September 21, 2009 - Introduced by
Committee on Children and Families and
Workforce Development. Referred to Committee on Children and Families
and Workforce Development.
SB299,1,6
1An Act to renumber 48.981 (9);
to amend 48.981 (9) (title) and 48.981 (9) (b);
2to repeal and recreate 48.981 (7) (cr); and
to create 48.981 (9) (a) (title) and
348.981 (9) (b) of the statutes;
relating to: public disclosure of certain
4information when child abuse or neglect results in death or serious injury or
5involves aggravated circumstances or when a child in an out-of-home
6placement commits suicide or is sexually abused by a caregiver.
Analysis by the Legislative Reference Bureau
Introduction
Under current federal law, to be eligible for a grant under the Child Abuse
Prevention and Treatment Act (commonly referred to as "CAPTA"), a state must have
in effect a state plan that includes, among other things, provisions that allow for
public disclosure of findings and information about a case of child abuse or neglect
that has resulted in a child fatality or near fatality. This bill eliminates the current
state law that under certain circumstances permits disclosure to the general public
of certain information relating to a child who has died or been placed in serious or
critical condition as a result of suspected abuse or neglect (child fatality or near
fatality) and instead requires certain information to be made available to the public:
1. When an incident occurs in which a child has died or been placed in serious
or critical condition as a result of suspected abuse or neglect or in which a child who
has been placed outside the home under an order of the court assigned to exercise
jurisdiction under the Children's Code or the Juvenile Justice Code (juvenile court)
has committed suicide (incident of death or serious injury).
2. When an incident of suspected abuse or neglect occurs, other than an
incident of death or serious injury, that involves significant violence, multiple
victims, the use of inappropriate or cruel restraints, exposure of a child to a
dangerous situation, or other aggravated circumstances (incident of egregious abuse
or neglect).
3. When a child who is placed outside the home is sexually abused by his or her
foster or treatment foster parent or the relative in whose home the child is placed,
by any other person who resides in the foster or treatment foster home or in the home
of the relative, by any relative of the foster or treatment foster parent or relative, or
by any employee, contractor, or volunteer of the group home, shelter care facility, or
residential care center for children and youth in which the child is placed (sexual
abuse by a caregiver).
Current law — disclosure permitted
When disclosure is permitted. Under current law, a county department of
human services or social services or, in Milwaukee County, the Department of
Children and Families (DCF) or a child welfare agency that is responsible for
investigating reports of suspected or threatened child abuse or neglect (agency) is
permitted to disclose to the general public a written summary of certain information
relating to a child fatality or near fatality if any of the following circumstances apply:
1. A person has been charged with a crime for causing the child fatality or near
fatality.
2. A judge, district attorney, law enforcement officer or agency, or any other
officer or agency whose duties include the investigation or prosecution of crime has
previously disclosed to the public that the suspected abuse or neglect that caused the
child fatality or near fatality has been investigated or that child welfare services
have been provided to the child or the child's family.
3. A parent, guardian, or legal custodian of the child or the child, if 14 years of
age or over, has previously disclosed or authorized the disclosure of the information.
What disclosure is permitted. The information that may be disclosed in
cases of a child fatality or near fatality is as follows:
1. A description of any investigation made by the agency in response to the
report of the suspected abuse or neglect; a statement of the determination made by
the agency as to whether abuse or neglect occurred and the basis for that
determination; a statement of whether any services were offered or provided to the
child, the child's family, or the person suspected of the abuse or neglect; and a
statement of whether any other action was taken by the agency to protect the child
who is the subject of the report or any other child residing in the same dwelling as
that child.
2. Whether any previous report of suspected or threatened abuse or neglect of
the child has been made to the agency and the date of the report; a statement of the
determination made by the agency as to whether abuse or neglect occurred and the
basis for that determination; a statement of whether any services were offered or
provided to the child, the child's family, or the person suspected of the abuse or
neglect; and a statement of whether any other action was taken by the agency to
protect the child who is the subject of the report or any other child residing in the
same dwelling as that child.
