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1995 Minnesota Session Laws

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                            CHAPTER 187-S.F.No. 342 
                  An act relating to children; modifying liability 
                  provisions for child abuse investigations; providing 
                  for attorney fees in certain actions; providing for 
                  the establishment of protocols for investigations; 
                  prohibiting certain conflicts of interest; providing 
                  for access to data regarding determinations of 
                  maltreatment; amending Minnesota Statutes 1994, 
                  section 626.556, subdivisions 4, 5, 10, 10b, 10e, 10f, 
                  and by adding a subdivision. 
        BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA: 
           Section 1.  Minnesota Statutes 1994, section 626.556, 
        subdivision 4, is amended to read: 
           Subd. 4.  [IMMUNITY FROM LIABILITY.] (a) The following 
        persons are immune from any civil or criminal liability that 
        otherwise might result from their actions, if they are acting in 
        good faith: 
           (1) any person making a voluntary or mandated report under 
        subdivision 3 or under section 626.5561 or assisting in an 
        assessment under this section or under section 626.5561; 
           (2) any social worker person with responsibility for 
        performing duties under this section or supervisor employed by a 
        local welfare agency or the commissioner complying with 
        subdivision 10d or the provisions of section 626.5561; and 
           (3) any public or private school, facility as defined in 
        subdivision 2, or the employee of any public or private school 
        or facility who permits access by a local welfare agency or 
        local law enforcement agency and assists in an investigation or 
        assessment pursuant to subdivision 10 or under section 626.5561. 
           (b) A person who is a supervisor or social worker person 
        with responsibility for performing duties under this section 
        employed by a local welfare agency or the commissioner complying 
        with subdivisions 10 and 11 or section 626.5561 or any related 
        rule or provision of law is immune from any civil or criminal 
        liability that might otherwise result from the person's actions, 
        if the person is (1) acting in good faith and exercising due 
        care, or (2) acting in good faith and following the information 
        collection procedures established under subdivision 10, 
        paragraphs (h), (i), and (j). 
           (c) This subdivision does not provide immunity to any 
        person for failure to make a required report or for committing 
        neglect, physical abuse, or sexual abuse of a child. 
           (d) If a person who makes a voluntary or mandatory report 
        under subdivision 3 prevails in a civil action from which the 
        person has been granted immunity under this subdivision, the 
        court may award the person attorney fees and costs. 
           Sec. 2.  Minnesota Statutes 1994, section 626.556, 
        subdivision 5, is amended to read: 
           Subd. 5.  [MALICIOUS AND RECKLESS REPORTS.] Any person who 
        knowingly or recklessly makes a false report under the 
        provisions of this section shall be liable in a civil suit for 
        any actual damages suffered by the person or persons so reported 
        and for any punitive damages set by the court or jury, plus 
        costs and reasonable attorney fees. 
           Sec. 3.  Minnesota Statutes 1994, section 626.556, 
        subdivision 10, is amended to read: 
           Subd. 10.  [DUTIES OF LOCAL WELFARE AGENCY AND LOCAL LAW 
        ENFORCEMENT AGENCY UPON RECEIPT OF A REPORT.] (a) If the report 
        alleges neglect, physical abuse, or sexual abuse by a parent, 
        guardian, or individual functioning within the family unit as a 
        person responsible for the child's care, the local welfare 
        agency shall immediately conduct an assessment and offer 
        protective social services for purposes of preventing further 
        abuses, safeguarding and enhancing the welfare of the abused or 
        neglected minor, and preserving family life whenever possible.  
        If the report alleges a violation of a criminal statute 
        involving sexual abuse, physical abuse, or neglect or 
        endangerment, under section 609.378, the local law enforcement 
        agency and local welfare agency shall coordinate the planning 
        and execution of their respective investigation and assessment 
        efforts to avoid a duplication of fact-finding efforts and 
        multiple interviews.  Each agency shall prepare a separate 
        report of the results of its investigation.  In cases of alleged 
        child maltreatment resulting in death, the local agency may rely 
        on the fact-finding efforts of a law enforcement investigation 
        to make a determination of whether or not maltreatment 
        occurred.  When necessary the local welfare agency shall seek 
        authority to remove the child from the custody of a parent, 
        guardian, or adult with whom the child is living.  In performing 
        any of these duties, the local welfare agency shall maintain 
        appropriate records.  
