South Carolina General Assembly
112th Session, 1997-1998

Bill 3546


                    Current Status

Bill Number:                    3546
Ratification Number:            227
Act Number:                     130
Type of Legislation:            General Bill GB
Introducing Body:               House
Introduced Date:                19970227
Primary Sponsor:                Knotts
All Sponsors:                   Knotts, Whatley, Bauer, Rice and
                                Koon 
Drafted Document Number:        ebm\18577djc.97
Date Bill Passed both Bodies:   19970604
Date of Last Amendment:         19970604
Governor's Action:              S
Date of Governor's Action:      19970613
Subject:                        Child abuse, neglect; emergency
                                protective custody; Minors, Social
                                Services Department

History


Body    Date      Action Description                       Com     Leg Involved
______  ________  _______________________________________  _______ ____________

------  19970630  Act No. A130
------  19970613  Signed by Governor
------  19970609  Ratified R227
House   19970604  Concurred in Senate amendment,
                  enrolled for ratification
Senate  19970604  Amended, read third time,
                  returned to House with amendment
Senate  19970603  Amended, read second time,
                  ordered to third reading
                  with notice of general amendments
Senate  19970520  Recalled from Committee                  11 SJ
Senate  19970429  Introduced, read first time,             11 SJ
                  referred to Committee
House   19970425  Read third time, sent to Senate
House   19970424  Amended, read second time,
                  unanimous consent for third reading
                  on Friday, 19970425
House   19970416  Committee report: Favorable with         25 HJ
                  amendment
House   19970227  Introduced, read first time,             25 HJ
                  referred to Committee


View additional legislative information at the LPITS web site.


(Text matches printed bills. Document has been reformatted to meet World Wide Web specifications.)

(A130, R227, H3546)

AN ACT TO AMEND SECTION 20-7-490(26) AND (27), AS AMENDED, CODE OF LAWS OF SOUTH CAROLINA, 1976, RELATING TO EMERGENCY CUSTODY OF A CHILD, SO AS TO REFER TO PROTECTIVE RATHER THAN PHYSICAL CUSTODY AND TO ALLOW ACTION BY LAW ENFORCEMENT ONLY AS PRESCRIBED; TO AMEND SECTION 20-7-610, AS AMENDED, RELATING TO PROCEDURES FOR UNDERTAKING EMERGENCY PROTECTIVE CUSTODY, SO AS TO REQUIRE CONSULTATION WITH THE ACTING LAW ENFORCEMENT OFFICER BEFORE RETURNING CUSTODY UNLESS AN ALTERNATIVE ARRANGEMENT IS AGREED TO OR THE OFFICER IS UNAVAILABLE, TO EXTEND THE PERIOD OF EMERGENCY CUSTODY FOR AN ADDITIONAL TWENTY-FOUR HOURS UNDER CERTAIN CONDITIONS AND FOR AN ADDITIONAL FIVE DAYS IF NECESSARY TO PLACE THE CHILD WITH A SELECTED PERSON, TO ALLOW THE ACTING OFFICER TO DEMAND A PROBABLE CAUSE HEARING UNDER CERTAIN CONDITIONS; AND TO AMEND SECTION 20-7-612 TO REFER TO EMERGENCY PROTECTIVE CUSTODY RATHER THAN PHYSICAL CUSTODY.

Be it enacted by the General Assembly of the State of South Carolina:

Describes emergency protective custody

SECTION 1. Section 20-7-490(26) and (27) of the 1976 Code, as last amended by Act 450 of 1996, is further amended to read:

"(26) 'Emergency protective custody' means the right to physical custody of a child for a temporary period of no more than twenty-four hours to protect the child from imminent danger.

Emergency protective custody may be taken only by a law enforcement officer pursuant to this article."

