HB3168ham001 100TH GENERAL ASSEMBLY

Rep. Juliana Stratton

Filed: 3/16/2017

10000HB3168ham001 LRB100 10198 KTG 23695 a

AMENDMENT TO HOUSE BILL 3168

AMENDMENT NO. ______. Amend House Bill 3168 by replacing everything after the enacting clause with the following:

"Section 5. The Abused and Neglected Child Reporting Act is amended by changing Sections 7.14, 7.16, 7.22, and 11.1 as follows:

(325 ILCS 5/7.14) (from Ch. 23, par. 2057.14)

Sec. 7.14. All reports in the central register shall be classified in one of three categories: "indicated", "unfounded" or "undetermined", as the case may be. Prior to classifying the report, the person making the classification shall determine whether the child named in the report is the subject of an action under Article V of the Juvenile Court Act of 1987 who is in the custody or guardianship of the Department or who has an open intact family services case with the Department or is the subject of an action under Article II of the Juvenile Court Act of 1987. If the child is either the subject of an action under Article V of the Juvenile Court Act of 1987 and is in the custody or guardianship of the Department or has an open intact family services case with the Department or is the subject of an action under Article II of the Juvenile Court Act of 1987 and the Department intends to classify the report as indicated, the Department shall, within 45 days of classification of the report, transmit a copy of the report to the attorney or guardian ad litem appointed for the child under Section 2-17 of the Juvenile Court Act of 1987 or to a guardian ad litem appointed under Section 5-610 of the Juvenile Court Act of 1987. If the child is either the subject of an action under Article V of the Juvenile Court Act of 1987 and is in the custody or guardianship of the Department or has an open intact family services case with the Department or is the subject of an action under Article II of the Juvenile Court Act of 1987 and the Department intends to classify the report as unfounded, the Department shall, within 45 days of deciding its intent to classify the report as unfounded, transmit a copy of the report and written notice of the Department's intent to the attorney or guardian ad litem appointed for the child under Section 2-17 of the Juvenile Court Act of 1987, or to a guardian ad litem appointed under Section 5-610 of the Juvenile Court Act of 1987. The Department's obligation under this Section to provide reports to a guardian ad litem appointed for a minor under Section 5-610 of the Juvenile Court Act of 1987 or for a minor with an open intact family services case applies only if the guardian ad litem notified the Department in writing of the representation. All information identifying the subjects of an unfounded report shall be expunged from the register forthwith, except as provided in Section 7.7. Unfounded reports may only be made available to the Child Protective Service Unit when investigating a subsequent report of suspected abuse or maltreatment involving a child named in the unfounded report; and to the subject of the report, provided the Department has not expunged the file in accordance with Section 7.7. The Child Protective Service Unit shall not indicate the subsequent report solely based upon the existence of the prior unfounded report or reports. Notwithstanding any other provision of law to the contrary, an unfounded report shall not be admissible in any judicial or administrative proceeding or action except for proceedings under Sections 2-10 and 2-21 of the Juvenile Court Act of 1987 involving a petition filed under Section 2-13 of the Juvenile Court Act of 1987 alleging abuse or neglect to the same child, a sibling of the child, or the same perpetrator. Identifying information on all other records shall be removed from the register no later than 5 years after the report is indicated. However, if another report is received involving the same child, his sibling or offspring, or a child in the care of the persons responsible for the child's welfare, or involving the same alleged offender, the identifying information may be maintained in the register until 5 years after the subsequent case or report is closed.

Notwithstanding any other provision of this Section, identifying information in indicated reports involving serious physical injury to a child as defined by the Department in rules, may be retained longer than 5 years after the report is indicated or after the subsequent case or report is closed, and may not be removed from the register except as provided by the Department in rules. Identifying information in indicated reports involving sexual penetration of a child, sexual molestation of a child, sexual exploitation of a child, torture of a child, or the death of a child, as defined by the Department in rules, shall be retained for a period of not less than 50 years after the report is indicated or after the subsequent case or report is closed.