           (b) When a local agency receives a report or otherwise has 
        information indicating that a child who is a client, as defined 
        in section 245.91, has been the subject of physical abuse, 
        sexual abuse, or neglect at an agency, facility, or program as 
        defined in section 245.91, it shall, in addition to its other 
        duties under this section, immediately inform the ombudsman 
        established under sections 245.91 to 245.97. 
           (c) Authority of the local welfare agency responsible for 
        assessing the child abuse or neglect report and of the local law 
        enforcement agency for investigating the alleged abuse or 
        neglect includes, but is not limited to, authority to interview, 
        without parental consent, the alleged victim and any other 
        minors who currently reside with or who have resided with the 
        alleged perpetrator offender.  The interview may take place at 
        school or at any facility or other place where the alleged 
        victim or other minors might be found or the child may be 
        transported to, and the interview conducted at, a place 
        appropriate for the interview of a child designated by the local 
        welfare agency or law enforcement agency.  The interview may 
        take place outside the presence of the perpetrator alleged 
        offender or parent, legal custodian, guardian, or school 
        official.  Except as provided in this paragraph, the parent, 
        legal custodian, or guardian shall be notified by the 
        responsible local welfare or law enforcement agency no later 
        than the conclusion of the investigation or assessment that this 
        interview has occurred.  Notwithstanding rule 49.02 of the 
        Minnesota rules of procedure for juvenile courts, the juvenile 
        court may, after hearing on an ex parte motion by the local 
        welfare agency, order that, where reasonable cause exists, the 
        agency withhold notification of this interview from the parent, 
        legal custodian, or guardian.  If the interview took place or is 
        to take place on school property, the order shall specify that 
        school officials may not disclose to the parent, legal 
        custodian, or guardian the contents of the notification of 
        intent to interview the child on school property, as provided 
        under this paragraph, and any other related information 
        regarding the interview that may be a part of the child's school 
        record.  A copy of the order shall be sent by the local welfare 
        or law enforcement agency to the appropriate school official. 
           (d) When the local welfare or local law enforcement agency 
        determines that an interview should take place on school 
        property, written notification of intent to interview the child 
        on school property must be received by school officials prior to 
        the interview.  The notification shall include the name of the 
        child to be interviewed, the purpose of the interview, and a 
        reference to the statutory authority to conduct an interview on 
        school property.  For interviews conducted by the local welfare 
        agency, the notification shall be signed by the chair of the 
        local social services agency or the chair's designee.  The 
        notification shall be private data on individuals subject to the 
        provisions of this paragraph.  School officials may not disclose 
        to the parent, legal custodian, or guardian the contents of the 
        notification or any other related information regarding the 
        interview until notified in writing by the local welfare or law 
        enforcement agency that the investigation or assessment has been 
        concluded.  Until that time, the local welfare or law 
        enforcement agency shall be solely responsible for any 
        disclosures regarding the nature of the assessment or 
        investigation.  
           Except where the alleged perpetrator offender is believed 
        to be a school official or employee, the time and place, and 
        manner of the interview on school premises shall be within the 
        discretion of school officials, but the local welfare or law 
        enforcement agency shall have the exclusive authority to 
        determine who may attend the interview.  The conditions as to 
        time, place, and manner of the interview set by the school 
        officials shall be reasonable and the interview shall be 
        conducted not more than 24 hours after the receipt of the 
        notification unless another time is considered necessary by 
        agreement between the school officials and the local welfare or 
        law enforcement agency.  Where the school fails to comply with 
        the provisions of this paragraph, the juvenile court may order 
        the school to comply.  Every effort must be made to reduce the 
        disruption of the educational program of the child, other 
        students, or school staff when an interview is conducted on 
        school premises.  
