CHAPTER 412

FORMERLY

HOUSE BILL NO. 528

AS AMENDED BY HOUSE AMENDMENT NOS. 1, 2 AND 3 AND

SENATE AMENDMENT NOS. 1, 2, AND 3

AN ACT TO AMEND TITLES 10, 11, AND 16 OF THE DELAWARE CODE RELATING TO THE CHILD PROTECTION REGISTRY AND CRIMINAL BACKGROUND CHECKS.

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

Section 1. Amend Chapter 9, Title 16 of the Delaware Code by redesignating §§901 through 914 thereof as follows:

“Subchapter I. Reports and Investigations of Abuse and Neglect; Child Protection Accountability Commission.”.

Section 2. Amend §902(3), Title 16 of the Delaware Code by striking subsection (3) in its entirety and substituting in lieu thereof the following:

“(3) 'Child Protection Registry' or 'Registry' means a collection of information as described in Subchapter II of this chapter about persons who have been substantiated for abuse or neglect as provided in Subchapter II of this chapter or who were substantiated between August 1, 1994, and the effective date of Subchapter II of this chapter.”.

Section 3. Amend §902(9), Title 16 of the Delaware Code by striking "(9) "Information system" shall mean a" and substituting in lieu thereof: "(9) 'Internal information system' shall mean the Division's".

Section 4. Amend §902, Title 16 of the Delaware Code by adding, and designating with appropriate subsection numbers, two new definitions to read:

"'Substantiation' means a finding by a preponderance of the evidence that abuse or neglect has occurred.

'Conviction' or 'convicted' means entry of a plea of guilty or nolo contendere, regardless of whether the plea was subsequently discharged or dismissed under the first offenders domestic violence diversion program pursuant to 10 Del. C. §1024 or under the first offenders controlled substances diversion program pursuant to 16 Del. C. §4764, or of a Robinson plea, or of a probation before judgment discharge without judgment of conviction notwithstanding the provisions of 11 Del. C. §4218(f), or a finding of guilt after trial, or a finding of not guilty after trial as a result of the defense of mental disease or defect pursuant to Title 11, or adjudication of delinquency for conduct which, if committed by an adult, would constitute a crime; or 'conviction' or 'convicted' under similar proceedings of another state, territory, or jurisdiction.".

Section 5. Amend §902, Title 16 of the Delaware Code by redesignating subsections (5) through (14) as subsections (6) through (15) respectively, and by adding a new subsection (5) to read as follows:

“(5) 'Child welfare proceeding' means any Family Court proceeding and subsequent appeal therefrom involving custody, visitation, guardianship, termination of parental rights, adoption, or other related petitions that involve a dependent, neglected, or abused child or a child at risk of same as determined by the Family Court.”.

Section 6. Amend §902A, Title 16 of the Delaware Code by striking §902A in its entirety.

Section 7. Amend Chapter 9, Title 16 of the Delaware Code by adding thereto a new subchapter to read as follows:

“Subchapter II. Child Protection Registry.

§921. Child Protection Registry; purpose.

The Division shall maintain a Child Protection Registry, which contains information about persons who have been substantiated for abuse or neglect as provided in this subchapter, or who were substantiated between August 1, 1994, and the effective date of this subchapter. The primary purpose of the Child Protection Registry is to protect children and to ensure the safety of children in child care, health care, and public educational facilities. This subchapter must be liberally construed so that these purposes may be realized.

§922. Entry on the Child Protection Registry.

The Child Protection Registry must indicate 'substantiated for abuse' or 'substantiated for neglect' and the Child Protection Level as designated in §923 of this subchapter for any person who:

(1) based on the same incident of abuse or neglect on which the substantiation proceeding is premised, has been convicted of any criminal offense set out in §923 of this subchapter or any offense specified in the laws of another state, the United States, or any territory of the United States which is the same as or equivalent to any of the offenses set out in §923 of this subchapter; or

(2) has been found by the Family Court, in a child welfare proceeding brought by the Division or in which the Division is a party, by a preponderance of the evidence to have abused or neglected a child; or

(3) fails to make a timely written request for a hearing as provided in §924(a)(2) of this subchapter after being given notice by the Division of its intent to substantiate the person for abuse or neglect and enter the person on the Registry; or

(4) is entered on the Registry by order of the Family Court in a proceeding on a Petition for Substantiation as described in §925 of this subchapter; or

(5) was substantiated for abuse or neglect between August 1, 1994, and the effective date of this subchapter.

