TITLE 16

Health and Safety

Regulatory Provisions Concerning Public Health

CHAPTER 9. ABUSE OF CHILDREN

Subchapter III. Child Protection Accountability Commission


(a) The Delaware Child Protection Accountability Commission is hereby established. The Commission shall consist of 24 members with the at-large members and the Chair appointed by the Governor. Members of the Commission serving by virtue of position may appoint a designee to serve in their stead. The Commission shall be comprised of the following:

(1) The Secretary of the Department of Services for Children, Youth and Their Families.

(2) The Director of the Division of Family Services.

(3) Two representatives from the Attorney's General Office, appointed by the Attorney General.

(4) Two members of the Family Court, appointed by the Chief Judge of the Family Court.

(5) One member of the House of Representatives, appointed by the Speaker of the House.

(6) One member of the Senate, appointed by the President Pro Tempore of the Senate.

(7) The Chair of the Child Placement Review Board.

(8) The Secretary of the Department of Education.

(9) The Director of the Division of Prevention and Behavioral Health Services.

(10) The Chair of the Domestic Violence Coordinating Council.

(11) The Superintendent of the Delaware State Police.

(12) The Chair of the Child Death Review Commission.

(13) The Investigation Coordinator, as defined in § 902 of this title.

(14) One youth or young adult who has experienced foster care in Delaware, appointed by the Secretary of the Department.

(15) One representative from the Office of Defense Services, appointed by the Chief Defender.

(16) Seven at-large members appointed by the Governor with 1 person from the medical community, 1 person from the Interagency Committee on Adoption who works with youth engaged in the foster care system, 1 person from a law-enforcement agency other than the State Police, and 4 persons from the child protection community. The law-enforcement representative may designate a proxy as needed.

(b) The Commission is designated as a "citizen review panel" as required under the federal Child Abuse Prevention and Treatment Act, 42 U.S.C. § 5106a(c) and the "state task force" as required under the federal Children's Justice Act, 42 U.S.C. § 5106c(c). The Commission may delegate tasks to its committees, workgroups, and panels as necessary to accomplish its duties. The Commission's purpose is to monitor Delaware's child protection system to best ensure the health, safety, and well-being of Delaware's abused, neglected, and dependent children. To that end, the Commission shall meet on a quarterly basis and shall:

(1) Examine and evaluate the policies, procedures, and effectiveness of the child protection system and make recommendations for changes therein, focusing specifically on the respective roles in the child protection system of the Division of Family Services, the Division of Prevention and Behavioral Health Services, the Office of the Attorney General, the Family Court, the medical community, and law-enforcement agencies.

(2) Recommend changes in the policies and procedures for investigating and overseeing the welfare of abused, neglected, and dependent children.

(3) Advocate for legislation and make legislative recommendations to the Governor and General Assembly.

(4) Access, develop, and provide quality training to the Division of Family Services, Deputy Attorneys General, Family Court, law-enforcement officers, the medical community, educators, day-care providers, and others on child protection issues.

(5) Review and make recommendations concerning the well-being of Delaware's abused, neglected, and dependent children including issues relating to foster care, adoption, mental health services, victim services, education, rehabilitation, substance abuse, and independent living.

(6) Provide the following reports to the Governor:

a. An annual summary of the Commission's work and recommendations, including work of the Office of the Child Advocate, with copies thereof sent to the General Assembly.

b. A quarterly written report of the Commission's activities and findings, in the form of minutes, made available also to the General Assembly and the public.

(7) Investigate and review deaths or near deaths of abused or neglected children solely for the purposes provided in § 932 of this title.

(8) Coordinate with the Child Death Review Commission to provide statistics and other necessary information to the Child Death Review Commission related to the Commission's investigation and review of deaths of abused or neglected children.

(9) Meet annually with the Child Death Review Commission to jointly discuss any findings or recommendations released to the public from reviews conducted under § 932 of this title. This meeting shall be open to the public.

(10) Adopt rules or regulations for the administration of its duties or this subchapter, as it deems necessary.

(c) The Child Advocate shall serve as the Executive Director of the Commission, and the Office of the Child Advocate shall provide staff support to the Commission. The Office of the Child Advocate shall assist the Commission in investigating and reviewing the deaths or near deaths of abused or neglected children under § 932 of this title, in addition to performing any other duties assigned by the Commission. The Child Advocate shall hire employees or contract for services as necessary to assist the Commission in performing its duties under this subchapter, within the limitations of funds appropriated by the General Assembly or obtained from other sources.

71 Del. Laws, c. 199, § 6; 70 Del. Laws, c. 186, § 1; 73 Del. Laws, c. 116, §§ 1-3, 5[4]; 76 Del. Laws, c. 97; 77 Del. Laws, c. 327, § 210(a); 77 Del. Laws, c. 383, §§ 1-3; 79 Del. Laws, c. 322, § 1; 80 Del. Laws, c. 26, § 5; 80 Del. Laws, c. 187, § 8; 81 Del. Laws, c. 143, § 1.;

(a) The Attorney General, the Department of Services for Children, Youth and Their Families, and any other state or local agency with responsibility for investigating child deaths shall report to the Commission any death or near death of a child who is determined to have been abused or neglected within 14 days of that determination.

(b) The Commission Chair shall appoint a committee to review all investigations under this section and a panel to conduct the investigations under this section. The members of such committee and panel, together with any staff, contractors, or volunteers designated to assist the committee and panel are considered agents of the Commission under § 935 of this title.