           (e) Where the perpetrator alleged offender or a person 
        responsible for the care of the alleged victim or other minor 
        prevents access to the victim or other minor by the local 
        welfare agency, the juvenile court may order the parents, legal 
        custodian, or guardian to produce the alleged victim or other 
        minor for questioning by the local welfare agency or the local 
        law enforcement agency outside the presence of the perpetrator 
        alleged offender or any person responsible for the child's care 
        at reasonable places and times as specified by court order.  
           (f) Before making an order under paragraph (e), the court 
        shall issue an order to show cause, either upon its own motion 
        or upon a verified petition, specifying the basis for the 
        requested interviews and fixing the time and place of the 
        hearing.  The order to show cause shall be served personally and 
        shall be heard in the same manner as provided in other cases in 
        the juvenile court.  The court shall consider the need for 
        appointment of a guardian ad litem to protect the best interests 
        of the child.  If appointed, the guardian ad litem shall be 
        present at the hearing on the order to show cause.  
           (g) The commissioner, the ombudsman for mental health and 
        mental retardation, the local welfare agencies responsible for 
        investigating reports, and the local law enforcement agencies 
        have the right to enter facilities as defined in subdivision 2 
        and to inspect and copy the facility's records, including 
        medical records, as part of the investigation.  Notwithstanding 
        the provisions of chapter 13, they also have the right to inform 
        the facility under investigation that they are conducting an 
        investigation, to disclose to the facility the names of the 
        individuals under investigation for abusing or neglecting a 
        child, and to provide the facility with a copy of the report and 
        the investigative findings. 
           (h) The local welfare agency shall collect available and 
        relevant information to ascertain whether maltreatment occurred 
        and whether protective services are needed.  Information 
        collected includes, when relevant, information with regard to 
        the person reporting the alleged maltreatment, including the 
        nature of the reporter's relationship to the child and to the 
        alleged offender, and the basis of the reporter's knowledge for 
        the report; the child allegedly being maltreated; the alleged 
        offender; the child's caretaker; and other collateral sources 
        having relevant information related to the alleged 
        maltreatment.  The local welfare agency may make a determination 
        of no maltreatment early in an assessment, and close the case 
        and retain immunity, if the collected information shows no basis 
        for a full assessment or investigation. 
           Information relevant to the assessment or investigation 
        must be asked for, and may include: 
           (1) the child's sex and age, prior reports of maltreatment, 
        information relating to developmental functioning, credibility 
        of the child's statement, and whether the information provided 
        under this clause is consistent with other information collected 
        during the course of the assessment or investigation; 
           (2) the alleged offender's age, a record check for prior 
        reports of maltreatment, and criminal charges and convictions.  
        The local welfare agency must provide the alleged offender with 
        an opportunity to make a statement.  The alleged offender may 
        submit supporting documentation relevant to the assessment or 
        investigation; 
           (3) collateral source information regarding the alleged 
        maltreatment and care of the child.  Collateral information 
        includes, when relevant:  (i) a medical examination of the 
        child; (ii) prior medical records relating to the alleged 
        maltreatment or the care of the child and an interview with the 
        treating professionals; and (iii) interviews with the child's 
        caretakers, including the child's parent, guardian, foster 
        parent, child care provider, teachers, counselors, family 
        members, relatives, and other persons who may have knowledge 
        regarding the alleged maltreatment and the care of the child. 
           Nothing in this paragraph precludes the local welfare 
        agency from collecting other relevant information necessary to 
        conduct the assessment or investigation.  Notwithstanding the 
        data's classification in the possession of any other agency, 
        data acquired by the local welfare agency during the course of 
        the assessment or investigation are private data on individuals 
        and must be maintained in accordance with subdivision 11. 
           (i) In the initial stages of an assessment or 
        investigation, the local welfare agency shall conduct a 
        face-to-face observation of the child reported to be maltreated 
        and a face-to-face interview of the alleged offender.  The 
        interview with the alleged offender may be postponed if it would 
        jeopardize an active law enforcement investigation. 
