Bill Text: MS SB2576 | 2019 | Regular Session | Introduced
Bill Title: Fraudulent reports; Child Protection Services may divulge information under certain circumstances.
Spectrum: Slight Partisan Bill (Republican 5-2)
Status: (Passed) 2019-04-16 - Approved by Governor [SB2576 Detail]
Download: Mississippi-2019-SB2576-Introduced.html
MISSISSIPPI LEGISLATURE
2019 Regular Session
To: Judiciary, Division A
By: Senator(s) Parker, Hill, Moran
Senate Bill 2576
AN ACT TO AMEND SECTION 97-35-47, MISSISSIPPI CODE OF 1972, TO PROVIDE THAT THE FALSE REPORT OF CHILD ABUSE OR NEGLECT TO THE DEPARTMENT OF CHILD PROTECTION SERVICES SHALL BE PUNISHABLE AS A MISDEMEANOR; TO AMEND SECTIONS 43-21-257, 43-21-261 AND 43-21-353, MISSISSIPPI CODE OF 1972, TO REVISE THE APPROPRIATE RELEASE OF THE IDENTITY OF A REPORTER WHO KNOWINGLY REPORTED A FALSE ALLEGATION OF CHILD ABUSE OR NEGLECT, AND TO CORRECT REFERENCES TO THE DEPARTMENT OF CHILD PROTECTION SERVICES; AND FOR RELATED PURPOSES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
SECTION 1. Section 97-35-47, Mississippi Code of 1972, is amended as follows:
97-35-47. It shall be
unlawful for any person to report a crime or any element of a crime,
including an allegation of child abuse or neglect, to any law enforcement agency
or officer, the Department of Child Protection Services, or any officer of
any court, by any means, knowing that * * * the report is false. A violation
of this section shall be punishable by imprisonment in the county jail not to
exceed one (1) year or by fine not to exceed Five Thousand Dollars ($5,000.00),
or both. In addition to any fine and imprisonment, and upon proper showing
made to the court, the defendant shall be ordered to pay as restitution to the
law enforcement agency reimbursement for any reasonable costs directly related
to the investigation of the falsely reported crime and the prosecution of any
person convicted under this section.
A report is false under this section if no rational argument can be advanced in its support, when it is unsupported by any credible evidence, when a reasonable person could not have expected its success, or when it is completely untenable.
SECTION 2. Section 43-21-257, Mississippi Code of 1972, is amended as follows:
43-21-257. (1) Unless
otherwise provided in this section, any record involving children, including
valid and invalid complaints, and the contents thereof maintained by the
Department of * * *
Child Protection Services, or any other state agency, shall be kept
confidential and shall not be disclosed except as provided in Section 43-21-261.
(2) The * * * Department of Child
Protection Services shall maintain a state central registry containing the
number and disposition of all cases together with such other useful information
regarding those cases as may be requested and is obtainable from the records of
the youth court. The * * * Department of Child Protection Services shall
annually publish a statistical record of the number and disposition of all
cases, but the names or identity of any children shall not be disclosed in the
reports or records. The * * *Office of Youth Department of Child Protection Services
shall adopt such rules as may be necessary to carry out this subsection. The
central registry files and the contents thereof shall be confidential and shall
not be open to public inspection. Any person who discloses or encourages the
disclosure of any record involving children from the central registry shall be
subject to the penalty in Section 43-21-267. The youth court shall furnish,
upon forms provided by the * * * Department of Child
Protection Services, the necessary information, and these completed forms
shall be forwarded to the * * *Office of Youth Department of Child Protection
Services.
(3) The Department of * * * Child Protection Services shall
maintain a state central registry on neglect and abuse cases containing (a) the
name, address and age of each child, (b) the nature of the harm reported, (c)
the name and address of the person responsible for the care of the child, and
(d) the name and address of the substantiated perpetrator of the harm
reported. "Substantiated perpetrator" shall be defined as an
individual who has committed an act(s) of sexual abuse or physical abuse that
would otherwise be deemed as a felony or any child neglect that would be deemed
as a threat to life, as determined upon investigation by the Office of Family
and Children's Services. "Substantiation" for the purposes of the
Mississippi Department of * * *Human Child Protection Services Central Registry shall
require a criminal conviction or an adjudication by a youth court judge or
court of competent jurisdiction, ordering that the name of the perpetrator be
listed on the central registry, pending due process. The Department of * * * Child Protection Services shall
adopt such rules and administrative procedures, especially those procedures to
afford due process to individuals who have been named as substantiated
perpetrators before the release of their name from the central registry, as may
be necessary to carry out this subsection. The central registry shall be
confidential and shall not be open to public inspection. Any person who
discloses or encourages the disclosure of any record involving children from
the central registry without following the rules and administrative procedures
of the department shall be subject to the penalty in Section 43-21-267. The
Department of * * *
Child Protection Services and its employees are exempt from any civil
liability as a result of any action taken pursuant to the compilation and/or
release of information on the central registry under this section and any other
applicable section of the code, unless determined that an employee has
willfully and maliciously violated the rules and administrative procedures of
the department, pertaining to the central registry or any section of this
code. If an employee is determined to have willfully and maliciously performed
such a violation, said employee shall not be exempt from civil liability in
this regard.
