Report Title:

Child Protective Services; Removal

Description:

Requires establishment of CPS proceedings database. Defines "abuse". Requires criminal history record checks for people who report child abuse. Requires law enforcement authority to conduct initial investigation. Requires police to consult with CPS worker before assuming custody. Requires probable cause to believe child subject to imminent harm.

THE SENATE

S.B. NO.

2633

TWENTY-SECOND LEGISLATURE, 2004

 

STATE OF HAWAII

 


 

A BILL FOR AN ACT

 

Relating to Child Protective Services.

 

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

SECTION 1. Chapter 587, Hawaii Revised Statutes, is amended by adding a new section to be appropriately designated and to read as follows:

"§587- Child protective service decisions electronic database. Notwithstanding section 587-81, the department shall establish an electronic database and be responsible for the collection and storage of all pertinent information relating to decisions and orders in all child protective proceedings under this chapter to facilitate tracking of all such decisions and orders. The department shall adopt rules under chapter 91 to determine access, disclosure, and use of information stored in the electronic database."

SECTION 2. Section 587-2, Hawaii Revised Statutes, is amended by adding a new definition to be appropriately inserted and to read as follows:

""Abuse" means the acts or omissions of any person who, or legal entity which, is in any manner or degree related to the child, is residing with the child, or is otherwise responsible for the child's care, that have resulted in the physical or psychological health or welfare of the child, who is under the age of eighteen, to be harmed, or to be subject to any reasonably foreseeable, substantial risk of being harmed. The acts or omissions are indicated for the purposes of reports by circumstances that include but are not limited to:

(1) When the child exhibits evidence of:

(A) Substantial or multiple skin bruising or any other internal bleeding;

(B) Any injury to skin causing substantial bleeding;

(C) Malnutrition;

(D) Failure to thrive;

(E) Burn or burns;

(F) Poisoning;

(G) Fracture of any bone;

(H) Subdural hematoma;

(I) Soft tissue swelling;

(J) Extreme pain;

(K) Extreme mental distress;

(L) Gross degradation; or

(M) Death;

such injury is not justifiably explained, or when the history given concerning such condition or death is at variance with the degree or type of such condition or death, or circumstances indicate that such condition or death may not be the product of an accidental occurrence;

(2) When the child has been the victim of sexual contact or conduct, including, but not limited to, sexual assault as defined in any provision of the Penal Code, molestation, sexual fondling, incest, or prostitution; obscene or pornographic photographing, filming, or depiction; or other similar forms of sexual exploitation;

(3) When there exists injury to the psychological capacity of a child as is evidenced by an observable and substantial impairment in the child's ability to function;

(4) When the child is not provided in a timely manner with adequate food, clothing, shelter, psychological care, physical care, medical care, or supervision; or

(5) When the child is provided with dangerous, harmful, or detrimental drugs as defined by section 712-1240; provided that this paragraph shall not apply when those drugs are provided to the child pursuant to the direction or prescription of a practitioner, as defined in section 712-1240."

SECTION 3. Section 350-1.3, Hawaii Revised Statutes, is amended to read as follows:

"[[]§350-1.3[]] Any person may report. Any person, not otherwise required to report pursuant to section 350-1.1, who becomes aware of facts or circumstances which cause that person to have reason to believe that child abuse or neglect has occurred or that there exists a substantial risk that child abuse or neglect may occur in the reasonably foreseeable future, may immediately report the matter orally to the department or to the police department. Within forty-eight hours after a person has made an initial oral report to the department or to the police department, the department shall conduct a criminal history record check on the person who reports the matter; provided that any person required to report pursuant to section 350-1.1 shall not be subject to a criminal history record check."