           (j) The local welfare agency shall use a question and 
        answer interviewing format with questioning as nondirective as 
        possible to elicit spontaneous responses.  The following 
        interviewing methods and procedures must be used whenever 
        possible when collecting information: 
           (1) audio recordings of all interviews with witnesses and 
        collateral sources; and 
           (2) in cases of alleged sexual abuse, audio-video 
        recordings of each interview with the alleged victim and child 
        witnesses. 
           Sec. 4.  Minnesota Statutes 1994, section 626.556, 
        subdivision 10b, is amended to read: 
           Subd. 10b.  [DUTIES OF COMMISSIONER; NEGLECT OR ABUSE IN A 
        FACILITY.] (a) The commissioner shall immediately investigate if 
        the report alleges that: 
           (1) a child who is in the care of a facility as defined in 
        subdivision 2 is neglected, physically abused, or sexually 
        abused by an individual in that facility, or has been so 
        neglected or abused by an individual in that facility within the 
        three years preceding the report; or 
           (2) a child was neglected, physically abused, or sexually 
        abused by an individual in a facility defined in subdivision 2, 
        while in the care of that facility within the three years 
        preceding the report.  
           The commissioner shall arrange for the transmittal to the 
        commissioner of reports received by local agencies and may 
        delegate to a local welfare agency the duty to investigate 
        reports.  In conducting an investigation under this section, the 
        commissioner has the powers and duties specified for local 
        welfare agencies under this section.  The commissioner or local 
        welfare agency may interview any children who are or have been 
        in the care of a facility under investigation and their parents, 
        guardians, or legal custodians. 
           (b) Prior to any interview, the commissioner or local 
        welfare agency shall notify the parent, guardian, or legal 
        custodian of a child who will be interviewed in the manner 
        provided for in subdivision 10d, paragraph (a).  If reasonable 
        efforts to reach the parent, guardian, or legal custodian of a 
        child in an out-of-home placement have failed, the child may be 
        interviewed if there is reason to believe the interview is 
        necessary to protect the child or other children in the 
        facility.  The commissioner or local agency must provide the 
        information required in this subdivision to the parent, 
        guardian, or legal custodian of a child interviewed without 
        parental notification as soon as possible after the interview.  
        When the investigation is completed, any parent, guardian, or 
        legal custodian notified under this subdivision shall receive 
        the written memorandum provided for in subdivision 10d, 
        paragraph (c). 
           (c) In conducting investigations under this subdivision the 
        commissioner or local welfare agency shall obtain access to 
        information consistent with subdivision 10, paragraphs (h), (i), 
        and (j). 
           Sec. 5.  Minnesota Statutes 1994, section 626.556, 
        subdivision 10e, is amended to read: 
           Subd. 10e.  [DETERMINATIONS.] Upon the conclusion of every 
        assessment or investigation it conducts, the local welfare 
        agency shall make two determinations:  first, whether 
        maltreatment has occurred; and second, whether child protective 
        services are needed.  Determinations under this subdivision must 
        be made based on a preponderance of the evidence. 
           (a) For the purposes of this subdivision, "maltreatment" 
        means any of the following acts or omissions committed by a 
        person responsible for the child's care: 
           (1) physical abuse as defined in subdivision 2, paragraph 
        (d); 
           (2) neglect as defined in subdivision 2, paragraph (c); 
           (3) sexual abuse as defined in subdivision 2, paragraph 
        (a); or 
           (4) mental injury as defined in subdivision 2, paragraph 
        (k). 
           (b) For the purposes of this subdivision, a determination 
        that child protective services are needed means that the local 
        welfare agency has documented conditions during the assessment 
        or investigation sufficient to cause a child protection worker, 
        as defined in section 626.559, subdivision 1, to conclude that a 
        child is at significant risk of maltreatment if protective 
        intervention is not provided and that the individuals 
        responsible for the child's care have not taken or are not 
        likely to take actions to protect the child from maltreatment or 
        risk of maltreatment. 
