HB1132 96TH GENERAL ASSEMBLY

LRB096 04542 DRJ 14597 b

96TH GENERAL ASSEMBLY
State of Illinois
2009 and 2010
HB1132

Introduced 2/11/2009, by Rep. Naomi D. Jakobsson

SYNOPSIS AS INTRODUCED:

20 ILCS 505/9.9	from Ch. 23, par. 5009.9
325 ILCS 5/7.4	from Ch. 23, par. 2057.4
325 ILCS 5/7.12a new
325 ILCS 5/7.12b new
325 ILCS 5/7.15	from Ch. 23, par. 2057.15
325 ILCS 5/7.16	from Ch. 23, par. 2057.16
325 ILCS 5/8.3	from Ch. 23, par. 2058.3

Amends the Children and Family Services Act and the Abused and Neglected Child Reporting Act. Provides that these amendatory changes may be cited as the Child Abuse Registry Accuracy and Fairness Act of 2009. Provides that notice to subjects of a report of suspected child abuse or neglect shall be served via personal delivery (verified by the subject's signature) or certified mail, and sets forth the required contents of the notice. Provides for notice of determinations that a report is "indicated", "unfounded", or "undetermined", and sets forth required contents of notice of an indicated report. Adds provisions concerning expungement of an indicated report. Provides for an appeal by a subject of a report who claims that he or she did not have actual notice that an indicated report had issued against him or her. Makes other changes concerning judicial review of final administrative decisions by the Department of Children and Family Services, the Department's handling of reports of suspected child abuse or neglect, determinations by the Department's Child Protective Service Unit, and expungement of information from the central register of child abuse and neglect.

FISCAL NOTE ACT MAY APPLY

A BILL FOR

AN ACT concerning families and children.

Be it enacted by the People of the State of Illinois, represented in the General Assembly:

Section 1. Short title. This Act may be cited as the Child Abuse Registry Accuracy and Fairness Act of 2009.

Section 5. Legislative findings. The General Assembly finds that:

(1) The State Central Register ("Register") of substantiated (also known as "indicated") reports of child abuse or neglect maintained by the Department of Children and Family Services under the Abused and Neglected Child Reporting Act must be an accurate database in order for the Department of Children and Family Services to fulfill its statutory mandate of protecting the health, safety, and best interests of the child in all situations in which the child is vulnerable to child abuse or neglect.

(2) The Register currently maintains indicated reports of child abuse or neglect despite circuit court findings that the facts are unsubstantiated, and thus results in individuals being unjustly indicated as perpetrators for up to 50 years without any means of redress.

(3) These individuals lose not only their pride and reputation, but often their livelihood as well because they cannot secure any employment in the child care profession.

(4) The Register currently maintains indicated reports of child abuse or neglect despite a decision by the State's Attorney that pursuing a circuit court finding of abuse or neglect would not be in the best interest of the involved minors.

(5) The Register currently maintains indicated reports of child abuse or neglect, the substantiation of which have not been subject to litigation due to the alleged lack of notice of the report to alleged perpetrators.

(6) The failure to notify alleged perpetrators of the indicated report and to allow those persons to litigate the facts underlying a report of abuse or neglect results in the Register containing inaccurately-indicated reports.

(7) An inaccurate Register seriously harms children because children lose the benefit of a stable environment when a caregiver is unjustly indicated and consequently barred from any contact with the children for whom he or she cared.

Section 10. The Children and Family Services Act is amended by changing Section 9.9 as follows:

(20 ILCS 505/9.9) (from Ch. 23, par. 5009.9)

Sec. 9.9. Review under Administrative Review Law. Any responsible parent or guardian affected by a final administrative decision of the Department in a hearing, conducted pursuant to this Act, may have the decision reviewed only under and in accordance with the Administrative Review Law as amended. The provisions of the Administrative Review Law, and the rules adopted pursuant thereto, shall apply to and govern all proceedings for the judicial review of such final administrative decisions of the Department, except that the Department's final administrative decision shall be deemed to have been served upon the party affected by the decision on the date upon which the subject, or the subject's authorized representative, received, via certified mail or verified personal delivery, the Department's written final decision. The term "administrative decision", is defined as in Section 3-101 of the Code of Civil Procedure.