§923. Child Protection Levels.

(a) A person who has been substantiated for abuse or neglect must be entered on the Child Protection Registry at a designated Child Protection Level related to the risk of future harm to children as designated in subsection (b) of this section. The Division shall develop regulations that assess the risk of future harm to children from acts of abuse or neglect and designate Child Protection Levels.

(b) The following paragraphs describe the four child protection levels:

(1) Child Protection Level I. A person who is substantiated for abuse or neglect for any of the following must be designated to Child Protection Level I:

a. an incident of abuse or neglect, including emotional neglect, presenting a low risk of future harm to children; or

b. conviction of a violation of compulsory school attendance requirements or truancy when based on the same incident of abuse or neglect as alleged in the Notice of Intent to Substantiate pursuant to §924 of this subchapter.

A person who is substantiated for abuse or neglect at Child Protection Level I must not be entered on the Child Protection Registry and must not be reported in response to a Child Protection Registry check made pursuant to §8563 of Title 11 for that incident or conviction. The person is eligible for employment in a child care facility, health care facility, or public school, as those terms are defined in §8563 of Title 11.

(2) Child Protection Level II. A person who is substantiated for abuse or neglect for any of the following must be designated to Child Protection Level II:

a. an incident of abuse or neglect, including severe emotional neglect, presenting a moderate risk of future harm to children; or

b. conviction of interference with custody when based on the same incident of abuse or neglect as alleged in the Notice of Intent to Substantiate pursuant to §924 of this subchapter.

A person who is substantiated for abuse or neglect at Child Protection Level II must be reported for a period of 3 years as 'substantiated for abuse' or 'substantiated for neglect' in response to a Child Protection Registry check made pursuant to §8563 of Title 11. The person must remain on the Registry for a period of 3 years, but the person is eligible for employment in a child care facility, health care facility, or public school, as those terms are defined in §8563 of Title 11, while the person is on the Registry at Child Protection Level II; and a prospective employer making a Child Protection Registry check must be so informed. If the person is not substantiated for abuse or neglect while on the Registry, the person on the Registry at Child Protection Level II is automatically removed from the Registry after 3 years and must not be reported in a Child Protection Registry check for that incident or conviction.

(3) Child Protection Level III. A person who is substantiated for abuse or neglect for any of the following must be designated to Child Protection Level III:

a. an incident of abuse or neglect presenting a high risk of future harm to children, including but not limited to: physical injury, non-organic failure to thrive, malnutrition, or abandonment of a child 13 to 17 years of age; or

b. conviction of any of the following crimes when based on the same incident of abuse or neglect as alleged in the Notice of Intent to Substantiate pursuant to §924 of this subchapter: offensive touching, menacing, reckless endangering, assault in the third degree, terroristic threatening, unlawful administration of drugs or controlled substances, indecent exposure in the first or second degree, sexual harassment, unlawful imprisonment, abandonment of a child, or misdemeanor endangering the welfare of a child.

A person who is substantiated for abuse or neglect at Child Protection Level III must be reported for a period of 7 years as 'substantiated for abuse' or 'substantiated for neglect' in response to a Child Protection Registry check made pursuant to §8563 of Title 11. The person is ineligible for employment in a child care facility, health care facility, or public school, as those terms are defined in §8563 of Title 11, while the person is on the Child Protection Registry at Child Protection Level III. If the person is not substantiated for a different incident of abuse or neglect while on the Registry, the person entered on the Registry at Child Protection Level III is automatically removed from the Registry after 7 years, and is, thereafter, eligible for employment in a child care facility, health care facility, or public school, and must not be reported in a Child Protection Registry check for that incident or conviction.