(c) Within 6 months of any report to the Commission under subsection (a) of this section, the Commission shall conclude an investigation and review of the facts and circumstances of the death or near death incident through the committee and panel appointed under subsection (b) of this section. For good cause shown to the Commission, the 6-month period for the completion of an investigation and review under this subsection may be extended to 9 months. If the need for an extension under this subsection is attributable to an ongoing criminal prosecution, an initial review must occur, but a final review of the case may be deferred for a period of up to 6 months following the completion of the prosecution. In cases in which the time for the Commission's complete investigation and review is extended under this subsection, the Commission may issue initial findings or recommendations if it determines that such are necessary under the circumstances.

(d) No person identified by the Attorney General's office as a potential witness in any criminal prosecution arising from the death or near death of an abused or neglected child shall be questioned, deposed, or interviewed by or for the Commission in connection with its investigation and review of such death or near death until the completion of the prosecution.

(e) Notwithstanding any requirement of § 931(b) of this title to the contrary, the Commission shall, if necessary, make system-wide findings or recommendations arising from an investigation and review conducted under this section.

(1) The Commission shall provide its findings or recommendations, if any, to the Governor, the General Assembly, and the public within 20 days of the approval of the findings or recommendations made under this section.

(2) All summary information, findings, or recommendations released by the Commission under this subsection shall comply with applicable state and federal confidentiality provisions, including those set forth in § 934 of this title and § 9017(e) of Title 29.

(3) Notwithstanding any provision of this subchapter to the contrary, no summary information, finding, or recommendation released by the Commission under this subsection shall specifically identify any individual or nongovernmental agency, organization, or entity.

(4) In addition to the Commission's release of findings or recommendations, the Commission may release to the public summary information and findings resulting from reviews of child deaths and near deaths due to abuse and neglect. The Commission may release summary information only upon completion of the prosecution and only if such release complies with paragraph (e)(2) of this section. Such release to the public of summary information does not supplant the obligation of the State to comply with any request for public disclosure of information on child deaths and near deaths due to abuse or neglect made under 42 U.S.C. § 5106a(b).

(f) Notwithstanding this section or § 931(b)(7) of this title, the Child Death Review Commission may review deaths of abused or neglected children, for good cause shown, as determined by the agreement of the Commission and the Child Death Review Commission.

(g) For purposes of this subsection, "completion of the prosecution" means the decision to file no information or seek no indictment, conviction or adjudication, acquittal, dismissal of an information or indictment by a court, the conditional dismissal under a program established by Delaware law or a court, or the nolle prosequi of an information or indictment by the Attorney General.

80 Del. Laws, c. 187, § 9; 81 Del. Laws, c. 143, § 2.;

(a) In connection with any investigation and review conducted under § 931(b)(7) of this title, the Commission, by and through its staff, committee, and panel, has power and authority to do all of the following:

(1) Administer oaths and affirmations to any person related to the death or near death under review.

(2) Issue subpoenas to compel the attendance of witnesses whose testimony is related to the death or near death under review.

(3) Issue subpoenas to compel the production of records related to the death or near death under review.

(b) The Commission may delegate its power and authority in subsection (a) of this section to the Child Advocate, who may further delegate the power and authority to any attorney employed by, contracting with, or volunteering for the Office of the Child Advocate.

(c) A subpoena issued under subsection (a) of this section may be enforced or challenged only in the Family Court.

(1) All proceedings before the Family Court and all records of such proceedings conducted under this subsection are private.

(2) In a proceeding under this subsection (c), the Family Court may impose reasonable restrictions, conditions, or limitations on the access to proceedings and records of proceedings to preserve the confidentiality set forth in § 934 of this title.

80 Del. Laws, c. 187, § 9; 81 Del. Laws, c. 143, § 3.;

(a) The records of the Commission, committee, panel, and its staff, contractors and volunteers, including original documents and documents produced in the investigation and review process with regard to the facts and circumstances of each death or near death, are confidential and may not be released to any person except as expressly provided by this subchapter. Such records may be used by the Commission, committee, panel, and its staff, contractors and volunteers only in the exercise of the proper functions of the Commission and its staff. Such records, together with the summary information, findings, and recommendations therefrom are not public records, are not available for Court subpoena or subject to discovery, are not admissible into evidence or otherwise in any civil, criminal, administrative, or judicial proceeding, and are not considered binding under claim or issue preclusion doctrines. Except where constitutional provisions require otherwise, statements, records, or information are not subject to any statute or rule that would require those statements, records, or information to be disclosed in the course of a civil, criminal, or administrative trial, or associated discovery. Aggregate statistical data compiled by the Commission or its staff, however, may be released at the discretion of the Commission or its staff.

(b) No person in attendance at a meeting of the Commission, or any of its committees or panels, is required to testify as to what transpired at such meeting in any forum including any civil, criminal, administrative, or judicial proceeding.

80 Del. Laws, c. 187, § 9; 81 Del. Laws, c. 143, § 4.;

(a) Members of the Commission and their agents or employees, including committee and panel members, contractors, and volunteers are not subject to, and are immune from, claims, suits, liability, damages, or any other recourse, civil or criminal, arising from or relating to any act, omission, proceeding, decision, determination, finding, or recommendation made in the performance of their duties under §§ 932 and 933 of this title. For the immunity provided by this subsection to apply, the members of the Commission or their agents or employees must have acted in good faith and without malice in carrying out the responsibilities, authority, duties, powers, and privileges of the offices conferred upon them by this subchapter or by any other provisions of the Delaware law, federal law or regulations, or duly adopted rules and regulations of the Commission. Complainants shall bear the burden of proving malice or a lack of good faith to defeat the immunity provided by this subsection.

(b) No organization, institution, or person furnishing information, data, reports, or records to the Commission or its staff with respect to any subject examined or treated by such organization, institution, or person, by reason of furnishing such information, shall be liable in damages to any person or subject to any other recourse, civil or criminal.

80 Del. Laws, c. 187, § 9; 81 Del. Laws, c. 143, § 5.;