Current Status Bill Number:3628 Ratification Number:233 Act Number:132 Type of Legislation:General Bill GB Introducing Body:House Introduced Date:19970311 Primary Sponsor:Kelley All Sponsors:Kelley, Harrison, Davenport, Allison, Keegan and Hodges Drafted Document Number:psd\7121ac.97 Date Bill Passed both Bodies:19970604 Date of Last Amendment:19970603 Governor's Action:S Date of Governor's Action:19970613 Subject:Central Registry of Child Abuse and Neglect, defendant name to be entered in; Courts, Minors, Crimes
Body Date Action Description Com Leg Involved
______ ________ _______________________________________ _______ ____________
------ 19970630 Act No. A132
------ 19970613 Signed by Governor
------ 19970609 Ratified R233
House 19970604 Concurred in Senate amendment,
enrolled for ratification
Senate 19970603 Amended, read third time,
returned to House with amendment
Senate 19970522 Read second time, ordered to
third reading with notice of
general amendments
Senate 19970522 Committee amendment adopted
Senate 19970521 Committee report: Favorable with 11 SJ
amendment
Senate 19970424 Introduced, read first time, 11 SJ
referred to Committee
House 19970423 Read third time, sent to Senate
House 19970422 Read second time
House 19970416 Committee report: Favorable 25 HJ
House 19970311 Introduced, read first time, 25 HJ
referred to Committee
View additional legislative information at the LPITS web site.
(A132, R233, H3628)
AN ACT TO AMEND THE CODE OF LAWS OF SOUTH CAROLINA, 1976, BY ADDING SECTION 17-25-135 SO AS TO REQUIRE THAT THE NAME OF A DEFENDANT CONVICTED FOR AN OFFENSE BASED ON CHILD SEXUAL OR PHYSICAL ABUSE BE ENTERED IN THE CENTRAL REGISTRY FOR CHILD ABUSE AND NEGLECT MAINTAINED BY THE SOUTH CAROLINA DEPARTMENT OF SOCIAL SERVICES; TO AMEND SECTION 20-7-616, RELATING TO ACCESS TO SEX OFFENDER REGISTRY INFORMATION, SO AS TO PROVIDE THAT A CRIMINAL JUSTICE AGENCY SHALL PROVIDE INFORMATION PERTAINING TO CRIMINAL HISTORY RATHER THAN THE RECORD OR A SUMMARY OF THE RECORD, TO FURTHER PRESCRIBE THE CONTENT OF THE INFORMATION, AND TO EXEMPT THE DEPARTMENT OF SOCIAL SERVICES FROM FEES FOR THIS SERVICE; TO AMEND SECTION 20-7-650, AS AMENDED, RELATING TO DUTIES OF THE SOUTH CAROLINA DEPARTMENT OF SOCIAL SERVICES, SO AS TO REVISE THE PROCEDURES FOR ENTERING THE NAME OF A PERPETRATOR IN THE CENTRAL REGISTRY FOR CHILD ABUSE AND NEGLECT; TO AMEND SECTION 20-7-670, AS AMENDED, RELATING TO CHILD ABUSE AND NEGLECT IN RESIDENTIAL INSTITUTIONS AND FOSTER HOMES, SO AS TO CLARIFY THE STANDARDS AND PROCEDURES FOR INVESTIGATING SUCH ABUSE AND TO REQUIRE THE NAME OF A PERPETRATOR OF SUCH ABUSE OR NEGLECT IMMEDIATELY TO BE ENTERED ON THE CENTRAL REGISTRY UPON A FINDING OF THE ABUSE OR NEGLECT AND TO PROVIDE NOTICE REQUIREMENTS AND PROCEDURES FOR APPEAL; TO AMEND SECTION 20-7-680, AS AMENDED, RELATING TO THE CENTRAL REGISTRY FOR CHILD ABUSE AND NEGLECT, SO AS TO REVISE THE PROCEDURES FOR MAINTAINING INFORMATION ON THE REGISTRY; TO AMEND SECTION 20-7-690, AS AMENDED, RELATING TO CONFIDENTIALITY AND RELEASE OF ABUSE AND NEGLECT REPORTS, SO AS TO INCLUDE THE DIVISION OF GUARDIAN AD LITEM, OFFICE OF THE GOVERNOR, AS AN ENTITY TO WHICH INFORMATION MAY BE RELEASED, TO DELETE PROVISIONS RELATING TO THE DISCLOSURE OF PERPETRATOR STATUS FOR LICENSING AND EMPLOYMENT PURPOSES, AND TO AUTHORIZE THE DEPARTMENT TO USE OTHER INFORMATION FOR SUCH PURPOSES AND FOR PERFORMING OTHER DUTIES; AND TO AMEND SECTION 20-7-766, AS AMENDED, RELATING TO JUDICIAL REVIEW OF CHILDREN IN FOSTER CARE, SO AS TO AUTHORIZE SUCH REVIEW UPON A MOTION RATHER THAN UPON PLEADINGS, AND TO PROVIDE TRANSFER PROVISIONS FOR DATA FROM THE CENTRAL REGISTRY INTO THE STATEWIDE SYSTEM CREATED BY THIS ACT AND PROCEDURES FOR RELEASE OF INFORMATION PRIOR AND SUBSEQUENT TO THIS ACT.
