2001 Legislation
Print Friendly

SENATE BILL NO. 1074 – Child abuse, parent disability


View Daily Data Tracking History

View Bill Text

View Statement of Purpose / Fiscal Impact

Text to be added within a bill has been marked with Bold and
Underline. Text to be removed has been marked with
Strikethrough and Italic. How these codes are actually displayed will
vary based on the browser software you are using.

This sentence is marked with bold and underline to show added text.

This sentence is marked with strikethrough and italic, indicating
text to be removed.

Daily Data Tracking History

S1074.................................................by HEALTH AND WELFARE
CHILD ABUSE - Amends existing law relating to child abuse, abandonment and
neglect to prohibit discrimination and to require consideration of a
disabled individual's ability to employ adaptive and supportive equipment
and services.
02/07    Senate intro - 1st rdg - to printing
02/08    Rpt prt - to Health/Wel
02/15    Rpt out - rec d/p - to 2nd rdg
02/16    2nd rdg - to 3rd rdg
02/20    3rd rdg - PASSED - 33-0-2
      AYES -- Andreason, Boatright, Branch(Bartlett), Brandt, Bunderson,
      Burtenshaw, Cameron, Danielson, Darrington, Davis, Deide, Frasure,
      Geddes, Goedde, Hawkins, Ingram, Ipsen, Keough, King-Barrutia, Lodge,
      Noh, Richardson, Risch, Sandy, Schroeder, Sims, Sorensen, Stegner,
      Stennett, Thorne, Wheeler, Whitworth, Williams,
      NAYS -- None
      Absent and excused -- Dunklin, Lee
    Floor Sponsor -- King-Barrutia
    Title apvd - to House
02/21    House intro - 1st rdg - to Health/Wel