For purposes of this Section "child" includes an adult resident as defined in this Act.

(Source: P.A. 98-453, eff. 8-16-13; 98-807, eff. 8-1-14; 99-78, eff. 7-20-15; 99-349, eff. 1-1-16.)

(325 ILCS 5/7.16) (from Ch. 23, par. 2057.16)

Sec. 7.16. For any investigation or appeal initiated on or after, or pending on July 1, 1998, the following time frames shall apply. Within 60 days after the notification of the completion of the Child Protective Service Unit investigation, determined by the date of the notification sent by the Department, the perpetrator named in the notification may request the Department to amend the record or remove the record of the report from the register, except that the 60-day deadline for filing a request to amend the record or remove the record of the report from the State Central Register shall be tolled until after the conclusion of any criminal court action in the circuit court or after adjudication in any juvenile court action concerning the circumstances that give rise to an indicated report. Such request shall be in writing and directed to such person as the Department designates in the notification letter notifying the perpetrator of the indicated finding. The perpetrator shall have the right to a timely hearing within the Department to determine whether the record of the report should be amended or removed on the grounds that it is inaccurate or it is being maintained in a manner inconsistent with this Act, except that there shall be no such right to a hearing on the ground of the report's inaccuracy if there has been a court finding of child abuse or neglect or a criminal finding of guilt as to the perpetrator. Such hearing shall be held within a reasonable time after the perpetrator's request and at a reasonable place and hour. The appropriate Child Protective Service Unit shall be given notice of the hearing. If the minor, who is the victim named in the report sought to be amended or removed from the State Central Register, is the subject of a pending action under Article V of the Juvenile Court Act of 1987 and is in the custody or guardianship of the Department or has an open intact family services case with the Department or is the subject of a pending action under Article II of the Juvenile Court Act of 1987, and the report was made while a guardian ad litem was appointed for the minor under Section 5-610 or 2-17 of the Juvenile Court Act of 1987, then the minor shall, through the minor's attorney or guardian ad litem appointed under Section 5-610 or 2-17 of the Juvenile Court Act of 1987, have the right to participate and be heard in such hearing as defined under the Department's rules. The Department's obligation under this Section to provide a minor with a guardian ad litem appointed under Section 5-610 of the Juvenile Court Act of 1987 and an open intact family services case with the right to participate and be heard applies only if the guardian ad litem notified the Department in writing of the representation. In such hearings, the burden of proving the accuracy and consistency of the record shall be on the Department and the appropriate Child Protective Service Unit. The hearing shall be conducted by the Director or his designee, who is hereby authorized and empowered to order the amendment or removal of the record to make it accurate and consistent with this Act. The decision shall be made, in writing, at the close of the hearing, or within 60 days thereof, and shall state the reasons upon which it is based. Decisions of the Department under this Section are administrative decisions subject to judicial review under the Administrative Review Law.

Should the Department grant the request of the perpetrator pursuant to this Section either on administrative review or after an administrative hearing to amend an indicated report to an unfounded report, the report shall be released and expunged in accordance with the standards set forth in Section 7.14 of this Act.

(Source: P.A. 98-453, eff. 8-16-13; 98-487, eff. 1-1-14; 98-756, eff. 7-16-14.)

(325 ILCS 5/7.22)

Sec. 7.22. Reviews of unfounded reports.

(a) Whenever the Department determines that a reported incident of child abuse or neglect will be "unfounded", the Department shall forward a copy of the report and written notice of the Department's intent to classify the report as unfounded to a guardian ad litem appointed under Section 5-610 of the Juvenile Court Act of 1987 for a minor who is in the custody or guardianship of the Department or who has an open intact family services case with the Department or the minor's attorney or guardian ad litem appointed under Section 2-17 of the Juvenile Court Act of 1987. The Department's obligation under this subsection to provide reports to a guardian ad litem appointed for a minor under Section 5-610 of the Juvenile Court Act of 1987 or for a minor with an open intact family services case applies only if the guardian ad litem notified the Department in writing of the representation. The minor's attorney or guardian ad litem who receives a report pursuant to this subsection may request a review of the investigation within 10 days of receipt of the report and written notice of the Department's intent to classify the report as unfounded, as provided in Section 7.14 of this Act, if the subject of the report is also the minor for whom the attorney or guardian ad litem has been appointed.

