2000 SESSION

00-2354

04/10

HOUSE BILL 1533

COMMITTEE: Children and Family Law

ANALYSIS

This bill makes certain changes to the child protection act including reporting requirements, evidentiary standards, disclosure, and confidentiality of proceedings.

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Explanation: Matter added to current law appears in bold italics.

Matter removed from current law appears [in brackets and struckthrough.]

Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.

00-2354

04/10

STATE OF NEW HAMPSHIRE

In the Year of Our Lord Two Thousand

Be it Enacted by the Senate and House of Representatives in General Court convened:

1 Child Protection Act; Purpose Amended. Amend the introductory paragraph of RSA 169-C:2, I to read as follows:

I. It is the purpose of this chapter, through the [mandatory] reporting of suspected instances of child abuse or neglect, to provide protection to children whose life, health or welfare is endangered by the actions of a parent or caretaker and to establish a judicial framework to protect the rights of all parties involved in the adjudication of child abuse or neglect cases. Each child coming within the provisions of this chapter shall receive, preferably in his or her own home, the care, emotional security, guidance and control that will promote the child's best interest; and, if the child should be removed from the control of his parents, guardian or custodian, adequate care shall be secured for the child. This chapter seeks to coordinate efforts by state and local authorities, in cooperation with private agencies and organizations, citizens' groups, and concerned individuals, to:

2 Child Protection Act; Purpose Amended. Amend RSA 169-C:2, I (c) to read as follows:

(c) Provide assistance to parents who abuse or neglect their children to deal with and correct problems in order to avoid removal of children from the family.

3 Child Protection Act; Purpose Amended. Amend RSA 169-C:2, II (a) and (b) to read as follows:

(a) To encourage the mental, emotional, and physical development of each child coming within the provisions of this chapter, by providing him or her with the protection, care, treatment, counseling, supervision, and rehabilitative resources which he or she needs [and has a right to receive].

(b) To achieve the foregoing purposes and policies, whenever possible, by keeping a child in contact with his home community and in a family environment by preserving the unity of the family and separating the child from his parents only when the health or safety of the child is in imminent, severe danger [or when it is clearly necessary for his welfare or the interests of the public safety and when it can be clearly shown that a change in custody and control will plainly better the child; and].

4 Child Protection Act; Definition of Legal Supervision Amended. Amend RSA 169-C:3, XVIII to read as follows:

XVIII. "Legal supervision" means a legal status created by court order wherein the child is permitted to remain in his home under the supervision of a child placing agency subject to further court order. The department shall have the authority to monitor the welfare of the child, but shall not have the authority to enter the home without the permission of parents or without a warrant unless the condition of the home, as documented by photographic evidence, is found in a hearing to substantiate a finding of abuse or neglect. The department shall not have access to other children living in the home who are not the subject of an abuse or neglect proceedings.

5 Child Protection Act; Definition of Neglected Child. Amend RSA 169-C:3, XIX (b) to read as follows:

(b) Who is without proper parental [care or control,] subsistence, or education as required by law, provided that no child receiving home education pursuant to RSA 193-A shall be considered abused or neglected without evidence that such child is uneducated, or other medical care [or control] necessary for his physical, mental, or emotional health, when it is established that his health has suffered or is very likely to suffer serious impairment; and the deprivation is not due primarily to the lack of financial means of the parents, guardian or custodian[; or]. Before a finding of mental or psychological harm is made by the court a parent alleged to have caused such harm to a child shall be entitled to submit into evidence a psychological evaluation performed by a mental health professional of the parent's choosing to rebut allegations of psychological harm to the child;

6 Child Protection Act; Definition of Founded Report Amended. Amend RSA 169-C:3, XIII-a to read as follows:

XIII-a. "Founded report" means a report made pursuant to this chapter for which the department finds [probable cause to believe] by a preponderance of the evidence that the child who is the subject of such report is abused or neglected.

7 Child Protection Act; Definitions Amended. Amend RSA 169-C:3, XVII(d) to read as follows:

(d) The responsibility to provide the child with food, clothing, shelter, education, emotional security and ordinary medical care provided that such rights and responsibilities shall be exercised subject to the power, rights, duties and responsibilities of the guardian of the child and subject to residual parental rights and responsibilities if these have not been terminated by judicial decree. Parental rights shall not be terminated except through due process set forth in Part I, Article 15 of the New Hampshire constitution.