Be it enacted by the General Assembly of the State of South Carolina:
Entry of sex offenders on Central Registry of Child Abuse
SECTION 1. The 1976 Code is amended by adding:
"Section 17-25-135. (A) When a person is convicted of or pleads guilty or nolo contendere to an 'Offense Against the Person' as provided for in Title 16, Chapter 3, an 'Offense Against Morality or Decency' as provided for in Title 16, Chapter 15, criminal domestic violence, as defined in Section 16-25-20, criminal domestic violence of a high and aggravated nature as defined in Section 16-25-65, or the common law offense of assault and battery of a high and aggravated nature, and the act on which the conviction or the plea of guilty or nolo contendere is based involved sexual or physical abuse of a child, the court shall order that the person's name, any other identifying information, including, but not limited to, the person's date of birth, address, and any other identifying characteristics, and the nature of the act which led to the conviction or plea be placed in the Central Registry of Child Abuse and Neglect established by Section 20-7-680. The clerk shall forward the information to the Department of Social Services for this purpose in accordance with guidelines adopted by the department.
(B) For purposes of this section:
(1) 'Physical abuse' means inflicting physical injury upon a child or encouraging or facilitating the infliction of physical injury upon a child by any person including, but not limited to, a person responsible for the child's welfare, as defined in Section 20-7-490(5).
(2) 'Sexual abuse' means:
(a) actual or attempted sexual contact with a child; or
(b) permitting, enticing, encouraging, forcing, or otherwise facilitating a child's participation in prostitution or in a live performance or photographic representation of sexual activity or sexually explicit nudity; by any person including, but not limited to, a person responsible for the child's welfare, as defined in Section 20-7-490(5)."
Release of sex offender registry information
SECTION 2. Section 20-7-616 of the 1976 Code, as last amended by Act 450 of 1996, is further amended to read:
"Section 20-7-616. Notwithstanding any other provision of law, upon request of the department, a criminal justice agency having custody of or access to state or local law enforcement records or county sex offender registries shall provide the department with information pertaining to the criminal history of an adult residing in the home of a child who is named in a report of suspected child abuse or neglect or in a home in which it is proposed that the child be placed. This information shall include conviction data, nonconviction data, arrests, and incident reports accessible to the agency. The department shall not be charged a fee for this service."
