
any reports regarding any siblings, family members or the alleged perpetrator,
and such information as may be contained from such previous reports. Such
relevant information as may be contained in the internal information system
shall also be forwarded to the appropriate Division staff.
(f) Upon receipt of a
report of child abuse or neglect, the Division shall immediately notify the
Investigation Coordinator of the report, in sufficient detail to permit the
Investigation Coordinator to undertake the Investigation Coordinator’s duties,
as specified in § 906 of this chapter.
Section 4. Amend § 906, Title 16 of the Delaware Code by
making insertions as shown by underlining and deletions as shown by strike
through as follows:
(a) The State’s child
protection system shall seek to promote the safety of children and the
integrity and preservation of their families by conducting investigations
and/or family assessments in response to reports of child abuse or
neglect. The system shall endeavor to
coordinate community resources and provide assistance or services to children
and families identified to be at risk, and to prevent and remedy child abuse
and neglect.
(b) It is the policy of
this State that the investigation and disposition of cases involving child
abuse or neglect shall be conducted in a comprehensive, integrated, multi-disciplinary
manner that:
(1)
Provides civil and criminal protections to the child and the community;
(2)
Encourages the use of collaborative decision-making and case management to
reduce the number of times a child is interviewed and examined to minimize
further trauma to the child; and
(3)
Provides safety and treatment for a child and his or her family by coordinating
a therapeutic services system.
(c) In implementing the
Investigation Coordinator’s role in the child protection system, the
Investigation Coordinator, or the Investigation Coordinator’s designee, shall:
(1)
Track within the Division’s internal information system each reported case of
alleged child abuse or neglect;
(2)
Monitor within the Department’s multidisciplinary tracking system each case
involving the death of, serious physical injury to, or allegations of sexual
abuse of a child from inception to final criminal and civil disposition, and
provide reports every thirty days on the status of each case to the Division,
the Department, the Delaware Department of Justice, and the Office of Child
Advocate;
(3)
Within two working days of the receipt of a report concerning allegations of
child abuse or neglect by a person known to be licensed or certified by a
Delaware agency or professional regulatory organization, forward a report of
such allegations to the appropriate Delaware agency or professional regulatory
organization;
(4)
Report every case involving the death or near death of a child due to abuse or
neglect to the Child Death, Near Death and Stillbirth Commission pursuant to §
323(e) of Title 31; and
(5)
Provide information to the Child Protection Accountability Commission (“CPAC”),
as requested by CPAC, regarding the status, trends and outcomes of cases of
child abuse or neglect that are reported to the Division. Reports to CPAC shall
not disclose the identities of the child, alleged perpetrators, or others
involved in the case(s).
(d) In implementing law
enforcement’s role in the child protection system, the law enforcement agency
investigating a report of child abuse shall:
(1)
Report every case of child abuse to the Division as required by § 903 of this
title; and
(2)
Provide information as necessary to the Investigation Coordinator to permit
case tracking, monitoring and reporting by the Investigation Coordinator.