8 New Paragraph; Child Protection Act; Definition of Parental Rights Added. Amend RSA 169-C:3 by inserting after paragraph XXI-a the following new paragraph:

XXI-b. "Parental rights" means the natural, essential, and inherent rights as enumerated in Part First, Article 2 of the Bill of Rights of the New Hampshire constitution.

9 Child Protection Act; Definitions Amended. Amend RSA 169-C:3, XXIII to read as follows:

XXIII. "Probable cause" means facts and circumstances based upon accurate and reliable information, [including hearsay,] from at least 2 independent sources, that would justify a [reasonable person to believe] belief that a child subject to a report under this chapter is abused or neglected, except in situations where a child is in imminent, serious, physical danger.

10 New Paragraph; Child Protection Act; Definition of Vexatious Proceeding Added. Amend RSA 169-C:3 by inserting after paragraph XXVIII the following new paragraph:

XXXIX. "Vexatious proceeding" means any proceeding instituted maliciously or without probable cause.

11 Child Protection Act; Jurisdiction Amended. Amend RSA 169-C:4, I to read as follows:

I. The court shall have [exclusive original] jurisdiction over all proceedings alleging the abuse or neglect of a child.

12 Child Protection Act; Protective Custody. Amend RSA 169-C:6, I to read as follows:

I. A police or juvenile services officer may take a child into protective custody without the consent of the parents or other person legally responsible for the child's care if the child is in such circumstances or surroundings as would present an imminent danger to the child's health or life unless immediate action is taken and there is not enough time to petition for a court order, provided that if a child's injury is alleged to place the child in serious, imminent danger, the court, prior to issuing an ex parte order, shall review the evidence of the alleged abuse. In cases where the alleged abuse is sexual in nature, the court shall review a physician's report prior to issuing any order.

13 Child Protection Act; Protective Custody. Amend RSA 169-C:6, III to read as follows:

III. Any police or juvenile services officer or other individual acting in good faith pursuant to this section, shall have immunity from any liability, civil or criminal, that might otherwise be incurred or imposed as a result of such removal or placement. Any attempt made to document alleged abuse or injuries to a child in photographs or through medical examinations and records shall be evidence of good faith. This paragraph shall not apply to individuals who make no attempt to obtain photographic medical documentation of abuse or neglect prior to petitioning the court for removal of a child.

14 Child Protection Act; Protective Custody Amended. Amend RSA 169-C:6, V to read as follows:

V. If a child is found by a child protection services worker of the department to be in imminent danger in such circumstances or surroundings and where immediate removal [appears] is necessary to protect the child from such imminent danger, the department's child protection services worker shall contact a judge or clerk immediately for an order to remove the child. The department shall present photographic or medical documentation of the alleged abuse or neglect prior to removal of the child. If such documentation is not presented, the department shall transport the child or children to the court for inspection or questioning by the court prior to the issuance of any order for removal.

15 New Subparagraph; Child Protection Act; Emergency Interim Relief Amended. Amend RSA 169-C:6-a, I by inserting after subparagraph (f) the following new subparagraph:

(g) Photographic evidence of abuse or neglect, audio taped statements of the child alleged to have been abused or neglected, or medical evidence of abuse or neglect.

16 Child Protection Act; Evidence Amended. Amend RSA 169-C:12 to read as follows:

169-C:12 Evidence. In any hearing under this chapter, the court shall [not] be bound by the technical rules of evidence and may admit evidence which it considers relevant and material. Recorded statements of children interviewed pursuant to RSA 169-C:38 shall be admissible, and shall not be subject to the rules of evidence.

17 Child Protection Act; Use of Testimony Amended. Amend RSA 169-C:12-a to read as follows:

169-C:12-a Testimony During Abuse and Neglect Proceedings. Testimony by parents who are the subject of an abuse and neglect petition and who are alleged to have abused or neglected a child, which is given during proceedings under this chapter or during a fair hearing conducted by the department, shall [not] be admissible in criminal proceedings relating to such abuse or neglect allegations.

18 Child Protection Act; Burden of Proof Amended. Amend RSA 169-C:13 to read as follows:

169-C:13 Burden of Proof. The petitioner has the burden to prove the allegations in support of the petition by [a preponderance of the] clear and convincing evidence.

