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1994 SESSION

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LD0781136
HOUSE BILL NO. 627 Offered January 25, 1994 A BILL to amend and reenact зз 16.1-251 and 16.1-252; 63.1-209 and 63.1-248.6 as they are currently effective and as they may become effective; and 63.1-248.9 of the Code of Virginia and to amend the Code of Virginia by adding a section numbered 32.1-283.1 and by adding in Chapter 12.1 of Title 63.1 a section numbered 63.1-248.18, relating to child protective services; penalties. ----------
Patrons--Brickley, Marshall, Mims, Parrish, Plum, Puller and Rollison; Senator: Colgan
---------- Referred to Committee on Health, Welfare and Institutions ----------

Be it enacted by the General Assembly of Virginia:

1. That зз 16.1-251 and 16.1-252; 63.1-209 and 63.1-248.6 as they are currently effective and as they may become effective; and 63.1-248.9 of the Code of Virginia are amended and reenacted and that the Code of Virginia is amended by adding a section numbered 32.1-283.1 and by adding in Chapter 12.1 of Title 63.1 a section numbered 63.1-248.18, as follows:

з 16.1-251. Emergency removal order.

A. A child may be taken into immediate custody and placed in shelter care pursuant to an emergency removal order in cases in which the child is alleged to have been abused or neglected. Such order may be issued ex parte by the court upon a petition supported by an affidavit or by sworn testimony in person before the judge or intake officer which establishes that:

1. The child would be subjected to an imminent or continuing threat to life or health to the extent that ~~severe~~ serious or irremediable injury would be likely to result if the child were returned to or left in the custody of his parents, guardian, legal custodian or other person standing in loco parentis pending a final hearing on the petition.

2. Reasonable efforts have been made to prevent removal of the child from his home and there are no alternatives less drastic than removal of the child from his home which could reasonably protect the child's life or health pending a final hearing on the petition. The alternatives less drastic than removal may include but not be limited to the provision of medical, educational, psychiatric, psychological, homemaking or other similar services to the child or family or the issuance of a preliminary protective order pursuant to з 16.1-253.

When a child is removed from his home and there is no reasonable opportunity to provide preventive services, reasonable efforts to prevent removal shall be deemed to have been made.

B. Whenever a child is taken into immediate custody pursuant to an emergency removal order, a hearing shall be held in accordance with з 16.1-252 as soon as practicable, but in no event later than five business days after the removal of the child.

C. In the emergency removal order the court shall give consideration to temporary placement of the child with suitable relatives, including grandparents, until such time as the hearing in accordance with з 16.1-252 is held.

D. A person having legal custody of a child as defined in з 16.1-228 (i) shall not be required to comply with the requirements of this section in order to redetermine where and with whom the child shall live, notwithstanding that the child had been placed with a natural parent.

з 16.1-252. Preliminary removal order; hearing.

A. A preliminary removal order in cases in which a child is alleged to have been abused or neglected may be issued by the court after a hearing wherein the court finds that reasonable efforts have been made to prevent removal of the child from his home. The hearing shall be in the nature of a preliminary hearing rather than a final determination of custody.

B. Prior to the removal hearing, notice of the hearing shall be given at least twenty-four hours in advance of the hearing to the guardian ad litem for the child, to the parents, guardian, legal custodian or other person standing in loco parentis of the child and to the child if he or she is twelve years of age or older. If notice to the parents, guardian, legal custodian or other person standing in loco parentis cannot be given despite diligent efforts to do so, the hearing shall be held nonetheless, and the parents, guardian, legal custodian or other person standing in loco parentis shall be afforded a later hearing on their motion regarding a continuation of the summary removal order. The notice provided herein shall include (i) the time, date and place for the hearing and (ii) a specific statement of the factual circumstances which allegedly necessitate removal of the child.