Bill Text

  ||||              LEGISLATURE OF THE STATE OF IDAHO             ||||
 Fifty-sixth Legislature                  First Regular Session - 2001
                                       IN THE SENATE
                                    SENATE BILL NO. 1074
                              BY HEALTH AND WELFARE COMMITTEE
  1                                        AN ACT
 16    Be It Enacted by the Legislature of the State of Idaho:
 17        SECTION  1.  That  Section 16-1601, Idaho Code, be, and the same is hereby
 18    amended to read as follows:
 19        16-1601.  POLICY. The policy of the state of Idaho is hereby  declared  to
 20    be the establishment of a legal framework conducive to the judicial processing
 21    of  child abuse, abandonment and neglect cases, and the protection of children
 22    whose life lives, health or welfare is endangered. At all times the health and
 23    safety of the child shall be the primary concern. Each child coming within the
 24    purview of this chapter shall receive, preferably in his own home,  the  care,
 25    guidance  and  control  that will promote his welfare and the best interest of
 26    the state of Idaho, and if he is removed from the control of one (1)  or  more
 27    of  his  parents, guardian or other custodian, the state shall secure adequate
 28    care for him; provided, however, that the state of Idaho shall, to the fullest
 29    extent possible, seek to preserve, protect, enhance  and  reunite  the  family
 30    relationship.
 31        Nothing  in this chapter shall be construed to allow discrimination on the
 32    basis of race, religion, gender, national origin, age  or  disability,  except
 33    that  race may be considered as necessary to comply with the Indian child wel-
 34    fare act. Evaluations of parental fitness shall be free of bias and shall take
 35    into account the use of adaptive equipment and supportive services for parents
 36    with disabilities.
 37        This chapter seeks to coordinate efforts by state and local  public  agen-
 38    cies,  in  cooperation  with  private  agencies  and  organizations, citizens'
 39    groups, and concerned individuals, to:
 40        (1)  pPreserve the privacy and unity of the family whenever possible;
 41        (2)  tTake such actions as may be necessary and feasible  to  prevent  the
 42    abuse, neglect or abandonment of children;
 43        (3)  cClarify for the purposes of this act the rights and responsibilities
  1    of parents with joint legal or joint physical custody of children at risk.
  2        SECTION  2.  That  Section 16-1602, Idaho Code, be, and the same is hereby
  3    amended to read as follows:
  4        16-1602.  DEFINITIONS. For purposes of this chapter:
  5        (a)  "Abused" means any case in which a child has been the victim of:
  6        (1)  Conduct or omission resulting in skin bruising,  bleeding,  malnutri-
  7        tion,  burns,  fracture of any bone, subdural hematoma, soft tissue swell-
  8        ing, failure to thrive or death, and such condition or death is not justi-
  9        fiably explained, or where the history given concerning such condition  or
 10        death  is  at variance with the degree or type of such condition or death,
 11        or the circumstances indicate that such condition or death may not be  the
 12        product of an accidental occurrence; or
 13        (2)  Sexual  conduct,  including  rape, molestation, incest, prostitution,
 14        obscene or pornographic photographing, filming or depiction for commercial
 15        purposes, or other similar forms of sexual exploitation harming or threat-
 16        ening the child's health or welfare or mental injury to the child.
 17        (b)  "Abandoned" means the failure of the  parent  to  maintain  a  normal
 18    parental relationship with his child including, but not limited to, reasonable
 19    support  or  regular  personal  contact. Failure to maintain this relationship
 20    without just cause for a period of one (1) year shall constitute  prima  facie
 21    evidence of abandonment.
 22        (c)  "Adjudicatory  hearing" means a hearing to determine the truth of the
 23    allegations in the petition filed under this chapter.
 24        (d)  "Authorized agency" means the department, a local agency,  a  person,
 25    an  organization,  corporation,  benevolent society or association licensed or
 26    approved by the department or the court to receive children for control, care,
 27    maintenance or placement.
 28        (e)  "Child" means an individual who is under the  age  of  eighteen  (18)
 29    years.
 30        (f)  "Child  advocate  coordinator"  means  a  person  or entity receiving
 31    moneys from the grant administrator for the purpose of carrying out any of the
 32    duties as set forth in section 16-1630, Idaho Code.
 33        (g)  "Circumstances of the child" includes, but is  not  limited  to,  the
 34    joint legal custody or joint physical custody of the child.
 35        (h)  "Commit" means to transfer legal and physical custody.
 36        (i)  "Court"  means district court or magistrate's division thereof, or if
 37    the context requires, a magistrate or judge thereof.
 38        (j)  "Custodian" means a person, other than a parent or legal guardian, to
 39    whom legal or joint legal custody of the child has been given by  court  order
 40    or who is acting in loco parentis.
 41        (k)  "Department"  means  the  department  of  health  and welfare and its
 42    authorized representatives.
 43        (l)  "Disability" means, with respect to  an  individual,  any  mental  or
 44    physical  impairment  which  substantially  limits  one (1) or more major life
 45    activities of the individual including, but not limited to, self-care,  manual
 46    tasks,  walking,  seeing, hearing, speaking, learning, or working, or a record
 47    of such an impairment, or being regarded as having such  an  impairment.  Dis-
 48    ability   shall   not   include   transvestism,   transsexualism,  pedophilia,
 49    exhibitionism, voyeurism, other sexual  behavior  disorders,  or  psychoactive
 50    substance  use disorders, compulsive gambling, kleptomania, or pyromania. Sex-
 51    ual preference or orientation is not considered an impairment  or  disability.
