BILL REQ. #:  H-1173.2 

Read first time 01/28/11.   Referred to Committee on Judiciary.

     AN ACT Relating to child abuse investigations and proceedings; amending RCW 26.44.010 and 26.44.125; adding a new section to chapter 26.44 RCW; and adding a new section to chapter 4.24 RCW.

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

NEW SECTION.  Sec. 1   A new section is added to chapter 26.44 RCW to read as follows:
     The legislature finds that judicial interpretation of child abuse investigation statutes has imposed potentially irreconcilable duties on the department of social and health services and governmental entities that are obligated to investigate child abuse and neglect referrals. Courts have ruled that investigators of child abuse allegations have the obligation to protect children by removing them from unsafe homes but also have ruled that these same statutes establish an equal duty to protect the family unit, even where the parent is the alleged abuser. The legislature finds that concerns about tort liability arising from these conflicting duties impair investigators' ability to perform their statutory obligations. While recognizing the rights of parents and the importance of the family unit, the legislature finds that the paramount purpose of this chapter is to benefit children. When the child's interests of basic nurture, physical and mental health, and safety conflict with the parents' interests, the interests of the child should prevail. In conducting investigations under this chapter, safety of the child during or immediately after the investigation shall be the department's paramount concern.
     The legislature expressly intends to:
     (1) Overrule Tyner v. DSHS and other cases in which the courts have held that this chapter creates an implied right of action for parents or other caretakers who are alleged abusers;
     (2) Codify the portions of the holdings in M.W. v. DSHS and Roberson v. Perez that tort liability arising out of this chapter is confined to the initial placement decision and not the manner in which the investigation was conducted;
     (3) Clarify that (a) child abuse investigators are entitled to the same witness immunity as other witnesses in court proceedings; and (b) liability shall not be imposed on the state in cases where the department or child abuse investigators are following orders of the court.
     (4) Have the interests of the parents protected through the judicial review and other procedures established pursuant to RCW 26.44.100 through 26.44.125 and chapter 13.34 RCW.

Sec. 2   RCW 26.44.010 and 1999 c 176 s 27 are each amended to read as follows:
     The Washington state legislature finds and declares: 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)). When the child's interests of basic nurture, physical and mental health, and safety conflict with the parents' interests, the interests of the child should prevail. When determining whether a parent and child should be separated during or immediately following an investigation of alleged child abuse or neglect, the safety of the child shall be the department's paramount concern. Reports of child abuse and neglect 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.

NEW SECTION.  Sec. 3   A new section is added to chapter 4.24 RCW to read as follows:
     (1) Governmental entities, and their officers, agents, employees, and volunteers, are not liable in tort to alleged perpetrators of abuse or neglect for acts or omissions in investigation of reports of child abuse under chapter 26.44 RCW.
     (2) The duty to conduct a reasonable investigation of child abuse or neglect upon a referral runs only to children who are the subject of a referral under chapter 26.44 RCW and is limited to the duty to act reasonably when making a placement decision during or immediately following the investigation.
     (3) The department and its employees shall comply with the orders of the court, including shelter care and other dependency orders, and are not liable for acts performed to comply with such court orders. In providing reports and recommendations to the court, caseworkers are entitled to the same witness immunity as would be provided to any other witness.

Sec. 4   RCW 26.44.125 and 1998 c 314 s 9 are each amended to read as follows:
     (1) A person who is named as an alleged perpetrator after October 1, 1998, in a founded report of child abuse or neglect has the right to seek review and amendment of the finding as provided in this section. Nothing in this chapter creates any other cause of action or right of review for a person who is named as an alleged perpetrator of child abuse or neglect.
     (2) Within twenty calendar days after receiving written notice from the department under RCW 26.44.100 that a person is named as an alleged perpetrator in a founded report of child abuse or neglect, he or she may request that the department review the finding. The request must be made in writing. If a request for review is not made as provided in this subsection, the alleged perpetrator may not further challenge the finding and shall have no right to agency review or to an adjudicative hearing or judicial review of the finding.
     (3) Upon receipt of a written request for review, the department shall review and, if appropriate, may amend the finding. Management level staff within the children's administration designated by the secretary shall be responsible for the review. The review must be conducted in accordance with procedures the department establishes by rule. Upon completion of the review, the department shall notify the alleged perpetrator in writing of the agency's determination. The notification must be sent by certified mail, return receipt requested, to the person's last known address.
     (4) If, following agency review, the report remains founded, the person named as the alleged perpetrator in the report may request an adjudicative hearing to contest the finding. The adjudicative proceeding is governed by chapter 34.05 RCW and this section. The request for an adjudicative proceeding must be filed within thirty calendar days after receiving notice of the agency review determination. If a request for an adjudicative proceeding is not made as provided in this subsection, the alleged perpetrator may not further challenge the finding and shall have no right to agency review or to an adjudicative hearing or judicial review of the finding.
     (5) Reviews and hearings conducted under this section are confidential and shall not be open to the public. Information about reports, reviews, and hearings may be disclosed only in accordance with federal and state laws pertaining to child welfare records and child protective services reports.
     (6) The department may adopt rules to implement this section.