Procedures revised
SECTION 3. Section 20-7-650 (H) through (R) of the 1976 Code, as last amended by Act 450 of 1996, is further amended to read:
"(H) Reports of child abuse and neglect must be entered immediately into the department's centralized data system in one of four categories: Suspected, Unfounded, Indicated, or Affirmative Determination. If the report is categorized as unfounded, the entry must further state the classification of unfounded report as set forth in subsection (G). All initial reports must be considered suspected. Reports of suspected child abuse and neglect must be maintained for no more than sixty days after the report was received by the department. On or before the expiration of that time, reports must be converted into either unfounded or indicated reports pursuant to the agency's investigation. Upon an affirmative determination, indicated reports must be converted to the category of 'affirmative determination'.
(1) Indicated reports must be accompanied by a description of services being provided as required under subsection (F).
(2) Affirmative determinations must be accompanied by a description of services being provided the child and those responsible for his welfare and relevant dispositional information.
(I) The names, addresses, and all other identifying characteristics of persons named in all unfounded reports in Category I maintained in department files may be used only for auditing and statistical purposes. All identifying information contained in unfounded reports in Category I must be destroyed immediately after use of the information for auditing and statistical purposes, and in no case later than one year from the date that the last report has been determined to be unfounded; however, all information in the report which is unnecessary for auditing and statistical purposes must be destroyed immediately upon a determination that the report is unfounded, and the remaining information must be kept strictly confidential except for auditing and statistical purposes. If an unfounded report is in Category II or Category III, the report and related information may be retained by the department in its records for one year for use by department staff or law enforcement agencies in relation to child abuse and neglect investigations or proceedings involving the subject of the report or the same child. The department may not use the information in records or entries of Category II or III unfounded reports for any purpose other than child abuse and neglect proceedings involving the same subject or the same child and auditing and statistical purposes. Notwithstanding Section 20-7-690 or any other provision of law, no information contained in unfounded reports may be disclosed under any circumstances, except that:
(1) the confidentiality and disclosure provisions of this subsection do not apply to information requested by the Department of Child Fatalities pursuant to Section 20-7-5930; and the information pertaining to an unfounded case must be released to the Department of Child Fatalities when the request is made pursuant to Section 20-7-5930;
(2) information in records concerning Category II or III unfounded reports may be disclosed to a law enforcement agency investigating a child abuse or neglect case involving the subject of the report or the same child.
If an unfounded report is in Category I, only information necessary for auditing and statistical purposes may be retained in department records or in the database. As soon as the record has been used for auditing or statistical purposes, it must be destroyed. All identifying information must be deleted from the database immediately upon use of the entry for auditing or statistical purposes. In no case may the record or entry be kept for more than one year from the date that the report was determined to be unfounded. The department may not use the information contained in records or entries of Category I unfounded cases for any purpose other than auditing or statistical purposes. No information contained in the record or the database concerning a Category I unfounded case may be disclosed to any person or entity other than the Department of Child Fatalities pursuant to Section 20-7-5930.
(J) Upon an affirmative determination, the names, addresses, birth dates, identifying characteristics, and other information of persons named in indicated reports maintained in agency files must be converted immediately to the category of 'affirmative determination'. The names, addresses, birth dates, identifying characteristics, and other information unnecessary for auditing and statistical purposes or persons named in affirmative determinations of child abuse or neglect maintained in agency files must be destroyed seven years from the date services are terminated. Upon a determination that more likely than not a person who is the subject of a report as defined in Section 20-7-490 did not commit child abuse or neglect, the name, address, birth date, and other identifying characteristics of that person must be purged immediately from the department's files. This provision does not prohibit the department from maintaining an 'indicated report' which contains identifying information on the child who is the subject of the indicated report and those responsible for his welfare without identifying a subject of the report or providing child protective services to the child who is the subject of the indicated report and those responsible for the child's welfare.