 52    Whether  an  impairment  substantially  limits  a major life activity shall be
 53    determined without consideration of the effect  of  corrective  or  mitigating
  1    measures used to reduce the effects of the impairment.
  2        (m)  "Disposition  hearing"  means a hearing to determine whether the best
  3    interests of the child require protective supervision or vesting legal custody
  4    of the child in an authorized agency.
  5        (mn)  "Family or household member" shall have the same meaning as in  sec-
  6    tion 39-6303(3), Idaho Code.
  7        (no)  "Grant  administrator"  means any such organization or agency as may
  8    be designated by the supreme court from time to time to administer funds  from
  9    the  guardian ad litem account in accordance with the provisions of this chap-
 10    ter.
 11        (op)  "Guardian ad litem" means a person appointed by the  court  pursuant
 12    to  a  guardian  ad  litem  volunteer program to act as special advocate for a
 13    child under this chapter.
 14        (pq)  "Guardian ad litem program" means the program to recruit, train  and
 15    coordinate  volunteer  persons  to  serve  as  guardians  ad litem for abused,
 16    neglected or abandoned children.
 17        (qr)  "Law enforcement agency" means a city police department, the  prose-
 18    cuting  attorney  of any county, state law enforcement officers, or the office
 19    of a sheriff of any county.
 20        (rs)  "Legal custody" means a relationship created by order of the  court,
 21    which vests in a custodian the following duties and rights:
 22        (1)  To  have  physical custody and control of the child, and to determine
 23        where and with whom the child shall live.
 24        (2)  To supply the child  with  food,  clothing,  shelter  and  incidental
 25        necessities.
 26        (3)  To provide the child with care, education and discipline.
 27        (4)  To authorize ordinary medical, dental, psychiatric, psychological, or
 28        other remedial care and treatment for the child, including care and treat-
 29        ment  in a facility with a program of services for children; and to autho-
 30        rize surgery if the surgery is deemed by two (2)  physicians  licensed  to
 31        practice in this state to be necessary for the child.
 32        (5)  Where  the  parents  share legal custody, the custodian may be vested
 33        with the custody previously held by either or both parents.
 34        (st)  "Mental injury" means a substantial impairment in  the  intellectual
 35    or  psychological ability of a child to function within a normal range of per-
 36    formance and/or behavior, for short or long terms.
 37        (tu)  "Neglected" means a child:
 38        (1)  Who is without proper parental care and control, or subsistence, edu-
 39        cation, medical or other care or  control  necessary  for  his  well-being
 40        because  of the conduct or omission of his parents, guardian or other cus-
 41        todian or their neglect or refusal to provide them; provided, however,  no
 42        child whose parent or guardian chooses for such child treatment by prayers
 43        through  spiritual  means  alone  in  lieu  of medical treatment, shall be
 44        deemed for that reason alone to be neglected or lack parental care  neces-
 45        sary  for  his health and well-being, but further provided this subsection
 46        shall not prevent the court from acting pursuant to section 16-1616, Idaho
 47        Code; or
 48        (2)  Whose parents, guardian or other custodian are  unable  to  discharge
 49        their responsibilities to and for the child because of incarceration, hos-
 50        pitalization, or other physical or mental incapacity; or
 51        (3)  Who has been placed for care or adoption in violation of law.
 52        (uv)  "Protective  order"  means  an  order  created by the court granting
 53    relief as delineated in section 39-6306, Idaho Code, and shall be for a period
 54    not to exceed three (3) months unless otherwise stated herein. Failure to com-
 55    ply with the order shall be a misdemeanor.
  1        (vw)  "Protective supervision" means a legal status created by court order
  2    in neglect and abuse cases whereby the child is permitted  to  remain  in  his
  3    home under supervision by the department.
  4        (wx)  "Residual  parental  rights and responsibilities" means those rights
  5    and responsibilities remaining with the parents after the  transfer  of  legal
  6    custody  including,  but  not necessarily limited to, the right of visitation,
  7    consent to adoption, the right to determine religious affiliation,  the  right
  8    to family counseling when beneficial, and the responsibility for support.
  9        (xy)  "Shelter  care" means places designated by the department for tempo-
 10    rary care of children pending court disposition or placement.
 11        (z)  "Adaptive equipment" means any piece of equipment, product system, or
 12    any item, whether acquired commercially off the shelf,  modified,  or  custom-
 13    ized,  that  is  used  to  increase, maintain, or improve functional parenting
 14    capabilities of a parent with a disability.
 15        SECTION 3.  That Section 16-1603, Idaho Code, be, and the same  is  hereby
 16    amended to read as follows:
 17        16-1603.  JURISDICTION OF THE COURTS. Except as otherwise provided herein,
 18    the  court shall have exclusive original jurisdiction in all proceedings under
 19    this chapter concerning any child living or found within the state:
 20        (a)  who is neglected, abused or abandoned by  his  parents,  guardian  or
 21    other legal custodian, or who is homeless; or
 22        (b)  whose  parents or other legal custodian fails or is unable to provide
 23    a stable home environment.
 24        SECTION 4.  That Section 16-1605, Idaho Code, be, and the same  is  hereby
 25    amended to read as follows:
 26        16-1605.  PETITION.  (a) A petition invoking the jurisdiction of the court
 27    under this chapter shall be filed in the manner provided in this section:
 28        (1)  A petition must be signed by the prosecutor or deputy  attorney  gen-
 29        eral before being filed with the court.
 30        (2)  Any  person  or  governmental  body  of this state having evidence of
