AN ACT Relating to child abuse; amending RCW 26.44.010, 26.44.020, 26.44.030, 26.44.040, 26.44.050, 26.44.053, 26.44.056, 26.44.060, and 26.44.070; adding a new section to chapter 26.44 RCW; and prescribing penalties.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:

Sec. 1. Section 1, chapter 13, Laws of 1965 as last amended by section 1, chapter 97, Laws of 1984 and RCW 26.44.010 are each amended to read as follows:

The Washington state legislature finds and declares: The family unit is the fundamental resource of American life which should be nurtured and should remain intact in the absence of compelling evidence to the contrary. The bond between a child and his or her parent, custodian, or guardian is of paramount importance, and any intervention into the life of a child is also an intervention into the life of the parent, custodian, or guardian; however, instances of nonaccidental injury, neglect, death, sexual abuse and cruelty to children by their parents, custodians or guardians have occurred, and in the instance where a child is deprived of his or her right to conditions of minimal nurture, health, and safety, the state is justified in emergency intervention based upon verified information; and therefore the Washington state legislature hereby provides for the reporting of such cases to the appropriate public authorities. It is the intent of the legislature that, as a result of such reports, protective services shall be made available in an effort to prevent further abuses, and to safeguard the general welfare of such children: PROVIDED, That such reports shall be maintained and disseminated with strictest regard for the privacy of the subjects of such reports and so as to safeguard against arbitrary, malicious or erroneous information or actions: PROVIDED FURTHER, That this chapter shall not be construed to authorize interference with child-raising practices, including reasonable parental discipline, which are not proved to be injurious to the child's health((~~, welfare~~)) and safety.

Adult dependent persons not able to provide for their own protection through the criminal justice system shall also be afforded the protection offered children through the reporting and investigation requirements mandated in this chapter.

Sec. 2. Section 2, chapter 13, Laws of 1965 as last amended by section 2, chapter 97, Laws of 1984 and RCW 26.44.020 are each amended to read as follows:

For the purpose of and as used in this chapter:

(1) "Court" means the superior court of the state of Washington, juvenile department.

(2) "Law enforcement agency" means the police department, the prosecuting attorney, the state patrol, the director of public safety, or the office of the sheriff.

(3) "Practitioner of the healing arts" or "practitioner" means a person licensed by this state to practice podiatry, optometry, chiropractic, nursing, dentistry, osteopathy and surgery, or medicine and surgery. The term "practitioner" shall include a duly accredited Christian Science practitioner: PROVIDED, HOWEVER, That a person who is being furnished Christian Science treatment by a duly accredited Christian Science practitioner shall not be considered, for that reason alone, a neglected person for the purposes of this chapter.

(4) "Institution" means a private or public hospital or any other facility providing medical diagnosis, treatment or care.

(5) "Department" means the state department of social and health services.

(6) "Child" or "children" means any person under the age of eighteen years of age.

(7) "Professional school personnel" shall include, but not be limited to, teachers, counselors, administrators, child care facility personnel, and school nurses.

(8) "Social worker" shall mean anyone engaged in a professional capacity during the regular course of employment in encouraging or promoting the health, welfare, support or education of children, or providing social services to adults or families, whether in an individual capacity, or as an employee or agent of any public or private organization or institution.

(9) "Psychologist" shall mean any person licensed to practice psychology under chapter 18.83 RCW, whether acting in an individual capacity or as an employee or agent of any public or private organization or institution.

(10) "Pharmacist" shall mean any registered pharmacist under the provisions of chapter 18.64 RCW, whether acting in an individual capacity or as an employee or agent of any public or private organization or institution.

(11) "Clergy" shall mean any regularly licensed or ordained minister, priest or rabbi of any church or religious denomination, whether acting in an individual capacity or as an employee or agent of any public or private organization or institution.

(12) (("Child abuse or neglect" shall mean the injury, sexual abuse, sexual exploitation, or negligent treatment or maltreatment of a child by any person under circumstances which indicate that the child's health, welfare, and safety is harmed thereby. An abused child is a child who has been subjected to child abuse or neglect as defined herein: PROVIDED, That this subsection shall not be construed to authorize interference with child-raising practices, including reasonable parental discipline, which are not proved to be injurious to the child's health, welfare, and safety.

~~(13)~~)) "Child protective services section" shall mean the child protective services section of the department.