(4) The Mississippi State Department of Health may release the findings of investigations into allegations of abuse within licensed day care centers made under the provisions of Section 43-21-353(8) to any parent of a child who is enrolled in the day care center at the time of the alleged abuse or at the time the request for information is made. The findings of any such investigation may also be released to parents who are considering placing children in the day care center. No information concerning those investigations may contain the names or identifying information of individual children.
The Department of Health shall not be held civilly liable for the release of information on any findings, recommendations or actions taken pursuant to investigations of abuse that have been conducted under Section 43-21-353(8).
SECTION 3. Section 43-21-261, Mississippi Code of 1972, is amended as follows:
43-21-261. (1) Except as
otherwise provided in this section, records involving children shall not be
disclosed, other than to necessary staff of the youth court or a Court-Appointed
Special Advocate (CASA) volunteer that may be assigned in an abuse and neglect
case, except pursuant to an order of the youth court specifying the person or
persons to whom the records may be disclosed, the extent of the records which
may be disclosed and the purpose of the disclosure. Such court orders for disclosure
shall be limited to those instances in which the youth court concludes, in its
discretion, that disclosure is required for the best interests of the child,
the public safety * * *,
the functioning of the youth court, or to identify a person who knowingly
made a false accusation of child abuse or neglect, and then only to the
following persons:
(a) The judge of another youth court or member of another youth court staff;
(b) The court of the parties in a child custody or adoption cause in another court;
(c) A judge of any other court or members of another court staff;
(d) Representatives of a public or private agency providing supervision or having custody of the child under order of the youth court;
(e) Any person engaged in a bona fide research purpose, provided that no information identifying the subject of the records shall be made available to the researcher unless it is absolutely essential to the research purpose and the judge gives prior written approval, and the child, through his or her representative, gives permission to release the information;
(f) The Mississippi Department of Employment Security, or its duly authorized representatives, for the purpose of a child's enrollment into the Job Corps Training Program as authorized by Title IV of the Comprehensive Employment Training Act of 1973 (29 USCS Section 923 et seq.). However, no records, reports, investigations or information derived therefrom pertaining to child abuse or neglect shall be disclosed;
(g) To any person
pursuant to a finding by a judge of the youth court of compelling circumstances
affecting the health, safety or well-being of a child and that such disclosure
is in the best interests of the child or an adult who was formerly the subject
of a youth court delinquency proceeding * * *;
(h) To a person who was the subject of a knowingly made false allegation of child abuse or neglect or to a prosecutor who is prosecuting an offense under Section 97-35-47.
Law enforcement agencies may disclose information to the public concerning the taking of a child into custody for the commission of a delinquent act without the necessity of an order from the youth court. The information released shall not identify the child or his address unless the information involves a child convicted as an adult.
(2) Any records involving children which are disclosed under an order of the youth court or pursuant to the terms of this section and the contents thereof shall be kept confidential by the person or agency to whom the record is disclosed unless otherwise provided in the order. Any further disclosure of any records involving children shall be made only under an order of the youth court as provided in this section.
(3) Upon request, the
parent, guardian or custodian of the child who is the subject of a youth court
cause or any attorney for such parent, guardian or custodian, shall have the
right to inspect any record, report or investigation which is to be considered
by the youth court at a hearing, except that the identity of the reporter shall
not be released, nor the name of any other person where the person or agency
making the information available finds that disclosure of the information would
be likely to endanger the life or safety of such person. The attorney for the
parent, guardian or custodian of the child, upon request, shall be provided a
copy of any record, report or investigation * * * that is to be considered by the youth court
at a hearing, but the identity of the reporter must be redacted and the name of
any other person must also be redacted if the person or agency making the
information available finds that disclosure of the information would be likely
to endanger the life, safety or well-being of the person. A record provided to
the attorney under this section * * * must remain in the attorney's control and the
attorney may not provide copies or access to another person or entity without
prior consent of a court with appropriate jurisdiction.
