3rd Engrossment - 79th Legislature (1995 - 1996) Posted on 12/15/2009 12:00am
1.1 A bill for an act 1.2 relating to children; modifying liability provisions 1.3 for child abuse investigations; providing for attorney 1.4 fees in certain actions; providing for the 1.5 establishment of protocols for investigations; 1.6 prohibiting certain conflicts of interest; providing 1.7 for access to data regarding determinations of 1.8 maltreatment; amending Minnesota Statutes 1994, 1.9 section 626.556, subdivisions 4, 5, 10, 10b, 10e, 10f, 1.10 and by adding a subdivision. 1.11 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA: 1.12 Section 1. Minnesota Statutes 1994, section 626.556, 1.13 subdivision 4, is amended to read: 1.14 Subd. 4. [IMMUNITY FROM LIABILITY.] (a) The following 1.15 persons are immune from any civil or criminal liability that 1.16 otherwise might result from their actions, if they are acting in 1.17 good faith: 1.18 (1) any person making a voluntary or mandated report under 1.19 subdivision 3 or under section 626.5561 or assisting in an 1.20 assessment under this section or under section 626.5561; 1.21 (2) any
social workerperson with responsibility for 1.22 performing duties under this section or supervisor employed by a 1.23 local welfare agency or the commissioner complying with 1.24 subdivision 10d or the provisions of section 626.5561; and 1.25 (3) any public or private school, facility as defined in 1.26 subdivision 2, or the employee of any public or private school 1.27 or facility who permits access by a local welfare agency or 1.28 local law enforcement agency and assists in an investigation or 2.1 assessment pursuant to subdivision 10 or under section 626.5561. 2.2 (b) A person who is a supervisor or social workerperson 2.3 with responsibility for performing duties under this section 2.4 employed by a local welfare agency or the commissioner complying 2.5 with subdivisions 10 and 11 or section 626.5561 or any related 2.6 rule or provision of law is immune from any civil or criminal 2.7 liability that might otherwise result from the person's actions, 2.8 if the person is (1) acting in good faith and exercising due 2.9 care, or (2) acting in good faith and following the information 2.10 collection procedures established under subdivision 10, 2.11 paragraphs (h), (i), and (j). 2.12 (c) This subdivision does not provide immunity to any 2.13 person for failure to make a required report or for committing 2.14 neglect, physical abuse, or sexual abuse of a child. 2.15 (d) If a person who makes a voluntary or mandatory report 2.16 under subdivision 3 prevails in a civil action from which the 2.17 person has been granted immunity under this subdivision, the 2.18 court may award the person attorney fees and costs. 2.19 Sec. 2. Minnesota Statutes 1994, section 626.556, 2.20 subdivision 5, is amended to read: 2.21 Subd. 5. [MALICIOUS AND RECKLESS REPORTS.] Any person who 2.22 knowingly or recklessly makes a false report under the 2.23 provisions of this section shall be liable in a civil suit for 2.24 any actual damages suffered by the person or persons so reported 2.25 and for any punitive damages set by the court or jury, plus 2.26 costs and reasonable attorney fees. 2.27 Sec. 3. Minnesota Statutes 1994, section 626.556, 2.28 subdivision 10, is amended to read: 2.29 Subd. 10. [DUTIES OF LOCAL WELFARE AGENCY AND LOCAL LAW 2.30 ENFORCEMENT AGENCY UPON RECEIPT OF A REPORT.] (a) If the report 2.31 alleges neglect, physical abuse, or sexual abuse by a parent, 2.32 guardian, or individual functioning within the family unit as a 2.33 person responsible for the child's care, the local welfare 2.34 agency shall immediately conduct an assessment and offer 2.35 protective social services for purposes of preventing further 2.36 abuses, safeguarding and enhancing the welfare of the abused or 3.1 neglected minor, and preserving family life whenever possible. 3.2 If the report alleges a violation of a criminal statute 3.3 involving sexual abuse, physical abuse, or neglect or 3.4 endangerment, under section 609.378, the local law enforcement 3.5 agency and local welfare agency shall coordinate the planning 3.6 and execution of their respective investigation and assessment 3.7 efforts to avoid a duplication of fact-finding efforts and 3.8 multiple interviews. Each agency shall prepare a separate 3.9 report of the results of its investigation. In cases of alleged 3.10 child maltreatment resulting in death, the local agency may rely 3.11 on the fact-finding efforts of a law enforcement investigation 3.12 to make a determination of whether or not maltreatment 3.13 occurred. When necessary the local welfare agency shall seek 3.14 authority to remove the child from the custody of a parent, 3.15 guardian, or adult with whom the child is living. In performing 3.16 any of these duties, the local welfare agency shall maintain 3.17 appropriate records. 