Prescribes conditions and procedures for undertaking emergency protective custody of a child

SECTION 2. Section 20-7-610 of the 1976 Code, as last amended by Act 450 of 1996, is further amended to read:

"Section 20-7-610. (A) A law enforcement officer may take emergency protective custody of a child without the consent of the child's parents, guardians, or others exercising temporary or permanent control over the child if:

(1) the officer has probable cause to believe that by reason of abuse or neglect the child's life, health, or physical safety is in substantial and imminent danger if the child is not taken into emergency physical custody or emergency protective custody and there is not time to apply for a court order pursuant to Section 20-7-736. When a child is taken into emergency protective custody following an incident of excessive corporal punishment and the only injury to the child is external lesions or minor bruises, other children in the home shall not be taken into emergency protective custody solely on account of the injury of one child through excessive corporal punishment. However, the officer may take emergency protective custody of other children in the home if a threat of harm to them is further indicated by factors including, but not limited to, a prior history of domestic violence or other abuse in the home, alcohol or drug abuse if known or evident at the time of the initial contact, or other circumstances indicative of danger to the children;

(2) the child's parent, parents, or guardian has been arrested or the child has become lost accidentally and as a result the child's welfare is threatened due to loss of adult protection and supervision; and

(a) in the circumstances of arrest, the parent, parents, or guardian does not consent in writing to another person assuming physical custody of the child;

(b) in the circumstances of a lost child, a search by law enforcement has not located the parent, parents, or guardian.

(B) If the child is in need of emergency medical care at the time the child is taken into emergency protective custody, the officer shall transport the child to an appropriate health care facility. Emergency medical care may be provided to the child without consent, as provided in Section 20-7-290. The parent or guardian is responsible for the cost of emergency medical care that is provided to the child. However, the parent or guardian is not responsible for the cost of medical examinations performed at the request of law enforcement or the department solely for the purpose of assessing whether the child has been abused or neglected unless it is determined that the child has been harmed as defined in this article.

If the child is not in need of emergency medical care, the officer or the department shall transport the child to a place agreed upon by the department and law enforcement, and the department within two hours shall assume physical control of the child and shall place the child in a licensed foster home or shelter within a reasonable period of time. In no case may the child be placed in a jail or other secure facility or a facility for the detention of criminal or juvenile offenders. While the child is in its custody, the department shall provide for the needs of the child and assure that a child of school age who is physically able to do so continues attending school.

(C) When an officer takes a child into emergency protective custody under this section, the officer immediately shall notify the department. The department shall notify the parent, guardian, or other person exercising temporary or permanent control over the child as early as reasonably possible of the location of the child unless there are compelling reasons for believing that disclosure of this information would be contrary to the best interests of the child.

(D) The department shall conduct within twenty-four hours after the child is taken into emergency protective custody by law enforcement or pursuant to ex parte order a preliminary investigation to determine whether grounds for assuming legal custody of the child exist and whether reasonable means exist for avoiding removal of the child from the home of the parent or guardian or for placement of the child with a relative and means for minimizing the emotional impact on the child of separation from the child's home and family. During this time the department, if possible, shall convene a meeting with the child's parents or guardian, extended family, and other relevant persons to discuss the family's problems that led to intervention and possible corrective actions, including placement of the child.

(E) Before agreeing to or acquiescing in a corrective action that involves placement of the child with a relative or other person or making an interim placement with a relative while retaining custody of the child or as soon as possible after agreeing to or acquiescing in a corrective action, the department shall secure from the relative or other person and other adults in the home an affidavit attesting to information necessary to determine whether a criminal history or history of child abuse or neglect exists and whether this history indicates there is a significant risk that the child would be threatened with abuse or neglect in the home of the relative or other person. As soon as possible, the department shall confirm the information supplied in the affidavit by checking the Central Registry of Child Abuse and Neglect, other relevant department records, county sex offender registries, and records for the preceding five years of law enforcement agencies in the jurisdiction in which the relative or other person resides and, to the extent reasonably possible, jurisdictions in which the relative or other person has resided during that period. The department must not agree to or acquiesce in a placement if the affidavit or these records reveal information indicating there is a significant risk that the child would be threatened with abuse or neglect in the home of the relative or other person. The relative or other person must consent to a check of the above records by the department.

(F) If the department determines after the preliminary investigation that there is probable cause to believe that by reason of abuse or neglect the child's life, health, or physical safety is in imminent and substantial danger, the department may assume legal custody of the child without the consent of the child's parent, guardian, or custodian. The department shall make every reasonable effort to notify the child's parent, guardian, or custodian of the location of the child and shall make arrangements for temporary visitation unless there are compelling reasons why visitation or notice of the location of the child would be contrary to the best interests of the child. The notification must be in writing and shall include notice of the right to a hearing and right to counsel pursuant to this article. Nothing in this subsection authorizes the department to physically remove a child from the care of the child's parent or guardian without an order of the court. The department may exercise the authority to assume legal custody only after a law enforcement officer has taken emergency protective custody of the child or the family court has granted emergency protective custody by ex parte order, and the department has conducted a preliminary investigation pursuant to this section.