3. Whether the child or the child's family has received any child welfare services
prior to the report of the suspected abuse or neglect that caused the child fatality or
near fatality or prior to any previous report of suspected or threatened abuse or
neglect.
When disclosure is not permitted. An agency may not disclose such
information if any of the following circumstances apply:
1. The agency determines that disclosure of the information would be contrary
to the best interests of the child, the child's siblings, or any other child residing in the
same dwelling as the child or that disclosure of the information is likely to cause
mental, emotional, or physical harm or danger to and of those person or any other
person.
2. The district attorney determines that disclosure of the information would
jeopardize any ongoing or future criminal investigation or prosecution or would
jeopardize a defendant's right to a fair trial.
3. The agency determines that disclosure of the information would jeopardize
any ongoing or future civil investigation or proceeding or would jeopardize the
fairness of the proceeding.
4. Disclosure of the information is not authorized by state law or rule or federal
law or regulation.
5. The investigation of the abuse or neglect report has not been completed.
6. Disclosure of the information would reveal the identity of the child, the
child's siblings, the child's parents, guardian, or legal custodian, or any other person
residing in the same dwelling as the child.
7. Disclosure of the information would reveal the identity of the person who
reported the suspected abuse or neglect that caused the child fatality or near fatality
or any other person who provides information relating to that suspected abuse or
neglect.
The bill — disclosure required
Incidents of death or serious injury or egregious abuse or neglect. This
bill eliminates current law relating to disclosure to the general public of information
about a child fatality or near fatality. Instead, the bill requires an agency that has
reason to suspect that an incident of death or serious injury or an incident of
egregious abuse or neglect has occurred to provide to the subunit of DCF responsible
for statewide oversight of child abuse and neglect programs, within two working days
after determining that such an incident is suspected to have occurred, the age of the
child; the date of the incident; the suspected cause of the death, serious injury, or
egregious abuse or neglect; a brief history of the child welfare services offered or
provided to the child, members of the child's family, and the person suspected of the
abuse or neglect; a statement of whether the child was residing in his or her home
or was placed outside the home when the incident occurred; and the identity of any
law enforcement agency that referred the report of the incident to the agency and of
any law enforcement agency, district attorney, or other officer or agency to which the
agency referred the report of the incident.
The subunit of DCF then is required to disclose to the public, within two
working days after receiving that information, the fact that the subunit has received
the information; whether DCF is conducting a review of the incident and, if so, the
scope of the review and the identities of any other agencies with which DCF is
cooperating at that point in conducting the review; whether the child was residing
in the home or was placed in an out-of-home placement at the time of the incident;
and information about the child, including the age of the child. If the information
received is about an incident of egregious abuse or neglect, the subunit of DCF must
also make the same disclosure to a citizen review panel and, in Milwaukee County,
to the Milwaukee child welfare partnership council.
Within 90 days after receiving the information, the subunit of DCF must
prepare and make available to the public a summary report about the incident. That
subunit may also include in the summary report a summary of any changes in
policies or practices that have been made to address any issues raised in the review
and recommendations for any further changes in policies, practices, rules, or
statutes that may be needed to address those issues. If the subunit does not include
those changes and recommended changes in the summary report, the subunit must
prepare and make available to the public a report of those changes and recommended
changes within six months after receiving the information.
Those public disclosure and summary report requirements do not preclude the
subunit of DCF from releasing to the public any of the information required to be
provided in a summary report (required information) before the summary report is
made available to the public, adding to or amending a summary report if new
required information is received after the summary report is made available to the
public, or releasing to the public any information at any time to correct any
inaccurate information reported in the news media.
If the child was residing in his or her home when the incident of death or serious
injury or the incident of egregious abuse or neglect occurred, the summary report
must contain all of the following:
1. Information about the child, including the age, gender, and race or ethnicity
of the child, a description of the child's family, and, if relevant to the incident, a
description of any special needs of the child.