3.18 (b) When a local agency receives a report or otherwise has 3.19 information indicating that a child who is a client, as defined 3.20 in section 245.91, has been the subject of physical abuse, 3.21 sexual abuse, or neglect at an agency, facility, or program as 3.22 defined in section 245.91, it shall, in addition to its other 3.23 duties under this section, immediately inform the ombudsman 3.24 established under sections 245.91 to 245.97. 3.25 (c) Authority of the local welfare agency responsible for 3.26 assessing the child abuse or neglect report and of the local law 3.27 enforcement agency for investigating the alleged abuse or 3.28 neglect includes, but is not limited to, authority to interview, 3.29 without parental consent, the alleged victim and any other 3.30 minors who currently reside with or who have resided with the 3.31 alleged perpetratoroffender. The interview may take place at 3.32 school or at any facility or other place where the alleged 3.33 victim or other minors might be found or the child may be 3.34 transported to, and the interview conducted at, a place 3.35 appropriate for the interview of a child designated by the local 3.36 welfare agency or law enforcement agency. The interview may 4.1 take place outside the presence of the perpetratoralleged 4.2 offender or parent, legal custodian, guardian, or school 4.3 official. Except as provided in this paragraph, the parent, 4.4 legal custodian, or guardian shall be notified by the 4.5 responsible local welfare or law enforcement agency no later 4.6 than the conclusion of the investigation or assessment that this 4.7 interview has occurred. Notwithstanding rule 49.02 of the 4.8 Minnesota rules of procedure for juvenile courts, the juvenile 4.9 court may, after hearing on an ex parte motion by the local 4.10 welfare agency, order that, where reasonable cause exists, the 4.11 agency withhold notification of this interview from the parent, 4.12 legal custodian, or guardian. If the interview took place or is 4.13 to take place on school property, the order shall specify that 4.14 school officials may not disclose to the parent, legal 4.15 custodian, or guardian the contents of the notification of 4.16 intent to interview the child on school property, as provided 4.17 under this paragraph, and any other related information 4.18 regarding the interview that may be a part of the child's school 4.19 record. A copy of the order shall be sent by the local welfare 4.20 or law enforcement agency to the appropriate school official. 4.21 (d) When the local welfare or local law enforcement agency 4.22 determines that an interview should take place on school 4.23 property, written notification of intent to interview the child 4.24 on school property must be received by school officials prior to 4.25 the interview. The notification shall include the name of the 4.26 child to be interviewed, the purpose of the interview, and a 4.27 reference to the statutory authority to conduct an interview on 4.28 school property. For interviews conducted by the local welfare 4.29 agency, the notification shall be signed by the chair of the 4.30 local social services agency or the chair's designee. The 4.31 notification shall be private data on individuals subject to the 4.32 provisions of this paragraph. School officials may not disclose 4.33 to the parent, legal custodian, or guardian the contents of the 4.34 notification or any other related information regarding the 4.35 interview until notified in writing by the local welfare or law 4.36 enforcement agency that the investigation or assessment has been 5.1 concluded. Until that time, the local welfare or law 5.2 enforcement agency shall be solely responsible for any 5.3 disclosures regarding the nature of the assessment or 5.4 investigation. 5.5 Except where the alleged perpetratoroffender is believed 5.6 to be a school official or employee, the time and place, and 5.7 manner of the interview on school premises shall be within the 5.8 discretion of school officials, but the local welfare or law 5.9 enforcement agency shall have the exclusive authority to 5.10 determine who may attend the interview. The conditions as to 5.11 time, place, and manner of the interview set by the school 5.12 officials shall be reasonable and the interview shall be 5.13 conducted not more than 24 hours after the receipt of the 5.14 notification unless another time is considered necessary by 5.15 agreement between the school officials and the local welfare or 5.16 law enforcement agency. Where the school fails to comply with 5.17 the provisions of this paragraph, the juvenile court may order 5.18 the school to comply. Every effort must be made to reduce the 5.19 disruption of the educational program of the child, other 5.20 students, or school staff when an interview is conducted on 5.21 school premises. 