BILL REQ. #:  S-1168.2 



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SENATE BILL 5922
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State of Washington59th Legislature2005 Regular Session

By Senators Stevens, Hargrove, Roach, Schmidt, Zarelli, Carrell and Finkbeiner

Read first time 02/15/2005.   Referred to Committee on Human Services & Corrections.



     AN ACT Relating to investigations of child abuse or neglect; amending RCW 26.44.030, 26.44.100, 26.44.110, 26.44.115, 26.44.120, and 13.34.062; adding a new section to chapter 43.20A RCW; and creating a new section.

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

NEW SECTION.  Sec. 1   It is the intent of the legislature to improve the quality and effectiveness of services to families and children. It is the intent of the legislature to ensure the state's continued receipt of federal funding and reduce the liability of the state by requiring the department of social and health services to train employees investigating child abuse and neglect in their duty to protect the statutory and constitutional rights of those they are investigating. It is also the intent of the legislature to require departmental employees investigating child abuse and neglect to advise individuals subject to child abuse and neglect investigations of the complaint or allegation made against them. Furthermore, it is the intent of the legislature to ensure the integrity of medical and other health care records used by the state to evaluate the risk of harm to children in their care.

NEW SECTION.  Sec. 2   A new section is added to chapter 43.20A RCW to read as follows:
     The training of child protective workers shall include but is not limited to the worker's legal duties to protect the constitutional and statutory rights of a child and the child's family member throughout the child and family member's period of involvement with the department beginning with the child abuse report and ending with the department's closure of the case. The curriculum used for the training shall specifically include instruction on the fourth amendment to the Constitution of the United States and parents' legal rights.