19 Child Protection Act; Hearings; Persons Present Amended. Amend RSA 169-C:14 to read as follows:

169-C:14 Hearings Not Open to the Public. The general public shall be excluded from any hearing under this chapter and such hearing shall, whenever possible, be held in rooms not used for criminal trials. Only such persons as the parties, their witnesses, counsel, other person whom the parties, in writing, desire to be present, and representatives of the agencies present to perform their official duties shall be admitted.

20 Child Protection Act; Records Available at No Charge. Amend RSA 169-C:14-a to read as follows:

169-C:14-a Records of Hearings. The court shall notify parties of their right to request in advance of any hearing under this chapter that a record of such hearing shall be preserved and made available to the parties at no charge.

21 Child Protection Act; Preliminary Hearing; Certain Evidence Required . Amend RSA 169-C:15, II to read as follows:

II. If the party filing a petition fails to submit independent medical, photographic, or audio tape recorded evidence substantiating the abuse or neglect claim, the court [does not find] shall determine that there is no reasonable cause to believe that the child is abused or neglected, and it shall dismiss the petition.

22 Child Protection Act; Preliminary Disposition Amended. Amend RSA 169-C:16, III to read as follows:

III. The court may [at any time] pursuant to paragraph I of this section, order the child, parents, guardian, custodian, or household member [subject to] named in the petition or ex parte order, to submit to a mental health evaluation, or undergo a physical examination or treatment, with a written assessment being provided to the court. The court may order that the child, who is the subject of the petition or the family or both be evaluated by a mental health center or any other psychiatrist, psychologist or psychiatric social worker or family therapist or undergo physical examination or treatment with a written assessment provided to the court. Evaluations performed at the Philbrook center may occur only upon receiving prior approval for such evaluation from the commissioner of the department of health and human services, or designee.

23 Child Protection Act; Preliminary Disposition. Amend RSA 169-C:16, IV to read as follows:

IV. If the child, the parent, guardian or custodian objects to the mental health evaluation, he shall object in writing to the court having jurisdiction within 5 days after notification of the time and place of said evaluation. The court shall hold a hearing to consider the objection prior to ordering said evaluation. Upon good cause shown, the court may excuse the child, the parent, guardian or custodian from the provisions of this section. Any person ordered to undergo a mental health evaluation under this section shall be permitted to choose the mental health professional of his or her choice, provided such professional is willing to perform the evaluation and submit written report of the evaluation to the court.

24 Child Protection Act; Adjudicatory Hearing. Amend RSA 169-C:18, III-V to read as follows:

III. [The petitioner] A party shall present witnesses to testify in support of the petition and any other evidence necessary to support the petition. [The petitionees] Each party to the proceeding shall have the right to present evidence and witnesses on their own behalf and to cross-examine adverse witnesses. The admissibility of all evidence in this hearing shall be determined by RSA 169-C:12.

IV. If the court or the jury does not find sufficient evidence of neglect or abuse, it shall dismiss the petition.

V. If the court or the jury determines that a child has been abused or neglected, the court shall order a child placing agency to make an investigation and a social study consisting of, but not limited to, the home conditions, family background, and financial assessment, school record, mental, physical and social history of the family, including sibling relationships and residences for appropriateness of preserving relationships between siblings who are separated as a result of court ordered placement, and submit it in writing to the court prior to the final disposition of the case. No disposition order shall be made by a court without first reviewing the social study except pursuant to a voluntary consent order or when waived by all the parties. Preliminary orders, continued pursuant to RSA 169-C:16, may be entered or modified as appropriate until the dispositional hearing.

25 Child Protection Act; Confidentiality Amended. Amend RSA 169-C:25, I-III to read as follows:

I. The court records of proceedings under this chapter shall be kept in books and files separate from all other court records. Such records shall be withheld from public inspection but shall be open to inspection by the parties, child, parent, guardian, custodian, attorney, or other authorized representative of the child.

II. [It shall be unlawful for any] Notwithstanding any provision of law, any party present during a child abuse or neglect hearing [to] may disclose any information concerning the hearing without the prior permission of the court. [Any person who knowingly violates this provision shall be guilty of a misdemeanor.]