C. All parties to the hearing shall be informed of their right to counsel pursuant to з 16.1-266.

D. At the removal hearing the child and his parent, guardian, legal custodian or other person standing in loco parentis shall have the right to confront and cross-examine all adverse witnesses and evidence and to present evidence on their own behalf.

E. In order for a preliminary order to issue or for an existing order to be continued, the petitioning party or agency must prove:

2. Reasonable efforts have been made to prevent removal of the child from his home and there are no alternatives less drastic than removal of the child from his home which could reasonably and adequately protect the child's life or health pending a final hearing on the petition. The alternatives less drastic than removal may include but not be limited to the provision of medical, educational, psychiatric, psychological, homemaking or other similar services to the child or family or the issuance of a preliminary protective order pursuant to з 16.1-253.

When a child is removed from his home and there is no reasonable opportunity to provide preventive services, reasonable efforts to prevent removal shall be deemed to have been made.

F. If the court determines that pursuant to subsection E hereof the removal of the child is proper, the court shall:

1. Order that the child be placed in the care and custody of a suitable person, with consideration being given to placement in the care and custody of a nearest kin, including grandparents, or personal friend or, if such placement is not available, in the care and custody of a suitable agency; and

2. Order that reasonable visitation be allowed between the child and his parents, guardian, legal custodian or other person standing in loco parentis, if such visitation would not endanger the child's life or health.

G. A person having legal custody of a child as defined in з 16.1-228 (i) shall not be required to comply with the requirements of this section in order to redetermine where and with whom the child shall live, notwithstanding that the child had been placed with a natural parent.

з 32.1-283.1 Child Fatality Review Advisory Committee.

There is hereby created the Child Fatality Review Advisory Committee which shall develop procedures to ensure that child deaths occurring in Virginia are reviewed in a systematic way. The Committee shall make recommendations (i) for development of a protocol for the establishment and operation of child death review teams, to include identification of cases to be reviewed and procedures for coordination among the agencies and professionals involved, (ii) to improve the identification, data collection and record keeping of the causes of child death, (iii) on prevention and education programs, and (iv) for training to improve the investigation of child deaths.

The Committee shall be chaired by the Secretary of Health and Human Resources and shall be composed of the following persons or their designees: the Commissioners of the Departments of Health, Mental Health, Mental Retardation and Substance Abuse Services, and Social Services; the Director of the Department of Criminal Justice Services; and the Chief Medical Examiner. The Secretary of Health and Human Resources shall appoint one representative of each of the following entities: local law-enforcement agencies, local departments of social services, the Virginia Pediatric Society, emergency medical personnel, Commonwealth's attorneys, and community services boards.

The Committee shall submit an annual report to the Governor and the General Assembly.

з 63.1-209. (For effective date - See note) Confidential records.

A. The records of all child-welfare agencies and persons received or placed out by them and the facts learned by them concerning such persons and their parents or relatives, shall be confidential information, provided that the Commissioner, the State Board and their agents shall have access to such information, that it shall be disclosed upon the proper order of any court, and that it may be disclosed to any person having a legitimate interest in the placement of any such person.

A local department of social services may disclose the contents of records and information learned during the course of a child protective services investigation or during the provision of child protective services to a family, without a court order and without the consent of the family, to a person having a legitimate interest when in the judgment of the local department of social services such disclosure is in the best interest of the child who is the subject of the records. Persons having a legitimate interest in child protective services records of local departments of social services include, but are not limited to, (i) the local governing body which appoints or employs the board or the director of the local department of social services, when the local governing body requests disclosure of specific confidential information; (ii) any person who is responsible for investigating a report of known or suspected abuse or neglect or for providing services to a child or family which is the subject of a report, including multi-discipline teams and family assessment and planning teams referenced in subsection F of з 63.1-248.6, law-enforcement agencies and Commonwealth's attorneys; (iii) child welfare or human services agencies of the Commonwealth or its political subdivisions when those agencies request information to determine the compliance of any person with a child protective services plan or an order of any court; (iv) personnel of the school or child day program as defined in з 63.1-195 attended by the child so that the local department can receive information from such personnel on an ongoing basis concerning the child's health and behavior, and the activities of the child's custodian; (v) a parent, grandparent, or any other person when such parent, grandparent or other person would be considered by the local department as a potential caretaker of the child in the event the department has to remove the child from his custodian; and (vi) a standing committee or a subcommittee of a standing committee of the General Assembly with jurisdiction over child protective services matters.

