AB428: Bill Text

LRB-3429/1

GMM:bjk&wlj:jf

2009 - 2010 LEGISLATURE

2009 Assembly BILL 428

September 22, 2009 - Introduced by Committee on Children and Families. Referred to Committee on Children and Families.

AB428,1,6 An Act to renumber 48.981 (9); to amend 48.981 (9) (title) and 48.981 (9) (b); to repeal and recreate 48.981 (7) (cr); and to create 48.981 (9) (a) (title) and 48.981 (9) (b) of the statutes; relating to: public disclosure of certain information when child abuse or neglect results in death or serious injury or involves aggravated circumstances or when a child in an out-of-home placement 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.