(4) Child Protection Level IV. A person who is substantiated for abuse or neglect for any of the following must be designated to Child Protection Level IV:

a. an incident of abuse or neglect presenting the highest risk of future harm to children, including but not limited to serious physical injury, sexual abuse, torture, criminally negligent treatment, or abandonment of a child 12 years of age or younger (but not including the voluntary surrender of a baby pursuant to the Safe Arms for Babies program as provided in §907A of this chapter); or

b. conviction of any of the following crimes when based on the same incident of abuse or neglect as alleged in the Notice of Intent to Substantiate pursuant to §924 of this subchapter: vehicular assault, vehicular homicide, criminally negligent homicide, assault in the first degree, assault in the second degree, murder, manslaughter, murder by abuse or neglect, incest, rape, unlawful sexual contact, sexual extortion, sexual solicitation of a child, bestiality, continuous sexual abuse of a child, possession of child pornography, unlawfully dealing in child pornography, felony endangering the welfare of a child, dangerous crime against a child, kidnapping, coercion, dealing in children, unlawful dealing with a child, sexual exploitation of a child, or promoting suicide.

A person who is substantiated for abuse or neglect at Child Protection Level IV must be reported as 'substantiated for abuse' or 'substantiated for neglect' in response to a Child Protection Registry check made pursuant to §8563 of Title 11. The person is ineligible for employment in a child care facility, health care facility, or public school, as those terms are defined in §8563 of Title 11. In addition, the person may not be removed from the Registry and must be reported in a Registry check for the incident or conviction.

(c) A person who is substantiated for an incident of abuse or neglect while on the Child Protection Registry is ineligible for automatic removal from the Registry, but may be removed from the Registry by order of the Family Court as provided in §929 of this subchapter. If a person is substantiated for abuse or neglect while on the Registry, the imposed conditions for each incident must be completed consecutively, with the conditions for the most restrictive Child Protection Level or Levels being completed before those for the less restrictive level or levels. A person who has partially completed a level when assigned to a more restrictive level is given credit for that partial completion when he or she has completed the conditions for the more restrictive level or levels.

§924. Notice of Intent to Substantiate; process.

(a) In response to a report where abuse or neglect is alleged, the Division shall conduct an investigation into the facts and circumstances of the alleged abuse or neglect as required by §906 of this chapter.

(1) If the Division determines from its investigation not to substantiate the person for abuse or neglect, the person may not be entered on the Child Protection Registry for that reported incident. The Division shall indicate in its internal information system that the incident is unsubstantiated, and so notify the person in writing. The Division shall develop regulations for classifying unsubstantiated cases in its internal information system.

(2) If the Division determines from its investigation that it intends to substantiate the person for abuse or neglect and enter the person on the Child Protection Registry, it shall give written notice to the person by certified mail, return receipt requested, at his or her last known address. The written notice must:

a. briefly describe the alleged incident of abuse or neglect;

b. advise the person that the Division intends to substantiate the allegations and enter the person on the Child Protection Registry for the incident of abuse or neglect at a designated Child Protection Level;

c. state the consequences of being entered on the Registry at the designated level, including whether the person will be reported as substantiated for abuse or neglect in response to a Child Protection Registry check made pursuant to §8563 of Title 11;

d. inform the person of his or her right to request a hearing in the Family Court before the person is entered on the Child Protection Registry;

e. further advise that the person will be entered on the Registry for the incident at the designated Child Protection Level unless, within 30 days of the date of mailing of the notice, the person responds to the Division in writing, requesting a hearing in the Family Court on the Division’s intent to substantiate the person for abuse or neglect and enter the person on the Registry;

f. contain a written form for the person to return to the Division to request a hearing.

(b) A person who fails to request a hearing as provided in subsection (a) of this section must, at the expiration of 30 days from the date of mailing of the notice of intent to substantiate the allegations of abuse or neglect and enter the person on the Registry, be entered on the Child Protection Registry at the Child Protection Level designated in the notice.