 31        abuse, abandonment, or neglect of a child may request the attorney general
 32        or prosecuting attorney to file a petition. The  prosecuting  attorney  of
 33        the  county  where  the child resides may file a petition on behalf of any
 34        child whose parent, guardian, or custodian has been accused in a  criminal
 35        complaint of the crime of cruel treatment or neglect as defined in section
 36        18-1501, Idaho Code.
 37        (b)  Petitions shall be entitled "In the Matter of .............., a child
 38    under the age of eighteen (18) years" and shall be verified and set forth with
 39    specificity:
 40        (1)  The  facts  which bring the child within the provisions of this chap-
 41        ter, with the actions of each parent described therein;
 42        (2)  The name, birthdate, sex, and residence address of the child;
 43        (3)  The name, birthdate, sex, and residence address of all other children
 44        living at or having custodial visitation at the home where the  injury  to
 45        the subject child occurred;
 46        (4)  The  names  and  residence  addresses  of both the mother and father,
 47        guardian or other custodian. If neither of his parents, guardian or  other
 48        custodian  resides or can be found within the state, or if their residence
 49        addresses are unknown, the name  of  any  known  adult  relative  residing
 50        within the state.
 51        (5)  The names and residence addresses of each person having sole or joint
  1        legal custody of the children described in this section.
  2        (6)  Whether  or not there exists a legal document including, but not lim-
  3        ited to, a divorce decree, stipulation or parenting agreement  controlling
  4        the custodial status of the children described in this section.
  5        (7)  Whether the child is in shelter care, and, if so, the type and nature
  6        of  the  shelter  care,  the circumstances necessitating such care and the
  7        date and time he was placed in such care.
  8        (8)  When any of the facts required by this section cannot be  determined,
  9        the  petition shall so state. The petition may be based on information and
 10        belief but in such case the petition shall state the basis of such  infor-
 11        mation and belief.
 12        (9)  The petition shall state that reasonable efforts have been made prior
 13        to  the placement of the child in care to prevent the removal of the child
 14        from his home or, if such efforts were not provided,  that  placement  was
 15        due  to  immediate danger to the child, or that reasonable efforts to pre-
 16        vent placement were not required as the  parent  subjected  the  child  to
 17        aggravated  circumstances. In the case of a parent with a disability, rea-
 18        sonable efforts include the provision of adaptive equipment or  supportive
 19        services  needed by the parent to care for the child as long as the provi-
 20        sion of these services is not inconsistent with the requirements of  chap-
 21        ter 16, title 16, Idaho Code.
 22        (10) The petition shall state with specificity whether a parent with joint
 23        legal custody or a noncustodial parent has been notified of placement.
 24        (11) The  petition  shall state whether a court has adjudicated the custo-
 25        dial rights of the parents and shall set forth the custodial status of the
 26        child.
 27        SECTION 5.  That Section 16-1609A, Idaho Code, be, and the same is  hereby
 28    amended to read as follows:
 29        16-1609A.  INVESTIGATION  BY  MULTIDISCIPLINARY  TEAMS.  (1) By January 1,
 30    1997, the prosecuting attorney in each county shall  be  responsible  for  the
 31    development  of  an interagency multidisciplinary team or teams for investiga-
 32    tion of child abuse and neglect referrals within each county. The teams  shall
 33    consist  of,  but  not be limited to, law enforcement personnel, department of
 34    health and welfare child protection risk assessment staff, a representative of
 35    the prosecuting attorney's office, and any other person deemed to be necessary
 36    due to their special training in child abuse investigation. Other persons  may
 37    participate in investigation of particular cases at the invitation of the team
 38    and as determined necessary, such as medical personnel, school officials, men-
 39    tal  health  workers,  personnel  from  domestic  violence  programs,  persons
 40    knowledgeable  about  adaptive  equipment  and supportive services for parents
 41    with disabilities or the guardian ad litem program.
 42        (2)  The teams shall develop a written protocol for investigation of child
 43    abuse cases and for interviewing alleged victims of  such  abuse  or  neglect,
 44    including  protocols  for  investigations involving family members with a dis-
 45    ability. Each team shall develop written agreements signed by member agencies,
 46    specifying the role of each agency, procedures to be followed to assess  risks
 47    to  the  child  and criteria and procedures to be followed to ensure the child
 48    victim's safety including removal of the alleged offender.
 49        (3)  Each team member shall be trained in  risk  assessment,  dynamics  of
 50    child abuse and interviewing and investigatory techniques.
 51        (4)  Each  team  shall  classify,  assess and review all cases referred to
 52    either  the department or to law enforcement  entities  for  investigation  of
 53    child abuse or neglect.
  1        (5)  Each  multidisciplinary  team shall develop policies that provide for
  2    an independent review of investigation procedures utilized in cases upon  com-
  3    pletion  of  any  court  actions  on those cases. The procedures shall include
  4    independent citizen input. Nonoffending parents of child abuse  victims  shall
  5    be notified of the review procedure.
  6        (6)  Prosecuting  attorneys  of  the  various  counties may determine that
  7    multidisciplinary teams may be most effectively established through the use of
  8    joint exercise of powers agreements among more than one (1)  county  and  such
  9    agreements are hereby authorized.