Sec. 3   RCW 26.44.030 and 2003 c 207 s 4 are each amended to read as follows:
     (1)(a) When any practitioner, county coroner or medical examiner, law enforcement officer, professional school personnel, registered or licensed nurse, social service counselor, psychologist, pharmacist, licensed or certified child care providers or their employees, employee of the department, juvenile probation officer, placement and liaison specialist, responsible living skills program staff, HOPE center staff, or state family and children's ombudsman or any volunteer in the ombudsman's office has reasonable cause to believe that a child has suffered abuse or neglect, he or she shall report such incident, or cause a report to be made, to the proper law enforcement agency or to the department as provided in RCW 26.44.040.
     (b) The reporting requirement also applies to department of corrections personnel who, in the course of their employment, observe offenders or the children with whom the offenders are in contact. If, as a result of observations or information received in the course of his or her employment, any department of corrections personnel has reasonable cause to believe that a child has suffered abuse or neglect, he or she shall report the incident, or cause a report to be made, to the proper law enforcement agency or to the department as provided in RCW 26.44.040.
     (c) The reporting requirement shall also apply to any adult who has reasonable cause to believe that a child who resides with them, has suffered severe abuse, and is able or capable of making a report. For the purposes of this subsection, "severe abuse" means any of the following: Any single act of abuse that causes physical trauma of sufficient severity that, if left untreated, could cause death; any single act of sexual abuse that causes significant bleeding, deep bruising, or significant external or internal swelling; or more than one act of physical abuse, each of which causes bleeding, deep bruising, significant external or internal swelling, bone fracture, or unconsciousness.
     (d) The report must be made at the first opportunity, but in no case longer than forty-eight hours after there is reasonable cause to believe that the child has suffered abuse or neglect. The report must include the identity of the accused if known.
     (2) The reporting requirement of subsection (1) of this section does not apply to the discovery of abuse or neglect that occurred during childhood if it is discovered after the child has become an adult. However, if there is reasonable cause to believe other children are or may be at risk of abuse or neglect by the accused, the reporting requirement of subsection (1) of this section does apply.
     (3) Any other person who has reasonable cause to believe that a child has suffered abuse or neglect may report such incident to the proper law enforcement agency or to the department of social and health services as provided in RCW 26.44.040.
     (4) The department, upon receiving a report of an incident of alleged abuse or neglect pursuant to this chapter, involving a child who has died or has had physical injury or injuries inflicted upon him or her other than by accidental means or who has been subjected to alleged sexual abuse, shall report such incident to the proper law enforcement agency. In emergency cases, where the child's welfare is endangered, the department shall notify the proper law enforcement agency within twenty-four hours after a report is received by the department. In all other cases, the department shall notify the law enforcement agency within seventy-two hours after a report is received by the department. If the department makes an oral report, a written report must also be made to the proper law enforcement agency within five days thereafter.
     (5) Any law enforcement agency receiving a report of an incident of alleged abuse or neglect pursuant to this chapter, involving a child who has died or has had physical injury or injuries inflicted upon him or her other than by accidental means, or who has been subjected to alleged 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 the department of all reports received and the law enforcement agency's disposition of them. In emergency cases, where the child's welfare is endangered, the law enforcement agency shall notify the department within twenty-four hours. In all other cases, the law enforcement agency shall notify the department within seventy-two hours after a report is received by the law enforcement agency.
     (6) Any county prosecutor or city attorney receiving a report under subsection (5) 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.
     (7) The department may conduct ongoing case planning and consultation with those persons or agencies required to report under this section, with consultants designated by the department, and with designated representatives of Washington Indian tribes if the client information exchanged is pertinent to cases currently receiving child protective services. Upon request, the department shall conduct such planning and consultation with those persons required to report under this section if the department determines it is in the best interests of the child. Information considered privileged by statute and not directly related to reports required by this section must not be divulged without a valid written waiver of the privilege.
     (8) Any case referred to the department by a physician licensed under chapter 18.57 or 18.71 RCW on the basis of an expert medical opinion that child abuse, neglect, or sexual assault has occurred and that the child's safety will be seriously endangered if returned home, the department shall file a dependency petition unless a second licensed physician of the parents' choice believes that such expert medical opinion is incorrect. If the parents fail to designate a second physician, the department may make the selection. If a physician finds that a child has suffered abuse or neglect but that such abuse or neglect does not constitute imminent danger to the child's health or safety, and the department agrees with the physician's assessment, the child may be left in the parents' home while the department proceeds with reasonable efforts to remedy parenting deficiencies.
     (9) Persons or agencies exchanging information under subsection (7) of this section shall not further disseminate or release the information except as authorized by state or federal statute. Violation of this subsection is a misdemeanor.
     (10) Upon receiving reports of alleged abuse or neglect, the department or law enforcement agency may interview children. The interviews may be conducted on school premises, at day-care facilities, at the child's home, or at other suitable locations outside of the presence of parents. Parental notification of the interview must occur at the earliest possible point in the investigation that will not jeopardize the safety or protection of the child or the course of the investigation. If the parent is the subject of the abuse and neglect investigation, at the initial point of contact with the parent, all department of social and health services and law enforcement personnel must advise the parent of the complaints and allegations made against them consistent with the laws protecting the rights of the person making the report. Prior to commencing the interview the department or law enforcement agency shall determine whether the child wishes a third party to be present for the interview and, if so, shall make reasonable efforts to accommodate the child's wishes. Unless the child objects, the department or law enforcement agency shall make reasonable efforts to include a third party in any interview so long as the presence of the third party will not jeopardize the course of the investigation.
     (11) Upon receiving reports of alleged abuse and neglect, the department or law enforcement agency must interview the person subject to investigation of child abuse and neglect. All departmental or law enforcement agency personnel shall, at the initial time of contact with the individual who is subject to a child abuse and neglect investigation, advise the individual of the complaints or allegations made against them consistent with the laws protecting the rights of the person making the report.
     (12) Upon receiving a report of alleged child abuse and neglect, the department or investigating law enforcement agency shall have access to all relevant records of the child in the possession of mandated reporters and their employees.
     (((12))) (13) The department shall maintain investigation records and conduct timely and periodic reviews of all cases constituting abuse and neglect. The department shall maintain a log of screened-out nonabusive cases.
     (((13))) (14) The department shall use a risk assessment process when investigating alleged child abuse and neglect referrals. The department shall present the risk factors at all hearings in which the placement of a dependent child is an issue. Substance abuse must be a risk factor. The department shall, within funds appropriated for this purpose, offer enhanced community-based services to persons who are determined not to require further state intervention.
     (((14))) (15) Upon receipt of a report of alleged abuse or neglect the law enforcement agency may arrange to interview the person making the report and any collateral sources to determine if any malice is involved in the reporting.
     (((15))) (16) The department shall make reasonable efforts to learn the name, address, and telephone number of each person making a report of abuse or neglect under this section. The department shall provide assurances of appropriate confidentiality of the identification of persons reporting under this section. If the department is unable to learn the information required under this subsection, the department shall only investigate cases in which: (a) The department believes there is a serious threat of substantial harm to the child; (b) the report indicates conduct involving a criminal offense that has, or is about to occur, in which the child is the victim; or (c) the department has, after investigation, a report of abuse or neglect that has been founded with regard to a member of the household within three years of receipt of the referral.