§925. Petition for Substantiation.

(a) If a person responds to the Division and requests a hearing in the Family Court before being entered on the Registry, as provided in §924 of this chapter, the Division shall, unless the automatic stay provisions of §927 of this chapter apply, file in the Family Court no later than 20 days after receipt of the written request, a Petition for Substantiation which requests that the Court substantiate the abuse or neglect and enter the person on the Child Protection Registry at a Child Protection Level designated by the Court. The Petition for Substantiation must be filed in the county in which the alleged incident leading to the Petition occurred. The Family Court may, upon motion by the Division or sua sponte, enter an order that places the person on the Registry at a designated Child Protection Level pending a final order on the Petition for Substantiation. The Family Court shall make a written finding in the proceedings on the Petition for Substantiation as to whether the person committed abuse or neglect. If the Family Court finds that the person committed abuse or neglect, it shall, pursuant to §923 of this chapter, designate the Child Protection Level at which the person must be entered on the Registry. An order of substantiation may not be stayed pending appeal. If the Family Court finds that the person has not committed an act of abuse or neglect, the person may not be entered on the Registry for that incident, and the Division shall indicate in its internal information system that the incident is unsubstantiated.

(b) If a child welfare proceeding is pending in which the Division has requested a finding of abuse or neglect against a party and entry on the Registry for the same incident, the Family Court shall decide the issues of substantiation and entry on the Registry as provided in §926 of this chapter without the necessity of a response to the notice of intent to substantiate or a separate Petition for Substantiation.

(c) If the Division fails to file a Petition for Substantiation within 20 days of receipt of a person‘s written request for a hearing as provided in §924 of this chapter and a child welfare proceeding based on the same incident of abuse or neglect is not pending, the person may not be entered on the Child Protection Registry for the incident of abuse or neglect indicated in the notice of intent to substantiate.

§926. Finding of abuse of neglect in child welfare proceeding; binding effect.

In every child welfare proceeding brought by the Division or in which the Division is a party and in which the Division has requested a finding of abuse or neglect and entry on the Registry, the Family Court shall make a finding, by a preponderance of the evidence, as to whether a parent or other party has abused or neglected the child. If the Court finds that a parent or party has abused or neglected the child, it shall order the parent or party to be entered on the Child Protection Registry at the Child Protection Level designated by the Court, as provided in §923 of this chapter. An order of substantiation may not be stayed pending appeal. The findings of the Family Court are final and binding, and work as issue or claim preclusion for the same incident of abuse or neglect in substantiation proceedings.

§927. Automatic stay of substantiation proceedings.

(a) Proceedings under §925 of this chapter, including the duty to file a Petition for Substantiation, are automatically stayed in any matter in which a criminal or delinquency proceeding involving the same incident of abuse or neglect is pending.

(b) Conviction of a crime involving the same incident of abuse or neglect is final, binding, and determinative of the issue of abuse or neglect and of the person’s entry on the Registry at the Child Protection Level designated for such offense.

(c) Upon conclusion of a criminal or delinquency proceeding involving the same allegations or facts as those alleged in the incident of abuse or neglect, if the accused is acquitted of the charge or the charge is dismissed and the Division intends to pursue substantiation, the acquittal or dismissal does not automatically work as issue or claim preclusion against a civil finding of abuse or neglect, nor does it prevent the taking of evidence, notwithstanding any other law to the contrary.

§928. Persons entered on the Registry between August 1, 1994, and the effective date of this subchapter.

(a) The Division shall review each case substantiated for abuse or neglect that was placed on the Central Registry (also known as the Central Child Abuse Registry, the Child Abuse Registry, and the Central Abuse Registry) between August 1, 1994, and the effective date of this subchapter and designate each case to a Child Protection Level in accordance with the regulations developed pursuant to §923 of this subchapter.