Appeals from all final orders and judgments entered by a court upon review of the Department's orders in any case may be taken by either party to the proceeding and shall be governed by the rules applicable to appeals in civil cases.

The remedy herein provided for appeal shall be exclusive, and no court shall have jurisdiction to review the subject matter of any order made by the Department except as herein provided.

(Source: P.A. 83-1037.)

Section 15. The Abused and Neglected Child Reporting Act is amended by changing Sections 7.4, 7.15, 7.16, and 8.3 and by adding Sections 7.12a and 7.12b as follows:

(325 ILCS 5/7.4) (from Ch. 23, par. 2057.4)

Sec. 7.4. (a) The Department shall be capable of receiving reports of suspected child abuse or neglect 24 hours a day, 7 days a week. Whenever the Department receives a report alleging that a child is a truant as defined in Section 26-2a of The School Code, as now or hereafter amended, the Department shall notify the superintendent of the school district in which the child resides and the appropriate superintendent of the educational service region. The notification to the appropriate officials by the Department shall not be considered an allegation of abuse or neglect under this Act.

(b) (1) The following procedures shall be followed in the investigation of all reports of suspected abuse or neglect of a child, except as provided in subsection (c) of this Section.

(2) If it appears that the immediate safety or well-being of a child is endangered, that the family may flee or the child disappear, or that the facts otherwise so warrant, the Child Protective Service Unit shall commence an investigation immediately, regardless of the time of day or night. In all other cases, investigation shall be commenced within 24 hours of receipt of the report. Upon receipt of a report, the Child Protective Service Unit shall make an initial investigation and an initial determination whether the report is a good faith indication of alleged child abuse or neglect.

(3) If the Unit determines the report is a good faith indication of alleged child abuse or neglect, then a formal investigation shall commence and, pursuant to Section 7.12 of this Act, may or may not result in an indicated report. The formal investigation shall include: direct contact with the subject or subjects of the report as soon as possible after the report is received; an evaluation of the environment of the child named in the report and any other children in the same environment; a determination of the safety of risk to such children if they continue to remain in the existing environments, as well as a determination of the nature, extent and cause of any condition enumerated in such report; the name, age and condition of other children in the environment; and an evaluation as to whether there would be an immediate and urgent necessity to remove the child from the environment if appropriate family preservation services were provided. After seeing to the safety of the child or children, the Department shall forthwith notify the subjects of the report in writing. The notice shall be served via personal delivery (verified by the subject's signature) or certified mail. Notice shall be issued to all adult subjects and all alleged perpetrators over the age of 12 years within 10 days after commencement of the investigation unless the investigator provides a sworn certification of the attempts to locate the subject or alleged perpetrator, in which case notice shall be provided at the soonest practicable time. This written notice shall include the following:

(A) Notice that the Department is investigating a report of child abuse or neglect.

(B) A summary of the allegations in the report, including the time period during which the abuse or neglect is alleged to have occurred.

(C) The consequences of a finding of "indicated", including the period of time during which such a finding will remain registered in the state central register unless amended or expunged.

(D) The rights of the subject during the course of the investigation, including the means available to secure additional information concerning the investigation process and the rights of review therefrom and, for child contact employees, the right to have an administrator's conference prior to registration of an indicated report.

(E) The rights under this Act in regard to amendment or expungement if the report is ultimately determined to be "indicated" pursuant to Section 7.12. , of the existence of the report and their rights existing under this Act in regard to amendment or expungement.

To fulfill the requirements of this Section, the Child Protective Service Unit shall have the capability of providing or arranging for comprehensive emergency services to children and families at all times of the day or night.

(4) If (i) at the conclusion of the Unit's initial investigation of a report, the Unit determines the report to be a good faith indication of alleged child abuse or neglect that warrants a formal investigation by the Unit, the Department, any law enforcement agency or any other responsible agency and (ii) the person who is alleged to have caused the abuse or neglect is employed or otherwise engaged in an activity resulting in frequent contact with children and the alleged abuse or neglect are in the course of such employment or activity, then the Department shall, except in investigations where the Director determines that such notification would be detrimental to the Department's investigation, inform the appropriate supervisor or administrator of that employment or activity that the Unit has commenced a formal investigation pursuant to this Act, which may or may not result in an indicated report. The Department shall also notify the person being investigated of the commencement of the investigation. This notice shall include the required information enumerated in subdivisions (b)(3)(A) through (b)(3)(E) of Section 7.4. , unless the Director determines that such notification would be detrimental to the Department's investigation.

