HB-5641, As Passed House, December 6, 2012

 

 

 

 

 

 

 

 

 

 

 

 

 

 

HOUSE BILL No. 5641

 

May 16, 2012, Introduced by Rep. O'Brien and referred to the Committee on Families, Children, and Seniors.

 

     A bill to amend 1975 PA 238, entitled

 

"Child protection law,"

 

by amending sections 7 and 8d (MCL 722.627 and 722.628d), 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. 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. 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 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 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 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

 


House Bill No. 5641 as amended December 6, 2012

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 90 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 90 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 90-day notice period expired.]

 

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

 

fails to disclose evidence of does not show abuse or 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.

 

     (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. 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 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 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 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

 

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 neglect, based on the report that was the

 

subject of the field investigation, on the central registry, either

 

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

 

as provided in section 7(7).

 

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

 

determines that there is evidence of child abuse or 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 neglect, based

 

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

 

the central registry, either by name or as "unknown" if the

 

perpetrator has not been identified as provided in section 7(7).

 

     (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

 

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 neglect, the department shall list the perpetrator of the

 

child abuse or 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.