(4) Upon request, the child who is the subject of a youth court cause shall have the right to have his counsel inspect and copy any record, report or investigation which is filed with the youth court or which is to be considered by the youth court at a hearing.
(5) (a) The youth court prosecutor or prosecutors, the county attorney, the district attorney, the youth court defender or defenders, or any attorney representing a child shall have the right to inspect and copy any law enforcement record involving children.
(b) The Department of * * * Child Protection Services shall
disclose to a county prosecuting attorney or district attorney any and all
records resulting from an investigation into suspected child abuse or neglect
when the case has been referred by the Department of * * * Child Protection Services to the
county prosecuting attorney or district attorney for criminal prosecution.
(c) Agency records made confidential under the provisions of this section may be disclosed to a court of competent jurisdiction.
(d) Records involving children shall be disclosed to the Division of Victim Compensation of the Office of the Attorney General upon the division's request without order of the youth court for purposes of determination of eligibility for victim compensation benefits.
(6) Information concerning
an investigation into a report of child abuse or child neglect may be disclosed
by the Department of * * *
Child Protection Services without order of the youth court to any
attorney, physician, dentist, intern, resident, nurse, psychologist, social
worker, family protection worker, family protection specialist, child
caregiver, minister, law enforcement officer, public or private school employee
making that report pursuant to Section 43-21-353(1) if the reporter has a
continuing professional relationship with the child and a need for such
information in order to protect or treat the child.
(7) Information concerning an investigation into a report of child abuse or child neglect may be disclosed without further order of the youth court to any interagency child abuse task force established in any county or municipality by order of the youth court of that county or municipality.
(8) Names and addresses of juveniles twice adjudicated as delinquent for an act which would be a felony if committed by an adult or for the unlawful possession of a firearm shall not be held confidential and shall be made available to the public.
(9) Names and addresses of juveniles adjudicated as delinquent for murder, manslaughter, burglary, arson, armed robbery, aggravated assault, any sex offense as defined in Section 45-33-23, for any violation of Section 41-29-139(a)(1) or for any violation of Section 63-11-30, shall not be held confidential and shall be made available to the public.
(10) The judges of the circuit and county courts, and presentence investigators for the circuit courts, as provided in Section 47-7-9, shall have the right to inspect any youth court records of a person convicted of a crime for sentencing purposes only.
(11) The victim of an offense committed by a child who is the subject of a youth court cause shall have the right to be informed of the child's disposition by the youth court.
(12) A classification hearing officer of the State Department of Corrections, as provided in Section 47-5-103, shall have the right to inspect any youth court records, excluding abuse and neglect records, of any offender in the custody of the department who as a child or minor was a juvenile offender or was the subject of a youth court cause of action, and the State Parole Board, as provided in Section 47-7-17, shall have the right to inspect such records when the offender becomes eligible for parole.
(13) The youth court shall notify the Department of Public Safety of the name, and any other identifying information such department may require, of any child who is adjudicated delinquent as a result of a violation of the Uniform Controlled Substances Law.
(14) The Administrative Office of Courts shall have the right to inspect any youth court records in order that the number of youthful offenders, abused, neglected, truant and dependent children, as well as children in need of special care and children in need of supervision, may be tracked with specificity through the youth court and adult justice system, and to utilize tracking forms for such purpose.
(15) Upon a request by a youth court, the Administrative Office of Courts shall disclose all information at its disposal concerning any previous youth court intakes alleging that a child was a delinquent child, child in need of supervision, child in need of special care, truant child, abused child or neglected child, as well as any previous youth court adjudications for the same and all dispositional information concerning a child who at the time of such request comes under the jurisdiction of the youth court making such request.
(16) The Administrative Office of Courts may, in its discretion, disclose to the Department of Public Safety any or all of the information involving children contained in the office's youth court data management system known as Mississippi Youth Court Information Delivery System or "MYCIDS."
(17) The youth courts of the state shall disclose to the Joint Legislative Committee on Performance Evaluation and Expenditure Review (PEER) any youth court records in order that the number of youthful offenders, abused, neglected, truant and dependent children, as well as children in need of special care and children in need of supervision, may be tracked with specificity through the youth court and adult justice system, and to utilize tracking forms for such purpose. The disclosure prescribed in this subsection shall not require a court order and shall be made in sortable, electronic format where possible. The PEER Committee may seek the assistance of the Administrative Office of Courts in seeking this information. The PEER Committee shall not disclose the identities of any youth who have been adjudicated in the youth courts of the state and shall only use the disclosed information for the purpose of monitoring the effectiveness and efficiency of programs established to assist adjudicated youth, and to ascertain the incidence of adjudicated youth who become adult offenders.
