BILL REQ. #: H-1462.2
State of Washington | 58th Legislature | 2003 Regular Session |
Read first time 02/13/2003. Referred to Committee on Juvenile Justice & Family Law.
AN ACT Relating to providing the courts access to information in third-party custody petitions; amending RCW 13.50.100, 26.10.030, and 43.43.830; adding a new section to chapter 26.10 RCW; and adding a new section to chapter 26.50 RCW.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:
NEW SECTION. Sec. 1 A new section is added to chapter 26.10 RCW
to read as follows:
(1) Before granting any order regarding the custody of a child
under this chapter, the court shall consult the judicial information
system, if available, to determine the existence of any information and
proceedings that are relevant to the placement of the child.
(2) Before entering a final order, the court shall:
(a) Direct the department of social and health services to release
information as provided under RCW 13.50.100; and
(b) Require the petitioner to provide the results of an examination
of state and national criminal identification data provided by the
Washington state patrol criminal identification system as described in
chapter 43.43 RCW for the petitioner and adult members of the
petitioner's household.
Sec. 2 RCW 13.50.100 and 2001 c 162 s 2 are each amended to read
as follows:
(1) This section governs records not covered by RCW 13.50.050.
(2) Records covered by this section shall be confidential and shall
be released only pursuant to this section and RCW 13.50.010.
(3) Records retained or produced by any juvenile justice or care
agency may be released to other participants in the juvenile justice or
care system only when an investigation or case involving the juvenile
in question is being pursued by the other participant or when that
other participant is assigned the responsibility of supervising the
juvenile. Records covered under this section and maintained by the
juvenile courts which relate to the official actions of the agency may
be entered in the statewide judicial information system. However,
truancy records associated with a juvenile who has no other case
history, and records of a juvenile's parents who have no other case
history, shall be removed from the judicial information system when the
juvenile is no longer subject to the compulsory attendance laws in
chapter 28A.225 RCW. A county clerk is not liable for unauthorized
release of this data by persons or agencies not in his or her employ or
otherwise subject to his or her control, nor is the county clerk liable
for inaccurate or incomplete information collected from litigants or
other persons required to provide identifying data pursuant to this
section.
(4) Subject to (a) of this subsection, the department of social and
health services may release information retained in the course of
conducting child protective services investigations to a family or
juvenile court hearing a petition for custody under chapter 26.10 RCW.
(a) Information that may be released shall be limited to
information regarding investigations in which: (i) The juvenile was an
alleged victim of abandonment or abuse or neglect; or (ii) the
petitioner for custody of the juvenile, or any individual aged sixteen
or older residing in the petitioner's household, is the subject of a
founded or currently pending child protective services investigation
made by the department subsequent to October 1, 1998.
(b) Additional information may only be released with the written
consent of the subject of the investigation and the juvenile alleged to
be the victim of abandonment or abuse and neglect, or the parent,
custodian, guardian, or personal representative of the juvenile, or by
court order obtained with notice to all interested parties.
(5) Any disclosure of records or information by the department of
social and health services pursuant to this section shall not be deemed
a waiver of any confidentiality or privilege attached to the records or
information by operation of any state or federal statute or regulation,
and any recipient of such records or information shall maintain it in
such a manner as to comply with such state and federal statutes and
regulations and to protect against unauthorized disclosure.
(6) A contracting agency or service provider of the department of
social and health services that provides counseling, psychological,
psychiatric, or medical services may release to the office of the
family and children's ombudsman information or records relating to
services provided to a juvenile who is dependent under chapter 13.34
RCW without the consent of the parent or guardian of the juvenile, or
of the juvenile if the juvenile is under the age of thirteen years,
unless such release is otherwise specifically prohibited by law.
(((5))) (7) A juvenile, his or her parents, the juvenile's attorney
and the juvenile's parent's attorney, shall, upon request, be given
access to all records and information collected or retained by a
juvenile justice or care agency which pertain to the juvenile except:
(a) If it is determined by the agency that release of this
information is likely to cause severe psychological or physical harm to
the juvenile or his or her parents the agency may withhold the
information subject to other order of the court: PROVIDED, That if the
court determines that limited release of the information is
appropriate, the court may specify terms and conditions for the release
of the information; or
(b) If the information or record has been obtained by a juvenile
justice or care agency in connection with the provision of counseling,
psychological, psychiatric, or medical services to the juvenile, when
the services have been sought voluntarily by the juvenile, and the
juvenile has a legal right to receive those services without the
consent of any person or agency, then the information or record may not
be disclosed to the juvenile's parents without the informed consent of
the juvenile unless otherwise authorized by law; or
(c) That the department of social and health services may delete
the name and identifying information regarding persons or organizations
who have reported alleged child abuse or neglect.