5.22 (e) Where the perpetratoralleged offender or a person 5.23 responsible for the care of the alleged victim or other minor 5.24 prevents access to the victim or other minor by the local 5.25 welfare agency, the juvenile court may order the parents, legal 5.26 custodian, or guardian to produce the alleged victim or other 5.27 minor for questioning by the local welfare agency or the local 5.28 law enforcement agency outside the presence of the perpetrator5.29 alleged offender or any person responsible for the child's care 5.30 at reasonable places and times as specified by court order. 5.31 (f) Before making an order under paragraph (e), the court 5.32 shall issue an order to show cause, either upon its own motion 5.33 or upon a verified petition, specifying the basis for the 5.34 requested interviews and fixing the time and place of the 5.35 hearing. The order to show cause shall be served personally and 5.36 shall be heard in the same manner as provided in other cases in 6.1 the juvenile court. The court shall consider the need for 6.2 appointment of a guardian ad litem to protect the best interests 6.3 of the child. If appointed, the guardian ad litem shall be 6.4 present at the hearing on the order to show cause. 6.5 (g) The commissioner, the ombudsman for mental health and 6.6 mental retardation, the local welfare agencies responsible for 6.7 investigating reports, and the local law enforcement agencies 6.8 have the right to enter facilities as defined in subdivision 2 6.9 and to inspect and copy the facility's records, including 6.10 medical records, as part of the investigation. Notwithstanding 6.11 the provisions of chapter 13, they also have the right to inform 6.12 the facility under investigation that they are conducting an 6.13 investigation, to disclose to the facility the names of the 6.14 individuals under investigation for abusing or neglecting a 6.15 child, and to provide the facility with a copy of the report and 6.16 the investigative findings. 6.17 (h) The local welfare agency shall collect available and 6.18 relevant information to ascertain whether maltreatment occurred 6.19 and whether protective services are needed. Information 6.20 collected includes, when relevant, information with regard to 6.21 the person reporting the alleged maltreatment, including the 6.22 nature of the reporter's relationship to the child and to the 6.23 alleged offender, and the basis of the reporter's knowledge for 6.24 the report; the child allegedly being maltreated; the alleged 6.25 offender; the child's caretaker; and other collateral sources 6.26 having relevant information related to the alleged 6.27 maltreatment. The local welfare agency may make a determination 6.28 of no maltreatment early in an assessment, and close the case 6.29 and retain immunity, if the collected information shows no basis 6.30 for a full assessment or investigation. 6.31 Information relevant to the assessment or investigation 6.32 must be asked for, and may include: 6.33 (1) the child's sex and age, prior reports of maltreatment, 6.34 information relating to developmental functioning, credibility 6.35 of the child's statement, and whether the information provided 6.36 under this clause is consistent with other information collected 7.1 during the course of the assessment or investigation; 7.2 (2) the alleged offender's age, a record check for prior 7.3 reports of maltreatment, and criminal charges and convictions. 7.4 The local welfare agency must provide the alleged offender with 7.5 an opportunity to make a statement. The alleged offender may 7.6 submit supporting documentation relevant to the assessment or 7.7 investigation; 7.8 (3) collateral source information regarding the alleged 7.9 maltreatment and care of the child. Collateral information 7.10 includes, when relevant: (i) a medical examination of the 7.11 child; (ii) prior medical records relating to the alleged 7.12 maltreatment or the care of the child and an interview with the 7.13 treating professionals; and (iii) interviews with the child's 7.14 caretakers, including the child's parent, guardian, foster 7.15 parent, child care provider, teachers, counselors, family 7.16 members, relatives, and other persons who may have knowledge 7.17 regarding the alleged maltreatment and the care of the child. 7.18 Nothing in this paragraph precludes the local welfare 7.19 agency from collecting other relevant information necessary to 7.20 conduct the assessment or investigation. Notwithstanding the 7.21 data's classification in the possession of any other agency, 7.22 data acquired by the local welfare agency during the course of 7.23 the assessment or investigation are private data on individuals 7.24 and must be maintained in accordance with subdivision 11. 