Whenever a local department of social services exercises its discretion to release otherwise confidential information to any person who meets one or more of these descriptions, the local department shall be presumed to have exercised its discretion in a reasonable and lawful manner.

It shall be unlawful for any officer, agent or employee of any child-welfare agency, for the Commissioner, the State Board or their agents or employees, and for any person who has held any such position, and for any other person to whom any such information is disclosed as hereinabove provided, to disclose, directly or indirectly, any such confidential information, except as herein provided. Every violation of this section shall constitute a Class 1 misdemeanor and be punishable as such.

B. Any person who has attained his majority, who has not been legally adopted in accordance with the provisions of Chapter 11 (з 63.1-220 et seq.) of this title, who was not a child for whom all parental rights and responsibilities have been terminated, and who believes that he has been placed out by a child-placing agency, shall have the right to demand and receive from the Commissioner, the State Board, or any such agency, such information as any of them may have concerning his own parents or relatives.

C. Any person who has not been legally adopted in accordance with the provisions of Chapter 11 (з 63.1-220 et seq.) of this title and who was a child for whom all parental rights and responsibilities have been terminated, shall not have access to any information from a child-placing agency with respect to the identity of the biological family, except (i) upon application of the child who is eighteen or more years of age, (ii) upon order of a circuit court entered upon good cause shown, and (iii) after notice to and opportunity for hearing by the applicant for such order and the child-placing agency or local board of public welfare or social services which had custody of the child.

An eligible person who is a resident of Virginia may apply for the court order provided for herein to (i) the circuit court of the county or city where the person resides or (ii) the circuit court of the county or city where the principal office of the child-placing agency or local board of public welfare or social services which controls the information sought by the person is located. An eligible person who is not a resident of Virginia shall apply for such a court order to the circuit court of the county or city where the principal office of the child-placing agency or local board of public welfare or social services which controls the information sought by the person is located.

If the identity and whereabouts of the biological family are known to the agency or local board, the court may require the agency or local board to advise the biological parents of the pendency of the application for such order. In determining good cause for the disclosure of such information, the court shall consider the relative effects of such action upon the applicant for such order and the biological parents.

D. This section shall not apply to the disposition of adoption records, reports and information which is governed by the provisions of з 63.1-236.

з 63.1-209. (Delayed effective date - See notes) Confidential records.

C. Any person who has not been legally adopted in accordance with the provisions of Chapter 11 (з 63.1-220 et seq.) of this title and who was a child for whom all parental rights and responsibilities have been terminated, shall not have access to any information from a child-placing agency with respect to the identity of the biological family, except (i) upon application of the child who is eighteen or more years of age, (ii) upon order of a family court entered upon good cause shown, and (iii) after notice to and opportunity for hearing by the applicant for such order and the child-placing agency or local board of public welfare or social services which had custody of the child.

An eligible person who is a resident of Virginia may apply for the court order provided for herein to (i) the family court of the county or city where the person resides or (ii) the family court of the county or city where the principal office of the child-placing agency or local board of public welfare or social services which controls the information sought by the person is located. An eligible person who is not a resident of Virginia shall apply for such a court order to the family court of the county or city where the principal office of the child-placing agency or local board of public welfare or social services which controls the information sought by the person is located.

D. This section shall not apply to the disposition of adoption records, reports and information which is governed by the provisions of з 63.1-236.

з 63.1-248.6. (For effective date - See note) Local departments to establish child-protective services; duties.