(b)(e)
In implementing the Division’s role in the child protection system, the
Division shall:
(1)
Receive and maintain reports pursuant to the provisions of §§ 903 and 905 of
this title;
(2)
Forward reports to the appropriate Division staff, who shall determine, through
the use of protocols developed by the Division, whether an investigation or the
family assessment and services approach should be used to respond to the
allegation. The protocols for making this determination shall be developed by
the Division and shall give priority to ensuring the well-being and safety of
the child;
(3)
The Division may investigate any report, but shall conduct an investigation
involving all reports, which if true, would constitute violations against a
child by a person responsible for the care, custody and control of the child of
any of the following provisions of § 603, § 604, § 611, § 612, § 613, § 621, §
625, § 626, § 631, § 632, § 633, § 634, § 635, § 636, § 645, § 763, § 765, §
766, § 767, § 768, § 769, § 770, § 771, § 772, § 773, § 774, § 775, § 776, §
777, § 780, § 782, § 783, § 783A, § 791, § 1100, § 1101, § 1102, § 1107, §
1108, § 1109, § 1110, § 1111, or § 1259 of Title 11, or an attempt to commit
any such crimes. The Division staff shall also contact the Delaware Department
of Justice and the appropriate law-enforcement agency upon receipt of any
report under this section and shall provide such agency with a detailed
description of the report received. The appropriate law enforcement agency
shall assist the Division in the investigation or provide the Division, within
a reasonable time, an explanation detailing the reasons why it is unable to
assist. Notwithstanding any provision of the Delaware Code to the contrary, to
the extent the law enforcement agency with jurisdiction over the case is unable
to assist, the Division may request that the Delaware State Police exercise
jurisdiction over the case and upon such request the Delaware State police may
exercise such jurisdiction;
(4)
The assisting law-enforcement agency shall promptly conduct its own criminal
investigation, and keep the Division regularly apprised of the status and
findings of its investigation. Law-enforcement agencies and the Division shall
develop protocols to ensure compliance with this subsection;
(5)
Ensure that every case of child death, and every case of near death due to
abuse or neglect, is reported to the Child Death, Near Death and Stillbirth
Commission pursuant to § 323(e) of Title 31;
(6)
Ensure that all cases involving allegations of child abuse or neglect by a
person known to be licensed or certified by a Delaware agency or professional
regulatory organization, have been reported to the appropriate Delaware agency or
professional regulatory organization and the Investigation Coordinator in
accordance with the provisions of this section;
(5)(7)
The Division shall have authority to secure a medical examination of a child,
without the consent of those responsible for the care, custody and control of
the child, if the child has been reported to be a victim of abuse or neglect;
provided, that such case is classified as an investigation pursuant to §
906(b)(3) of this title and the Director or the Director's designee gives prior
authorization for such examination upon finding that such examination is
necessary to protect the health and safety of the child;
(6)(8) The investigation shall include, but need
not be limited to, the nature, extent and cause of the abuse or neglect,
collection of evidence, the identity of the alleged perpetrator, the names and
condition of other children and adults in the home, the home environment, the
relationship of the subject child to the parents or other persons responsible
for the child's care, any indication of incidents of physical violence against
any other household or family member, background checks on all adults in the
home, and the gathering of other pertinent information;
(7)(9)
In the family assessment and services approach, assess service needs of the
family from information gathered from the family and other sources. The
Division shall identify and provide for services for families where it
is determined that the child is at risk of abuse or neglect. The Division shall
document its attempt to provide voluntary services and the reasons these
services are important to reduce the risk of future abuse or neglect. If the
family refuses to accept or avoids the proffered services, the Division may
refer the case for investigation or terminate services;
(8)(10)
Commence an immediate investigation if at any time during the family assessment
and services approach the Division determines that an investigation as
delineated in subsection (3) of this section is required or is otherwise
appropriate. The Division staff who have conducted the assessment may remain
involved in the provision of services to the child and family;
(9)(11)
Conduct a family assessment and services approach on reports initially referred
for an investigation, if it is determined that a complete investigation is not
required. The reason for the termination of the investigative process shall be
documented;
(10)(12)
Assist the child and family in obtaining services, if at any time during the
investigation it is determined that the child or any member of the family needs
services;
(11)(13)
Identify local services and assist with access to those services for children
and families where there is risk of abuse or neglect;
(12)(14)
Update the internal information system at regular intervals during the course
of the investigation. At the conclusion of the investigation or family
assessment, the internal information system shall be updated to include a case
finding;
(13)(15)
When a written report is made by a person required to report under § 903 of
this title, the Division shall contact the person who made such report within
48 hours of the receipt of the report in order to ensure that full information
has been received and to obtain any additional information or medical records,
or both, which may be pertinent;
(14)(16)
Upon completion of an investigation or family assessment and services approach,
if the Division suspects that the report was made maliciously or for the
purpose of harassment, the Division shall refer the report and any evidence of
malice or harassment to the appropriate law enforcement agency;
(15)(17)
Multidisciplinary services shall be used whenever possible in conducting the
investigation or family assessment and services approach, including the
services of law enforcement agencies, the medical community, and other
agencies, both public and private. The Division and the Attorney General's
Office shall cooperate with law enforcement agencies and the Family Court to
develop training programs to increase the ability of Division personnel, court
personnel, and law enforcement officers to investigate suspected cases of abuse
and neglect;
(16)(18)
A person required to report under § 903 of this title to the Division shall be
informed by the Division of the person's right to obtain information concerning
the disposition of the report. Such person shall receive, from the local
office, if requested, information on the general disposition of the report at
the conclusion of the investigation;
(17)(19)
In any judicial proceeding involving the custody of child, the fact that a
report has been made pursuant to § 903 or § 905 of this title shall not be admissible
unless offered by the Division as a party or as a friend of the Court or if the
Division is a party. However, nothing herein shall prohibit the introduction of
evidence from independent sources to support the allegations that may have
caused a report to have been made;
(18)(20)
To protect the privacy of the family and the child named in a report, the
Division shall establish guidelines concerning the disclosure of information
concerning the abuse and neglect involving a child. The Division may require
persons to make written requests for access to records maintained by the
Division. The Division shall only release information to persons who have a
legitimate public safety need for such information or a need based on the
health and safety of a child subject to abuse, neglect or the risk of
maltreatment, and such information shall be used only for the purpose for which
the information is released; and
(19)(21)
Upon the receipt of a report concerning allegations of abuse or neglect against
a person known by the Division to be licensed by 1 of the boards listed in §
8735 of Title 29, forward reports to the Division of Professional Regulation.
