S.B. 513 (S-1), 515 (S-2), 516 (S-1), & - CHILD ABUSE INVESTIGATIONS

517 (S-2): FIRST ANALYSIS

Senate Bill 513 (Substitute S-1 as reported)

Senate Bill 515 (Substitute S-2 as reported)

Senate Bill 516 (Substitute S-1 as reported)

Senate Bill 517 (Substitute S-2 as reported)

Sponsor: Senator Joel D. Gougeon (Senate Bills 513 & 516)

Senator Joanne G. Emmons (Senate Bill 515)

Senator George A. McManus, Jr. (Senate Bill 517)

Committee: Families, Mental Health and Human Services

Date Completed: 6-3-97

RATIONALE

Executive Order 1995-12 created the Lieutenant Governor's Children's Commission to review laws and programs concerning the removal of children from abusive households, the placement of children in foster care, and the permanent placement of children. The Commission's report, issued in July 1996, contains a number of goals in these areas and identifies barriers to achieving the goals. The Commission found, for example, a need for coordination between agencies, consistent standards for initiating the termination of parental rights, and expeditious adjudication. The Commission's report also makes a number of recommendations to address the issues and overcome the barriers.

Some of the Commission's recommendations pertain, in particular, to the role of the Family Independence Agency (FIA) and other agencies in the investigation of reported child abuse or neglect. Under the Child Protection Law, various professionals (such as educators, health care workers, and child care providers) must report suspected cases of child abuse or neglect to the FIA. The FIA then must begin an investigation or, in certain cases, notify the prosecuting attorney. In some cases, the FIA is required to seek the assistance of law enforcement officials. A report of child abuse or neglect not only triggers an investigation, but also may set in motion the process of removing the child from the home, placing him or her in foster care, and potentially terminating parental rights. Many of the Commission's recommendations concern this process, as well as the central registry of abuse and neglect cases that the FIA must maintain.

CONTENT

Senate Bill 513 (S-1) would amend the Child Protection Law to provide that, if the FIA received a report that a newborn infant had drugs or alcohol in his or her body, the FIA would have to transmit a copy of the written report to the prosecuting attorney of each county in which the child resided or was found. The bill is tie-barred to Senate Bill 491, which would amend the Public Health Code to give priority for substance abuse services to a parent whose child had been removed from the home, or was in danger of being removed, because of the parent's substance abuse.

Senate Bill 515 (S-2) would amend the Child Protection Law to require that the FIA's central registry be a "statewide, electronic" registry; require the FIA to ensure that a research project would not harm the subject of information in the registry; require prosecutors to review certain substantiated cases of abuse; and provide that an abused or neglected child could not be interviewed in the presence of the suspected perpetrator.

Senate Bill 516 (S-1) would amend the juvenile code to:

-- Require the FIA to file a petition with the juvenile court if abuse of a child or his or her sibling involved certain types of conduct or if the parent's parental rights to another child had been terminated; and require the FIA also to file a petition for the termination of parental rights under those circumstances unless the court found that a termination petition was not in the child's best interest.

-- Require the court to adhere to prescribed time periods; limit the circumstances under which an abuse or neglect case could be adjourned or continued; and set a deadline for the court's decision on a termination petition.

-- Require the State Court Administrative Office (SCAO) to publish an annual report evaluating the achievements of the court in obtaining permanency for children.

-- Provide for continued legal representation of a child.

-- Require the FIA to file a supplemental petition with the court if a child were under the court's jurisdiction and the FIA became aware of abuse or neglect, which was substantiated.

-- Provide that grounds for termination of parental rights would include the parent's conviction of a crime whose victim was a child and the nature of which made the parent unfit to associate with children.

Senate Bill 517 (S-2) would amend the foster care review board Act to:

-- Require a local board to evaluate the placement of a child in a foster home that would cause the home to be out of compliance with any licensing rules or statutes; and to recommend to the Department of Consumer and Industry Services that the rules or statutes be waived if that placement would be in the child's best interests and would not jeopardize the children in the home.