SECTION 4. Section 587-21, Hawaii Revised Statutes, is amended to read as follows:

"§587-21 Investigation. (a) Upon receiving a report that a child is subject to imminent harm, has been harmed, or is subject to threatened harm, the department shall cause [such] an investigation to be made [as it deems to be appropriate]. In conducting the investigation the department [may:] shall:

(1) [Enlist the cooperation of] Require the appropriate law enforcement authorities [for phases of] to conduct the investigation [for which they are better equipped,] and the law enforcement authority [may] shall conduct and provide to the department the results of a criminal history record check concerning an alleged perpetrator of imminent harm, harm, or threatened harm to a child; [and]

(2) [Interview] The appropriate law enforcement authority shall interview a child who is the subject of an investigation without the prior approval of and without the presence of the child's family, including temporarily assuming protective custody of the child for the purpose of conducting the interview, if the action is deemed necessary and appropriate under the circumstances by the [department and a] police officer[.]; and

(3) After the conclusion of the law enforcement authority's investigation, the law enforcement authority shall make recommendations to the department as to the course of action that should be pursued.

(b) Upon satisfying itself [as to] that the course of action [that] recommended by the law enforcement authority should be pursued to best accord with the purpose of this chapter, the department shall:

(1) Resolve the matter in an informal fashion appropriate under the circumstances;

(2) Seek to enter into a service plan, without filing a petition in court, with members of the child's family and other authorized agency as the department deems necessary to the success of the service plan, including but not limited to, the member or members of the child's family who have legal custody of the child. The service plan may include an agreement with the child's family to voluntarily place the child in the foster custody of the department or other authorized agency, or to place the child and the necessary members of the child's family under the family supervision of the department or other authorized agency; provided that if a service plan is not successfully completed within six months, the department shall file a petition or ensure that a petition is filed by another appropriate authorized agency in court under this chapter and the case shall be reviewed as is required by federal law;

(3) Assume temporary foster custody of the child pursuant to section 587-24(a) and file a petition with the court under this chapter within three working days, excluding Saturdays, Sundays, and holidays, after the date of the department's assumption of temporary foster custody of the child; or

(4) File a petition or ensure that a petition is filed by another appropriate authorized agency in court under this chapter."

SECTION 5. Section 587-22, Hawaii Revised Statutes, is amended by amending the title and subsection (a) to read as follows:

"§587-22 Protective custody by police officer [without court order]. (a) A police officer shall assume protective custody of the child [without a court order and] without the consent of the child's family, regardless of whether the child's family is absent, if [in the discretion of] the police officer, after consultation with a child protective service worker, determines that the child is in such circumstance or condition that the child's continuing in the custody or care of the child's family presents a situation of imminent harm to the child.

A police officer may assume protective custody of the child [without a court order and] without the consent of the child's family, regardless of whether the child's family is absent, only if [in the discretion of] the police officer[:] and the child protective service worker jointly determine that:

(1) The child has no legal custodian who is willing and able to provide a safe family home for the child; or

(2) There is evidence that the parent or legal guardian of the child has subjected the child to harm or threatened harm and that the parent or legal guardian is likely to flee the jurisdiction of the court with the child."

SECTION 6. Section 587-24, Hawaii Revised Statutes, is amended by amending the title and subsection (a) to read as follows:

"§587-24 Temporary foster custody [without court order]. (a) When the department receives physical custody of a child from the police pursuant to section 587-22(b), the department shall assume temporary foster custody of a child [without an order of the court and] without the consent of the child's family, regardless of whether the child's family is absent, [if in the discretion of the department] only after an evidentiary hearing before the court wherein the court determines that the child is in such circumstance or condition that the child's continuing in the custody or care of the child's family presents a situation of imminent harm to the child."

SECTION 7. Section 587-41, Hawaii Revised Statutes, is amended by amending subsection (a) to read as follows:

"(a) In a temporary foster custody hearing, a determination that there exists [reasonable] probable cause to believe that a child is subject to imminent harm may be based upon relevant evidence, including, but not limited to, hearsay evidence when direct testimony is unavailable or when it is impractical to subpoena witnesses who will be able to testify to facts from personal knowledge."

SECTION 8. Section 587-2, Hawaii Revised Statutes, is amended by deleting the definition of "reasonable cause to believe".

[""Reasonable cause to believe" means reasonably trustworthy evidence which would cause a reasonable person of average caution to believe."]

SECTION 9. This Act does not affect rights and duties that matured, penalties that were incurred, and proceedings that were begun, before its effective date.

SECTION 10. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.

SECTION 11. This Act shall take effect upon its approval.

INTRODUCED BY:

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