HB-5198, As Passed Senate, December 19, 2014

 

 

 

 

 

 

 

 

 

 

 

SENATE SUBSTITUTE FOR

 

HOUSE BILL NO. 5198

 

 

 

 

 

 

 

 

 

 

 

     A bill to amend 1975 PA 238, entitled

 

"Child protection law,"

 

by amending section 7 (MCL 722.627), as amended by 2014 PA 30.

 

THE PEOPLE OF THE STATE OF MICHIGAN ENACT:

 

     Sec. 7. (1) The department shall maintain a statewide,

 

electronic central registry to carry out the intent of this act.

 

     (2) Unless made public as specified information released under

 

section 7d, a written report, document, or photograph filed with

 

the department as provided in this act is a confidential record

 

available only to 1 or more of the following:

 

     (a) A legally mandated public or private child protective

 

agency investigating a report of known or suspected child abuse or

 

child neglect or a legally mandated public or private child

 

protective agency or foster care agency prosecuting a disciplinary

 

action against its own employee involving child protective services

 

or foster records.

 

     (b) A police or other law enforcement agency investigating a

 

report of known or suspected child abuse or child neglect.

 

     (c) A physician who is treating a child whom the physician

 

reasonably suspects may be abused or neglected.

 

     (d) A person legally authorized to place a child in protective

 

custody when the person is confronted with a child whom the person

 

reasonably suspects may be abused or neglected and the confidential

 

record is necessary to determine whether to place the child in

 

protective custody.

 

     (e) A person, agency, or organization, including a

 

multidisciplinary case consultation team, authorized to diagnose,

 

care for, treat, or supervise a child or family who is the subject

 

of a report or record under this act, or who is responsible for the

 

child's health or welfare.

 

     (f) A person named in the report or record as a perpetrator or

 

alleged perpetrator of the child abuse or child neglect or a victim

 

who is an adult at the time of the request, if the identity of the

 

reporting person is protected as provided in section 5.

 

     (g) A court for the purposes of determining the suitability of

 

a person as a guardian of a minor or that otherwise determines that

 

the information is necessary to decide an issue before the court, .

 

In or in the event of a child's death, a court that had

 

jurisdiction over that child under section 2(b) of chapter XIIA of

 

the probate code of 1939, 1939 PA 288, MCL 712A.2.

 

     (h) A grand jury that determines the information is necessary

 

to conduct the grand jury's official business.

 

     (i) A person, agency, or organization engaged in a bona fide

 

research or evaluation project. The person, agency, or organization

 

shall not release information identifying a person named in the

 

report or record unless that person's written consent is obtained.

 

The person, agency, or organization shall not conduct a personal

 

interview with a family without the family's prior consent and

 

shall not disclose information that would identify the child or the

 

child's family or other identifying information. The department

 

director may authorize the release of information to a person,

 

agency, or organization described in this subdivision if the

 

release contributes to the purposes of this act and the person,

 

agency, or organization has appropriate controls to maintain the

 

confidentiality of personally identifying information for a person

 

named in a report or record made under this act.

 

     (j) A lawyer-guardian ad litem or other attorney appointed as

 

provided by section 10.

 

     (k) A child placing agency licensed under 1973 PA 116, MCL

 

722.111 to 722.128, for the purpose of investigating an applicant

 

for adoption, a foster care applicant or licensee or an employee of

 

a foster care applicant or licensee, an adult member of an

 

applicant's or licensee's household, or other persons in a foster

 

care or adoptive home who are directly responsible for the care and

 

welfare of children, to determine suitability of a home for

 

adoption or foster care. The child placing agency shall disclose

 

the information to a foster care applicant or licensee under 1973

 

PA 116, MCL 722.111 to 722.128, or to an applicant for adoption.

 

     (l) Family division of circuit court staff authorized by the

 

court to investigate foster care applicants and licensees,

 

employees of foster care applicants and licensees, adult members of

 

the applicant's or licensee's household, and other persons in the

 

home who are directly responsible for the care and welfare of

 

children, for the purpose of determining the suitability of the

 

home for foster care. The court shall disclose this information to

 

the applicant or licensee.