Statement of Purpose / Fiscal Impact

                      STATEMENT OF PURPOSE
                           RS 10721C1
Families in which one or both parents have a disability face
significant barriers as they attempt to raise their children. These barriers
include: 1) attitudinal barriers, 2) lack of information about parenting
adaptations, 3) lack of funding for adaptive technology, 4) exclusion from
public policy considerations, and 5) lack of disability expertise in service
Idaho child custody laws, as currently written, reflect the
historical bias against parents with disabilities and present an unrealistic
view of the disability community by their constant referral to having a
disability as a factor in a parent s ability to raise their children. Such
references imply that parents with disabilities are incapable of properly
caring for their children. It is not a person s disability that inhibits a
person s capacity to provide a stable and loving home for children, rather it
is a lack of disability related supports for a parent with a disability that
results in an unstable home environment.
Many parents with significant disabilities provide excellent care and
stable homes for their children with the assistance of family, friends and
neighbors. Factors that should be considered in child custody cases include
abuse, neglect, abandonment, etc., regardless of whether the parent has a
This legislation: 1) removes from current law any inappropriate
disability language, 2) builds into current law protections against
discriminatory actions because of a parent s disability in child custody legal
proceedings and, 3) creates an evaluation system that is consistent and takes
into consideration the use of adaptive equipment and supportive services.
Based on information provided by Through the Looking Glass, a
National Resource Center for Parents with Disabilities, there are over 8.1
million U.S. families, or 10.9 percent. of families with children, in which
one or both parents have a disability. Based on these figures, the proposed
legislation will have a positive impact on an estimated 14,750 Idaho families.

                          FISCAL IMPACT
The anticipated cost for training of staff and community partners to
implement these provisions would be approximately $100,000 if existing
training and individuals from advocacy groups for persons with disabilities
were fully utilized. This includes costs of travel and staff time for
training. Such training would be incorporated into existing and future planned
training events and offerings. IDHW also estimates that approximately 30
families would need supportive and adaptive services at an average cost of
$4,000 per family, per year for a total of $120,000 in expenditures. The
average cost per month, per child in foster care is $300, with an average of
two children per family and the average length of stay of 13 months, for an
annual cost of $7200 per family. Using these cost estimations, the state could
potentially save $216,000 in foster care costs annually, with the expenditure
of the estimated $220,000. Therefore, the total fiscal impact is estimated to
be $4,000.
The University of Idaho, Assistive Technology Resource Center received a
Temporary Assistance to Families in Idaho (TAFI) grant that would cover some
initial costs of staff training and adaptive and supportive services during
the first quarter of Fiscal Year 2002.

         Contact: Senator Robbi King-Barrutia
         Statement of Purpose / Fiscal Impact                 S1074