SB-0334, As Passed House, February 24, 2016

HOUSE SUBSTITUTE FOR

SENATE BILL NO. 334

A bill to amend 1975 PA 238, entitled

"Child protection law,"

by amending sections 2, 3, and 7 (MCL 722.622, 722.623, and

722.627), section 2 as amended by 2014 PA 30, section 3 as amended

by 2014 PA 344, and section 7 as amended by 2014 PA 527.

THE PEOPLE OF THE STATE OF MICHIGAN ENACT:

Sec. 2. As used in this act:

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

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

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

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

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

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

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

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

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

288, MCL 712A.13a.

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

the department under this act in which relevant and accurate

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

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

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

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

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

means an allegation of child abuse or child neglect that the

department substantiated.

(e) "Centralized intake" means the department's statewide

centralized processing center for reports of suspected child abuse

and child neglect.

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

(g) ~~(f)~~ "Child abuse" means harm or threatened harm to a

child's health or welfare that occurs through nonaccidental

physical or mental injury, sexual abuse, sexual exploitation, or

maltreatment, by a parent, a legal guardian, or any other person

responsible for the child's health or welfare or by a teacher, a

teacher's aide, or a member of the clergy.

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

in section 1 of 1973 PA 116, MCL 722.111.

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

employee, or volunteer of a child care organization or of an adult

foster care location authorized to care for a child.

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

licensing and regulatory affairs or a successor state department

that is responsible for the licensing or registration of child care

organizations or the licensing of adult foster care locations

authorized to care for a child.

(k) ~~(j)~~ "Child neglect" means harm or threatened harm to a

child's health or welfare by a parent, legal guardian, or any other

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

through either of the following:

(i) Negligent treatment, including the failure to provide

adequate food, clothing, shelter, or medical care.

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

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

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

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

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

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

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

and treatment act, 42 USC 5106a.

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

rabbi, Christian science practitioner, or other religious

practitioner, or similar functionary of a church, temple, or

recognized religious body, denomination, or organization.

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

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

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

information system, which is an internal data system maintained

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

central registry and not subject to section 7.

(p) ~~(o)~~ "Department" means the department of health and human

services.

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

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

destroy a record or report.

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

under section 10 who has the powers and duties referenced by

section 10.

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

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

maintained by a county or a regionally based office of the

department.

(u) ~~(t)~~ "Nonparent adult" means a person who is 18 years of

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

all of the following criteria in relation to a child:

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

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

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

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

to the child by blood or affinity to the third degree.

(v) "Online reporting system" means the electronic system

established by the department for individuals identified in section

3(1) to report suspected child abuse or child neglect.

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

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

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

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

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

of the following:

(i) A licensed or registered child care organization.

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

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

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

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

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

(x) ~~(v)~~ "Relevant evidence" means evidence having a tendency

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

it would be without the evidence.

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

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

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

(z) ~~(x)~~ "Sexual exploitation" includes allowing, permitting,

or encouraging a child to engage in prostitution, or allowing,

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

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

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

750.145c.

(aa) ~~(y)~~ "Specified information" means information in a

children's protective services case record related specifically to

the department's actions in responding to a complaint of child

abuse or child neglect. Specified information does not include any

of the following:

(i) Except as provided in this subparagraph regarding a

perpetrator of child abuse or child neglect, personal

identification information for any individual identified in a child

protective services record. The exclusion of personal

identification information as specified information prescribed by

this subparagraph does not include personal identification

information identifying an individual alleged to have perpetrated

child abuse or child neglect, which allegation has been classified

as a central registry case.

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

section 7(8).

(iii) Any other information that is specifically designated as

confidential under other law.

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

in responding to a report of child abuse or child neglect.

(bb) ~~(z)~~ "Structured decision-making tool" means the

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

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

child.

(cc) ~~(aa)~~ "Substantiated" means a child protective services

case classified as a central registry case.

(dd) ~~(bb)~~ "Unsubstantiated" means a child protective services

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

III, category IV, or category V.

Sec. 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 child neglect shall make ~~immediately, by~~

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

~~be made,~~ an immediate report to centralized intake by telephone,

or, if available, through the online reporting system, of the

suspected child abuse or child neglect. ~~to the department.~~ Within

72 hours after making ~~the~~ an oral report by telephone to

centralized intake, the reporting person shall file a written

report as required in this act. If the immediate report has been

made using the online reporting system and that report includes the

information required in a written report under subsection (2), that

report is considered a written report for the purposes of this

section and no additional written report is required. 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 or

electronic 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 child neglect shall make

a report of suspected child abuse or child 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 or a report made using the online

reporting system shall contain the name of the child and a

description of the child abuse or child 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 child abuse or child neglect, and the manner in

which the child abuse or child 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.~~centralized intake.