 

     (m) Subject to section 7a, a standing or select committee or

 

appropriations subcommittee of either house of the legislature

 

having jurisdiction over child protective services matters.

 

     (n) The children's ombudsman appointed under the children's

 

ombudsman act, 1994 PA 204, MCL 722.921 to 722.932.

 

     (o) A child fatality review team established under section 7b

 

and authorized under that section to investigate and review a child

 

death.

 

     (p) A county medical examiner or deputy county medical

 

examiner appointed under 1953 PA 181, MCL 52.201 to 52.216, for the

 

purpose of carrying out his or her duties under that act.

 

     (q) A citizen review panel established by the department.

 

Access under this subdivision is limited to information the

 

department determines is necessary for the panel to carry out its

 

prescribed duties.

 

     (r) A child care regulatory agency.

 

     (s) A foster care review board for the purpose of meeting the

 

requirements of 1984 PA 422, MCL 722.131 to 722.139a.

 

     (t) A local friend of the court office.

 

     (u) A department employee actively representing himself or

 

herself in a disciplinary action, a labor union representative who

 

is actively representing a department employee in a disciplinary

 

action, or an arbitrator or administrative law judge conducting a

 

hearing involving a department employee's dereliction, malfeasance,

 

or misfeasance of duty, for use solely in connection with that

 

action or hearing. Information disclosed under this subdivision

 

shall be returned not later than 10 days after the conclusion of

 

the action or hearing. A recipient shall not receive further

 

disclosures under this subdivision while he or she retains

 

disclosed information beyond the deadline specified for return.

 

     (3) Subject to subsection (9), a person or entity to whom

 

information described in subsection (2) is disclosed shall make the

 

information available only to a person or entity described in

 

subsection (2). This subsection does not require a court proceeding

 

to be closed that otherwise would be open to the public.

 

     (4) If the department classifies a report of suspected child

 

abuse or child neglect as a central registry case, the department

 

shall maintain a record in the central registry and, within 30 days

 

after the classification, shall notify in writing each person who

 

is named in the record as a perpetrator of the child abuse or child

 

neglect. The notice shall be sent by registered or certified mail,

 

return receipt requested, and delivery restricted to the addressee.

 

The notice shall set forth the person's right to request expunction

 

of the record and the right to a hearing if the department refuses

 

the request. The notice shall state that the record may be released

 

under section 7d. The notice shall not identify the person

 

reporting the suspected child abuse or child neglect.

 

     (5) A person who is the subject of a report or record made

 

under this act may request the department to amend an inaccurate

 

report or record from the central registry and local office file. A

 

person who is the subject of a report or record made under this act

 

may request the department to expunge from the central registry a

 

report or record by requesting a hearing under subsection (6). A

 

report or record filed in a local office file is not subject to

 

expunction except as the department authorizes, if considered in

 

the best interest of the child.

 

     (6) A person who is the subject of a report or record made

 

under this act may, within 180 days from the date of service of

 

notice of the right to a hearing, request the department hold a

 

hearing to review the request for amendment or expunction. If the

 

hearing request is made within 180 days of the notice, the

 

department shall hold a hearing to determine by a preponderance of

 

the evidence whether the report or record in whole or in part

 

should be amended or expunged from the central registry. The

 

hearing shall be held before a hearing officer appointed by the

 

department and shall be conducted as prescribed by the

 

administrative procedures act of 1969, 1969 PA 306, MCL 24.201 to

 

24.328. The department may, for good cause, hold a hearing under

 

this subsection if the department determines that the person who is

 

the subject of the report or record submitted the request for a

 

hearing within 60 days after the 180-day notice period expired.