A. Each local department shall establish child-protective services under a departmental coordinator within such department or with one or more adjacent local departments which shall be staffed with qualified personnel pursuant to regulations promulgated by the State Board of Social Services. The local department shall be the public agency responsible for receiving and investigating complaints and reports, except that (i) in cases where the reports or complaints are to be made to the juvenile and domestic relations district court, the court shall be responsible for the investigation and (ii) in cases where an employee at a private or state-operated hospital, institution or other facility, or an employee of a school board is suspected of abusing or neglecting a child in such hospital, institution or other facility, or public school, the local department shall request the Department to assist in conducting the investigation in accordance with rules and regulations approved by the State Board.

B. The local department shall ensure, through its own personnel or through cooperative arrangements with other local agencies, that personnel who investigate reports or complaints that an employee of a private or state-operated hospital, institution or other facility, or an employee of a school board, abused or neglected a child in such hospital, institution or other facility, or public school, are qualified and assisted by the Department in accordance with State Board regulations.

C. The local department shall ensure, through its own personnel or through cooperative arrangements with other local agencies, the capability of receiving reports or complaints and responding to them promptly on a twenty-four-hours-a-day, seven-days-per-week basis.

D. The local department shall widely publicize a telephone number for receiving complaints and reports.

E. The local department shall upon receipt of a report or complaint:

1. Make immediate investigation;

2. When investigation of a complaint reveals cause to suspect abuse or neglect, complete a report and transmit it forthwith to the central registry;

3. When abuse or neglect is found, arrange for necessary protective and rehabilitative services to be provided to the child and his family;

4. If removal of the child or his siblings from their home is deemed necessary, petition the court for such removal;

5. Report immediately to the attorney for the Commonwealth and the local law-enforcement agency and make available to ~~him~~ them the records of the local department ~~upon which such report is based,~~ when abuse or neglect is suspected in any case involving (i) death of a child; (ii) injury or threatened injury to the child in which a felony or Class 1 misdemeanor is also suspected; (iii) any sexual abuse, suspected sexual abuse or other sexual offense involving a child, including but not limited to the use or display of the child in sexually explicit visual material, as defined in з 18.2-374.1; (iv) any abduction of a child; (v) any felony or Class 1 misdemeanor drug offense involving a child; or (vi) contributing to the delinquency of a minor in violation of з 18.2-371, and provide the attorneys for the Commonwealth and the local law-enforcement agency with records of any ~~prior founded disposition of~~ complaints of abuse or neglect involving the victim or the alleged perpetrator. The local department shall not allow reports of the death of the victim from other local agencies to substitute for a direct ~~report~~ reports to the attorney for the Commonwealth and the local law-enforcement agency;

6. Send a follow-up report based on the investigation to the central registry within fourteen days and at subsequent intervals to be determined by Board regulations;

7. Determine within forty-five days if a report of abuse or neglect is founded or unfounded and transmit a report to such effect to the central registry;

8. If a report of abuse or neglect is unfounded, transmit a report to such effect to the complainant and parent or guardian and the person responsible for the care of the child in those cases where such person was suspected of abuse or neglect; and

9. When abuse or neglect is suspected in any case involving the death of a child, report the case immediately to the regional medical examiner and the local law-enforcement agency.

F. The local department shall foster, when practicable, the creation, maintenance and coordination of hospital and community-based multi-discipline teams which shall include where possible, but not be limited to, members of the medical, mental health, social work, nursing, education, legal and law-enforcement professions. Such teams shall assist the local departments in identifying abused and neglected children; coordinating medical, social, and legal services for the children and their families; developing innovative programs for detection and prevention of child abuse; promoting community concern and action in the area of child abuse and neglect; and disseminating information to the general public with respect to the problem of child abuse and neglect and the facilities and prevention and treatment methods available to combat child abuse and neglect. These teams may be the family assessment and planning teams established pursuant to з 2.1-753. Multi-discipline teams may develop agreements regarding the exchange of information among the parties for the purposes of the investigation and disposition of complaints of child abuse and neglect, delivery of services, and child protection, Any information exchanged in accordance with the agreement shall not be considered to be a violation of the provisions of з 63.1-53 or з 63.1-209.

