CHAPTER 199

FORMERLY

SENATE BILL NO. 170

AS AMENDED BY SENATE AMENDMENT NOS. 1 AND 2 AND

HOUSE AMENDMENT NOS. 1 AND 2

AN ACT TO AMEND TITLES 10, 11, 16, 18 AND 29 RELATING TO THE 1 OF SERVICES FOR CHILDREN YOUTH AND THEIR FAMILIE PROTECTION OF CHILDREN FROM ABUSE OR NEGLECT.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF DELAWARE:

Section 1. This Act shall be known as the Child Abuse Prevention Act of

Section 2. Amend § 901, Title 16, Delaware Code by deleting the first paragraph thereof and inserting in lieu thereof the following:

"It is the intent of the General Assembly that the primary purpose of the child welfare policy of this State shall be to ensure the best interest and safety of the preserving the family unit whenever the safety of the child is not jeopardized. To that end the purpose of this chapter to provide for comprehensive protective services neglected children by mandating that reports of such abuse or neglect be made to authorities and by requiring the child protection system to seek and promote children who are the subject of such reports of abuse or neglect by conducting ii family assessments and providing necessary services."

Section 3. Amend § 902, Title 16, Delaware Code by deleting said section and inserting in lieu thereof the following:

"§ 902. Definitions.

As used in this chapter, the following terms mean:

(1) 'Abuse' shall mean any physical injury to a child, by those responsible for the care, custody, and control of the child, through unjustified force as defined 468(1)(c), emotional abuse, torture, criminally negligent treatment, exploitation, maltreatment, or mistreatment;

(2) 'Central registry' shall mean a registry of information about persons the Division has found cause to believe, or a court has substantiated through court adjudication, have committed child abuse or neglect.

(3) 'Child' shall mean any person who has not reached his or her eighteenth birthday

(4) 'Director' shall mean the director of the Division of Family Department of Services for Children, Youth and Their Families;

(5) 'Division' shall mean the Division of Family Services of the Services for Children, Youth and Their Families;

(6) 'Family assessment and services' shall mean a case management a Division of Family Services that provides for a prompt assessment of 2 child's family and the circumstances of the reported incident (including the known history of the child and/or the alleged perpetrator), when there has been Division that the child was a victim of abuse, neglect, or at risk of mal person responsible for that child's care, custody, or control. Family assessment and services shall be used in conjunction with the Investigation approach defined in subsection (7) of this section but may not supplant it in circumstances which require investigation. The family assessment response shall focus on the integrity and preservation of the family and shall assess the status of the child and the family in terms of the risk of abuse and neglect and, if necessary, plan and provide for the provision of community-based services to reduce the risk and to otherwise support the family.

(7) 'Information system' shall mean a system of maintaining information related to all reports of abuse, neglect, investigations, family assessments, services and other relevant information.

(8) 'Investigation' shall mean the collection of evidence in response to a report of abuse, neglect, or risk of maltreatment by a person responsible for that child's care, custody, or control in order to determine if a child has been abused, neglected, or is at risk of maltreatment. The Division shall develop protocols for its investigations that focus on ensuring the well-being and safety of the child. The Division may conduct an investigation in response to any report of abuse, neglect, or risk of maltreatment but shall conduct an investigation as enumerated under § 906 (b) (3) of this chapter.

(9) 'Neglect' shall mean the failure to provide, by those responsible for the care, custody, and control of the child, the proper or necessary: education as required by law; nutrition; or medical, surgical, or any other care necessary for the child's well-being.

(10) 'Report' shall mean the communication of an allegation of child abuse or neglect
to the Division pursuant to § 903 or § 905 of this chapter;

(11) 'Special Investigator' shall mean a Division employee, appointed by the
Secretary, who performs abuse and neglect investigations and possesses additional qualifications and authority as defined by 29 Del, C. § 9016.

(12) 'Those responsible for the care, custody, and control of the child' shall include,
but not be limited to, the parents or guardian of the child, other members of the child's household, adults within the household who have responsibility for the child's well-being, persons who have temporary responsibility for the child's well being, or a custodian as that term is defined by 10 Del. C § 901(6)."