(G) If emergency protective custody of the child was taken by a law enforcement officer pursuant to subsection (A), and the department concludes after the preliminary investigation that the child should be returned to the child's parent, guardian, or custodian, the department shall consult with the law enforcement officer who took emergency protective custody unless the department and the law enforcement agency have agreed to an alternative procedure. If the officer objects to the return of the child, the department must assume legal custody of the child until a probable cause hearing can be held. The alternative procedure agreed to by the department and the law enforcement agency may provide that the child must be retained in custody if the officer cannot be contacted, conditions under which the child may be returned home if the officer cannot be contacted, other persons within the law enforcement agency who are to be consulted instead of the officer, or other procedures. If no alternative procedure has been agreed to and the department is unable to contact the law enforcement officer after reasonable efforts to do so, the department shall consult with the officer's designee or the officer's agency.

(H) The period of emergency protective custody may be extended for up to twenty-four additional hours if:

(1) the department concludes that the child is to be placed with a relative or other person instead of taking legal custody of the child;

(2) the department requests the appropriate law enforcement agency to check for records concerning the relative or other person, or any adults in that person's home; and

(3) the law enforcement agency notifies the department that the extension is needed to enable the law enforcement agency to complete its record check before the department's decision on whether to take legal custody of the child.

(I) If within the twenty-four hours following removal of the child:

(1) the department has identified a specified relative or other person with whom it has determined that the child is to be placed instead of the department's taking legal custody of the child; and

(2) both the relative or other person with whom the child is to be placed and the child's parent or guardian have agreed to the placement, the department may retain physical custody of the child for no more than five additional days if necessary to enable the relative or other person to make travel or other arrangements incident to the placement. If the placement does not occur as planned, the department immediately must determine whether to assume legal custody of the child and file a petition as provided in subsection (K). The department shall assure that the child is given age-appropriate information about the plans for placement and any subsequent changes in those plans at the earliest feasible time.

(J) If a law enforcement officer clearly states to the department at the time the officer delivers physical control of the child to the department that the child is not to be returned to the home or placed with a relative before a probable cause hearing regardless of the outcome of a preliminary investigation, the department immediately must take legal custody of the child. In this case, at a minimum, the department shall conduct a preliminary investigation as provided in this section within seventy-two hours after the child was taken into emergency protective custody and shall make recommendations concerning return of the child to the home or placement with a relative or other person to the family court at the probable cause hearing or take other appropriate action as provided in this chapter.

(K) The department, upon assuming legal custody of the child, shall begin a child protective investigation, including immediate attention to the protection of other children in the home, or other setting where the child was found. The department shall initiate a removal proceeding in the appropriate family court pursuant to Section 20-7-736 on or before the next working day after initiating the investigation. If a noncustodial parent is not named as a party, the department shall exercise every reasonable effort to promptly notify the noncustodial parent that a removal proceeding has been initiated and of the date and time of any hearings scheduled pursuant to this section. Upon a determination by the department before the probable cause hearing that there is not a preponderance of evidence that child abuse or neglect occurred, the department may place physical custody of the child with the parent, parents, guardian, immediate family member, or relative, with the department retaining legal custody pending the probable cause hearing. When the facts and circumstances of the report clearly indicate that no abuse or neglect occurred, the report promptly must be determined to be unfounded, and the department shall exercise reasonable efforts to expedite the placement of the child with the parent, parents, guardian, immediate family member, or relative.

(L) If the child is returned to the child's parent, guardian, or custodian following the preliminary investigation, a probable cause hearing must be held if requested by the child's parent, guardian, or custodian or the department or the law enforcement agency that took emergency protective custody of the child. The request must be made in writing to the court within ten days after the child is returned. A probable cause hearing pursuant to subsection (K) must be scheduled within seven days of the request to determine whether there was probable cause to take emergency physical custody of the child.