(c) In an investigation of a report of suspected abuse or neglect of a child by a school employee at a school or on school grounds, the Department shall make reasonable efforts to follow the following procedures:

(1) Investigations involving teachers shall not, to the extent possible, be conducted when the teacher is scheduled to conduct classes. Investigations involving other school employees shall be conducted so as to minimize disruption of the school day. The school employee accused of child abuse or neglect may have his superior, his association or union representative and his attorney present at any interview or meeting at which the teacher or administrator is present. The accused school employee shall be informed by a representative of the Department, at any interview or meeting, of the accused school employee's due process rights and of the steps in the investigation process. The information shall include, but need not necessarily be limited to, the right, subject to the approval of the Department, of the school employee to confront the accuser, if the accuser is 14 years of age or older, or the right to review the specific allegations that which gave rise to the investigation, and the right to review all materials and evidence that have been submitted to the Department in support of the allegation. These due process rights shall also include the right of the school employee to present countervailing evidence regarding the accusations.

(2) If a report of neglect or abuse of a child by a teacher or administrator does not involve allegations of sexual abuse or extreme physical abuse, the Child Protective Service Unit shall make reasonable efforts to conduct the initial investigation in coordination with the employee's supervisor.

If the Unit determines that the report is a good faith indication of potential child abuse or neglect, it shall then commence a formal investigation under paragraph (3) of subsection (b) of this Section.

(3) If a report of neglect or abuse of a child by a teacher or administrator involves an allegation of sexual abuse or extreme physical abuse, the Child Protective Unit shall commence an investigation under paragraph (2) of subsection (b) of this Section.

(c-5) In any instance in which a report is made or caused to made by a school district employee involving the conduct of a person employed by the school district, at the time the report was made, as required under Section 4 of this Act, the Child Protective Service Unit shall send a copy of its final finding report to the general superintendent of that school district.

(d) If the Department has contact with an employer, or with a religious institution or religious official having supervisory or hierarchical authority over a member of the clergy accused of the abuse of a child, in the course of its investigation, the Department shall notify the employer or the religious institution or religious official, in writing, when a report is unfounded so that any record of the investigation can be expunged from the employee's or member of the clergy's personnel or other records. The Department shall also notify the employee or the member of the clergy, in writing, that notification has been sent to the employer or to the appropriate religious institution or religious official informing the employer or religious institution or religious official that the Department's investigation has resulted in an unfounded report.

(e) Upon request by the Department, the Department of State Police and law enforcement agencies are authorized to provide criminal history record information as defined in the Illinois Uniform Conviction Information Act and information maintained in the adjudicatory and dispositional record system as defined in Section 2605-355 of the Department of State Police Law (20 ILCS 2605/2605-355) to properly designated employees of the Department of Children and Family Services if the Department determines the information is necessary to perform its duties under the Abused and Neglected Child Reporting Act, the Child Care Act of 1969, and the Children and Family Services Act. The request shall be in the form and manner required by the Department of State Police. Any information obtained by the Department of Children and Family Services under this Section is confidential and may not be transmitted outside the Department of Children and Family Services other than to a court of competent jurisdiction or unless otherwise authorized by law. Any employee of the Department of Children and Family Services who transmits confidential information in violation of this Section or causes the information to be transmitted in violation of this Section is guilty of a Class A misdemeanor unless the transmittal of the information is authorized by this Section or otherwise authorized by law.

(Source: P.A. 95-908, eff. 8-26-08.)

(325 ILCS 5/7.12a new)

Sec. 7.12a. Notification of Child Protective Service Unit determination. Within 5 business days following the Department's determination of whether a report is "indicated", "unfounded", or "undetermined", the Department shall issue written notice to all subjects, including the alleged perpetrator and the parents, personal guardians, or legal custodians of the minor subjects of the report. The notice shall include the process by which subjects of an unfounded report may request that the report be retained as an intentional false report. The written notice of an indicated report shall be served either via certified mail or by personal delivery (verified by the recipient's signature) and shall include the following information:

(1) Notice of the Department's determination, including the allegations for which an indicated finding is made.