           (c) This subdivision does not mean that maltreatment has 
        occurred solely because the child's parent, guardian, or other 
        person responsible for the child's care in good faith selects 
        and depends upon spiritual means or prayer for treatment or care 
        of disease or remedial care of the child, in lieu of medical 
        care.  However, if lack of medical care may result in serious 
        danger to the child's health, the local welfare agency may 
        ensure that necessary medical services are provided to the child.
           Sec. 6.  Minnesota Statutes 1994, section 626.556, 
        subdivision 10f, is amended to read: 
           Subd. 10f.  [NOTICE OF DETERMINATIONS.] Within ten working 
        days of the conclusion of an assessment, the local welfare 
        agency shall notify the parent or guardian of the child, the 
        person determined to be maltreating the child, and if 
        applicable, the director of the facility, of the determinations. 
        Within ten working days of completing an investigation of a 
        licensed facility, the local welfare agency shall notify the 
        person alleged to be maltreating the child, the director of the 
        facility, and the parent or guardian of the child of the 
        determinations determination and a summary of the specific 
        reasons for the determination.  The notice must also include a 
        certification that the information collection procedures under 
        subdivision 10, paragraphs (h), (i), and (j), were followed and 
        a notice of the right of a data subject to obtain access to 
        other private data on the subject collected, created, or 
        maintained under this section.  In addition to the 
        determinations, the notice shall include the length of time that 
        the records will be kept under subdivision 11c.  When there is 
        no determination of either maltreatment or a need for services, 
        the notice shall also include the alleged perpetrator's right to 
        have the records destroyed. 
           Sec. 7.  Minnesota Statutes 1994, section 626.556, is 
        amended by adding a subdivision to read: 
           Subd. 14.  [CONFLICT OF INTEREST.] (a) A potential conflict 
        of interest related to assisting in an assessment under this 
        section resulting in a direct or shared financial interest with 
        a child abuse and neglect treatment provider or resulting from a 
        personal or family relationship with a party in the 
        investigation must be considered by the local welfare agency in 
        an effort to prevent unethical relationships. 
           (b) A person who conducts an assessment under this section 
        or section 626.5561 may not have: 
           (1) any direct or shared financial interest or referral 
        relationship resulting in a direct shared financial gain with a 
        child abuse and neglect treatment provider; or 
           (2) a personal or family relationship with a party in the 
        investigation.  
           If an independent assessor is not available, the person 
        responsible for making the determination under this section may 
        use the services of an assessor with a financial interest, 
        referral, or personal or family relationship. 
           Sec. 8.  [INFORMATION SHEET ON INVESTIGATION PROCESS.] 
           The commissioner must distribute to all local welfare 
        agencies an information sheet that summarizes the investigation 
        process and is based upon the commissioner's report titled 
        "Recommended Standards for Use when Investigating Reports of 
        Maltreatment in Child Care Facilities."  The local welfare 
        agency shall give this information sheet to all parties involved 
        in information collection procedures under Minnesota Statutes, 
        section 626.556, subdivision 10. 
           Sec. 9.  [ALTERNATIVE DISPUTE RESOLUTION PROCEDURES; 
        RECOMMENDATIONS.] 
           The commissioner of human services, in consultation with 
        county attorneys, law enforcement personnel, representatives of 
        parent and foster parent groups, facilities, attorneys and other 
        advocates who represent the interests of persons who may be 
        accused of child abuse and neglect, other professional human 
        services associations, and the representatives of communities of 
        color shall review and make recommendations to the chairs of the 
        legislative committees on health and human services, judiciary, 
        family services, and crime prevention on possible alternative 
        dispute resolution or fair hearing procedures to be used in 
        reviewing and resolving issues of alleged maltreatment and 
        determinations of whether child protective services are needed.  
        The purpose of the alternative dispute resolution process shall 
        be to provide a prompt and nonadversarial opportunity to resolve 
        allegations of maltreatment.  The commissioner shall make these 
        recommendations by January 15, 1996. 
           Presented to the governor May 16, 1995 
           Signed by the governor May 18, 1995, 11:37 a.m.

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