SB-1418, As Passed House, September 25, 2008

HOUSE SUBSTITUTE FOR

SENATE BILL NO. 1418

A bill to amend 1975 PA 238, entitled

"Child protection law,"

by amending sections 3, 7, and 8 (MCL 722.623, 722.627, and

722.628), section 3 as amended by 2006 PA 583, section 7 as amended

by 2006 PA 621, and section 8 as amended by 2008 PA 46.

THE PEOPLE OF THE STATE OF MICHIGAN ENACT:

Sec. 3. (1) An individual is required to report under this act

as follows:

(a) A physician, dentist, physician's assistant, registered

dental hygienist, medical examiner, nurse, person licensed to

provide emergency medical care, audiologist, psychologist, marriage

and family therapist, licensed professional counselor, social

worker, licensed master's social worker, licensed bachelor's social

worker, registered social service technician, social service

technician, a person employed in a professional capacity in any

office of the friend of the court, school administrator, school

counselor or teacher, law enforcement officer, member of the

clergy, or regulated child care provider who has reasonable cause

to suspect child abuse or neglect shall make immediately, by

telephone or otherwise, an oral report, or cause an oral report to

be made, of the suspected child abuse or neglect to the department.

Within 72 hours after making the oral report, the reporting person

shall file a written report as required in this act. If the

reporting person is a member of the staff of a hospital, agency, or

school, the reporting person shall notify the person in charge of

the hospital, agency, or school of his or her finding and that the

report has been made, and shall make a copy of the written report

available to the person in charge. A notification to the person in

charge of a hospital, agency, or school does not relieve the member

of the staff of the hospital, agency, or school of the obligation

of reporting to the department as required by this section. One

report from a hospital, agency, or school is adequate to meet the

reporting requirement. A member of the staff of a hospital, agency,

or school shall not be dismissed or otherwise penalized for making

a report required by this act or for cooperating in an

investigation.

(b) A department employee who is 1 of the following and has

reasonable cause to suspect child abuse or neglect shall make a

report of suspected child abuse or neglect to the department in the

same manner as required under subdivision (a):

(i) Eligibility specialist.

(ii) Family independence manager.

(iii) Family independence specialist.

(iv) Social services specialist.

(v) Social work specialist.

(vi) Social work specialist manager.

(vii) Welfare services specialist.

result of federal funding statutes, regulations, or contracts,

would be prohibited from reporting in the absence of a state

mandate or court order. A person required to report under this

subdivision shall report in the same manner as required under

subdivision (a).

(2) The written report shall contain the name of the child and

a description of the abuse or neglect. If possible, the report

shall contain the names and addresses of the child's parents, the

child's guardian, the persons with whom the child resides, and the

child's age. The report shall contain other information available

to the reporting person that might establish the cause of the abuse

or neglect, and the manner in which the abuse or neglect occurred.

(3) The department shall inform the reporting person of the

required contents of the written report at the time the oral report

is made by the reporting person.

(4) The written report required in this section shall be

mailed or otherwise transmitted to the county department of the

county in which the child suspected of being abused or neglected is

found.

(5) Upon receipt of a written report of suspected child abuse

or neglect, the department may provide copies to the prosecuting

attorney and the probate court of the counties in which the child

suspected of being abused or neglected resides and is found.

(6) If an allegation, written report, or subsequent

investigation of suspected child abuse or child neglect indicates a

violation of sections 136b and 145c, sections 520b to 520g of the

Michigan penal code, 1931 PA 328, MCL 750.136b, 750.145c, and

750.520b to 750.520g, or section 7401c of the public health code,

1978 PA 368, MCL 333.7401c, involving methamphetamine has occurred,

or if the allegation, written report, or subsequent investigation

indicates that the suspected child abuse or child neglect was

committed by an individual who is not a person responsible for the

child's health or welfare, including, but not limited to, a member

of the clergy, a teacher, or a teacher's aide, the department shall

transmit a copy of the allegation or written report and the results

of any investigation to a law enforcement agency in the county in

which the incident occurred. If an allegation, written report, or

subsequent investigation indicates that the individual who

committed the suspected abuse or neglect is a child care provider

and the department believes that the report has basis in fact, the

department shall, within 24 hours of completion, transmit a copy of

the written report or the results of the investigation to the child

care regulatory agency with authority over the child care

provider's child care organization or adult foster care location

authorized to care for a child.