The local department shall also coordinate its efforts in the provision of these services for abused and neglected children with the judge and staff of the court.

G. The local department shall report annually on its activities concerning abused and neglected children to the court and to the Child-Protective Services Unit in the Department on forms provided by the Department.

H. Statements, or any evidence derived therefrom, made to local department child-protective services personnel, or to any person performing the duties of such personnel, by any person accused of the abuse, injury, neglect or death of a child after the arrest of such person, shall not be used in evidence in the case in chief against such person in the criminal proceeding on the question of guilt or innocence over the objection of the accused, unless the statement was made after such person was fully advised (i) of his right to remain silent, (ii) that anything he says may be used against him in a court of law, (iii) that he has a right to the presence of an attorney during any interviews, and (iv) that if he cannot afford an attorney, one will be appointed for him prior to any questioning.

I. Notwithstanding any other provision of law, the local department, in accordance with Board regulations, shall transmit information regarding founded complaints and may transmit other information regarding reports, complaints, and investigations involving active duty military personnel or members of their household to family advocacy representatives of the United States Armed Forces.

з 63.1-248.6. (Delayed effective date - See notes) Local departments to establish child-protective services; duties.

A. Each local department shall establish child-protective services under a departmental coordinator within such department or with one or more adjacent local departments which shall be staffed with qualified personnel pursuant to regulations promulgated by the State Board of Social Services. The local department shall be the public agency responsible for receiving and investigating complaints and reports, except that (i) in cases where the reports or complaints are to be made to the family court, the court shall be responsible for the investigation and (ii) in cases where an employee at a private or state-operated hospital, institution or other facility, or an employee of a school board is suspected of abusing or neglecting a child in such hospital, institution or other facility, or public school, the local department shall request the Department to assist in conducting the investigation in accordance with rules and regulations approved by the State Board.

D. The local department shall widely publicize a telephone number for receiving complaints and reports.

E. The local department shall upon receipt of a report or complaint:

1. Make immediate investigation;

2. When investigation of a complaint reveals cause to suspect abuse or neglect, complete a report and transmit it forthwith to the central registry;

3. When abuse or neglect is found, arrange for necessary protective and rehabilitative services to be provided to the child and his family;

4. If removal of the child or his siblings from their home is deemed necessary, petition the court for such removal;

5. Report immediately to the attorney for the Commonwealth and the local law-enforcement agency and make available to ~~him~~ them the records of the local department ~~upon which such report is based,~~ when abuse or neglect is suspected in any case involving (i) death of a child; (ii) injury or threatened injury to the child in which a felony or Class 1 misdemeanor is also suspected; (iii) any sexual abuse, suspected sexual abuse or other sexual offense involving a child, including but not limited to the use or display of the child in sexually explicit visual material, as defined in з 18.2-374.1; (iv) any abduction of a child; (v) any felony or Class 1 misdemeanor drug offense involving a child; or (vi) contributing to the delinquency of a minor in violation of з 18.2-371, and provide the attorneys for the Commonwealth and the local law-enforcement agency with records of any ~~prior founded disposition of~~ complaints of abuse or neglect involving the victim or the alleged perpetrator. The local department shall not allow reports of the death of the victim from other local agencies to substitute for a direct report to the attorney for the Commonwealth and the local law-enforcement agency;

6. Send a follow-up report based on the investigation to the central registry within fourteen days and at subsequent intervals to be determined by Board regulations;

7. Determine within forty-five days if a report of abuse or neglect is founded or unfounded and transmit a report to such effect to the central registry;

9. When abuse or neglect is suspected in any case involving the death of a child, report the case immediately to the regional medical examiner and the local law-enforcement agency.

The local department shall also coordinate its efforts in the provision of these services for abused and neglected children with the judge and staff of the court.