Sec. 4   RCW 26.44.100 and 1998 c 314 s 8 are each amended to read as follows:
     (1) The legislature finds ((parents and children)) persons subject to a child abuse and neglect investigation often are not aware of their due process rights when agencies are investigating complaints and allegations of child abuse and neglect. The legislature reaffirms that all citizens, including parents, shall be afforded due process, that protection of children remains the priority of the legislature, and that this protection includes protecting the family unit from unnecessary disruption. To facilitate this goal, the legislature ((wishes to ensure that parents and children)) requires that persons subject to child abuse and neglect investigations, at the initial time of contact with the department or law enforcement, be advised in writing and orally, if feasible, of the name of the investigator, who the investigator represents, and the specific complaints or allegations made against them, consistent with the laws protecting the rights of the person making the report. They must also be advised of their basic statutory and constitutional rights and other specific information as set forth in this chapter, provided that nothing contained in this chapter shall cause any delay in protective custody action.
     (2) The department shall notify the ((alleged perpetrator)) person subject to a child abuse and neglect investigation of the complaints or allegations of child abuse and neglect at the earliest possible point in the investigation, but not later than the initial point of contact with the person subject to a child abuse and neglect investigation, consistent with laws protecting the rights of the person making the report, that will not jeopardize the safety and protection of the child or the investigation process.
     Whenever the department completes an investigation of a child abuse or neglect report under chapter 26.44 RCW, the department shall notify the ((alleged perpetrator)) person subject to a child abuse and neglect investigation of the report and the department's investigative findings. The notice shall also advise the alleged perpetrator that:
     (a) A written response to the report may be provided to the department and that such response will be filed in the record following receipt by the department;
     (b) Information in the department's record may be considered in subsequent investigations or proceedings related to child protection or child custody;
     (c) Founded reports of child abuse and neglect may be considered in determining whether the person is disqualified from being licensed to provide child care, employed by a licensed child care agency, or authorized by the department to care for children; and
     (d) ((An alleged perpetrator)) A person subject to a child abuse and neglect investigation named in a founded report of child abuse or neglect has the right to seek review of the finding as provided in this chapter.
     (3) The notification required by this section shall be made by certified mail, return receipt requested, to the person's last known address.
     (4) The duty of notification created by this section is subject to the ability of the department to ascertain the location of the person to be notified. The department shall exercise reasonable, good-faith efforts to ascertain the location of persons entitled to notification under this section.

Sec. 5   RCW 26.44.110 and 1985 c 183 s 3 are each amended to read as follows:
     If a child has been taken into custody by law enforcement pursuant to RCW 26.44.050, the law enforcement agency shall leave a written statement with a parent or in the residence of the parent if no parent is present. The statement shall advise the parent of the complaints or allegations made against them consistent with the laws protecting the rights of the person making the report and give the reasons for the removal of the child from the home, the name of the law enforcement investigator, and who the investigator represents, advice regarding their basic statutory and constitutional rights, and the telephone number of the child protective services office in the parent's jurisdiction.

Sec. 6   RCW 26.44.115 and 2000 c 122 s 39 are each amended to read as follows:
     If a child is taken into custody by child protective services pursuant to a court order issued under RCW 13.34.062, the child protective services worker shall take reasonable steps to advise the parents immediately, regardless of the time of day, of the complaints or allegations made against them consistent with the laws protecting the rights of the person making the report, that the child has been taken into custody, the reasons why the child was taken into custody, ((and)) general information about the child's placement, and advice regarding their basic statutory and constitutional rights. The department shall comply with RCW 13.34.060 when providing notice under this section.

Sec. 7   RCW 26.44.120 and 1985 c 183 s 5 are each amended to read as follows:
     Whenever the child protective services worker is required to notify parents and children of their basic statutory and constitutional rights and other specific information as set forth in RCW 26.44.105 through 26.44.115, the child protective services worker shall also make a reasonable effort to notify the noncustodial parent of the same information in a timely manner.

Sec. 8   RCW 13.34.062 and 2004 c 147 s 2 are each amended to read as follows:
     (1) The written notice of custody and rights required by RCW 13.34.060 shall be in substantially the following form:


     "NOTICE


     Your child has been placed in temporary custody under the supervision of Child Protective Services (or other person or agency). You have important legal rights and you must take steps to protect your interests.
     1. A court hearing will be held before a judge within 72 hours of the time your child is taken into custody excluding Saturdays, Sundays, and holidays. You should call the court at (insert appropriate phone number here) for specific information about the date, time, and location of the court hearing.
     2. You have the right to know of the complaints or allegations made against you consistent with the laws protecting the rights of the person making the report.
     3. You have the right to know your basic statutory and constitutional rights.
     4. You have the right to have a lawyer represent you at the hearing. Your right to representation continues after the shelter care hearing. You have the right to records the department intends to rely upon. A lawyer can look at the files in your case, talk to child protective services and other agencies, tell you about the law, help you understand your rights, and help you at hearings. If you cannot afford a lawyer, the court will appoint one to represent you. To get a court-appointed lawyer you must contact: (explain local procedure) .
     ((3.)) 5. At the hearing, you have the right to speak on your own behalf, to introduce evidence, to examine witnesses, and to receive a decision based solely on the evidence presented to the judge.
     ((4.)) 6. If your hearing occurs before a court commissioner, you have the right to have the decision of the court commissioner reviewed by a superior court judge. To obtain that review, you must, within ten days after the entry of the decision of the court commissioner, file with the court a motion for revision of the decision, as provided in RCW 2.24.050.
     You should be present at any shelter care hearing. If you do not come, the judge will not hear what you have to say.
     You may call the Child Protective Services' caseworker for more information about your child. The caseworker's name and telephone number are: (insert name and telephone number) .
     ((5.)) 7. You have a right to a case conference to develop a written service agreement following the shelter care hearing. The service agreement may not conflict with the court's order of shelter care. You may request that a multidisciplinary team, family group conference, or prognostic staffing be convened for your child's case. You may participate in these processes with your counsel present."

     Upon receipt of the written notice, the parent, guardian, or legal custodian shall acknowledge such notice by signing a receipt prepared by child protective services. If the parent, guardian, or legal custodian does not sign the receipt, the reason for lack of a signature shall be written on the receipt. The receipt shall be made a part of the court's file in the dependency action.
     If after making reasonable efforts to provide notification, child protective services is unable to determine the whereabouts of the parents, guardian, or legal custodian, the notice shall be delivered or sent to the last known address of the parent, guardian, or legal custodian.
     (2) If child protective services is not required to give notice under RCW 13.34.060(2) and subsection (1) of this section, the juvenile court counselor assigned to the matter shall make all reasonable efforts to advise the parents, guardian, or legal custodian of the time and place of any shelter care hearing, request that they be present, and inform them of their basic rights as provided in RCW 13.34.090.
     (3) Reasonable efforts to advise and to give notice, as required in RCW 13.34.060(2) and subsections (1) and (2) of this section, shall include, at a minimum, investigation of the whereabouts of the parent, guardian, or legal custodian. If such reasonable efforts are not successful, or the parent, guardian, or legal custodian does not appear at the shelter care hearing, the petitioner shall testify at the hearing or state in a declaration:
     (a) The efforts made to investigate the whereabouts of, and to advise, the parent, guardian, or legal custodian; and
     (b) Whether actual advice of rights was made, to whom it was made, and how it was made, including the substance of any oral communication or copies of written materials used.
     (4) The court shall hear evidence regarding notice given to, and efforts to notify, the parent, guardian, or legal custodian and shall examine the need for shelter care. The court shall hear evidence regarding the efforts made to place the child with a relative. The court shall make an express finding as to whether the notice required under RCW 13.34.060(2) and subsections (1) and (2) of this section was given to the parent, guardian, or legal custodian. All parties have the right to present testimony to the court regarding the need or lack of need for shelter care. Hearsay evidence before the court regarding the need or lack of need for shelter care must be supported by sworn testimony, affidavit, or declaration of the person offering such evidence.
     (5)(a) A shelter care order issued pursuant to RCW 13.34.065 shall include the requirement for a case conference as provided in RCW 13.34.067. However, if the parent is not present at the shelter care hearing, or does not agree to the case conference, the court shall not include the requirement for the case conference in the shelter care order.
     (b) If the court orders a case conference, the shelter care order shall include notice to all parties and establish the date, time, and location of the case conference which shall be no later than thirty days prior to the fact-finding hearing.
     (c) The court may order a conference or meeting as an alternative to the case conference required under RCW 13.34.067 so long as the conference or meeting ordered by the court meets all requirements under RCW 13.34.067, including the requirement of a written agreement specifying the services to be provided to the parent.
     (6) A shelter care order issued pursuant to RCW 13.34.065 may be amended at any time with notice and hearing thereon. The shelter care decision of placement shall be modified only upon a showing of change in circumstances. No child may be placed in shelter care for longer than thirty days without an order, signed by the judge, authorizing continued shelter care.
     (7) Any parent, guardian, or legal custodian who for good cause is unable to attend the initial shelter care hearing may request that a subsequent shelter care hearing be scheduled. The request shall be made to the clerk of the court where the petition is filed prior to the initial shelter care hearing. Upon the request of the parent, the court shall schedule the hearing within seventy-two hours of the request, excluding Saturdays, Sundays, and holidays. The clerk shall notify all other parties of the hearing by any reasonable means.

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