(7) If a local law enforcement agency receives an allegation

or written report of suspected child abuse or child neglect or

discovers evidence of or receives a report of an individual

allowing a child to be exposed to or to have contact with

methamphetamine production, and the allegation, written report, or

subsequent investigation indicates that the child abuse or child

neglect or allowing a child to be exposed to or to have contact

with methamphetamine production, was committed by a person

responsible for the child's health or welfare, the local law

enforcement agency shall refer the allegation or provide a copy of

the written report and the results of any investigation to the

county department of the county in which the abused or neglected

child is found, as required by subsection (1)(a). If an allegation,

written report, or subsequent investigation indicates that the

individual who committed the suspected abuse or neglect or allowed

a child to be exposed to or to have contact with methamphetamine

production, is a child care provider and the local law enforcement

agency believes that the report has basis in fact, the local law

enforcement agency shall transmit a copy of the written report or

the results of the investigation to the child care regulatory

agency with authority over the child care provider's child care

organization or adult foster care location authorized to care for a

child. Nothing in this subsection or subsection (1) shall be

construed to relieve the department of its responsibilities to

investigate reports of suspected child abuse or child neglect under

this act.

(8) For purposes of this act, the pregnancy of a child less

than 12 years of age or the presence of a venereal disease in a

child who is over 1 month of age but less than 12 years of age is

reasonable cause to suspect child abuse and neglect have occurred.

(9) In conducting an investigation of child abuse or child

neglect, if the department suspects that a child has been exposed

to or has had contact with methamphetamine production, the

department shall immediately contact the law enforcement agency in

the county in which the incident occurred.

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

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 neglect.

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 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 that determines the information is necessary to

decide an issue before the court.

(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 ~~722.935~~ 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. ~~, subject to the~~

~~provisions of subsection (3) and sections 5 and 13, if there is a~~

~~compelling need for child protective services records or~~

~~information to determine custody or parenting time issues regarding~~

~~a child. A local friend of the court office investigator,~~

~~caseworker, or administrator directly involved in the custody~~

~~investigation shall notify the appropriate department or child~~

~~protective services local or central office that a child custody or~~

~~parenting time investigation has been initiated involving a family~~

~~and shall request in writing child protective services records and~~

~~information that are pertinent to that investigation. Upon receipt~~

~~of this notification and request, the local office of child~~

~~protective services supervisor shall review child protective~~

~~services information in the local office's possession to determine~~

~~if there are child protective services records or information that~~

~~is pertinent to that investigation. Within 14 days after receipt of~~

~~a request made under this subdivision, the child protective~~

~~services local office shall release the pertinent child protective~~

~~services records and information to the investigator, caseworker,~~

~~or administrator directly involved in the child custody or~~

~~parenting time investigation. Child protective services is further~~

~~authorized to report to the local friend of the court office any~~

~~situation in which a parent, more than 3 times within 1 year or on~~

~~5 cumulative reports over several years, made unfounded reports to~~

~~child protective services regarding alleged child abuse or neglect~~

~~of his or her child.~~

(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 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 neglect.

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 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. 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, 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.

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

fails to disclose evidence of abuse or neglect, the information

identifying the subject of the report shall be expunged from the

central registry. If evidence of abuse or neglect exists, 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.

(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 neglect. This subsection does not prevent the

department from releasing reports of convictions of crimes related

to child abuse or 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. 8. (1) Within 24 hours after receiving a report made

under this act, the department shall refer the report to the

prosecuting attorney and the local law enforcement agency if the

report meets the requirements of subsection (3)(a), (b), or (c) or

section 3(6) or (9) or shall commence an investigation of the child

suspected of being abused or neglected. Within 24 hours after

receiving a report whether from the reporting person or from the

department under subsection (3)(a), (b), or (c) or section 3(6) or

(9), the local law enforcement agency shall refer the report to the

department if the report meets the requirements of section 3(7) or

shall commence an investigation of the child suspected of being

abused or neglected or exposed to or who has had contact with

methamphetamine production. If the child suspected of being abused

or exposed to or who has had contact with methamphetamine

production is not in the physical custody of the parent or legal

guardian and informing the parent or legal guardian would not

endanger the child's health or welfare, the agency or the

department shall inform the child's parent or legal guardian of the

investigation as soon as the agency or the department discovers the

identity of the child's parent or legal guardian.

