Print Friendly SENATE BILL NO. 1074 – Child abuse, parent disability
SENATE BILL NO. 1074
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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
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
|||| 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
2 RELATING TO DETERMINATIONS OF CHILD ABUSE, ABANDONMENT AND NEGLECT; AMENDING
3 SECTION 16-1601, IDAHO CODE, TO PROHIBIT DISCRIMINATION AND TO REQUIRE
4 CONSIDERATION OF A DISABLED INDIVIDUAL'S CAPACITY TO EMPLOY ADAPTIVE AND
5 SUPPORTIVE EQUIPMENT AND SERVICES AND TO MAKE TECHNICAL CORRECTIONS;
6 AMENDING SECTION 16-1602, IDAHO CODE, TO DEFINE "DISABILITY," TO REQUIRE
7 CONSIDERATION OF A DISABLED INDIVIDUAL'S CAPACITY TO EMPLOY ADAPTIVE AND
8 SUPPORTIVE EQUIPMENT AND SERVICES, TO DEFINE "ADAPTIVE EQUIPMENT" AND TO
9 MAKE TECHNICAL CORRECTIONS; AMENDING SECTION 16-1603, IDAHO CODE, TO
10 STRIKE REFERENCE TO HOMELESSNESS OR POTENTIAL DISABILITY AS CRITERIA FOR
11 DETERMINATION OF JURISDICTION OF THE COURTS; AMENDING SECTION 16-1605,
12 IDAHO CODE, TO REQUIRE CONSIDERATION OF A DISABLED INDIVIDUAL'S CAPACITY
13 TO EMPLOY ADAPTIVE AND SUPPORTIVE EQUIPMENT AND SERVICES; AND AMENDING
14 SECTION 16-1609A, IDAHO CODE, TO ADDRESS MEMBERSHIP ON MULTIDISCIPLINARY
15 INVESTIGATIVE TEAMS.
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
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)
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-
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
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
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
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
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.
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
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