з 63.1-248.9. Authority to take child into custody.

A. A physician or protective service worker of a local department or law-enforcement official investigating a report or complaint of abuse and neglect may take a child into custody for up to seventy-two hours without prior approval of parents or guardians provided:

1. The circumstances of the child are such that continuing in his place of residence or in the care or custody of the parent, guardian, custodian or other person responsible for the child's care, presents an imminent or continuing danger to the child's life or health to the extent that ~~severe~~ serious or irremediable injury would be likely to result before a hearing can be held; and

2. A court order is not immediately obtainable; and

3. The court has set up procedures for placing such children; and

4. Following taking the child into custody, the parents or guardians are notified as soon as practicable that he is in custody; and

5. A report is made to the local department; and

6. The court is notified and the person or agency taking custody of such child obtains, as soon as possible, but in no event later than seventy-two hours, an emergency removal order pursuant to з 16.1-251; however, if a preliminary removal order is issued after a hearing held in accordance with з 16.1-252 within seventy-two hours of the removal of the child, an emergency removal order shall not be necessary.

B. If the seventy-two-hour period for holding a child in custody and for obtaining a preliminary or emergency removal order expires on a Saturday, Sunday, or other legal holiday, the seventy-two hours shall be extended to the next day that is not a Saturday, Sunday, or other legal holiday, but in no event shall either such period exceed ninety-six hours.

з 63.1-248.18. Investigation of child abuse and neglect; protocols; multidisciplinary teams; training; technical assistance.

A. Each locality shall develop a formal cooperative agreement between the director of the local department of social services, the chief law-enforcement officer, and the Commonwealth's attorney in order to implement a coordinated multidisciplinary team approach to investigation of reports involving criminal allegations of child abuse and neglect. A representative of the local department of social services, the local law-enforcement agency, and the office of the Commonwealth's attorney shall serve on the team; other professionals, such as mental health, health, and child advocacy representatives, may be included on the team. The local multidisciplinary team may be the family assessment and planning team established pursuant to з 2.1-753 or the multi-discipline team established pursuant to subsection F of з 63.1-248.6.

B. By July 1, 1996, each local multidisciplinary team shall adopt a written child abuse and neglect investigation and service delivery protocol, and shall distribute a copy to each agency in the locality handling allegations of child abuse and neglect and to the Departments of Criminal Justice Services and Social Services. The protocol shall outline in detail procedures for investigating criminal allegations of child abuse and neglect. The protocol shall ensure coordination and cooperation between all agencies involved in child abuse and neglect cases so as to increase the efficiency of all agencies handling such cases; minimize the stress of the legal and investigatory process on the alleged abused or neglected child; and provide effective treatment for the child, family and perpetrator.

C. The cooperative agreement may contain specific provisions regarding the exchange of information among the parties for the purposes of the agreement and any information exchanged pursuant to the agreement shall not be considered to be a violation of the provisions of з 63.1-53 or з 63.1-209.C. The cooperative agreement may contain specific provisions regarding the exchange of information among the parties for the purposes of the agreement and any information exchanged pursuant to the agreement shall not be considered to be a violation of the provisions of з 63.1-53 or з 63.1-209.

D. Local department employees investigating criminal allegations of child abuse and neglect shall be trained in risk assessment, dynamics of child abuse and neglect, and legally sound and age-appropriate interview and investigatory techniques. All local department investigations of criminal child abuse and neglect shall be carried out by trained personnel using the protocols and procedures called for in this section. An investigation may be undertaken by an untrained employee only if (i) a reasonable effort is made to locate a trained employee and no trained employee can be located in a timely fashion and (ii) in the judgment of a child protective services worker or law-enforcement officer, there is reasonable cause to believe that a delay in proceeding with the investigation or interview of the alleged abused or neglected child could place the child in jeopardy of physical harm. An untrained employee shall cease investigatory activities once a trained employee becomes available or once the child is no longer in jeopardy of physical harm.