7.25 (i) In the initial stages of an assessment or 7.26 investigation, the local welfare agency shall conduct a 7.27 face-to-face observation of the child reported to be maltreated 7.28 and a face-to-face interview of the alleged offender. The 7.29 interview with the alleged offender may be postponed if it would 7.30 jeopardize an active law enforcement investigation. 7.31 (j) The local welfare agency shall use a question and 7.32 answer interviewing format with questioning as nondirective as 7.33 possible to elicit spontaneous responses. The following 7.34 interviewing methods and procedures must be used whenever 7.35 possible when collecting information: 7.36 (1) audio recordings of all interviews with witnesses and 8.1 collateral sources; and 8.2 (2) in cases of alleged sexual abuse, audio-video 8.3 recordings of each interview with the alleged victim and child 8.4 witnesses. 8.5 Sec. 4. Minnesota Statutes 1994, section 626.556, 8.6 subdivision 10b, is amended to read: 8.7 Subd. 10b. [DUTIES OF COMMISSIONER; NEGLECT OR ABUSE IN A 8.8 FACILITY.] (a) The commissioner shall immediately investigate if 8.9 the report alleges that: 8.10 (1) a child who is in the care of a facility as defined in 8.11 subdivision 2 is neglected, physically abused, or sexually 8.12 abused by an individual in that facility, or has been so 8.13 neglected or abused by an individual in that facility within the 8.14 three years preceding the report; or 8.15 (2) a child was neglected, physically abused, or sexually 8.16 abused by an individual in a facility defined in subdivision 2, 8.17 while in the care of that facility within the three years 8.18 preceding the report. 8.19 The commissioner shall arrange for the transmittal to the 8.20 commissioner of reports received by local agencies and may 8.21 delegate to a local welfare agency the duty to investigate 8.22 reports. In conducting an investigation under this section, the 8.23 commissioner has the powers and duties specified for local 8.24 welfare agencies under this section. The commissioner or local 8.25 welfare agency may interview any children who are or have been 8.26 in the care of a facility under investigation and their parents, 8.27 guardians, or legal custodians. 8.28 (b) Prior to any interview, the commissioner or local 8.29 welfare agency shall notify the parent, guardian, or legal 8.30 custodian of a child who will be interviewed in the manner 8.31 provided for in subdivision 10d, paragraph (a). If reasonable 8.32 efforts to reach the parent, guardian, or legal custodian of a 8.33 child in an out-of-home placement have failed, the child may be 8.34 interviewed if there is reason to believe the interview is 8.35 necessary to protect the child or other children in the 8.36 facility. The commissioner or local agency must provide the 9.1 information required in this subdivision to the parent, 9.2 guardian, or legal custodian of a child interviewed without 9.3 parental notification as soon as possible after the interview. 9.4 When the investigation is completed, any parent, guardian, or 9.5 legal custodian notified under this subdivision shall receive 9.6 the written memorandum provided for in subdivision 10d, 9.7 paragraph (c). 9.8 (c) In conducting investigations under this subdivision the 9.9 commissioner or local welfare agency shall obtain access to 9.10 information consistent with subdivision 10, paragraphs (h), (i), 9.11 and (j). 9.12 Sec. 5. Minnesota Statutes 1994, section 626.556, 9.13 subdivision 10e, is amended to read: 9.14 Subd. 10e. [DETERMINATIONS.] Upon the conclusion of every 9.15 assessment or investigation it conducts, the local welfare 9.16 agency shall make two determinations: first, whether 9.17 maltreatment has occurred; and second, whether child protective 9.18 services are needed. Determinations under this subdivision must 9.19 be made based on a preponderance of the evidence. 9.20 (a) For the purposes of this subdivision, "maltreatment" 9.21 means any of the following acts or omissions committed by a 9.22 person responsible for the child's care: 9.23 (1) physical abuse as defined in subdivision 2, paragraph 9.24 (d); 9.25 (2) neglect as defined in subdivision 2, paragraph (c); 9.26 (3) sexual abuse as defined in subdivision 2, paragraph 9.27 (a); or 9.28 (4) mental injury as defined in subdivision 2, paragraph 9.29 (k). 9.30 (b) For the purposes of this subdivision, a determination 9.31 that child protective services are needed means that the local 9.32 welfare agency has documented conditions during the assessment 9.33 or investigation sufficient to cause a child protection worker, 9.34 as defined in section 626.559, subdivision 1, to conclude that a 9.35 child is at significant risk of maltreatment if protective 9.36 intervention is not provided and that the individuals 10.1 responsible for the child's care have not taken or are not 10.2 likely to take actions to protect the child from maltreatment or 10.3 risk of maltreatment. 