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

or child 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, 145c, 462a to 462h, or 520b to 520g of

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

750.462a to 750.462h, 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 child abuse or child 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 child abuse or child 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) relieves 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~~ sexually

transmitted infection in a child who is over 1 month of age but

less than 12 years of age is reasonable cause to suspect child

abuse or child neglect has 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

child neglect or a legally mandated public or private child

protective agency or foster care agency prosecuting a disciplinary

action against its own employee involving child protective services

or foster records.

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

report of known or suspected child abuse or child neglect.

reasonably suspects may be abused or neglected.

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

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

reasonably suspects may be abused or neglected and the confidential

record is necessary to determine whether to place the child in

protective custody.

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

multidisciplinary case consultation team, authorized to diagnose,

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

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

child's health or welfare.

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

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

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

reporting person is protected as provided in section 5.

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

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

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

or 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.

Senate Bill No. 334 as amended February 24, 2016

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.

(u) A department employee actively representing himself or

herself in a disciplinary action, a labor union representative who

is actively representing a department employee in a disciplinary

action, or an arbitrator or administrative law judge conducting a

hearing involving a department employee's dereliction, malfeasance,

or misfeasance of duty, for use solely in connection with that

action or hearing. Information disclosed under this subdivision

shall be returned not later than 10 days after the conclusion of

the action or hearing. A recipient shall not receive further

disclosures under this subdivision while he or she retains

disclosed information beyond the deadline specified for return.

[(v) A federal or state governmental agency that may, by law,

conduct an audit or similar review of the department's activities under

this act.

]

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

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

information available only to a person or entity described in

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

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

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

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

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

after the classification, shall notify in writing each person who

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

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

return receipt requested, and delivery restricted to the addressee.

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

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

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

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

reporting the suspected child abuse or child neglect.

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

under this act may request the department to amend an inaccurate

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

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

may request the department to expunge from the central registry a

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

under this act may, within 180 days from the date of service of

notice of the right to a hearing, request the department hold a

hearing to review the request for amendment or expunction. If the

hearing request is made within 180 days of the notice, the

department shall hold a hearing to determine by a preponderance of

the evidence whether the report or record in whole or in part

should be amended or expunged from the central registry. The

hearing shall be held before a hearing officer appointed by the

department and shall be conducted as prescribed by the

administrative procedures act of 1969, 1969 PA 306, MCL 24.201 to

24.328. The department may, for good cause, hold a hearing under

this subsection if the department determines that the person who is

the subject of the report or record submitted the request for a

hearing within 60 days after the 180-day notice period expired.

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

does not show child abuse or child neglect by a preponderance of

evidence, or if a court dismisses a petition based on the merits of

the petition filed under section 2(b) of chapter XIIA of the

probate code of 1939, 1939 PA 288, MCL 712A.2, because the

petitioner has failed to establish that the child comes within the

jurisdiction of the court, the information identifying the subject

of the report shall be expunged from the central registry. If a

preponderance of evidence of abuse or neglect exists, or if a court

takes jurisdiction of the child under section 2(b) of chapter XIIA

of the probate code of 1939, 1939 PA 288, MCL 712A.2, the

department shall maintain the information in the central registry

as follows:

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

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

result of an investigation or as a result of the reclassification

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

central registry for 10 years.

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

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

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

information in the central registry until the department receives

reliable information that the perpetrator of the abuse or neglect

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

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

using the United States social security death index database.

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

~~added this subdivision,~~ March 31, 2015 the following applies:

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

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

as a result of an investigation or as a result of the

reclassification of a case, the department may remove the

information for a person described in this subparagraph after 10

years without a request for amendment or expunction.

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

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

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

information in the central registry until the department receives

reliable information that the perpetrator of the child abuse or

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

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

obtained using the United States social security death index

database.

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

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

enforcement agency related to an ongoing investigation of suspected

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

department from releasing reports of convictions of crimes related

to child abuse or child neglect.

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

not disclose identifying information about a specific child

protection case to an individual, partnership, corporation,

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

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

council, commission, or statutorily created task force of a

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

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

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

to 15.246.

(10) Documents, reports, or records authored by or obtained

from another agency or organization shall not be released or open

for inspection under subsection (2) unless required by other state

or federal law, in response to an order issued by a judge,

magistrate, or other authorized judicial officer, or unless the

documents, reports, or records are requested for a child abuse or

child neglect case or for a criminal investigation of a child abuse

or child neglect case conducted by law enforcement.