(18) In every case where an abuse or neglect allegation has been made, the confidentiality provisions of this section shall not apply to prohibit access to a child's records by any state regulatory agency, any state or local prosecutorial agency or law enforcement agency; however, no identifying information concerning the child in question may be released to the public by such agency except as otherwise provided herein.
(19) In every case where
there is any indication or suggestion of either abuse or neglect and a child's
physical condition is medically labeled as medically "serious" or
"critical" or a child dies, the confidentiality provisions of this
section shall not apply. In cases of child deaths, the following information
may be released by the Mississippi Department of * * * Child Protection Services: (a) child's
name; (b) address or location; (c) verification from the Department of * * * Child Protection Services of case
status (no case or involvement, case exists, open or active case, case closed);
(d) if a case exists, the type of report or case (physical abuse, neglect,
etc.), date of intake(s) and investigation(s), and case disposition
(substantiated or unsubstantiated). Notwithstanding the aforesaid, the
confidentiality provisions of this section shall continue if there is a pending
or planned investigation by any local, state or federal governmental agency or
institution.
(20) Any member of a foster
care review board designated by the Department of * * * Child Protection Services shall
have the right to inspect youth court records relating to the abuse, neglect or
child in need of supervision cases assigned to such member for review.
(21) Information concerning
an investigation into a report of child abuse or child neglect may be disclosed
without further order of the youth court in any administrative or due process
hearing held, pursuant to Section 43-21-257, by the Department of * * * Child Protection Services for
individuals whose names will be placed on the central registry as substantiated
perpetrators.
SECTION 4. Section 43-21-353, Mississippi Code of 1972, is amended as follows:
43-21-353. (1) Any
attorney, physician, dentist, intern, resident, nurse, psychologist, social
worker, family protection worker, family protection specialist, child
caregiver, minister, law enforcement officer, public or private school employee
or any other person having reasonable cause to suspect that a child is a
neglected child or an abused child, shall cause an oral report to be made
immediately by telephone or otherwise and followed as soon thereafter as
possible by a report in writing to the Department of * * * Child Protection Services, and
immediately a referral shall be made by the Department of * * * Child Protection Services to the
youth court intake unit, which unit shall promptly comply with Section 43-21-357.
In the course of an investigation, at the initial time of contact with the
individual(s) about whom a report has been made under this Youth Court Act or
with the individual(s) responsible for the health or welfare of a child about
whom a report has been made under this chapter, the Department of * * * Child Protection Services shall
inform the individual of the specific complaints or allegations made against
the individual. Consistent with subsection (4), the identity of the person who
reported his or her suspicion shall not be disclosed at that point.
Where appropriate, the Department of * * * Child Protection Services shall
additionally make a referral to the youth court prosecutor.
Upon receiving a report that
a child has been sexually abused, or burned, tortured, mutilated or otherwise
physically abused in such a manner as to cause serious bodily harm, or upon
receiving any report of abuse that would be a felony under state or federal
law, the Department of * * *
Child Protection Services shall immediately notify the law enforcement
agency in whose jurisdiction the abuse occurred and shall notify the
appropriate prosecutor within forty-eight (48) hours, and the Department of * * * Child Protection Services shall
have the duty to provide the law enforcement agency all the names and facts
known at the time of the report; this duty shall be of a continuing nature.
The law enforcement agency and the Department of * * * Child Protection Services shall
investigate the reported abuse immediately and shall file a preliminary report
with the appropriate prosecutor's office within twenty-four (24) hours and
shall make additional reports as new or additional information or evidence
becomes available. The Department of * * * Child Protection Services shall
advise the clerk of the youth court and the youth court prosecutor of all cases
of abuse reported to the department within seventy-two (72) hours and shall
update such report as information becomes available.
(2) Any report to the
Department of * * *
Child Protection Services shall contain the names and addresses of the
child and his parents or other persons responsible for his care, if known, the
child's age, the nature and extent of the child's injuries, including any
evidence of previous injuries * * *, any other information that might
be helpful in establishing the cause of the injury, and the identity of
the perpetrator.