(b) Reviews requested under subsection (a) may be requested by sending a request via U.S. Mail, postmarked within 10 days after notice of the Department's intent to classify the report as unfounded, or by faxing a request within 10 days after notice of the Department's intent to classify the report as unfounded. The date of notification of the Department's intent to classify the report as unfounded is the date the attorney or guardian ad litem received a copy of the report and written notice from the Department. Following the review, the Department shall inform the minor's attorney or guardian ad litem as to whether the report will be classified as indicated or unfounded. The minor's attorney or guardian ad litem shall also receive a final finding notice from the State Central Register.

(c) By January 1, 2014, the Department shall promulgate rules addressing reviews requested under subsection (a). The rules shall provide that a review requested under subsection (a) must occur before the report is classified and a final finding is entered in the central register and that the review must be conducted by a Department employee outside the supervisory chain of the assigned investigator.

(Source: P.A. 98-453, eff. 8-16-13; 98-807, eff. 8-1-14.)

(325 ILCS 5/11.1) (from Ch. 23, par. 2061.1)

Sec. 11.1. Access to records.

(a) A person shall have access to the records described in Section 11 only in furtherance of purposes directly connected with the administration of this Act or the Intergovernmental Missing Child Recovery Act of 1984. Those persons and purposes for access include:

(1) Department staff in the furtherance of their responsibilities under this Act, or for the purpose of completing background investigations on persons or agencies licensed by the Department or with whom the Department contracts for the provision of child welfare services.

(2) A law enforcement agency investigating known or suspected child abuse or neglect, known or suspected involvement with child pornography, known or suspected criminal sexual assault, known or suspected criminal sexual abuse, or any other sexual offense when a child is alleged to be involved.

(3) The Department of State Police when administering the provisions of the Intergovernmental Missing Child Recovery Act of 1984.

(4) A physician who has before him a child whom he reasonably suspects may be abused or neglected.

(5) A person authorized under Section 5 of this Act to place a child in temporary protective custody when such person requires the information in the report or record to determine whether to place the child in temporary protective custody.

(6) A person having the legal responsibility or authorization to care for, treat, or supervise a child, or a parent, prospective adoptive parent, foster parent, guardian, or other person responsible for the child's welfare, who is the subject of a report.

(7) Except in regard to harmful or detrimental information as provided in Section 7.19, any subject of the report, and if the subject of the report is a minor, his guardian or guardian ad litem.

(8) A court, upon its finding that access to such records may be necessary for the determination of an issue before such court; however, such access shall be limited to in camera inspection, unless the court determines that public disclosure of the information contained therein is necessary for the resolution of an issue then pending before it.

(8.1) A probation officer or other authorized representative of a probation or court services department conducting an investigation ordered by a court under the Juvenile Court Act of l987.

(9) A grand jury, upon its determination that access to such records is necessary in the conduct of its official business.

(10) Any person authorized by the Director, in writing, for audit or bona fide research purposes.

(11) Law enforcement agencies, coroners or medical examiners, physicians, courts, school superintendents and child welfare agencies in other states who are responsible for child abuse or neglect investigations or background investigations.

(12) The Department of Professional Regulation, the State Board of Education and school superintendents in Illinois, who may use or disclose information from the records as they deem necessary to conduct investigations or take disciplinary action, as provided by law.

(13) A coroner or medical examiner who has reason to believe that a child has died as the result of abuse or neglect.

(14) The Director of a State-operated facility when an employee of that facility is the perpetrator in an indicated report.

(15) The operator of a licensed child care facility or a facility licensed by the Department of Human Services (as successor to the Department of Alcoholism and Substance Abuse) in which children reside when a current or prospective employee of that facility is the perpetrator in an indicated child abuse or neglect report, pursuant to Section 4.3 of the Child Care Act of 1969.