Section 4. Amend § 905, Title 16, Delaware Code by deleting said section in its entirety and inserting in lieu thereof the following:

"§ 905.Telephone reports, central registry and information system.

(a) The Division shall establish and maintain a 24 hour state-wide toll free telephone report line operating at all times and capable of receiving reports of alleged abuse and neglect pursuant to § 904 of this chapter or from the public at large.

() The Division shall maintain a central registry and an information system as defined by § 902 of this Title. Reports unsubstantiated may be kept in the information system by the Division at its discretion.

(a) Although reports may be made anonymously, the Division shall in all cases, after obtaining relevant information regarding alleged abuse or neglect, request the name and address of any person making a report.

() Upon receipt of a report, the Division shall immediately communicate such report to its appropriate Division staff, after a check has been made with the information system to determine whether previous reports have been made regarding actual or suspected abuse or neglect of the subject child, or any reports regarding any siblings, family members or the alleged perpetrator, and such information as may be contained from such previous reports. Such relevant information as may be contained in the information system shall be also forwarded to the appropriate Division staff."

Section 5. Amend § § 906, 907, 908 and 909 Title 16, Delaware Code by deleting said sections in their entirety and inserting in lieu thereof the following:

§ 906.State response to reports of abuse or neglect.

(a). The child protection system shall seek to promote the safety of children and the integrity and preservation of their families by conducting investigations and/or family assessments in response to reports of child abuse or neglect. The system shall endeavor to coordinate community resources and provide assistance or services to c families identified to be at risk, and to prevent and remedy child abuse and neglect.

(). In implementing the child protection system, the Division shall:

(1) Receive and maintain reports pursuant to the provisions of 905 of this chapter;

(0) Forward reports to the appropriate Division staff who shall through the use of protocols developed by the Division, whether an investigation or the family assessment and services approach should be used to respond to the all( protocols for making this determination shall be developed by the Division and shall give priority to ensuring the well-being and safety of the child;

(3) The Division may investigate any report, but shall conduct an i involving all reports, which if true, would constitute violations against a child by those responsible for the care, custody, and control of the child pursuant to any of the provisions of Title 11 of the Delaware Code: §603, §604, §611, §612, §613, §626, §631, §632, §633, §634, § 635, §636, §645, §763, §765, §766, §767, §770, §771, §772, §773, §774,§775, §776, §777, §778, §779, §780, §782, §783, §783A §791,§1100, §1101, §1102, §1107, §1108, §1109, §1110, §1111, and §1259 or an attempt to commit any such crimes;

(4) Division staff shall contact the appropriate law enforcement a receipt of any report requiring an investigation under this section and shall provide such agency with a detailed description of the report received. The appropriate enforcement agency shall assist the Division in the investigation or provide the Division, within a reasonable time, an explanation detailing the reasons why it is unable to assist Notwithstanding any provision of the Delaware Code to the contrary, to the extent the law enforcement agency with jurisdiction over the case is unable to assist, may request that the Delaware State Police exercise jurisdiction over the cal such request the Delaware State Police may exercise such jurisdiction;

(5) The Division shall have authority to secure a medical exam child, without the consent of those responsible for the care, custody, and cc child, if the child has been reported to be a victim of abuse or neglect provided that such case is classified as an investigation pursuant to §906(b)3 of this chapter and the director or the Director's designee gives prior authorization for such examination upon finding that such examination is necessary to protect the health and safety of the child;

(6) The investigation shall include, but need not be limited to, the nature, extent, and cause of the abuse or neglect, collection of evidence, the identity of the alleged perpetrator, the names and condition of other children and adults in the home, the home environment, the relationship of the subject child to the parents or o responsible for the child's care, any indication of incidents of physical viol, any other household or family member, background checks on all adults in the home, and the gathering of other pertinent information;