(2) In the course of its investigation, the department shall

determine if the child is abused or neglected. The department shall

cooperate with law enforcement officials, courts of competent

jurisdiction, and appropriate state agencies providing human

services in relation to preventing, identifying, and treating child

abuse and neglect; shall provide, enlist, and coordinate the

necessary services, directly or through the purchase of services

from other agencies and professions; and shall take necessary

action to prevent further abuses, to safeguard and enhance the

child's welfare, and to preserve family life where possible. In the

course of an investigation, at the time that a department

investigator contacts an individual about whom a report has been

made under this act or contacts an individual responsible for the

health or welfare of a child about whom a report has been made

under this act, the department investigator shall advise that

individual of the department investigator's name, whom the

department investigator represents, and the specific complaints or

allegations made against the individual. The department shall

ensure that its policies, procedures, and administrative rules

ensure compliance with the provisions of this act.

(3) In conducting its investigation, the department shall seek

the assistance of and cooperate with law enforcement officials

within 24 hours after becoming aware that 1 or more of the

following conditions exist:

(a) Abuse or neglect is the suspected cause of a child's

death.

(b) The child is the victim of suspected sexual abuse or

sexual exploitation.

the child. For purposes of this subdivision and section 17, "severe

physical injury" means an injury to the child that requires medical

treatment or hospitalization and that seriously impairs the child's

health or physical well-being.

(d) Law enforcement intervention is necessary for the

protection of the child, a department employee, or another person

involved in the investigation.

(e) The alleged perpetrator of the child's injury is not a

person responsible for the child's health or welfare.

(f) The child has been exposed to or had contact with

methamphetamine production.

(4) Law enforcement officials shall cooperate with the

department in conducting investigations under subsections (1) and

(3) and shall comply with sections 5 and 7. The department and law

enforcement officials shall conduct investigations in compliance

with the protocols adopted and implemented as required by

subsection (6).

(5) Involvement of law enforcement officials under this

section does not relieve or prevent the department from proceeding

with its investigation or treatment if there is reasonable cause to

suspect that the child abuse or neglect was committed by a person

responsible for the child's health or welfare.

(6) In each county, the prosecuting attorney and the

department shall develop and establish procedures for involving law

enforcement officials as provided in this section. In each county,

the prosecuting attorney and the department shall adopt and

implement standard child abuse and neglect investigation and

interview protocols using as a model the protocols developed by the

governor's task force on children's justice as published in FIA

Publication 794 (revised 8-98) and FIA Publication 779 (8-98), or

an updated version of those publications.

(7) If there is reasonable cause to suspect that a child in

the care of or under the control of a public or private agency,

institution, or facility is an abused or neglected child, the

agency, institution, or facility shall be investigated by an agency

administratively independent of the agency, institution, or

facility being investigated. If the investigation produces evidence

of a violation of section 145c or sections 520b to 520g of the

Michigan penal code, 1931 PA 328, MCL 750.145c and 750.520b to

750.520g, the investigating agency shall transmit a copy of the

results of the investigation to the prosecuting attorney of the

county in which the agency, institution, or facility is located.

(8) A school or other institution shall cooperate with the

department during an investigation of a report of child abuse or

neglect. Cooperation includes allowing access to the child without

parental consent if access is determined by the department to be

necessary to complete the investigation or to prevent abuse or

neglect of the child. The department shall notify the person

responsible for the child's health or welfare about the

department's contact with the child at the time or as soon

afterward as the person can be reached. The department may delay

the notice if the notice would compromise the safety of the child

or child's siblings or the integrity of the investigation, but only

for the time 1 of those conditions exists.

(9) If the department has contact with a child in a school,

all of the following apply:

(a) Before contact with the child, the department investigator

shall review with the designated school staff person the

department's responsibilities under this act and the investigation

procedure.