(K) At a hearing pursuant to Section 20-7-736 or 20-7-738, at which the court orders that a child be taken or retained in custody or finds that the child was abused or neglected, the court:
(1) must order that a person be entered in the Central Registry of Child Abuse and Neglect if it finds that there is a preponderance of evidence that the person physically or sexually abused or wilfully or recklessly neglected the child. However, if the only form of physical abuse that is indicated is excessive corporal punishment, the court only may order that the person be entered in the Central Registry if item (2) applies;
(2) may order that the person be entered in the Central Registry if it finds that there is a preponderance of evidence that the person abused or neglected the child in any manner other than provided for in item (1) and that the nature and circumstances of the abuse indicate that the person would present a significant risk of committing physical or sexual abuse or wilfull or reckless neglect if the person were in a position or setting outside of the person's home that involves care of or substantial contact with children.
(L) The court may order at the probable cause hearing that the person be entered in the Central Registry if there is sufficient evidence to support the findings required by subsection (K).
(M) At any time following receipt of a report, the department may petition the family court for an order directing that the person named as perpetrator be entered in the Central Registry of Child Abuse and Neglect. The petition must have attached a written case summary stating facts sufficient to establish by a preponderance of the evidence that the person named as perpetrator abused or neglected the child and that the nature and circumstances of the abuse indicate that the person named as perpetrator would present a significant risk of committing physical or sexual abuse or wilfull or reckless neglect if placed in a position or setting outside of the person's home that involves care of or substantial contact with children. The department shall serve a copy of the petition and summary on the person named as perpetrator. The petition shall include a statement that the judge shall rule based on the facts stated in the petition unless the clerk of court or the clerk's designee receives a written request for a hearing from the person named as perpetrator within five days after service of the petition. The name, address, and telephone number of the clerk of court or the clerk's designee must be stated in the petition. If the person named as perpetrator requests a hearing, the court shall schedule a hearing on the merits of the allegations in the petition and summary to be held no later than five working days following the request.
(N) The department must seek an order placing a person in the Central Registry pursuant to subsection (K), (L), or (M) in all cases in which the department concludes that there is a preponderance of evidence that the person committed sexual abuse.
(O) The department is charged with providing, directing, or coordinating the appropriate and timely delivery of services to children found to be abused or neglected and those responsible for their welfare or others exercising temporary or permanent control over these children. Services must not be construed to include emergency protective custody provided for in Section 20-7-736.
(P) In cases where a person has been placed in the Central Registry of Child Abuse and Neglect, the outcome of any further proceedings must be entered immediately by the department into the Central Registry of Child Abuse and Neglect. If it is determined that a report is unfounded, the department must immediately purge information identifying that person as a perpetrator from the registry and from department records as provided in Section 20-7-680(D) and (E).
(Q) The department must furnish to parents or guardians on a standardized form the following information as soon as reasonably possible after commencing the investigation:
(1) the names of the investigators;
(2) the allegations being investigated;
(3) whether the person's name has been recorded by the department as a suspected perpetrator of abuse or neglect;
(4) the right to inspect department records concerning the investigation;
(5) statutory and family court remedies available to complete the investigation and to protect the child if the parent or guardian or subject of the report indicates a refusal to cooperate;
(6) how information provided by the parent or guardian may be used;
(7) the possible outcomes of the investigation;
(8) the telephone number and name of a department employee available to answer questions.
(R) The department must cooperate with law enforcement agencies within the area it serves and establish procedures necessary to facilitate the referral of child protection cases to the department. Where the facts indicating abuse or neglect also appear to indicate a violation of criminal law, the department must notify the appropriate law enforcement agency of those facts within twenty-four hours of the department's finding for the purposes of police investigation. The law enforcement agency must file a formal incident report at the time it is notified by the department of the finding. When the intake report is of alleged sexual abuse, the department must notify the appropriate law enforcement agency within twenty-four hours of receipt of the report to determine if a joint investigation is necessary. The law enforcement agency must file a formal incident report at the time it is notified of the alleged sexual abuse. In cases where the agency retains custody of the minor children and physical placement of the children is in the care of relatives, the agency must provide the same services along with financial benefits provided to other licensed foster care placement and facilities, provided the adults with whom the child is placed meet all qualifications applicable to foster parents.
(S) The department actively must seek the cooperation and involvement of local public and private institutions, groups, and programs concerned with matters of child protection and welfare within the area it serves.