-- Require a local board to perform an administrative review of random cases in which a child had not been adopted within six months after termination of parental rights, every six months until a permanent placement was achieved.

-- Require a local board to hear an appeal of a proposed change in foster care placement.

-- Delete the requirement that a foster care review board be established in a county that has 100 to 500 children in foster care; require, instead, that there be a review board in each county or multiple counties; and provide for the creation of a county local board or boards composed of one or more counties, at the direction of the SCAO.

A more detailed description of Senate Bills 515 (S-2), 516 (S-1), and 517 (S-2) follows.

Senate Bill 515 (S-2)

Under the Child Protection Law, the persons to whom information in the central registry currently may be released include a person, agency, or organization engaged in a bona fide research or evaluation project, although information identifying a person named in a report or record may not be released without that person's written consent. The bill would require that the FIA review each project requesting information to assure that the research would not harm an individual who was a subject of the information.

Currently, upon completing its investigation, a local law enforcement agency or the FIA may inform the person who made the report as to its disposition. The bill, instead, would require a local law enforcement agency or the FIA to inform the person as to the disposition of the report, including whether the case was substantiated or not and the rationale for that decision. The information would have to be in writing if the reporting person were mandated to make a report.

Under the bill, if a substantiated case involved a child's death, serious physical injury or harm to a child, or the suspicion of sexual abuse or exploitation of a child, the prosecuting attorney for the county in which the child was located would have to review the investigation of the case to determine if it complied with the procedure adopted under requirements of the Law.

The bill provides that, during an investigation of suspected child abuse or neglect, the child reported to have been abused or neglected could not be interviewed in the presence of an individual reported to have perpetuated the abuse or neglect.

The bill is tie-barred to Senate Bill 503, which would require the FIA, county child protection officials, prosecuting attorneys, and local law enforcement officials to adopt and implement standard child abuse and neglect investigation and interview protocol, using as a model the protocol developed by the Governor's Task Force on Children's Justice.

Senate Bill 516 (S-1)

Petitions

The bill would require the FIA to file a petition with the juvenile court if a parent were alleged to have abused a child or a sibling of a child and the abuse included one or more of the following:

-- Abandonment, and the child or sibling was very young or severely impaired.

-- Criminal sexual conduct involving penetration.

-- Chronic battering, torture, or other severe physical abuse.

-- Loss or serious impairment of an organ or limb.

-- Life-threatening injury.

-- Murder or attempted murder.

The FIA also would be required to petition if the parent's parental rights to another child had been terminated.

In addition, the FIA would have to petition for termination of parental rights at the same time, unless the court found on the record that it was not in the child's best interest to file a petition for termination. If a petition with the juvenile court were not required, and the FIA were considering petitioning for termination of parental rights at the initial dispositional hearing, the FIA would have to hold a conference between the protective services supervisor, the protective services worker, and the foster care worker, if any, to agree upon the course of action. If an agreement could not be reached at the conference, the FIA Director or the Director's designee would have to resolve the disagreement.

The juvenile code specifies grounds for the termination of parental rights. These would include, under the bill, that the parent was convicted of a crime whose victim was a child and the nature of which made the parent unfit to associate with children.

Time Periods/Adjournment or Continuance

Under the bill, if an abuse or neglect petition were filed, the court would be required to adhere strictly to each time period prescribed by the juvenile code or court rule for management and disposition of the child's case. The State Court Administrative Office would be required specifically to monitor the court for adherence to those time periods. The SCAO also would have to publish an annual report evaluating the achievements of the court in obtaining permanency for children.

The court could adjourn a hearing or grant a continuance regarding an abuse or neglect case only for good cause with factual findings on the record and not solely upon stipulation of counsel or for the convenience of a party. In addition to factual good cause, the court could adjourn a hearing or grant a continuance under either of the following circumstances:

-- A party moved for the adjournment or continuance in writing at least 10 days before the hearing.

-- Upon the court's own motion, but only if the delay were in the child's best interest and for a period of not more than 30 days.