(7) In the family assessment and services approach, assess service family from information gathered from the family and other sources. The D identify and provide services for families where it is determined that the child abuse or neglect. The Division shall document its attempt to provide voluntary services and the reasons these services are important to reduce the risk of future abuse or neglect. If the family refuses to accept or avoids the proffered services, the Division may refer the case for investigation or terminate services;

(8) Commence an immediate investigation if at any time during the family assessment and services approach the Division determines that an investigation as delineated in subsection (3) of this section is required or is otherwise appropriate. The Division staff who have conducted the assessment may remain involved in the provision of services to the child and family;

(9) Conduct a family assessment and services approach on reports initially referred for an investigation, if it is determined that a complete investigation is not required. The reason for the termination of the investigative process shall be documented;

(10) Assist the child and family in obtaining services, if at any time during the investigation it is determined that the child or any member of the family needs services;

(11) Identify local services and assist with access to those services for children and families where there is risk of abuse or neglect;

(0) Update the information system at regular intervals during the course of the investigation. At the conclusion of the investigation or family assessment, the information system shall be updated to include a case finding ;

(1) When a written report is made by a person required to report under § 903 of this chapter, the Division shall contact the person who made such report within forty- eight hours of the receipt of the report in order to ensure that full information has been received and to obtain any additional information or medical records, or both, which may be pertinent;

(2) Upon completion of an investigation or family assessment and services approach, if the Division suspects that the report was made maliciously or for the purpose of harassment, the Division shall refer the report and any evidence of malice or harassment to the appropriate law enforcement agency;

(3) Multidisciplinary services shall be used whenever possible in conducting the investigation or family assessment and services approach, including the services of law enforcement agencies, the medical community, and other agencies, both public and private. The Division and the Attorney General's Office shall cooperate with law enforcement agencies and the Family Court to develop training programs to increase the ability of Division personnel, court personnel, and law enforcement officers to investigate suspected cases of abuse and neglect;

(4) A person required to report under § 903 of this chapter to the Division shall be informed by the Division of the person's right to obtain information concerning the disposition of the report. Such person shall receive, from the local office, if requested, information on the general disposition of the report at the conclusion of the investigation.

(5) In any judicial proceeding involving the custody of child, the fact that a report has been made pursuant to § 903 or § 905 of this chapter shall not be admissible unless offered by the Division as a party or as a friend of the Court or if the Division is a party. However, nothing herein shall prohibit the introduction of evidence from independent sources to support the allegations that may have caused a report to have been made;

(18) To protect the privacy of the family and the child named in a report, the Division shall establish guidelines concerning the disclosure of information concerning the abuse and neglect involving a child. The Division may require persons to make written requests for access to records maintained by the Division. The Division shall only release information to persons who have a legitimate public safety need for such information or a need based on the health and safety of a child subject to abuse, neglect or the risk of maltreatment and such information shall be used only for the purpose for which the information is released.

(c) In the event that a criminal prosecution for child sexual abuse or exploitation is initiated by the Department of Justice against a person employed by or associated with a facility or organization required to be licensed or whose staff personnel are required to be licensed under Delaware law whose primary concern is that of child welfare and care, the Attorney General shall notify such employer within 48 hours:

(1) Upon the return of an indictment charging such person with having committed at least 1 felony offense involving an allegation of child sexual abuse; or

(2) Upon an adjudication of guilt of such person for any misdemeanor or violation, when such offense involved sexual abuse, in any degree, of a child under age 18.

Any violations of this subsection shall be dealt with administratively by the Attorney General and the penalty provisions of § 914 of this Title shall not apply hereto.

(d). In the event that a criminal prosecution for abuse or neglect is initiated by the
Department of Justice pursuant to a report under this chapter and incarceration of the person who is the subject of the report is ordered by the Court, the Attorney General's Office shall keep the Division informed of actions taken by the courts which result in the release of any such individual; provided that the Attorney General's Office is represented at such a hearing.

§ 907. Temporary emergency protective custody.

(A) A police officer or a physician who reasonably suspects that a child is in imminent danger of suffering serious physical harm or a threat to life as a result of abuse or neglect and such person reasonably suspects the harm or threat to life may occur before the Family Court could issue a temporary protective custody order, the police officer or physician may take or retain temporary emergency protective custody of the child without the consent of the child's parents, guardian, or others legally responsible for his or her care.