(((6))) (8) A juvenile or his or her parent denied access to any
records following an agency determination under subsection (((5))) (7)
of this section may file a motion in juvenile court requesting access
to the records. The court shall grant the motion unless it finds
access may not be permitted according to the standards found in
subsection((s (5))) (7)(a) and (b) of this section.
(((7))) (9) The person making a motion under subsection (((6))) (8)
of this section shall give reasonable notice of the motion to all
parties to the original action and to any agency whose records will be
affected by the motion.
(((8))) (10) Subject to the rules of discovery in civil cases, any
party to a proceeding seeking a declaration of dependency or a
termination of the parent-child relationship and any party's counsel
and the guardian ad litem of any party, shall have access to the
records of any natural or adoptive child of the parent, subject to the
limitations in subsection (((5))) (7) of this section. A party denied
access to records may request judicial review of the denial. If the
party prevails, he or she shall be awarded attorneys' fees, costs, and
an amount not less than five dollars and not more than one hundred
dollars for each day the records were wrongfully denied.
(((9))) (11) No unfounded allegation of child abuse or neglect as
defined in RCW 26.44.020(12) may be disclosed to a child-placing
agency, private adoption agency, or any other licensed provider.
Sec. 3 RCW 26.10.030 and 2000 c 135 s 3 are each amended to read
as follows:
(1) Except as authorized for proceedings brought under chapter
13.34 RCW, or chapter 26.50 RCW in district or municipal courts, a
child custody proceeding is commenced in the superior court by a person
other than a parent, by filing a petition seeking custody of the child
in the county where the child is permanently resident or where the
child is found, but only if the child is not in the physical custody of
one of its parents or if the petitioner alleges that neither parent is
a suitable custodian. In proceedings in which the juvenile court has
not exercised concurrent jurisdiction and prior to a child custody
hearing, the court shall determine if the child is the subject of a
pending dependency action.
(2) Notice of a child custody proceeding shall be given to the
child's parent, guardian and custodian, who may appear and be heard and
may file a responsive pleading. The court may, upon a showing of good
cause, permit the intervention of other interested parties.
(3) The petitioner shall include in the petition the names of any
adult members of the petitioner's household.
NEW SECTION. Sec. 4 A new section is added to chapter 26.50 RCW
to read as follows:
In addition to the information required to be included in the
judicial information system under RCW 26.50.160, the data base shall
contain the names of any adult cohabitant of a petitioner to a third-party custody action under chapter 26.10 RCW.
Sec. 5 RCW 43.43.830 and 2002 c 229 s 3 are each amended to read
as follows:
Unless the context clearly requires otherwise, the definitions in
this section apply throughout RCW 43.43.830 through 43.43.840.
(1) "Applicant" means:
(a) Any prospective employee who will or may have unsupervised
access to children under sixteen years of age or developmentally
disabled persons or vulnerable adults during the course of his or her
employment or involvement with the business or organization;
(b) Any prospective volunteer who will have regularly scheduled
unsupervised access to children under sixteen years of age,
developmentally disabled persons, or vulnerable adults during the
course of his or her employment or involvement with the business or
organization under circumstances where such access will or may involve
groups of (i) five or fewer children under twelve years of age, (ii)
three or fewer children between twelve and sixteen years of age, (iii)
developmentally disabled persons, or (iv) vulnerable adults; ((or))
(c) Any prospective adoptive parent, as defined in RCW 26.33.020;
or
(d) Any prospective custodian in a nonparental custody proceeding
under chapter 26.10 RCW.
(2) "Business or organization" means a business or organization
licensed in this state, any agency of the state, or other governmental
entity, that educates, trains, treats, supervises, houses, or provides
recreation to developmentally disabled persons, vulnerable adults, or
children under sixteen years of age, including but not limited to
public housing authorities, school districts, and educational service
districts.