Under the code, if a child remains in foster care in the temporary care of the court following a review hearing or a permanency planning hearing, or if a child remains in the custody of a guardian, upon petition of various parties the court must hold a hearing to determine if the parental rights to the child should be terminated and, if all parental rights are terminated, the child placed in permanent custody of the court. The bill would require the court to issue a decision regarding a termination petition within 70 days after the commencement of the initial hearing on the petition.

Attorney for the Child

The bill provides that a child's attorney would have to be present at all hearings concerning the child and could not substitute counsel unless the court approved.

The code provides that a court-appointed attorney must serve until discharged by the court. The bill would prohibit the court from discharging the attorney until the child was adopted, had a permanent guardian, or was no longer a State ward.

Supplemental Petition

Under the code, if a child remains under the jurisdiction of the court, a cause may be terminated or an order may be amended or supplemented at any time as the court considers necessary and proper. The bill would require the FIA to file a supplemental petition with the court if the FIA became aware of abuse or neglect of a child who was under the court's jurisdiction and that abuse or neglect was substantiated as provided in the Child Protection Law.

Senate Bill 517 (S-2)

Local Foster Care Review Boards

The foster care review board Act provides for the creation of a local foster care review board in each county having at least 100 but not more than 500 children in foster care. In addition, a county with fewer than 100 children in foster care may create its own board or create a multicounty board with other counties having fewer than 100 children in foster care under certain conditions. The bill, instead, provides that a local foster care review board would be created in each county or in multiple counties. At the direction of the State Court Administrative Office, a single county local board or boards composed of one or more counties would be created. As currently provided, an additional board would be created for each additional 300 children in a county having more than 500 children in foster care.

The bill also would delete provisions that do the following: exempt a county from establishing a review board if not less than the minimum acceptable percentage of children in foster care in the county achieved a foster care event within six months after admission into foster care; require that a board be terminated if the minimum acceptable percentage of children within the county achieving foster care events within six months after admission is attained and maintained for two consecutive State fiscal years; and, require the creation of one or more review boards in an exempted county upon agreement of the State Court Administrative Office, the judge(s) of the juvenile division of the county's probate court, and the county board of social services. (A "foster care event" is the child's return to the parent from whom the child was removed; the child's placement with the other parent; the child's placement with a relative; the voluntary release of parental rights to the child; or the filing of a petition for the termination of parental rights.)

Currently, a local board must be composed of five members who reside within the jurisdiction of the local board, and who represent to the maximum extent possible the socioeconomic, racial, and ethnic groups residing within that jurisdiction. The bill would add that a local board could have one or more alternative member who would serve when an appointed board member was unavailable.

Foster Care Placement

The bill would add to the activities required of a local board that it hear an appeal of a proposed change in foster care placement, as provided in a section of Senate Bill 490 that would establish procedures for a change in foster care placement. A local board also would have to report to the court as required by those procedures.

The bill would require a local board to perform an administrative review of random cases in which a child had not been adopted within six months after termination of parental rights, until a permanent placement was achieved. The results of each review would have to be reported to the court and the department or agency responsible for supervising the child.

A local board would be required to evaluate the placement of a child in a foster care home under circumstances that would cause the foster home to be out of compliance with one or more licensing rules or statutes. If the local board determined that the placement would be in the best interests of the child and that the lack of compliance with the particular licensing rules or statutes would not jeopardize the health or safety of the children in the foster home, it would have to recommend to the Director of the Department of Consumer and Industry Services that the particular licensing rules or statutes be waived for that foster home to allow the placement of the child.

MCL 722.623a (S.B. 513)

ARGUMENTS

(Please note: The arguments contained in this analysis originate from sources outside the Senate Fiscal Agency. The Senate Fiscal Agency neither supports nor opposes legislation.)

Supporting Argument

Among the goals of the Lieutenant Governor's Children's Commission were: ensuring the coordination of investigation between protective services and law enforcement; ensuring an expeditious adjudication to guarantee the safety of mistreated children; ensuring that the FIA establishes protocols for seeking termination at the initial dispositional hearing; ensuring legal representation for the child until his or her adoption or other permanent placement; maintaining uniform judicial timelines for placement decisions; and building a body of knowledge to improve services to children and families.