((~~(14)~~)) (13) "Adult dependent persons not able to provide for their own protection through the criminal justice system" shall be defined as those persons over the age of eighteen years who have been found legally incompetent pursuant to chapter 11.88 RCW or found disabled to such a degree pursuant to said chapter, that such protection is indicated: PROVIDED, That no persons reporting injury, abuse, or neglect to an adult dependent person as defined herein shall suffer negative consequences if such a judicial determination of incompetency or disability has not taken place and the person reporting believes in good faith that the adult dependent person has been found legally incompetent pursuant to chapter 11.88 RCW.

((~~(15)~~)) (14) "Sexual exploitation" includes: (a) Allowing, permitting, or encouraging a child to engage in prostitution by any person; or (b) allowing, permitting, encouraging, or engaging in the obscene or pornographic photographing, filming, or depicting of a child for commercial purposes as those acts are defined by state law by any person.

(((16) "Negligent treatment or maltreatment" means an act or omission which evidences a serious disregard of consequences of such magnitude as to constitute a clear and present danger to the child's health, welfare, and safety.))

(15) "Abused child" means a child, less than eighteen years of age, whose parent or other person legally responsible for his or her care:

(a) Inflicts or allows to be inflicted upon such child physical injury by other than accidental means that causes or creates a substantial risk of death, or serious or protracted disfigurement, or protracted impairment of physical health, or protracted loss or impairment of the function of any bodily organ;

(b) Creates or allows to be created a substantial risk of physical injury to such child by other than accidental means that would be likely to cause death or serious or protracted disfigurement, or protracted impairment of physical health, or protracted loss or impairment of the function of any bodily organ;

(d) Wrongfully deprives a child of his or her rights to property, home, or family relationships.

(16) "Neglected or maltreated child" means a child, less than eighteen years of age;

(a) Whose physical condition has been impaired or is in imminent danger of becoming impaired as a result of the failure of his or her parent or other person legally responsible for his or her care to exercise a minimum degree of care:

(i) In supplying the child with adequate food, clothing, shelter, or education as required by law, or medical, dental, optometrical, or surgical care, though financially able to do so or offered financial or other reasonable means to do so; or

(ii) In providing the child with proper supervision or guardianship, by unreasonably inflicting or allowing to be inflicted harm, or a substantial risk thereof, including the infliction of excessive corporal punishment, or by misusing a drug or drugs, or by misusing alcoholic beverages to the extent that the parent or other person legally responsible loses self-control of his or her actions, or by any other acts of a similarly serious nature requiring the aid of the court, however, if the parent or other person legally responsible is voluntarily and regularly participating in a rehabilitative program, evidence that the parent or other person legally responsible has repeatedly misused a drug or drugs or alcoholic beverages to the extent that he or she loses self-control of his or her actions shall not alone establish that the child is a neglected child in the absence of evidence establishing that the child's physical, mental, or emotional condition has been impaired or that the child is in imminent physical danger of becoming impaired;

(b) Who has been abandoned by his or her parents or other person legally responsible for his or her care; or

(17) "Monitoring" means the active continued involvement of the local district's child protective services with those indicated cases of child abuse and maltreatment that are open but where the child protective services workers are not the primary service provider for the case. The purpose of such involvement is to ensure that the established plan for services addresses the health and safety of the child, the reason for the indication of the case, and that the established plan for services is being implemented by the services providers.

(18) "Monitor" refers to the employee of the child protective services who monitors the services being provided by someone other than that employee to the subjects of an indicated case of child abuse or maltreatment that is open.

(19) "Reasonable parental discipline" refers to all commonly accepted forms of parental discipline by the community including spanking on the buttocks with a neutral object so as not to leave medically significant injuries.

(20) "Excessive corporal punishment" refers to striking the body with the hand or a neutral object on areas other than the buttocks so as to leave medically significant injuries as determined by a licensed physician.

Sec. 3. Section 3, chapter 13, Laws of 1965 as last amended by section 2, chapter 259, Laws of 1985 and RCW 26.44.030 are each amended to read as follows:

(1) When any practitioner, professional school personnel, registered or licensed nurse, social worker, psychologist, pharmacist, or employee of the department has ((~~reasonable~~)) compelling cause to believe that a child or adult dependent person ((~~has suffered~~)) is suffering abuse or neglect, he or she shall report such incident, or cause a report to be made, to ((~~the proper~~)) a law enforcement agency ((~~or to the department~~)) as provided in RCW 26.44.040. The report shall be made at the first opportunity, but in no case longer than forty-eight hours after there is ((~~reasonable~~)) compelling cause to believe that the child or adult ((~~has suffered~~)) is suffering abuse or neglect.