2. A statement of whether any child welfare services were being provided to the
child, any member of the child's family, or the person suspected of the abuse or
neglect, or whether any of those persons was the subject of a referral to the agency
for services, at the time of the incident and, if so, the date of the last contact between
the agency providing those services and the person receiving those services.
3. A summary of all involvement of the child's parents and of the person
suspected of the abuse or neglect in receiving child welfare services in the five years
preceding the date of the incident.
4. A summary of any actions taken by the agency with respect to the child, any
member of the child's family, and the person suspected of the abuse or neglect,
including any referrals by the agency of any of those persons for services.
5. The date of the incident and the suspected cause of the death, serious injury,
or egregious abuse or neglect as reported by the agency.
6. The findings on which the agency bases its reasonable suspicion that an
incident of death or serious injury or an incident of egregious abuse or neglect has
occurred, including any material circumstances leading to the death, serious injury,
or egregious abuse or neglect of the child.
7. A summary of any services that have been provided to the child and the
child's family since the date of the incident.
If the child was placed in an out-of-home placement at the time of the incident
of death or serious injury or incident of egregious abuse or neglect, the summary
report must contain all of the following:
1. Information about the child, including the age, gender, and race or ethnicity
of the child and, if relevant to the incident, a description of any special needs of the
child.
2. A description of the out-of-home placement, including the basis for the
decision to place the child in that placement.
3. A description of all other persons residing in the out-of-home placement.
4. The licensing history of the out-of-home placement, including the type of
license held by the operator of the placement, the period for which the placement has
been licensed, and a summary of all violations by the licensee of any provisions of
licensure or rules promulgated by DCF and of any other actions by the licensee or an
employee of the licensee that constitute a substantial failure to protect and promote
the health, safety, and welfare of a child.
5. The date of the incident and the suspected cause of the death, serious injury,
or egregious abuse or neglect, as reported by the agency.
6. The findings on which the agency bases its reasonable suspicion that an
incident of death or serious injury or an incident of egregious abuse or neglect has
occurred, including any material circumstances leading to the death, serious injury,
or egregious abuse or neglect of the child.
Incidents of sexual abuse by a caregiver. Current law requires DCF to
submit an annual report to the governor and the legislature on the status of the child
abuse and neglect programs administered by DCF. The report must include a full
statistical analysis of the child abuse and neglect reports made through the last
calendar year, an evaluation of the child abuse and neglect services offered by DCF
and their effectiveness, and recommendations for additional legislation and other
actions to fulfill the purposes of the child abuse and neglect reporting law.
This bill requires DCF, within 30 days after the end of each calendar quarter,
to prepare and transmit to the governor, and to the appropriate standing committee
of the legislature, a summary report of all reports received by DCF during the
previous calendar quarter of incidents of sexual abuse by a caregiver. DCF must
provide for each report included in the summary report the number of incidents of
abuse reported; the dates of those incidents; the county in which those incidents
occurred; the age or age group of the child who is the subject of the report; the type
of placement in which the child was placed at the time of the incident; whether it was
determined under the child abuse reporting law that abuse occurred; and whether
the abuse resulted in injury, disease, or pregnancy. Those standing committees must
review all summary reports transmitted to those committees, conduct public
hearings on those summary reports no less often than annually, and submit
recommendations to DCF regarding those summary reports. DCF must also make
those summary reports available to the public.
What disclosure is prohibited. A summary report of an incident of death or
serious injury or an incident of egregious abuse or neglect, any other release of
information concerning such an incident, and a quarterly report of incidents of
sexual abuse by a caregiver may not include any of the following:
1. Any information that would reveal the identity of the child who is the subject
of the summary report or incident reported in the quarterly report; any member of
the child's family; any member of the child's household who is a child; or any
caregiver of the child.