(f) In implementing the
Delaware Department of Justice’s role in the child protection system, it shall:
(1)
Report every case of child abuse to the Division pursuant to § 903 of this
title;
(2)
Ensure that every case of child death and every case of near death due to abuse
or neglect has been reported to the Child Death, Near Death and Stillbirth
Commission pursuant to § 323(e) of Title 31;
(3)
Provide information as necessary to the Investigation Coordinator to permit
case tracking, monitoring and reporting by the Investigation Coordinator; and
(4)
Ensure that all cases involving allegations of child abuse or neglect by a
person known to be licensed or certified by a Delaware agency or professional
regulatory organization, have been reported to the appropriate Delaware agency
or professional regulatory organization and the Investigation Coordinator in
accordance with provisions of this section.
(c)(g)
In the event that a criminal
prosecution for child sexual abuse or exploitation is initiated by the
Delaware Department of Justice against a person employed by or associated
with a facility or organization required to be licensed or whose staff
personnel are required to be licensed under Delaware law whose primary concern
is that of child welfare and care, the Attorney General Delaware
Department of Justice shall notify such employer within 48 hours:.
(1)
Upon the return of an indictment charging such person with having committed at
least 1 felony offense involving an allegation of child sexual abuse; or
(2)
Upon an adjudication of guilt of such person for any misdemeanor or violation,
when such offense involved sexual abuse, in any degree, of a child under age
18.
Any violations of this subsection
shall be dealt with administratively by the Attorney General and the penalty
provisions of § 914 of this title shall not apply hereto.
(d)(h)
In the event that a criminal prosecution for abuse or neglect is initiated by
the Delaware Department of Justice pursuant to a report under this
chapter and incarceration of the person who is the subject of the report is
ordered by the Court, the Attorney General's office Delaware
Department of Justice shall keep the Division informed of actions taken by
the courts which result in the release of any such individual; provided that
the Attorney General's office is represented at such a hearing.
Section 5. This Act shall become effective on October 1, 2012.
SYNOPSIS
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This Act implements several
recommendations made by Widener University School of Law Associate Provost
and Dean Linda Ammons in her Final Report on the Independent Review of
the Earl Bradley Case regarding the investigation and disposition of cases
involving child abuse or neglect. More
particularly this Act does the following: 1. Utilizes the case management system of the Department of Services for Children, Youth and Their Families ("DSCYF") to track every case of child abuse and neglect; 2. Establishes an Investigation Coordinator within DSCYF to track and monitor each reported case involving the death of, serious physical injury to, or allegations of sexual abuse of a child from inception to final criminal and civil disposition; 3. Ensures the reporting of every death and near death case due to child abuse or neglect to the Child Death, Near Death and Stillbirth Commission; 4. Reinforces the duties to report suspected perpetrators to the Division of Professional Regulation as well as to other regulatory agencies; and 5. Requires the reporting of status, trends and civil and criminal outcomes of these cases to the Child Protection Accountability Commission. |