(M) The family court shall schedule a probable cause hearing to be held within seventy-two hours of the time the child was taken into emergency protective custody. If the third day falls upon a Saturday, Sunday, or holiday, the probable cause hearing must be held no later than the next working day. If there is no term of court in the county when the probable cause hearing must be held, the hearing must be held in another county in the circuit. If there is no term of family court in another county in the circuit, the probable cause hearing may be heard in another court in an adjoining circuit. The probable cause hearing may be conducted by video conference at the discretion of the judge. At the probable cause hearing, the family court shall undertake to fulfill the requirements of Section 20-7-110 and shall determine whether there was probable cause for taking emergency protective custody and for the department to assume legal custody of the child and shall determine whether probable cause to retain legal custody of the child remains at the time of the hearing. At the probable cause hearing, the respondents may submit affidavits as to facts which are alleged to form the basis of the removal and to cross-examine the department's witnesses as to whether there existed probable cause to effect emergency removal. The hearing to determine whether removal of custody is needed, pursuant to Section 20-7-736, must be held within thirty-five days of the date of receipt of the removal petition.

(N) An order issued as a result of the probable cause hearing held pursuant to subsection (K) concerning a child of whom the department has assumed legal custody shall contain a finding by the court of whether reasonable efforts were made by the department to prevent removal of the child and a finding of whether continuation of the child in the home would be contrary to the welfare of the child. The order shall state:

(1) the services made available to the family before the department assumed legal custody of the child and how they related to the needs of the family;

(2) the efforts of the department to provide services to the family before assuming legal custody of the child;

(3) why the efforts to provide services did not eliminate the need for the department to assume legal custody;

(4) whether a meeting was convened as provided in subsection (D), the persons present, and the outcome of the meeting or, if no meeting was held, the reason for not holding a meeting;

(5) what efforts were made to place the child with a relative known to the child or in another familiar environment;

(6) whether the efforts to eliminate the need for the department to assume legal custody were reasonable including, but not limited to, whether services were reasonably available and timely, reasonably adequate to address the needs of the family, reasonably adequate to protect the child and realistic under the circumstances, and whether efforts to place the child in a familiar environment were reasonable.

(O) If the court orders the child to remain in the legal custody of the department at the probable cause hearing, the family court may order expedited placement of the child with a relative of the first or second degree. The court shall require the department to check the names of all adults in the home against the Central Registry of Child Abuse and Neglect, other relevant records of the department, county sex abuse registers, and records for the preceding five years of law enforcement agencies in the jurisdiction in which the person resides and, to the extent reasonably possible, jurisdictions in which the person has resided during that period. The court may hold open the record of the probable cause hearing for twenty-four hours to receive the reports and based on these reports and other information introduced at the probable cause hearing, the court may order expedited placement of the child in the home of the relative. Nothing in this subsection precludes the department from requesting or the court from ordering pursuant to the department's request either a full study of the relative's home before placement or the licensing or approval of the relative's home before placement.

(P) The family court may order ex parte that a child be taken into emergency protective custody without the consent of parents, guardians, or others exercising temporary or permanent control over the child if:

(1) the family court judge determines there is probable cause to believe that by reason of abuse or neglect there exists an imminent and substantial danger to the child's life, health, or physical safety; and

(2) parents, guardians, or others exercising temporary or permanent control over the child are unavailable or do not consent to the child's removal from their custody.

(Q) If the court issues such an order, the department shall conduct a preliminary investigation and otherwise proceed as provided in this section.

(R) The department and local law enforcement agencies shall develop written protocols to address issues related to emergency protective custody. The protocols shall cover at a minimum information exchange between the department and local law enforcement agencies, consultation on decisions to assume legal custody, and the transfer of responsibility over the child, including mechanisms and assurances for the department to arrange expeditious placement of the child."

Allows law officer to take action

SECTION 3. Section 20-7-612 of the 1976 Code, as added by Act 450 of 1996, is amended to read:

"Section 20-7-612. A law enforcement officer investigating a case of suspected child abuse or neglect or responding to a request for assistance by the department as it investigates a case of suspected child abuse or neglect has authority to take emergency protective custody of the child pursuant to Section 20-7-610 in all counties and municipalities.

Immediately upon taking emergency protective custody, the law enforcement officer shall notify the local office of the department responsible to the county in which the activity under investigation occurred.

The department shall designate by policy and procedure the local department office responsible for procedures required by Section 20-7-610 when a child resides in a county other than the one in which the activity under investigation occurred. The probable cause hearing required by Section 20-7-610 may be held in the county of the child's residence or the county of the law enforcement officer's jurisdiction."

Time effective

SECTION 4. This act takes effect upon approval by the Governor.

Approved the 13th day of June, 1997.