(16) Members of a multidisciplinary team in the furtherance of its responsibilities under subsection (b) of Section 7.1. All reports concerning child abuse and neglect made available to members of such multidisciplinary teams and all records generated as a result of such reports shall be confidential and shall not be disclosed, except as specifically authorized by this Act or other applicable law. It is a Class A misdemeanor to permit, assist or encourage the unauthorized release of any information contained in such reports or records. Nothing contained in this Section prevents the sharing of reports or records relating or pertaining to the death of a minor under the care of or receiving services from the Department of Children and Family Services and under the jurisdiction of the juvenile court with the juvenile court, the State's Attorney, and the minor's attorney.

(17) The Department of Human Services, as provided in Section 17 of the Rehabilitation of Persons with Disabilities Act.

(18) Any other agency or investigative body, including the Department of Public Health and a local board of health, authorized by State law to conduct an investigation into the quality of care provided to children in hospitals and other State regulated care facilities. The access to and release of information from such records shall be subject to the approval of the Director of the Department or his designee.

(19) The person appointed, under Section 2-17 of the Juvenile Court Act of 1987, as the guardian ad litem of a minor who is the subject of a report or records under this Act; or the person appointed, under Section 5-610 of the Juvenile Court Act of 1987, as the guardian ad litem of a minor who is in the custody or guardianship of the Department or who has an open intact family services case with the Department and who is the subject of a report or records made pursuant to this Act.

(20) The Department of Human Services, as provided in Section 10 of the Early Intervention Services System Act, and the operator of a facility providing early intervention services pursuant to that Act, for the purpose of determining whether a current or prospective employee who provides or may provide direct services under that Act is the perpetrator in an indicated report of child abuse or neglect filed under this Act.

(b) Nothing contained in this Act prevents the sharing or disclosure of information or records relating or pertaining to juveniles subject to the provisions of the Serious Habitual Offender Comprehensive Action Program when that information is used to assist in the early identification and treatment of habitual juvenile offenders.

(c) To the extent that persons or agencies are given access to information pursuant to this Section, those persons or agencies may give this information to and receive this information from each other in order to facilitate an investigation conducted by those persons or agencies.

(Source: P.A. 99-143, eff. 7-27-15.)

Section 10. The Juvenile Court Act of 1987 is amended by changing Section 5-610 as follows:

(705 ILCS 405/5-610)

Sec. 5-610. Guardian ad litem and appointment of attorney.

(1) The court may appoint a guardian ad litem for the minor whenever it finds that there may be a conflict of interest between the minor and his or her parent, guardian or legal custodian or that it is otherwise in the minor's interest to do so.

(2) Unless the guardian ad litem is an attorney, he or she shall be represented by counsel.

(3) The reasonable fees of a guardian ad litem appointed under this Section shall be fixed by the court and charged to the parents of the minor, to the extent they are able to pay. If the parents are unable to pay those fees, they shall be paid from the general fund of the county.

(4) If, during the court proceedings, the parents, guardian, or legal custodian prove that he or she has an actual conflict of interest with the minor in that delinquency proceeding and that the parents, guardian, or legal custodian are indigent, the court shall appoint a separate attorney for that parent, guardian, or legal custodian.

(5) A guardian ad litem appointed under this Section for a minor who is in the custody or guardianship of the Department of Children and Family Services or who has an open intact family services case with the Department of Children and Family Services is entitled to receive copies of any and all classified reports of child abuse or neglect made pursuant to the Abused and Neglected Child Reporting Act in which the minor, who is the subject of the report under the Abused and Neglected Child Reporting Act, is also a minor for whom the guardian ad litem is appointed under this Act. The Department of Children and Family Services' obligation under this subsection to provide reports to a guardian ad litem applies only if the guardian ad litem notified the Department in writing of the representation.

(Source: P.A. 90-590, eff. 1-1-99.)".