 

     (7) If the investigation of a report conducted under this act

 

does not show child abuse or child neglect by a preponderance of

 

evidence, or if a court dismisses a petition based on the merits of

 

the petition filed under section 2(b) of chapter XIIA of the

 

probate code of 1939, 1939 PA 288, MCL 712A.2, because the

 

petitioner has failed to establish that the child comes within the

 

jurisdiction of the court, the information identifying the subject

 

of the report shall be expunged from the central registry. If a

 

preponderance of evidence of abuse or neglect exists, or if a court

 

takes jurisdiction of the child under section 2(b) of chapter XIIA

 

of the probate code of 1939, 1939 PA 288, MCL 712A.2, the

 

department shall maintain the information in the central registry

 

as follows:

 

     (a) Except as provided in subdivision (b), for a person listed

 

as a perpetrator in category I or II under section 8d, either as a

 

result of an investigation or as a result of the reclassification

 

of a case, the department shall maintain the information in the

 

central registry for 10 years.

 

     (b) For a person listed as a perpetrator in category I or II

 

under section 8d that involved any of the circumstances listed in

 

section 17(1) or 18(1), the department shall maintain the

 

information in the central registry until the department receives

 

reliable information that the perpetrator of the abuse or neglect

 

is dead. For the purpose of this subdivision, "reliable

 

information" includes, but is not limited to, information obtained

 

using the United States social security death index database.

 

     (c) For a person who is the subject of a report or record made

 

under this act before the effective date of the amendatory act that

 

added this subdivision, the following applies:

 

     (i) Except as provided in subparagraph (ii), for a person listed

 

as perpetrator in category I or II under section 8d either as a

 

result of an investigation or as a result of the reclassification

 

of a case, the department may remove the information for a person

 

described in this subparagraph after 10 years without a request for

 

amendment or expunction.

 

     (ii) For a person listed as a perpetrator in category I or II

 

under section 8d that involved any of the circumstances listed in

 

section 17(1) or 18(1), the department shall maintain the

 

information in the central registry until the department receives

 

reliable information that the perpetrator of the child abuse or

 

child neglect is dead. For the purpose of this subparagraph,

 

"reliable information" includes, but is not limited to, information

 

obtained using the United States social security death index

 

database.

 

     (8) In releasing information under this act, the department

 

shall not include a report compiled by a police agency or other law

 

enforcement agency related to an ongoing investigation of suspected

 

child abuse or child neglect. This subsection does not prevent

 

prohibit the department from releasing reports of convictions of

 

crimes related to child abuse or child neglect.

 

     (9) A member or staff member of a citizen review panel shall

 

not disclose identifying information about a specific child

 

protection case to an individual, partnership, corporation,

 

association, governmental entity, or other legal entity. A member

 

or staff member of a citizen review panel is a member of a board,

 

council, commission, or statutorily created task force of a

 

governmental agency for the purposes of section 7 of 1964 PA 170,

 

MCL 691.1407. Information obtained by a citizen review panel is not

 

subject to the freedom of information act, 1976 PA 442, MCL 15.231

 

to 15.246.

 

     (10) An agency obtaining a confidential record under

 

subsection (2)(a) may seek an order from the court having

 

jurisdiction over the child or from the family division of the

 

Ingham county circuit court that allows the agency to disseminate

 

confidential child protective services or foster care information

 

to pursue sanctions for alleged dereliction, malfeasance, or

 

misfeasance of duty against an employee of the agency, to a

 

recognized labor union representative of the employee's bargaining

 

unit, or to an arbitrator or an administrative law judge who

 

conducts a hearing involving the employee's alleged dereliction,

 

malfeasance, or misfeasance of duty to be used solely in connection

 

with that hearing. Information released under this subsection shall

 

be released in a manner that maintains the greatest degree of

 

confidentiality while allowing review of employee performance.

 

     (10) Documents, reports, or records authored by or obtained

 

from another agency or organization shall not be released or open

 

for inspection under subsection (2) unless required by other state

 

or federal law, in response to an order issued by a judge,

 

magistrate, or other authorized judicial officer, or unless the

 

documents, reports, or records are requested for a child abuse or

 

child neglect case or for a criminal investigation of a child abuse

 

or child neglect case conducted by law enforcement.