(3) "Civil adjudication" means a specific court finding of sexual
abuse or exploitation or physical abuse in a dependency action under
RCW 13.34.040 or in a domestic relations action under Title 26 RCW. In
the case of vulnerable adults, civil adjudication means a specific
court finding of abuse or financial exploitation in a protection
proceeding under chapter 74.34 RCW. It does not include administrative
proceedings. The term "civil adjudication" is further limited to court
findings that identify as the perpetrator of the abuse a named
individual, over the age of eighteen years, who was a party to the
dependency or dissolution proceeding or was a respondent in a
protection proceeding in which the finding was made and who contested
the allegation of abuse or exploitation.
(4) "Conviction record" means "conviction record" information as
defined in RCW 10.97.030(3) relating to a crime against children or
other persons committed by either an adult or a juvenile. It does not
include a conviction for an offense that has been the subject of an
expungement, pardon, annulment, certificate of rehabilitation, or other
equivalent procedure based on a finding of the rehabilitation of the
person convicted, or a conviction that has been the subject of a
pardon, annulment, or other equivalent procedure based on a finding of
innocence. It does include convictions for offenses for which the
defendant received a deferred or suspended sentence, unless the record
has been expunged according to law.
(5) "Crime against children or other persons" means a conviction of
any of the following offenses: Aggravated murder; first or second
degree murder; first or second degree kidnaping; first, second, or
third degree assault; first, second, or third degree assault of a
child; first, second, or third degree rape; first, second, or third
degree rape of a child; first or second degree robbery; first degree
arson; first degree burglary; first or second degree manslaughter;
first or second degree extortion; indecent liberties; incest; vehicular
homicide; first degree promoting prostitution; communication with a
minor; unlawful imprisonment; simple assault; sexual exploitation of
minors; first or second degree criminal mistreatment; endangerment with
a controlled substance; child abuse or neglect as defined in RCW
26.44.020; first or second degree custodial interference; first or
second degree custodial sexual misconduct; malicious harassment; first,
second, or third degree child molestation; first or second degree
sexual misconduct with a minor; patronizing a juvenile prostitute;
child abandonment; promoting pornography; selling or distributing
erotic material to a minor; custodial assault; violation of child abuse
restraining order; child buying or selling; prostitution; felony
indecent exposure; criminal abandonment; or any of these crimes as they
may be renamed in the future.
(6) "Crimes relating to drugs" means a conviction of a crime to
manufacture, delivery, or possession with intent to manufacture or
deliver a controlled substance.
(7) "Crimes relating to financial exploitation" means a conviction
for first, second, or third degree extortion; first, second, or third
degree theft; first or second degree robbery; forgery; or any of these
crimes as they may be renamed in the future.
(8) "Disciplinary board final decision" means any final decision
issued by a disciplining authority under chapter 18.130 RCW or the
secretary of the department of health for the following businesses or
professions:
(a) Chiropractic;
(b) Dentistry;
(c) Dental hygiene;
(d) Massage;
(e) Midwifery;
(f) Naturopathy;
(g) Osteopathic medicine and surgery;
(h) Physical therapy;
(i) Physicians;
(j) Practical nursing;
(k) Registered nursing; and
(l) Psychology.
"Disciplinary board final decision," for real estate brokers and
salespersons, means any final decision issued by the director of the
department of licensing for real estate brokers and salespersons.
(9) "Unsupervised" means not in the presence of:
(a) Another employee or volunteer from the same business or
organization as the applicant; or
(b) Any relative or guardian of any of the children or
developmentally disabled persons or vulnerable adults to which the
applicant has access during the course of his or her employment or
involvement with the business or organization.
(10) "Vulnerable adult" means "vulnerable adult" as defined in
chapter 74.34 RCW, except that for the purposes of requesting and
receiving background checks pursuant to RCW 43.43.832, it shall also
include adults of any age who lack the functional, mental, or physical
ability to care for themselves.
(11) "Financial exploitation" means the illegal or improper use of
a vulnerable adult or that adult's resources for another person's
profit or advantage.
(12) "Agency" means any person, firm, partnership, association,
corporation, or facility which receives, provides services to, houses
or otherwise cares for vulnerable adults.