(B) Any person taking a child into temporary emergency protective custody under this section shall immediately notify the Division, in the county in which the child is located, of his or her actions and make a reasonable attempt to advise the parents, guardians, or others legally responsible for the child's care. Such person shall also file, as soon as practicable but no later than twelve hours thereafter, a written statement with the Division which sets forth the identity of the child and the facts and circumstances which gave such person reasonable cause to believe that there was imminent danger of serious physical harm or threat to the life of the child. Upon notification that a child has been taken into temporary emergency protective custody, the Division shall immediately respond in accordance with § 906 of this chapter to secure the safety of the child which may include ex-parte custody relief from the Family Court if appropriate.

() Temporary emergency protective custody for purposes of this section shall not exceed four hours and shall cease upon the Division's response pursuant to paragraph (B).

(A) For the purposes of this section, temporary emergency protective custody shall mean temporary placement within a hospital, medical facility, or such other suitable placement; provided, however, that an abused or neglected child may not be detained in temporary custody in a secure detention facility. In no event shall an employee of the Division exercise custody under this section.

§ 908. Immunity from liability.

Anyone participating in good faith in the making of a report pursuant to this chapter, performing a medical examination without the consent of those responsible for the care, custody and control of a child pursuant to § 906(b)(5) of this chapter, or exercising emergency protective custody in compliance with § 907 of this chapter, shall have immunity from any liability, civil or criminal, that might otherwise exist and such immunity shall extend to participation in any judicial proceeding resulting from the above actions taken in good faith. This section shall not limit the liability of any health care provider for personal injury claims due to medical negligence that occurs as a result of any examination performed pursuant to this § 906(b)3 of this Title.

§ 909. Privileged communication not recognized.

No legally recognized privilege, except that between attorney and client and that between priest and penitent in a sacramental confession, shall apply to situations involving known or suspected child abuse, neglect, exploitation or abandonment and shall not constitute grounds for failure to report as required by § 903 of this chapter or to give or accept evidence in any judicial proceeding relating to child abuse or neglect."

Section 6. Amend Chapter 9, Title 16, Delaware Code by inserting as new § 910, § 911, § 912 and § 913 the following:

" § 910. Court orders to compel.

The Division shall have the authority to request from the Family Court an order to obtain access to a child or children and the residence of such children in furtherance of an investigation pursuant to 16 Del. C § 906(b)(3) of a report of abuse, neglect, or risk of maltreatment where those responsible for the care, custody, and control of the child are not cooperating with the investigation. The Family Court shall have the authority to issue such orders based on probable cause and may enforce non-compliance of such an order pursuant to 10 Del.C.§ 925(3).

§ 911. Training and information.

(1) The Division shall, on a continuing basis, undertake and maintain programs to inform all persons required to report abuse or neglect pursuant to § 903 of this chapter and the public of the nature, problem, and extent of abuse and neglect, and of the remedial and therapeutic services available to children and their families and to encourage self-reporting and the voluntary acceptance of such services.

(2) The Division shall conduct ongoing training programs to advance the purpose of this section.

(3) The Division shall continuously publicize the existence of the 24 hour report-line to those required to report abuse or neglect pursuant to § 903 of this chapter of their responsibilities and to the public the existence of the 24 hour statewide toll-free telephone number to receive reports of abuse or neglect.

§ 912. The Child Protection Accountability Commission.

(a) The Delaware Child Protection Accountability Commission is hereby established. The Commission shall consist of 16 members with the at-large members and the Chair appointed by the Governor, shall be staffed by the Division and shall be comprised of the following:

(1) 3 Division members, one of whom shall be the Director;

(2) 2 representatives from the Attorney's General Office,

(3) 2 members of the Family Court to be designated by the Chief Judge;

(4) 1 member of the House of Representatives lobe designated by the Speaker of the House;

(5) 1 member of the Senate to be designated by the President Pro Tempore of the Senate;

(6) 7 at-large members with 1 person from the medical community, 2 persons from law enforcement agencies and 4 persons from the private Child Services Community.