(2) As to each indicated finding, the person or persons deemed responsible for the alleged abuse or neglect.

(3) A summary of the factual basis for the determination, which may include the summary ordinarily used by the Department to explain the rationale for its decision.

(4) The consequences of an indicated report, including the registry period for the indicated report unless otherwise expunged.

(5) The process by which the subjects of any report may access the Department's records concerning the report.

(6) The process by which the subjects of an indicated report may seek amendment or expungement of the report from the register, including information as to how the subject may secure a neutral review of the basis for the indicated report.

(325 ILCS 5/7.12b new)

Sec. 7.12b. Finality of Child Protective Service Unit determination. The Department's determination of unfounded and indicated reports shall be deemed a final agency determination as of the date of the registry of the determination in the register. The Department shall not accept for investigation any allegations that have previously been the subject of a final agency determination arising from a common nucleus of operative facts. The Department may conduct subsequent investigations as to any allegations that were previously deemed "undetermined".

(325 ILCS 5/7.15) (from Ch. 23, par. 2057.15)

Sec. 7.15. Other information in central register; request for expungement or amendment of indicated finding.

(a) The central register may contain such other information which the Department determines to be in furtherance of the purposes of this Act. Pursuant to the provisions of Sections 7.14 and 7.16, the Department may amend or remove from the central register appropriate records upon good cause shown and upon notice to the subjects of the report and the Child Protective Service Unit.

(b) Notwithstanding any other provision of law to the contrary, a subject of an indicated report may request expungement or amendment of that report if there has been a judicial determination in his or her favor arising from a common nucleus of operative facts as the indicated finding. A subject may make a request for expungement or amendment pursuant to this Section at any time within one year after the judicial determination has become final and unappealable, or within one year after the effective date of this amendatory Act of the 96th General Assembly. Within 14 calendar days after receiving a request pursuant to this Section, the Department shall determine whether the judicial determination arises from a common nucleus of operative facts as the indicated finding. If the Department concludes that the judicial finding does arise from a common nucleus of operative facts, it shall expunge the indicated finding against the person if it concludes that the judicial determination found any of the following:

(1) The facts giving rise to the allegation of abuse or neglect do not give rise to probable cause.

(2) The facts giving rise to the allegation of abuse or neglect are not supported by a preponderance of the evidence.

(3) The facts giving rise to the allegation of abuse or neglect do not support the conclusion that the subject of the report is responsible for the abuse or neglect.

(4) The petition, complaint, or charge alleging the abuse or neglect has been subject to a final dismissal.

If the Department concludes that expungement is proper under this Section, it shall notify the subject of its conclusions and forthwith expunge all information identifying that particular subject from the central register. If the Department concludes either that the judicial determination does not arise from a common nucleus of operative facts or that the judicial determination was not favorable to the subject in accordance with paragraphs (1) through (4), it shall notify the subject of its final agency determination to maintain the indicated finding in the register and permit the subject to file an administrative expungement appeal of that final agency determination within 60 days after receiving the notice of the Department's determination. Notice of the determination must be served via either certified mail or verified personal delivery.

(c) Notwithstanding any other provision of law to the contrary, the dismissal of a petition alleging abuse or neglect filed pursuant to the Juvenile Court Act of 1987 shall be a dismissal with prejudice for purposes of this Act. A dismissal with prejudice of a petition arising from a common nucleus of operative facts giving rise to an indicated report, including a dismissal pursuant to a continuance under supervision as described in Section 2-20 of the Juvenile Court Act of 1987, shall be treated as a judicial determination subject to the requirements of subsection (b) of Section 7.15.

(d) The Director and his or her designees shall have the authority to expunge or amend indicated findings from the central register on the basis of newly discovered evidence, rehabilitation, recantations, or any other just cause.

(Source: P.A. 90-15, eff. 6-13-97.)

