June 26, 2008, Introduced by Senators JANSEN, CROPSEY, KUIPERS, HARDIMAN, GILBERT, RICHARDVILLE, PAPPAGEORGE, BROWN, KAHN, VAN WOERKOM and BIRKHOLZ and referred to the Committee on Families and Human Services.
A bill to amend 1975 PA 238, entitled
"Child protection law,"
by amending sections 7 and 8 (MCL 722.627 and 722.628), 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. 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.
(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 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.
(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.
(c) Abuse or neglect resulting in severe physical injury to
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.
(c) Lack of cooperation by the school does not relieve or
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.
(c) Notification that the information being conveyed is
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 the department determines that there
is an open friend of the court case, 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. Also, if the
department is aware of an open friend of the court case involving a
child who has been suspected of being abused or neglected, the
department shall report to the local friend of the court office
when there is a change in that child's placement.
(19) 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.
(20) The department shall notify parents of a child who is
suspected of being abused or neglected of their option to request a
change in that child's placement.
Enacting section 1. This amendatory act takes effect October
1, 2008.