2. Any information that would reveal the identity of the person suspected of the
abuse or neglect or any employee of any agency that provided child welfare services
to the child or that participated in the investigation of the incident.
3. Any information that would reveal the identity of the reporter of the incident
or of any other person who provides information relating to the incident.
4. Any information the disclosure of which would not be in the best interests
of the child who is the subject of the summary report or quarterly report, any member
of the child's family, any member of the child's household who is a child, or any
caregiver of the child, as determined by the subunit of DCF that received the
information, after consultation with the agency that reported the incident of death
or serious injury or the incident of egregious abuse or neglect, the district attorney
of the county in which the incident occurred, or the juvenile court of that county, and
after balancing the interest of the child, family or household member, or caregiver
in avoiding the stigma that might result from disclosure against the interest of the
public in obtaining that information.
5. Any information the disclosure of which is not authorized by state law or rule
or federal law or regulation.
When disclosure is prohibited. Finally, under the bill, the subunit of DCF
that prepares a summary report of an incident of death or serious injury or an
incident of egregious abuse or neglect, that otherwise releases or discloses
information concerning such an incident, or that prepares a quarterly report of
incidents of sexual abuse by a caregiver may not make the summary report available
or release or disclose the information to the public or include any information about
an incident of sexual abuse by a caregiver in the quarterly report if the subunit
determines that making the summary report available, releasing or disclosing the
information, or including the information in the quarterly report would jeopardize:
1) any ongoing or future criminal investigation or prosecution or a defendant's right
to a fair trial; or 2) any ongoing or future civil investigation or proceeding or the
fairness of such a proceeding.
For further information see the state and local fiscal estimate, which will be
printed as an appendix to this bill.
The people of the state of Wisconsin, represented in senate and assembly, do
enact as follows:
SB299, s. 1
1Section
1. 48.981 (7) (cr) of the statutes is repealed and recreated to read:
SB299,7,22
48.981
(7) (cr) 1. In this paragraph:
SB299,7,73
a. "Incident of death or serious injury" means an incident in which a child has
4died or been placed in serious or critical condition, as determined by a physician, as
5a result of any suspected abuse or neglect that has been reported under this section
6or in which a child who has been placed outside the home by a court order under this
7chapter or ch. 938 is suspected to have committed suicide.
SB299,7,128
b. "Incident of egregious abuse or neglect" means an incident of suspected
9abuse or neglect that has been reported under this section, other than an incident
10of death or serious injury, involving significant violence, torture, multiple victims,
11the use of inappropriate or cruel restraints, exposure of a child to a dangerous
12situation, or other similar, aggravated circumstances.
SB299,7,1813
2. Notwithstanding par. (a), if an agency that receives a report under sub. (3)
14has reason to suspect that an incident of death or serious injury or an incident of
15egregious abuse or neglect has occurred, within 2 working days after determining
16that such an incident is suspected to have occurred the agency shall provide all of the
17following information to the subunit of the department responsible for statewide
18oversight of child abuse and neglect programs:
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a. The name of the agency and the name of a contact person at the agency.
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b. Information about the child, including the age of the child.
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1c. The date of the incident and the suspected cause of the death, serious injury,
2or egregious abuse or neglect of the child.
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d. A brief history of the services under this chapter offered or provided to the
4child, members of the child's family, and the person suspected of the abuse or neglect.
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e. A statement of whether the child was residing in his or her home or was
6placed outside the home when the incident occurred.
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f. The identity of any law enforcement agency that referred the report of the
8incident and of any law enforcement agency, district attorney, or other officer or
9agency to which the report of the incident was referred.
SB299,8,2110
3. a. Within 2 working days after receiving the information provided under
11subd. 2., the subunit of the department that received the information shall disclose
12to the public the fact that the subunit has received the information; whether the
13department is conducting a review of the incident and, if so, the scope of the review
14and the identities of any other agencies with which the department is cooperating
15at that point in conducting the review; whether the child was residing in the home
16or was placed in an out-of-home placement at the time of the incident; and
17information about the child, including the age of the child. If the information
18received is about an incident of egregious abuse or neglect, the subunit of the
19department shall make the same disclosure to a citizen review panel, as described
20in par. (a) 15g., and, in a county having a population of 500,000 or more, to the
21Milwaukee child welfare partnership council.