(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, 2009 1998, the following time frames shall apply. Within 60 days after a subject of a report received actual notice of the indicated report or within one year after a final judicial determination arising from a common nucleus of operative facts as the indicated report, whichever is later, that the notification of the completion of the Child Protective Service Unit investigation, determined by the date of the notification sent by the Department, a subject of a report may request the Department to expunge or amend the record or remove the record of the report from the register. Actual notice shall be presumed if notification of the Child Protective Service Unit determination, described under Section 7.12a, is served upon the subject of a report by either certified mail or verified personal delivery. Such request for expungement or amendment shall be in writing and directed to such person as the Department designates in the notification. If the Department disregards any request to do so or does not act within 10 days, the subject shall have the right to a 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, the report's accuracy being conclusively presumed on such finding. Such hearing shall be held within a reasonable time after the subject's request and at a reasonable place and hour. The appropriate Child Protective Service Unit shall be given notice of the hearing. 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 final decision shall be made, in writing, and served upon the person requesting the hearing at the close of the hearing, or within 45 days thereof, and shall state the reasons upon which it is based.

If a subject of the report claims that he or she did not have actual notice that an indicated report had issued against him or her, the subject may request an appeal of the indicated report within one year after his or her discovery of the indicated report. Upon receiving the request, the Department shall grant an evidentiary hearing on the merits of the indicated report unless the Department establishes that the subject had actual notice and that allowing the appeal would prejudice the Department. If the Department maintains that the appeal is untimely and proper notice was provided, it must notify the subject requesting the appeal of that decision within 15 calendar days after receiving the request for appeal. Notice of this decision must be served via either certified mail or verified personal delivery. The subject may then, within 30 calendar days after receiving the Department's decision, request a hearing as to his or her receipt of notice. At the hearing, the Department bears the burden of proving the following by a preponderance of the evidence:

(1) The subject did have actual notice of the indicated report. If the Department establishes that the notice of the indicated report was served upon the subject by certified mail or verified personal delivery, there is a rebuttable presumption that the subject had actual notice of the indicated finding on the date of service. In the event the Department cannot establish actual notice of the indicated report by a preponderance of the evidence, the Department shall afford the subject the right to proceed to an expungement or amendment appeal.

(2) The Department is prejudiced by allowing an appeal on the merits of the indicated report. Prejudice may be shown by unexcused delay on the part of the appellant, unavailability of Department personnel who investigated the matter making it unreasonable to allow the appeal to proceed, or other circumstances. If the Department cannot establish prejudice by a preponderance of the evidence, the Department shall afford the subject the right to proceed to an expungement or amendment appeal.

The final administrative decision as to the timeliness of the request shall be made, in writing, and served upon the person requesting the hearing as to receipt of notice at the close of the hearing, or within 15 calendar days thereafter, and shall state the reasons upon which it is based.

All final decisions under this Section shall be served upon the subject of the report who is requesting an amendment or removal of the record, or the subject's authorized representative, by certified mail or verified personal delivery; the decision shall be deemed to have been served on the date upon which the subject received the Department's written final decision. 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 subject of the report pursuant to this Section either on administrative review or after 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 forthwith.

(Source: P.A. 90-15, eff. 6-13-97; 90-608, eff. 6-30-98.)

(325 ILCS 5/8.3) (from Ch. 23, par. 2058.3)

Sec. 8.3. The Department shall assist a Circuit Court during all stages of the court proceeding in accordance with the purposes of this Act and the Juvenile Court Act of 1987 by providing full, complete, and accurate information to the court and by appearing in court if requested by the court. Failure to provide assistance requested by a court shall be enforceable through proceedings for contempt of court. If the Circuit Court decision results in a final judicial determination arising from a common nucleus of operative facts as an indicated finding and that judicial determination is favorable to the subject in accordance with subdivisions (b)(1) through (b)(4) of Section 7.15, then in the cases in which the Department has presented testimony or had counsel present during the proceedings the Department shall ensure that the Circuit Court is aware of the status of any indicated finding that remains in the central register and shall further notify the subject of his or her right to request expungement pursuant to subsection (b) of Section 7.15. The Department shall allow the request if filed within one year after the judicial determination has become final and unappealable.

(Source: P.A. 88-310.)