10.4 (c) This subdivision does not mean that maltreatment has 10.5 occurred solely because the child's parent, guardian, or other 10.6 person responsible for the child's care in good faith selects 10.7 and depends upon spiritual means or prayer for treatment or care 10.8 of disease or remedial care of the child, in lieu of medical 10.9 care. However, if lack of medical care may result in serious 10.10 danger to the child's health, the local welfare agency may 10.11 ensure that necessary medical services are provided to the child. 10.12 Sec. 6. Minnesota Statutes 1994, section 626.556, 10.13 subdivision 10f, is amended to read: 10.14 Subd. 10f. [NOTICE OF DETERMINATIONS.] Within ten working 10.15 days of the conclusion of an assessment, the local welfare 10.16 agency shall notify the parent or guardian of the child, the 10.17 person determined to be maltreating the child, and if 10.18 applicable, the director of the facility, of the determinations.10.19 Within ten working days of completing an investigation of a10.20 licensed facility, the local welfare agency shall notify the10.21 person alleged to be maltreating the child, the director of the10.22 facility, and the parent or guardian of the child of the10.23 determinationsdetermination and a summary of the specific 10.24 reasons for the determination. The notice must also include a 10.25 certification that the information collection procedures under 10.26 subdivision 10, paragraphs (h), (i), and (j), were followed and 10.27 a notice of the right of a data subject to obtain access to 10.28 other private data on the subject collected, created, or 10.29 maintained under this section. In addition to the10.30 determinations, the notice shall include the length of time that 10.31 the records will be kept under subdivision 11c. When there is 10.32 no determination of either maltreatment or a need for services, 10.33 the notice shall also include the alleged perpetrator's right to 10.34 have the records destroyed. 10.35 Sec. 7. Minnesota Statutes 1994, section 626.556, is 10.36 amended by adding a subdivision to read: 11.1 Subd. 14. [CONFLICT OF INTEREST.] (a) A potential conflict 11.2 of interest related to assisting in an assessment under this 11.3 section resulting in a direct or shared financial interest with 11.4 a child abuse and neglect treatment provider or resulting from a 11.5 personal or family relationship with a party in the 11.6 investigation must be considered by the local welfare agency in 11.7 an effort to prevent unethical relationships. 11.8 (b) A person who conducts an assessment under this section 11.9 or section 626.5561 may not have: 11.10 (1) any direct or shared financial interest or referral 11.11 relationship resulting in a direct shared financial gain with a 11.12 child abuse and neglect treatment provider; or 11.13 (2) a personal or family relationship with a party in the 11.14 investigation. 11.15 If an independent assessor is not available, the person 11.16 responsible for making the determination under this section may 11.17 use the services of an assessor with a financial interest, 11.18 referral, or personal or family relationship. 11.19 Sec. 8. [INFORMATION SHEET ON INVESTIGATION PROCESS.] 11.20 The commissioner must distribute to all local welfare 11.21 agencies an information sheet that summarizes the investigation 11.22 process and is based upon the commissioner's report titled 11.23 "Recommended Standards for Use when Investigating Reports of 11.24 Maltreatment in Child Care Facilities." The local welfare 11.25 agency shall give this information sheet to all parties involved 11.26 in information collection procedures under Minnesota Statutes, 11.27 section 626.556, subdivision 10. 11.28 Sec. 9. [ALTERNATIVE DISPUTE RESOLUTION PROCEDURES; 11.29 RECOMMENDATIONS.] 11.30 The commissioner of human services, in consultation with 11.31 county attorneys, law enforcement personnel, representatives of 11.32 parent and foster parent groups, facilities, attorneys and other 11.33 advocates who represent the interests of persons who may be 11.34 accused of child abuse and neglect, other professional human 11.35 services associations, and the representatives of communities of 11.36 color shall review and make recommendations to the chairs of the 12.1 legislative committees on health and human services, judiciary, 12.2 family services, and crime prevention on possible alternative 12.3 dispute resolution or fair hearing procedures to be used in 12.4 reviewing and resolving issues of alleged maltreatment and 12.5 determinations of whether child protective services are needed. 12.6 The purpose of the alternative dispute resolution process shall 12.7 be to provide a prompt and nonadversarial opportunity to resolve 12.8 allegations of maltreatment. The commissioner shall make these 12.9 recommendations by January 15, 1996.