(2) Any other person who has ((~~reasonable~~)) compelling cause to believe that a child or adult dependent person ((~~has suffered~~)) is suffering abuse or neglect may report such incident to ((~~the proper~~)) a law enforcement agency ((~~or to the department of social and health services~~)) as provided in RCW 26.44.040.

(3) ((The department, upon receiving a report of an incident of abuse or neglect pursuant to this chapter, involving a child or adult dependent person who has died or has had physical injury or injuries inflicted upon him other than by accidental means or who has been subjected to sexual abuse, shall report such incident in writing to the proper law enforcement agency.

~~(4)~~)) Any law enforcement agency receiving a report of an incident of abuse or neglect pursuant to this chapter, involving a child or adult dependent person who has died or has had physical injury or injuries inflicted upon him or her other than by accidental means or reasonable parental discipline, or who has been subjected to sexual abuse, shall report such incident in writing as provided in RCW 26.44.040 to the proper county prosecutor or city attorney for appropriate action whenever the law enforcement agency's investigation reveals that a crime may have been committed. The law enforcement agency shall also notify in writing as provided in RCW 26.44.040 the department of all reports received and of the ((~~law enforcement agency's~~)) disposition of ((~~them~~)) each report.

(4) The law enforcement agency or the department upon receipt of such a report shall arrange to interview the person making the report within twenty-four hours to determine the validity of the report and gather more facts on the case as provided in section 5 of this 1986 act.

(5) Any county prosecutor or city attorney receiving a report under subsection ((~~(4)~~)) (3) of this section shall notify the victim, any persons the victim requests, and the local office of the department, of the decision to charge or decline to charge a crime, within five days of making the decision.

Sec. 4. Section 4, chapter 13, Laws of 1965 as last amended by section 4, chapter 97, Laws of 1984 and RCW 26.44.040 are each amended to read as follows:

An immediate oral report shall be made by telephone or otherwise to ((~~the proper~~)) a law enforcement agency ((~~or the department of social and health services~~)) and((~~, upon request,~~)) shall be followed by a report in writing. Such reports shall contain the following information, if known:

(1) The name, address, and age of the child or adult dependent person;

(2) The name and address of the child's parents, stepparents, guardians, or other persons having custody of the child or the residence of the adult dependent person;

(3) The nature and extent of the injury or injuries;

(4) The nature and extent of the neglect;

(5) The nature and extent of the sexual abuse;

(6) Any evidence of previous injuries, including their nature and extent; ((~~and~~))

(7) The name, address, phone number, and place of employment of the person making the report, which information shall remain confidential unless required by law in a judicial proceeding to insure due process of law for the accused; and

(8) Any other information which may be helpful in establishing the cause of the child's or adult dependent person's death, injury, or injuries and the identity of the perpetrator or perpetrators.

NEW SECTION. Sec. 5. A new section is added to chapter 26.44 RCW to read as follows:

Child protective services shall commence an appropriate investigation of each report of child abuse, neglect, or maltreatment within twenty-four hours after receiving a child abuse, neglect, or maltreatment report. Within twenty-four hours of receiving a child abuse, neglect, or maltreatment report, the child protective services shall conduct a face-to-face contact or a telephone contact with the subjects of the report or other persons in a position to assess the immediate risk to the child of physical harm. The full child protective investigation shall include the following activities:

(1) Face-to-face interviews with subjects of the report and family members of such subjects;

(2) Face-to-face interviews with the person filing the report so as to obtain more facts and determine the validity of the report;

(3) The obtaining of information from the reporting sources and other collateral contacts such as hospitals, schools, police, and social service agencies;

(4) An evaluation of the environment of the child named in the report and any other children in the home and a determination of the risk to such children if they continue to remain in the existing home environment;

(5) A determination of the nature, extent, and cause of any condition enumerated in such report and any other condition that may constitute abuse or maltreatment;

(6) Obtaining the name, age, and condition of other children in the home;

(7) After seeing that the child or children named in the report are safe, notifying the subjects of the report in writing, no later than seven days after receipt of the oral report, of the existence of the report, and their rights under chapter 13.34 RCW.