(b) It shall be the purpose of this commission to monitor Delaware's child
protection response system so that responses to cases of abuse and neglect are timely and effective so as to best ensure the health and safety of children subject to abuse. To that end, the commission shall meet on a quarterly basis and shall:

(1) Examine policies and procedures and evaluate the effectiveness of the child protection system, specifically the respective roles of the Division, the Attorney General's Office, the Family Court, the medical community and law enforcement agencies;

(0) Formulate guidelines based on objective criteria to be used in determining temporary custody issues pursuant to an investigation of abuse or neglect;

(1) Review and make recommendations concerning investigative procedures and emergency responses pursuant to this chapter;

(2) Make legislative recommendations to the Governor and General Assembly;

(3) Access, develop and provide quality training to Division staff, Deputy Attorneys General, law enforcement officers, the medical community and Family Court personnel on the various standards, criteria and investigative technology used in these cases; and

(0) Provide an annual summary of the Commission's work and recommendations to the Governor's Advisory Council for Children, Youth and their Families for their consideration and comment.

(6) Prepare a written report of its activities and findings at the end of each quarterly meeting to be distributed to the Chairpersons of the House of Representatives Health and Human Development Committee and the Senate Children, Youth and Their Families Committee.

§913. Child under treatment by spiritual means not neglected.

No child who in good faith is under treatment solely by spiritual means through prayer in accordance with the tenets and practices of a recognized church or religious denomination by a July accredited practitioner thereof shall for that reason alone be considered a neglected child for the purposes of this chapter.

§ 914. Penalty for violation.

Whoever knowingly violates § 903 this chapter shall be fined no more than $ 1,000 or shall be imprisoned not more than 15 days or both."

Section 7. Amend § 9001(a), Title 29, Delaware Code by deleting after the words "do so;" and before the words "the State" the word "that" and by inserting in lieu thereof the word "while".

Section 8. Amend § 9001(a), Title 29, Delaware Code by inserting a comma after the word "unit" and by deleting the words "whenever feasible" as they appear before the words "protect and safeguard".

Section 9. Amend § 9001(6), Title 29, Delaware Code by deleting the words "within the least restrictive environment possible" and inserting after the words "involvement of their family" the words "within the least restrictive environment possible but consistent with the child's health and safety;"

Section 10. Amend § 9003(3)(b), Title 29, Delaware Code by deleting the word "that" after the word "however" and inserting in lieu thereof the following:

"the Division's highest priority in cases of abuse and neglect where an investigation is required pursuant to 16 Del.C § 906 shall be the health and safety of the child and"

Section 11. Amend Chapter 90, Title 29, Delaware Code by renumbering current §9016, § 9017, and § 9018 as § 9018, and § 9019, respectively and by inserting as new § 9016 the following:

"§ 9016. Appointment of special investigators; powers and duties.

(a) The Secretary may appoint up to 3 qualified persons to be special investigators for the Division of Family Services. Such investigators shall hold office at the plea the Secretary. Any person appointed pursuant to this section shall have a minimum years experience as a 'police officer,' as that term is defined in 11 Del.C. §1911(a), significant investigatory experience while working as a police officer, shall be i standing with the previous or present law enforcement agency where such person is or was employed and such other qualifications deemed appropriate by the Secretary.

(b) Special investigators appointed under this section may conduct investigations of child abuse, neglect, or risk of maltreatment anywhere in this State as directed Director of the Division of Family Services and shall have the power to make am serve writs anywhere in this State. Special investigators shall have statewide powers as enumerated under 11 Del.C. § 1911 and such other powers as conferred by law oi officers, sheriffs, constables, and other law enforcement personnel. Notwithstanding the above, special investigators pursuant to this section shall not have the authority custody of a child unless pursuant to an order from the Family Court or in conj with the law enforcement agency charged with jurisdiction over the case. To the extent possible, special investigators pursuant to this section shall consult with the police of jurisdiction and the Director or the Director's designee prior to making an arrest and shall do so in all cases after making any such arrest.