(3) The Department of * * * Child Protection Services shall
maintain a statewide incoming wide-area telephone service or similar service
for the purpose of receiving reports of suspected cases of child abuse;
provided that any attorney, physician, dentist, intern, resident, nurse,
psychologist, social worker, family protection worker, family protection
specialist, child caregiver, minister, law enforcement officer or public or
private school employee who is required to report under subsection (1) of this
section shall report in the manner required in subsection (1).
(4) Reports of abuse and neglect made under this chapter and the identity of the reporter are confidential except when the court in which the investigation report is filed, in its discretion, determines the testimony of the person reporting to be material to a judicial proceeding or when the identity of the reporter is released to law enforcement agencies and the appropriate prosecutor pursuant to subsection (1). Reports made under this section to any law enforcement agency or prosecutorial officer are for the purpose of criminal investigation and prosecution only and no information from these reports may be released to the public except as provided by Section 43-21-261. Disclosure of any information by the prosecutor shall be according to the Mississippi Uniform Rules of Circuit and County Court Procedure. The identity of the reporting party shall not be disclosed to anyone other than law enforcement officers or prosecutors without an order from the appropriate youth court. Any person disclosing any reports made under this section in a manner not expressly provided for in this section or Section 43-21-261 shall be guilty of a misdemeanor and subject to the penalties prescribed by Section 43-21-267. Notwithstanding the confidentiality of the reporter's identity under this section, the Department of Child Protection Services may disclose a reporter's identity to the appropriate law enforcement agency or prosecutor if the department has reason to suspect the reporter has made a fraudulent report, and Child Protection Services must provide to the subject of the alleged fraudulent report written notification of the disclosure.
(5) All final dispositions
of law enforcement investigations described in subsection (1) of this section
shall be determined only by the appropriate prosecutor or court. All final
dispositions of investigations by the Department of * * * Child Protection Services as
described in subsection (1) of this section shall be determined only by the
youth court. Reports made under subsection (1) of this section by the
Department of * * *
Child Protection Services to the law enforcement agency and to the
district attorney's office shall include the following, if known to the
department:
(a) The name and address of the child;
(b) The names and addresses of the parents;
(c) The name and address of the suspected perpetrator;
(d) The names and addresses of all witnesses, including the reporting party if a material witness to the abuse;
(e) A brief statement of the facts indicating that the child has been abused and any other information from the agency files or known to the family protection worker or family protection specialist making the investigation, including medical records or other records, which may assist law enforcement or the district attorney in investigating and/or prosecuting the case; and
(f) What, if any,
action is being taken by the Department of * * * Child Protection Services.
(6) In any investigation of
a report made under this chapter of the abuse or neglect of a child as defined
in Section 43-21-105(m), the Department of * * * Child Protection Services may
request the appropriate law enforcement officer with jurisdiction to accompany
the department in its investigation, and in such cases the law enforcement
officer shall comply with such request.
(7) Anyone who willfully violates any provision of this section shall be, upon being found guilty, punished by a fine not to exceed Five Thousand Dollars ($5,000.00), or by imprisonment in jail not to exceed one (1) year, or both.
(8) If a report is made
directly to the Department of * * * Child Protection Services that a
child has been abused or neglected in an out-of-home setting, a referral shall
be made immediately to the law enforcement agency in whose jurisdiction the
abuse occurred and the department shall notify the district attorney's office
within forty-eight (48) hours of such report. The Department of * * * Child Protection Services shall
investigate the out-of-home setting report of abuse or neglect to determine
whether the child who is the subject of the report, or other children in the
same environment, comes within the jurisdiction of the youth court and shall
report to the youth court the department's findings and recommendation as to
whether the child who is the subject of the report or other children in the
same environment require the protection of the youth court. The law
enforcement agency shall investigate the reported abuse immediately and shall
file a preliminary report with the district attorney's office within forty-eight
(48) hours and shall make additional reports as new information or evidence
becomes available. If the out-of-home setting is a licensed facility, an
additional referral shall be made by the Department of * * * Child Protection Services to the
licensing agency. The licensing agency shall investigate the report and shall
provide the Department of * * *Human Child Protection Services, the law enforcement
agency and the district attorney's office with their written findings from such
investigation as well as that licensing agency's recommendations and actions
taken.
(9) If a child protective investigation does not result in an out-of-home placement, a child protective investigator must provide information to the parent or guardians about community service programs that provide respite care, voluntary guardianship or other support services for families in crisis.
SECTION 5. This act shall take effect and be in force from and after July 1, 2019.