(T) The local office of the department responsible for the county of the mother's legal residence must provide, direct, or coordinate the appropriate and timely delivery of services to children born of incarcerated mothers where no provision has been made for placement of the child outside the prison setting. Referral of these cases to the appropriate local office is the responsibility of the agency or institution having custody of the mother.
(U) The agency in all instances must act in accordance with the policies, procedures, and regulations promulgated and distributed by the State Department of Social Services pursuant to this chapter."
Institutional abuse
SECTION 4. Section 20-7-670(B) of the 1976 Code, as last amended by Act 450 of 1996, is further amended to read:
"(B) The Department of Social Services is authorized to receive and investigate reports of abuse and neglect occurring in foster homes supervised by or recommended for licensing by the department or by child placing agencies to determine whether the report is indicated or unfounded. Indicated reports must be based upon a finding that abuse or neglect is supported by a preponderance of the evidence available to the department. The determination that a report is indicated may be appealed as provided in Section 20-7-655. Responsibility for investigating the department's foster homes must be assigned to a unit or units not responsible for selecting or licensing its foster homes."
Entry of perpetrator on Central Registry of Child Abuse
SECTION 5. Section 20-7-670 of the 1976 Code, as last amended by Act 450 of 1996, is further amended by adding at the end:
"(G) When the investigation performed pursuant to this section results in a determination that an individual has harmed a child or threatened a child with harm as defined in Section 20-7-490, the name of that individual immediately must be entered in the Central Registry of Child Abuse and Neglect. The department must notify the individual in writing by certified mail that his name has been entered in the registry, of his right to request an appeal of the decision to enter his name in the registry, and of the possible consequences to future employment and licensing if he allows his name to remain in the registry. The procedures set out in Section 20-7-655 apply when an individual challenges the entry of his name in the registry, and challenges of the entry in the registry pursuant to this subsection must be given expedited review in the appeals process."
Central Registry of Child Abuse and Neglect
SECTION 6. Section 20-7-680 of the 1976 Code, as last amended by Act 450 of 1996, is further amended to read:
"Section 20-7-680. (A) The purpose of this section is to establish a system for the identification of abused and neglected children and those who are responsible for their welfare, to provide a system for the coordination of reports concerning abused and neglected children, and to provide data for determining the incidence and prevalence of child abuse and neglect in this State. To further these purposes, the department must maintain one or more statewide data systems concerning cases reported to it pursuant to this article.
(B) The Department of Social Services must maintain a Central Registry of Child Abuse and Neglect within the department's child protective services unit in accordance with Sections 20-7-650, 20-7-670, and 17-25-135. Perpetrators of child abuse and neglect must be entered in the registry only by order of a court as provided for in Sections 20-7-650 and 17-25-135, or as provided for in Section 20-7-670. Each entry in the registry must be accompanied by information further identifying the person including, but not limited to, the person's date of birth, address, and any other identifying characteristics, and describing the abuse or neglect committed by the person.
(C) The Department of Social Services shall furnish annually to the Governor and the General Assembly a report on the incidence and prevalence of child abuse and neglect in South Carolina, the effectiveness of services provided throughout the State to protect children from this harm, and any other data considered instructive.
(D) The name, address, birth date, identifying characteristics, and other information of a person named in a report must be removed from department records and the central registry immediately upon a determination by the department or the court that the report is unfounded, except as provided in Section 20-7-650(I).
(E) The names, addresses, birth dates, identifying characteristics, and other information unnecessary for auditing and statistical purposes of persons named in the registry or department records must be destroyed seven years from the date services are terminated. This section does not prohibit the department from maintaining an 'indicated report' which contains identifying information on the child who is the subject of the indicated report and those responsible for the child's welfare without identifying a person as perpetrator, and it does not prohibit the department from providing child protective services to the child who is the subject of an indicated report and those responsible for the child's welfare.