() The salary of special investigators shall be fixed by the Secretary within the appropriations made to the Department.

() Special investigators will assist in the training of other Division staff."

Section 12. Amend § 8502(3)(b), Title 11, Delaware Code by deleting the word "and" after the word "Correction:" and deleting the "." after the word "services" and by ins( lieu thereof"; and" and inserting as new § 8502(3)(b)8. the following:

"8. The Division of Family Services."

Section 13. Amend § 8502(6), Title 11, Delaware Code by inserting after tl "police officer," and before the words "the Attorney General" the words "special investigators pursuant to 29 Del.C. § 9016,"

Section 14. Amend § 1009(a), Title 10, Delaware Code, by inserting after the word "neglected" the words "abused as those terms are defined by 16 Del.C. § 902(1)," inserting at the end of § 1009(a) the following:

" In declaring a child to be dependent, neglected, or abused pursuant to this sec Court shall give priority to ensuring the well-being and safety of the child."

Section 15. Amend Chapter 85, Title 11 Delaware Code by inserting as new § following:

"8563. Child Abuse Registry Check. (a) Definitions.

(1) 'Person seeking employment' means any person applying employment that affords direct access to children receiving care at a child care facility or a person applying for a license to operate a child care facility.

(0) 'Child Care Facility' means any child care facility which is required to be licensed by the Department of Services for Children, Youth and their Families.

(3) 'Direct Access' means the opportunity to have personal contact with children receiving care during the course of one's assigned duties.

(b) No employer who operates a child care facility shall hire any person seeking employment without requesting and receiving a Child Abuse Registry check for such person. For such purposes of this subsection, the Child Abuse Registry check shall relate to substantiated cases of child abuse or neglect after August 1994. The results shall be obtained from the Child Abuse Registry, as established by 16 Del. C § 905.

() Any employer who is required to request a Child Abuse Registry check under this section shall obtain a statement signed by the person seeking employment wherein the person authorizes a full release for the employer to obtain the information provided pursuant to such a check.

(a) Notwithstanding the provisions of this section, when exigent circumstances exist which require an employer to fill a position in order to maintain the required level of service, the employer may hire a person seeking employment on a conditional basis after the employer has requested a Child Abuse Registry check. The employment of the person pursuant to this subsection shall be conditional and contingent upon the receipt of the Child Abuse Registry check by the employer. Any person hired pursuant to this subsection shall be informed in writing, and shall acknowledge in writing, that his or her employment is conditional, and contingent upon receipt of the Child Abuse Registry check.

(b) The Department of Services for Children, Youth, and Their Families shall promulgate regulations giving guidance for a procedure to notify employers of any substantiated matters indicated in the Child Abuse Registry check.

(f) Any employer who operates a child care facility and who hires a person seeking employment without requesting and receiving a Child Abuse Registry check for such person shall be subject to a civil penalty of not less than $1,000.00 nor more than $5,000.00 for each violation."

Section 16. Amend Chapter 33, Title 18, Delaware Code by inserting as new § 3339 the following:

"§ 3339. Child abuse or neglect - Individual Coverage.

No individual policy, contract, or certificate issued thereunder, of health insurance which provides medical coverage for a child and which (1) covers a child who resides in this State, or (2) is delivered or issued for delivery within the State, shall limit medical insurance coverage for any child referred by the Division of Family Services or law enforcement agency for suspected child abuse or neglect; including requiring referral by a primary physician."

Section 17. Amend Chapter 35, Title 18, Delaware Code by inserting as new § 3556 the following:

"§ 3556. Child abuse or neglect - Group Coverage.

No group or blanket policy, contract, or certificate issued thereunder, of health insurance which provides medical coverage for a child and which (1) covers a child who resides in this State, or (2) is delivered or issued for delivery within the State shall limit medical insurance coverage for any child referred by the Division of Family Services or law enforcement agency for suspected child abuse or neglect; including requiring referral by a primary physician."

Approved July 17, 1997