III. All case records, as defined in RSA 170-G:8-a, relative to abuse and neglect, shall be confidential, and access shall be provided pursuant to RSA 170-G:8-a. Nothing in this paragraph shall be construed to prevent a party to a proceeding under this chapter from obtaining records or other evidence for use in a hearing or proceeding under this chapter to the extent such evidence would be legally discoverable. For the purposes of this paragraph, evidence in police custody shall be deemed to be known and in the possession of the department and shall be discoverable.

26 Child Protection Act; Appeals Amended. Amend RSA 169-C:28 to read as follows:

169-C:28 Appeals. An appeal under this chapter may be taken to the superior court by the child or the child's authorized representative or any party having an interest, including the state, or any person subject to any administrative decision pursuant to this chapter, within 30 days of the final dispositional order; but an appeal shall not suspend the order or decision of the court unless the court so orders. The superior court shall hear the matter de novo, and shall give an appeal under this chapter priority on the court calendar. For purposes of this chapter, a "final dispositional order" includes a dismissal of a petition for abuse and neglect by the district court. ["Final dispositional order" shall also include any ruling or order arising from an administrative hearing held or initiated by any administrative agency, including the department, in which a finding of child abuse or neglect is made.] No child shall be permanently removed from the lawful custody of the parents without due process as mandated in Part I, Article 15 of the New Hampshire constitution.

27 Child Protection Act; Persons Required to Report Amended. Amend RSA 169-C:29 to read as follows:

169-C:29 Persons Required to Report. Any physician, surgeon, county medical examiner, psychiatrist, resident, intern, dentist, osteopath, optometrist, chiropractor, psychologist, therapist, registered nurse, hospital personnel (engaged in admission, examination, care and treatment of persons), Christian Science practitioner, teacher, school official, school nurse, school counselor, social worker, day care worker, any other child or foster care worker, law enforcement official, priest, minister, or rabbi or any other person having [reason to suspect] reasonable cause to believe that a child has been abused or neglected shall report the same in accordance with this chapter.

28 Child Protection Act; Reporting Amended. Amend RSA 169-C:30 to read as follows:

169-C:30 Nature and Content of Report.

I. An oral report shall be made immediately by telephone or otherwise, and followed within 48 hours by a report in writing, if so requested, to the department. Such report shall, if known, contain the name and address of the child suspected of being neglected or abused and the person responsible for the child's welfare, the specific information indicating neglect or the nature and extent of the child's injuries (including any evidence of previous injuries), the identity of the person or persons suspected of being responsible for such neglect or abuse, and any other information that might be helpful in [establishing] determining the validity of allegations of neglect or abuse or that may be required by the department.

II. Upon receipt of a report of alleged abuse or neglect which is not substantiated pursuant to RSA 169-C:6, a second report alleging abuse or neglect shall be required prior to the removal of a child from the existing lawful custody of the parent or other person responsible for the child's welfare, and prior to the initiation of any investigation conducted by the department.

29 Child Protection Act; Duties of the Department. Amend RSA 169-C:34, I to read as follows:

I. If it appears that the immediate safety or well-being of a child is endangered, the family may flee or the child disappear, or the facts otherwise so warrant, the department shall commence an investigation immediately [after receipt of a report] pursuant to RSA 169-C:30. In all other cases, a child protective investigation shall be commenced within 72 hours of receipt of the report.

30 Child Protection Act; Duties of the Department of Health and Human Services Amended. Amend RSA 169-C:34, IV to read as follows:

IV. Upon notification by the department that the immediate safety or well-being of a child may be endangered, the court may, in its discretion, order a police officer, juvenile service officer, or child protection service worker to [enter] visit the place where the child is located, in furtherance of such investigation.

31 New Paragraph; Child Protection Act; Duties of the Department; Frivolous Proceedings. Amend RSA 169-C:34 by inserting after paragraph IV the following new paragraph:

V. The court may order a party who is found to have filed a frivolous or vexatious proceeding under this chapter to pay reasonable costs including attorney's fees involved in such action.

32 Child Protection Act; Report to Law Enforcement Authority; Amend RSA 169-C:38, IV (c) to read as follows:

(c) Intentionally physically injured so as to cause serious bodily injury. Injuries not requiring medical treatment shall not be considered serious bodily injuries under this subparagraph.

33 Repeal. RSA 169-C:32, relative to privileged communications in the context of abuse and neglect proceedings, is repealed.

34 Effective Date. This act shall take effect January 1, 2001.