Sec. 6. Section 5, chapter 13, Laws of 1965 as last amended by section 5, chapter 97, Laws of 1984 and RCW 26.44.050 are each amended to read as follows:

Upon the receipt of a report concerning the possible occurrence of abuse or neglect, it shall be the duty of the law enforcement agency or the department of social and health services to investigate and provide the protective services section with a report in accordance with the provision of chapter 74.13 RCW, and where necessary to refer such report to the court.

Only a law enforcement officer may take((~~, or cause to be taken,~~)) a child into custody without a court order if there is ((~~probable~~)) compelling cause to believe that the child is abused or neglected and that the child would be ((~~injured~~)) in immediate physical danger or could not be taken into custody if it were necessary to first obtain a court order pursuant to RCW 13.34.050. Notwithstanding the provisions of RCW 13.04.130 as now or hereafter amended, the law enforcement agency or the department of social and health services investigating such a report ((~~is hereby authorized to~~)) shall photograph visible injuries to such a child or adult dependent person for the purpose of providing documentary evidence of the physical condition of the child or disabled person.

All investigative interviews with children or adults in cases of suspected abuse or neglect shall be videotaped and made available to all parties concerned in subsequent hearings or judicial proceedings. This provision does not cover the initial interview with the person filing the report of abuse or neglect under RCW 26.44.030.

Sec. 7. Section 8, chapter 217, Laws of 1975 1st ex. sess. and RCW 26.44.053 are each amended to read as follows:

(1) In any judicial proceeding in which it is alleged that a child has been subjected to child abuse or neglect the court shall appoint a guardian ad litem for the child: PROVIDED, That the requirement of a guardian ad litem shall be deemed satisfied if the child is represented by counsel in the proceedings.

(2) At any time prior to or during a hearing in such a case, when the court finds upon clear, cogent and convincing evidence that an incident of child abuse or neglect has recently occurred, the court may, on its own motion, or the motion of the guardian ad litem, or other parties, order the examination by a licensed physician, psychologist or psychiatrist, of any parent or child or other person having custody of the child at the time of the alleged child abuse or neglect, if the court finds such an examination is necessary to the proper determination of the case. The person to be examined has the right to choose the licensed physician, psychologist, or psychiatrist that will examine him or her. The hearing may be continued pending the completion of such examination. The physician, psychologist or psychiatrist conducting such an examination ((~~may be required to~~)) shall testify in the dispositional hearing concerning the results of such examination and ((~~may be asked to~~)) shall give his or her opinion consistent with the legislative purpose stated in RCW 26.44.010 as to whether the protection of the child requires that he or she not be returned to the custody of his or her parents or other persons having custody of him or her at the time of the alleged child abuse or neglect. Persons so testifying shall be subject to cross-examination as are other witnesses. No testimony given at any such examination of the parent or any other person having custody of the child may be used against such person in any subsequent criminal proceedings against such person or custodian concerning the abuse or neglect of the child.

(3) A parent or other person having legal custody of a child alleged to be a child subjected to abuse or neglect shall be a party to any proceeding, including preliminary investigations, that may as a practical matter impair or impede such person's interest in custody or control of his or her child, or the child's rights to property, home, and family relationships.

(4) A parent or other person having legal custody of a child alleged to be abused or neglected shall receive information as to his or her rights at the time of the initial investigation, but no later than twenty-four hours from the time of initial contact with the family or other persons involved.

Sec. 8. Section 9, chapter 217, Laws of 1975 1st ex. sess. as last amended by section 3, chapter 246, Laws of 1983 and RCW 26.44.056 are each amended to read as follows:

(1) An administrator of a hospital or similar institution or any physician, licensed pursuant to chapters 18.71 or 18.57 RCW, may detain a child without consent of a person legally responsible for the child whether or not medical treatment is required, if the circumstances or conditions of the child are such that the detaining individual has ((~~reasonable~~)) compelling cause to believe that permitting the child to continue in his or her place of residence or in the care and custody of the parent, guardian, custodian or other person legally responsible for the child's care would present an imminent danger to that child's safety: PROVIDED, That such administrator or physician shall notify or cause to be notified the appropriate law enforcement agency or child protective services pursuant to RCW 26.44.040. Such notification shall be made as soon as possible and in no case longer than ((~~seventy-two~~)) two hours. Such temporary protective custody by an administrator or doctor shall not be deemed an arrest. Child protective services may detain the child until the court assumes custody, but in no case longer than seventy-two hours, excluding Saturdays, Sundays, and holidays.