SB299,9,722
b. Within 90 days after receiving the information provided under subd. 2., the
23subunit of the department that received the information shall prepare and make
24available to the public a summary report that contains the information specified in
25subd. 4. or 5., whichever is applicable. That subunit may also include in the summary
1report a summary of any changes in policies or practices that have been made to
2address any issues raised in the review and recommendations for any further
3changes in policies, practices, rules, or statutes that may be needed to address those
4issues. If the subunit does not include those changes and recommended changes in
5the summary report, the subunit shall prepare and make available to the public a
6report of those changes and recommended changes within 6 months after receiving
7the information provided under subd. 2.
SB299,9,148
c. Subdivision 3. a. and b. does not preclude the subunit of the department that
9prepares the summary report from releasing to the public any of the information
10specified in subd. 4. or 5. before the summary report is made available to the public,
11adding to or amending a summary report if new information specified in subd. 4. or
125. is received after the summary report is made available to the public, or releasing
13to the public any information at any time to correct any inaccurate information
14reported in the news media.
SB299,9,1715
4. If the child was residing in his or her home when the incident of death or
16serious injury or the incident of egregious abuse or neglect occurred, the summary
17report under subd. 3. shall contain all of the following:
SB299,9,2018
a. Information about the child, including the age, gender, and race or ethnicity
19of the child, a description of the child's family, and, if relevant to the incident, a
20description of any special needs of the child.
SB299,9,2521
b. A statement of whether any services under this chapter were being provided
22to the child, any member of the child's family, or the person suspected of the abuse
23or neglect, or whether any of those persons was the subject of a referral to the agency
24for services, at the time of the incident and, if so, the date of the last contact between
25the agency providing those services and the person receiving those services.
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1c. A summary of all involvement of the child's parents and of the person
2suspected of the abuse or neglect in receiving services under this chapter in the 5
3years preceding the date of the incident.
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d. A summary of any actions taken by the agency with respect to the child, any
5member of the child's family, and the person suspected of the abuse or neglect,
6including any referrals by the agency of any of those persons for services.
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e. The date of the incident and the suspected cause of the death, serious injury,
8or egregious abuse or neglect of the child, as reported by the agency under subd. 2.
9c.
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f. The findings on which the agency bases its reasonable suspicion that an
11incident of death or serious injury or an incident of egregious abuse or neglect has
12occurred, including any material circumstances leading to the death, serious injury,
13or egregious abuse or neglect of the child.
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g. A summary of any services that have been provided to the child and the
15child's family since the date of the incident.
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5. If the child was placed in an out-of-home placement at the time of the
17incident of death or serious injury or incident of egregious abuse or neglect, the
18summary report under subd. 3. shall contain all of the following:
SB299,10,2119
a. Information about the child, including the age, gender, and race or ethnicity
20of the child and, if relevant to the incident, a description of any special needs of the
21child.
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b. A description of the out-of-home placement, including the basis for the
23decision to place the child in that placement.
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c. A description of all other persons residing in the out-of-home placement.
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1d. The licensing history of the out-of-home placement, including the type of
2license held by the operator of the placement, the period for which the placement has
3been licensed, and a summary of all violations by the licensee of any provisions of
4licensure under s. 48.70 (1) or rules promulgated by the department under s. 48.67
5and of any other actions by the licensee or an employee of the licensee that constitute
6a substantial failure to protect and promote the health, safety, and welfare of a child.
SB299,11,97
e. The date of the incident and the suspected cause of the death, serious injury,
8or egregious abuse or neglect of the child, as reported by the agency under subd. 2.
9c.