(F) Information in the central registry and other department records may be released only as authorized in Section 20-7-690 or as otherwise specifically authorized by statute. Information in records of the department other than the Central Registry of Child Abuse and Neglect must not be used for screening potential employees or volunteers of any public or private entity, except as specifically provided by Section 20-7-690 or as otherwise provided by statute. However, nothing in this section prevents the department from using other information in its records when making decisions associated with administration or delivery of the department's programs and services."
Release of information
SECTION 7. Section 20-7-690(B) of the 1976 Code, as last amended by Act 450 of 1996, is further amended by adding an appropriately numbered subitem to read:
"( ) The Division of Guardian ad Litem, Office of the Governor, for purposes of certifying that no potential employee or volunteer is the subject of an indicated report or an affirmative determination."
Release of information
SECTION 8. Section 20-7-690(J) of the 1976 Code, as last amended by Act 450 of 1996, is further amended to read:
"(J) The department is authorized to disclose information concerning an individual named in the Central Registry of Child Abuse and Neglect as a perpetrator when screening of an individual's background is required by statute or regulation for employment, licensing, or any other purposes, or a request is made in writing by the person being screened. Nothing in this section prevents the department from using other information in department records when making decisions concerning licensing, employment, or placement, or performing other duties required by this act. The department also is authorized to consult any department records in providing information to persons conducting preplacement investigations of prospective adoptive parents in accordance with Section 20-7-1740."
Judicial review of children in foster care upon motion
SECTION 9. Section 20-7-766(A) of the 1976 Code, as last amended by Act 450 of 1996, is further amended to read:
"(A) The family court must review the status of a child placed in foster care upon motion filed by the department to determine a permanent plan for the child. The permanency planning hearing must be held no later than one year after the date the child was first placed in foster care. At the initial permanency planning hearing, the court shall review the status of the child and the progress being made toward the child's return home or toward any other permanent plan approved at the removal hearing. The court's order shall make specific findings in accordance with this section."
Transfer provisions
SECTION 10. (A) The data system which constituted the Central Registry of Child Abuse and Neglect prior to the effective date of this act shall be incorporated into the statewide data systems of the department provided for in Section 20-7-680(A).
(B) Except as provided in subsection (C), information concerning perpetrators listed in the Central Registry of Child Abuse and Neglect prior to the effective date of this act must be placed in the modified Central Registry of Child Abuse and Neglect created by Subarticle 7, Article 7, Chapter 7, Title 20 of the 1976 Code if there has been an affirmative determination that the perpetrator physically or sexually abused the child or wilfully or recklessly neglected the child.
(C) Information concerning all cases indicated before January 1, 1993, shall be placed in the modified Central Registry of Child Abuse and Neglect created by Subarticle 7, Article 7, Chapter 7, Title 20 of the 1976 Code. At such time as the department receives a request for information concerning a perpetrator of child abuse or neglect in a case indicated prior to January 1, 1993, the department must review the records of the case. Information concerning the case may be released to the party requesting the information only if (1) the case was indicated for physical or sexual abuse or wilfull or reckless neglect and (2) the department's determination that the perpetrator abused or neglected the child was confirmed by a finding in family court or an administrative fair hearing, or the subject of the report waived the opportunity for a family court determination or for an administrative review. Upon request of a person identified in the record as a perpetrator, the department may review records of cases indicated before January 1, 1993, and may decide whether confirmation or waiver occurred, whether the department should redesignate the person's status, or whether the department should provide a hearing pursuant to Section 20-7-655.
(D) For purposes of this section, "wilfull or reckless neglect" refers to cases of neglect in which criminal charges were filed against the perpetrator.
(E) No other case shall be placed in the modified Central Registry of Child Abuse and Neglect created by Subarticle 7, Article 7, Chapter 7, Title 20 of the 1976 Code unless the requirements of Sections 20-7-650, 20-7-670, or 17-25-510 have been met.
Time effective
SECTION 11. This act takes effect on January 1, 1998.
Approved the 13th day of June, 1997.