According to the Commission's report, children sometimes are interviewed in the presence of the alleged perpetrator, resulting in an unsubstantiated case. The Commission also found that current policy and law do not require the FIA to file a probate court petition in specific cases; there is no current mechanism to identify which cases should be considered for termination of parental rights; there is a lack of clear policy on the coordination of protective services and foster care staff regarding permanency planning when termination of parental rights is being considered; foster care workers often do not file a supplemental petition when new allegations of abuse and neglect surface; the court often discontinues appointment of the child's attorney after parental rights have been terminated; and, the court's exercise of broad discretion in termination issues often results in delayed permanency for a child.

The bills would implement a number of recommendations of the Commission to overcome these barriers and achieve the goals identified by the Commission.

Supporting Argument

Local foster care review boards provide much-needed oversight of foster care placements, and educate and involve the community in these matters. Since an informed and vigilant citizenry is critical to the well-being of children, Senate Bill 517 (S-2) would protect the best interests of children by expanding local boards statewide, providing for the appointment of alternative members, and requiring review boards to hear an appeal of a proposed change in foster care placement (as provided under Senate Bill 490). In addition, Senate Bill 517 (S-2) would require a local board to recommend the waiver of a particular licensing rule or statute for a foster care home if that action would be in a child's best interests. This would be consistent with provisions of Senate Bill 492, which would require the Department of Consumer and Industry Services to grant a variance to one or more licensing rules or statutes with respect to a licensed foster home, if placement in that home would cause it to be out of compliance with the licensing requirement and the placement were in the child's best interests.

- Legislative Analyst: S. Margules

FISCAL IMPACT

Senate Bill 513 (S-1)

The bill would have no fiscal impact on State or local government.

Senate Bill 515 (S-2)

State Government. The bill would have an indeterminate fiscal impact on State government. The expansion of the central registry to a Statewide, electronic system could involve some additional cost for the FIA.

Local Government. The bill would have an indeterminate fiscal impact on local government. The requirement for county prosecuting attorneys to determine whether procedures under the Child Protection Law were complied with in certain cases could result in additional administrative costs.

Senate Bill 516 (S-1)

Courts. The provision of the bill that would prohibit the court from discharging an attorney until a child was placed in a home or was no longer a State ward could result in increased cost to local units of government. At this time these costs cannot be determined.

The bill also would result in additional administrative costs to the State Court Administrative Office, which would be required to monitor the probate court for compliance with time periods.

Family Independence Agency. The bill appears to have no fiscal impact on the State or local governments.

Senate Bill 517 (S-2)

The fiscal impact is indeterminate. Assuming that there are no multicounty boards, the provisions of the bill would require at least an additional 68 boards. This would mean an additional 340 volunteer members on the local boards and the necessary staff support by the Foster Care Review Board. Currently there are two field representatives in the State Court Administrative Office-Foster Care Review Board (FCRB) who provide the necessary support to 19 local boards in 15 counties. The additional local boards would require additional staff support and resources by the FCRB.

Based on recommendations of the Children's Commission, local foster care review boards would be expanding their duties. As such, the Judiciary in its FY 1997-98 budget recommendation has requested additional funds of approximately $296,000 in order to expand the 19 boards to 33 boards. The 33 boards would provide service to all counties. The Senate has provided additional Federal funds totaling $118,400 to the Judiciary's budget, the House subcommittee is expected to provide the total amount requested by the Judiciary.

Provided that the Legislature approves the total funding requested in the FY 1997-98 Judiciary budget, the fiscal impact of the bill should be minimal.

- Fiscal Analyst: J. Walker (S.B. 513)

- C. Cole (S.B. 515 & 516)

- M. Ortiz (S.B. 516 & 517)

A9798\S513A

This analysis was prepared by nonpartisan Senate staff for use by the Senate in its deliberations and does not constitute an official statement of legislative intent.