(2) Whenever an administrator or physician has ((~~reasonable~~)) compelling cause to believe that a child would be in imminent physical danger if released to a parent, guardian, custodian, or other person or is in imminent physical danger if left in the custody of a parent, guardian, custodian, or other person, the administrator or physician may notify a law enforcement agency and the law enforcement agency shall take the child into custody ((~~or cause the child to be taken into custody~~)). The law enforcement agency shall release the child to the custody of child protective services. Child protective services shall detain the child until the court assumes custody or upon a documented and substantiated record that in the professional judgment of the child protective services the child's safety will not be endangered if the child is returned. If the child is returned, the department shall establish a six-month plan to monitor and assure the continued safety of the child's life or health. The monitoring period may be extended for good cause.

(3) A child protective services employee, an administrator, doctor, or law enforcement officer shall not be held liable in any civil action for the decision for taking the child into custody, if done in good faith under this section.

Sec. 9. Section 6, chapter 13, Laws of 1965 as last amended by section 9, chapter 129, Laws of 1982 and RCW 26.44.060 are each amended to read as follows:

(1) Any person participating in good faith in the making of a report pursuant to this chapter or testifying as to alleged child abuse or neglect in a judicial proceeding shall in so doing be immune from any liability arising out of such reporting or testifying under any law of this state or its political subdivisions.

(2) An administrator of a hospital or similar institution or any physician licensed pursuant to chapters 18.71 or 18.57 RCW taking a child into custody pursuant to RCW 26.44.056 shall not be subject to criminal or civil liability for such taking into custody.

(3) Conduct conforming with the reporting requirements of this chapter shall not be deemed a violation of the confidential communication privilege of RCW 5.60.060 (3) and (4), 18.53.200 and 18.83.110. Nothing in this chapter shall be construed as to supersede or abridge remedies provided in chapter 4.92 RCW.

(4) Any person found to have acted in bad faith or maliciously in the making of a report, participating in the investigation, or testifying in a judicial proceeding shall be guilty of a gross misdemeanor. Such persons have no rights under this chapter.

Sec. 10. Section 6, chapter 35, Laws of 1969 ex. sess. as last amended by section 6, chapter 97, Laws of 1984 and RCW 26.44.070 are each amended to read as follows:

The department shall maintain a central registry of ((~~reported~~)) adjudicated cases of child abuse or abuse of an adult dependent person and shall adopt such rules and regulations as necessary in carrying out the provisions of this section. Records in the central registry shall be considered confidential and privileged and will not be available except upon court order to any person or agency except (1) law enforcement agencies as defined in this chapter in the course of an investigation of alleged abuse or neglect; (2) protective services workers or juvenile court personnel who are investigating reported incidents of abuse or neglect; (3) department of social and health services personnel who are investigating the character and/or suitability of an agency and other persons who are applicants for licensure, registration, or certification, or applicants for employment with such an agency or persons, or under contract to or employed by an agency or persons directly responsible for the care and treatment of children, expectant mothers, or adult dependent persons pursuant to chapter 74.15 RCW; (4) department of social and health services personnel who are investigating the character or suitability of any persons with whom children may be placed under the interstate compact on the placement of children, chapter 26.34 RCW; (5) physicians who are treating the child or adult dependent person or family; (6) any child or adult dependent person named in the registry who is alleged to be abused or neglected, or his or her guardian ad litem and/or attorney; (7) a parent, guardian, or other person legally responsible for the welfare and safety of the child or adult dependent person named in the registry; (8) any person engaged in a bona fide research purpose, as determined by the ((~~department~~)) court, according to rules and regulations, provided that information identifying the persons of the registry shall remain privileged; and (9) any individual whose name appears on the registry shall have access to his or her own records. Those persons or agencies exempted by this section from the confidentiality of the records of the registry shall not further disseminate or release such information so provided to them and shall respect the confidentiality of such information, and any violation of this section shall constitute a misdemeanor.