(b) After contact with the child, the department investigator

shall meet with the designated school staff person and the child

about the response the department will take as a result of contact

with the child. The department may also meet with the designated

school staff person without the child present and share additional

information the investigator determines may be shared subject to

the confidentiality provisions of this act.

prevent the department from proceeding with its responsibilities

under this act.

(10) A child shall not be subjected to a search at a school

that requires the child to remove his or her clothing to expose his

buttocks or genitalia or her breasts, buttocks, or genitalia unless

the department has obtained an order from a court of competent

jurisdiction permitting such a search. If the access occurs within

a hospital, the investigation shall be conducted so as not to

interfere with the medical treatment of the child or other

patients.

(11) The department shall enter each report made under this

act that is the subject of a field investigation into the CPSI

system. The department shall maintain a report entered on the CPSI

system as required by this subsection until the child about whom

the investigation is made is 18 years old or until 10 years after

the investigation is commenced, whichever is later, or, if the case

is classified as a central registry case, until the department

receives reliable information that the perpetrator of the abuse or

neglect is dead. Unless made public as specified information

released under section 7d, a report that is maintained on the CPSI

system is confidential and is not subject to the disclosure

requirements of the freedom of information act, 1976 PA 442, MCL

15.231 to 15.246.

(12) After completing a field investigation and based on its

results, the department shall determine in which single category,

prescribed by section 8d, to classify the allegation of child abuse

or neglect.

(13) Except as provided in subsection (14), upon completion of

the investigation by the local law enforcement agency or the

department, the law enforcement agency or department may inform the

person who made the report as to the disposition of the report.

(14) If the person who made the report is mandated to report

under section 3, upon completion of the investigation by the

department, the department shall inform the person in writing as to

the disposition of the case and shall include in the information at

least all of the following:

(a) What determination the department made under subsection

(12) and the rationale for that decision.

(b) Whether legal action was commenced and, if so, the nature

of that action.

confidential.

(15) Information sent under subsection (14) shall not include

personally identifying information for a person named in a report

or record made under this act.

(16) Unless section 5 of chapter XII of the probate code of

1939, 1939 PA 288, MCL 712.5, requires a physician to report to the

department, the surrender of a newborn in compliance with chapter

XII of the probate code of 1939, 1939 PA 288, MCL 712.1 to 712.20,

is not reasonable cause to suspect child abuse or neglect and is

not subject to the section 3 reporting requirement. This subsection

does not apply to circumstances that arise on or after the date

that chapter XII of the probate code of 1939, 1939 PA 288, MCL

712.1 to 712.20, is repealed. This subsection applies to a newborn

whose birth is described in the born alive infant protection act,

2002 PA 687, MCL 333.1071 to 333.1073, and who is considered to be

a newborn surrendered under the safe delivery of newborns law as

provided in section 3 of chapter XII of the probate code of 1939,

1939 PA 288, MCL 712.3.

(17) All department employees involved in investigating child

abuse or child neglect cases shall be trained in the legal duties

to protect the state and federal constitutional and statutory

rights of children and families from the initial contact of an

investigation through the time services are provided.

(18) The department shall determine whether there is an open

friend of the court case regarding a child who is suspected of

being abused or neglected if a child protective services

investigation of child abuse and neglect allegations result in any

of the following dispositions:

(a) A finding that a preponderance of evidence indicates that

there has been child abuse and neglect.

(b) Emergency removal of the child for child abuse and neglect

before the investigation is completed.

child is maintained in his or her own home under the supervision of

the department.

(d) If 1 or more children residing in the home are removed and

1 or more children remain in the home.

(e) Any other circumstances that the department determines are

applicable and related to child safety.

(19) If the department determines that there is an open friend

of the court case and the provisions of subsection (18) apply, the

department shall notify the office of the friend of the court in

the county in which the friend of the court case is open that there

is an investigation being conducted under this act regarding that

child and shall also report to the local friend of the court office

when there is a change in that child's placement.

(20) Child protective services may report to the local friend

of the court office any situation in which a parent, more than 3

times within 1 year or on 5 cumulative reports over several years,

made unfounded reports to child protective services regarding

alleged child abuse or neglect of his or her child.

(21) If the department determines that there is an open friend

of the court case, the department shall provide noncustodial

parents of a child who is suspected of being abused or neglected