(b) A person who has been entered on the Child Protection Registry for the time prescribed in the designated Child Protection Level for the person's incident of abuse or neglect must be automatically removed from the Child Protection Registry, provided that the person has not been substantiated for an incident of abuse or neglect while on the Child Protection Registry. The Division shall notify the person of the removal.

(c) The Division shall notify a person who does not qualify for automatic removal from the Child Protection Registry of the Child Protection Level to which the person has been designated and of the consequences of designation to that level, including whether the person will be reported as substantiated for abuse or neglect in a Child Protection Registry check pursuant to §8563 of Title 11.

§929. Removal of name from the Child Protection Registry.

(a) A person who has been entered on the Child Protection Registry at Child Protection Level II or Level III will be automatically removed from the Registry under §923 of this subchapter, provided that the person has not been substantiated for an incident of abuse or neglect while on the Registry.

(b) A person who has been entered on the Child Protection Registry at Child Protection Level II or Level III, and who has successfully completed a Division-recommended or Family Court-ordered case plan, may file a Petition for Removal in the Family Court prior to the expiration of the time designated for the level. Only a person who has successfully completed his or her case plan is eligible to petition for an early removal.

(c) A Petition for Removal from the Registry must be filed in the Family Court in the county in which the substantiation occurred. A copy of the petition must be served on the Division, which may file an objection or answer to the petition within 30 days after being served. In every case, the Division shall inform the Court whether or not the person applying for removal has been substantiated for abuse or neglect while on the Child Protection Registry. The Family Court may, in its discretion, dispose of a Petition for Removal without a hearing.

(d) Removal from the Child Protection Registry means only that the person’s name has been removed from the Registry and may no longer be reported to employers pursuant to §8563 of Title 11. Notwithstanding removal from the Registry, the person’s name and other case information remains in the Division’s internal information system as substantiated for all other purposes, including, but not limited to, the Division’s use of the information for historical, treatment, and investigative purposes, child care licensing decisions, foster and adoptive parent decisions, reporting pursuant to §309 of Title 31, reporting to law enforcement authorities, or any other purpose set forth in §906(b) of this chapter.”.

Section 8. Amend §8561(f), Title 11 of the Delaware Code by deleting paragraph (2) thereof in its entirety and substituting in lieu thereof the following:

“(2) A person who is employed in a health care facility or child care facility or public school has an affirmative duty to inform, and shall inform, his or her employer of any criminal conviction or of any entry on the Child Protection Registry established pursuant to Chapter 9 of Title 16.”.

Section 9. Amend §8561(g), Title 11 of the Delaware Code by adding between the phrase “whose primary concern is that of child welfare and care” and the phrase “and which is not otherwise required” the following: “, including any non-public school,”.

Section 10. Amend the descriptive heading for §8563, Title 11 of the Delaware Code by striking the existing descriptive heading in its entirety and substituting in lieu thereof the following:

“§8563. Child Protection Registry check.”.

Section 11. Amend §8563(a), Title 11 of the Delaware Code by striking paragraph (1) in its entirety as it appears therein and substituting in lieu thereof the following:

“(1) 'Person seeking employment' means any person applying for employment in a public school or a public school district, any person applying for employment in a health care facility or child care facility, or any person applying for a license to operate a child care facility.”.

Section 12. Amend §8563(a), Title 11 of the Delaware Code by adding thereto two new paragraphs to read:

“(5) 'Person seeking employment with a public school' means any person seeking employment for compensation with a public school or with an agency that supplies contracted services to students of a public school or any other person who for any reason has regular direct access to children at any public school, as that term is defined in this section, including substitute teachers.

(6) 'Public school' means any public school and includes any board of education, school district, reorganized school district, special school district, charter school, and any person acting as an agent thereof.”.

Section 13. Amend §8563(b), Title 11 of the Delaware Code by striking the existing subsection (b) in its entirety and substituting in lieu thereof the following:

“(b) No employer who operates a health care facility or child care facility and no public school may hire any person seeking employment without requesting and receiving a Child Protection Registry check for the person. Notwithstanding any provision to the contrary, no person seeking employment with such an employer may be hired if the person seeking employment is currently on the Child Protection Registry at Child Protection Level III or IV as provided in Subchapter II of Chapter 9 of Title 16, or has been convicted of any offense contained in Child Protection Level IV, or for 7 years after the conviction date if the person has been convicted of any Level III offense in which a child was the victim. A person who is employed in a health care facility or child care facility or public school has an affirmative duty to inform, and shall inform, his or her employer of any criminal conviction or of any entry on the Child Protection Registry.”.

Section 14. Amend §8563(c), Title 11 of the Delaware Code by striking the phrase “Child Abuse Registry” and substituting in lieu thereof the following: “Child Protection Registry”.

Section 15. Amend §8563(d), Title 11 of the Delaware Code by deleting the phrase “Child Abuse Registry” each time it appears in said subsection and substituting each time in lieu thereof the following: “Child Protection Registry”.

Section 16. Amend §8563(e), Title 11 of the Delaware Code by striking the phrase “Child Abuse Registry” as same appears therein and substituting in lieu thereof the following: “Child Protection Registry”.

Section 17. Amend §8563(f), Title 11 of the Delaware Code by striking the phrase “Child Abuse Registry” as the same appears therein and substituting in lieu thereof the following: “Child Protection Registry”.

Section 18. Amend §8563(g), Title 11 of the Delaware Code by striking the phrase “Child Abuse Registry” as the same appears therein and substituting in lieu thereof the following: “Child Protection Registry”.

Section 19. Amend §8563, Title 11 of the Delaware Code by adding thereto a new subsection to read as follows:

“(h) Any person or organization whose primary concern is that of child welfare and care, including any non-public school, and which is not otherwise required to do so under the provisions of this section may voluntarily submit to the provisions of this section at such person’s or organization’s expense pursuant to procedures established by the Department of Services for Children, Youth and Their Families. The provisions of §8562 of this title do not apply to such persons or organizations.”.

Section 20. Amend §8571, Title 11 of the Delaware Code by deleting subsections (g) and (h) in their entireties, by adding a new subsection (g) to read as follows, and by designating subsection (i) as subsection (h):

“(g) A person who is employed in a health care facility or child care facility or public school has an affirmative duty to inform, and shall inform, his or her employer of any criminal conviction or of any entry on the Child Protection Registry established pursuant to Chapter 9 of Title 16.”.

Section 21. Amend §921, Chapter 9, Title 10 of the Delaware Code by adding a new subsection (18) to read as follows:

“(18) Child Protection Registry proceedings pursuant to Chapter 9 of Title 16.”.

Section 22. If any provision of this Act or the application thereof to any person or circumstances is held invalid, the invalidity shall not affect other provisions or applications of the Act which can be given effect without the invalid provision or application, and to this end the provisions of this Act are severable.

Section 23. This Act shall become effective on February 1, 2003, and shall apply to acts of abuse or neglect that are alleged to have occurred on or after that date. This Act shall not be construed to create any rights or privileges with respect to any person who is alleged to have committed an act of abuse or neglect that occurred prior to the effective date of this Act.

Section 24. The Budget Director and Controller General are authorized to make any necessary transfers of funds within the FY 2003 Appropriation Act to implement the provisions of this Act. Any necessary position adjustments shall be approved by the Delaware State Clearinghouse Committee.

Section 25. This Act shall not make any person employed in a health care facility, child care facility or public school, who was substantiated for an act of abuse or neglect prior to the effective date of the bill, ineligible for employment.

Section 26. Amend §905, Title 16, Delaware Code by deleting "central registry" as it appears in the heading thereof and in subsection (b) thereof and by inserting in lieu thereof each time "Child Protection Registry".

Section 27. Amend §905, Title 16, Delaware Code by inserting "internal" immediately before "information system" each time it appears therein.

Section 28. Amend §906(b), Title 16, Delaware Code by inserting "internal" immediately before "information system" both times it appears in paragraph (12) thereof.

Approved July 22, 2002