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H0240....................................................by HEALTH AND WELFARE
CHILD PROTECTION - Amends existing law relating to child abuse, abandonment
and neglect to include reference to decision-making based upon the judgment of
a reasonably prudent person concerning the condition of the child; and to
reference protection of the rights of the parents, legal guardians or
custodians.
02/11 House intro - 1st rdg - to printing
02/12 Rpt prt - to Health/Wel
|||| LEGISLATURE OF THE STATE OF IDAHO ||||
Fifty-seventh Legislature First Regular Session - 2003
IN THE HOUSE OF REPRESENTATIVES
HOUSE BILL NO. 240
BY HEALTH AND WELFARE COMMITTEE
1 AN ACT
2 RELATING TO CHILD ABUSE, ABANDONMENT AND NEGLECT; AMENDING SECTION 16-1601,
3 IDAHO CODE, TO PROVIDE CLARIFICATION OF THE STATEMENT OF POLICY; AMENDING
4 SECTION 16-1602, IDAHO CODE, TO FURTHER DEFINE TERMS; AMENDING SECTION
5 16-1612, IDAHO CODE, TO SPECIFY ADDITIONAL CONDITIONS GOVERNING EMERGENCY
6 REMOVAL OF A CHILD; AND AMENDING SECTION 16-1616, IDAHO CODE, TO SPECIFY
7 ADDITIONAL CONDITIONS GOVERNING AUTHORIZATION OF EMERGENCY MEDICAL TREAT-
8 MENT OF A CHILD.
9 Be It Enacted by the Legislature of the State of Idaho:
10 SECTION 1. That Section 16-1601, Idaho Code, be, and the same is hereby
11 amended to read as follows:
12 16-1601. POLICY. The policy of the state of Idaho is hereby declared to
13 be the establishment of a legal framework conducive to the judicial processing
14 including periodic review of child abuse, abandonment and neglect cases, and
15 the protection of children whose life, health or welfare is endangered. At all
16 times the health and safety of the child shall be the primary concern, how-
17 ever, it is the policy of the state of Idaho that the constitutional and other
18 rights of parents must be protected to the fullest extent possible in keeping
19 with protection of each child. Each child coming within the purview of this
20 chapter shall receive, preferably in his own home, the care, guidance and con-
21 trol that will promote his welfare and the best interest of the state of
22 Idaho, and if he is removed from the control of one (1) or more of his par-
23 ents, guardian or other custodian, the state shall secure adequate care for
24 him; provided, however, that the state of Idaho shall, to the fullest extent
25 possible, seek to preserve, protect, enhance and reunite the family relation-
26 ship. This chapter seeks to coordinate efforts by state and local public agen-
27 cies, in cooperation with private agencies and organizations, citizens'
28 groups, and concerned individuals, to:
29 (1) Preserve the privacy and unity of the family whenever possible;
30 (2) Take such actions as may be necessary and feasible to prevent the
31 abuse, neglect, abandonment or homelessness of children;
32 (3) Take such actions as may be necessary to provide the child with per-
33 manency including concurrent planning;
34 (4) Clarify for the purposes of this act the rights and responsibilities
35 of parents with joint legal or joint physical custody of children at risk.
36 SECTION 2. That Section 16-1602, Idaho Code, be, and the same is hereby
37 amended to read as follows:
38 16-1602. DEFINITIONS. For purposes of this chapter:
39 (1) "Abused" means any case in which any reasonable person aware of all
40 relevant facts would conclude that a child has been the victim of:
41 (a) Conduct or omission resulting in skin bruising, bleeding, malnutri-
2
1 tion, burns, fracture of any bone, subdural hematoma, soft tissue swell-
2 ing, failure to thrive or death, and such condition or death is not justi-
3 fiably explained, or where the history given concerning such condition or
4 death is at variance with the degree or type of such condition or death,
5 or the circumstances indicate that such condition or death may not be the
6 product of an accidental occurrence; or
7 (b) Sexual conduct, including rape, molestation, incest, prostitution,
8 obscene or pornographic photographing, filming or depiction for commercial
9 purposes, or other similar forms of sexual exploitation harming or threat-
10 ening the child's health or welfare or mental injury to the child.
11 (2) "Abandoned" means the failure of the parent to maintain a normal
12 parental relationship with his child including, but not limited to, reasonable
13 support or regular personal contact. Failure to maintain this relationship
14 without just cause for a period of one (1) year shall constitute prima facie
15 evidence of abandonment.
16 (3) "Adjudicatory hearing" means a hearing to determine:
17 (a) Whether the child comes under the jurisdiction of the court pursuant
18 to the provisions of this chapter;
19 (b) Whether continuation of the child in the home would be contrary to
20 the child's welfare and whether the best interests of the child require
21 protective supervision or vesting legal custody of the child in an autho-
22 rized agency;
23 (c) Whether aggravated circumstances as defined in section 16-1608, Idaho
24 Code, exist.
25 (4) "Authorized agency" means the department, a local agency, a person,
26 an organization, corporation, benevolent society or association licensed or
27 approved by the department or the court to receive children for control, care,
28 maintenance or placement.
29 (5) "Child" means an individual who is under the age of eighteen (18)
30 years.
31 (6) "Child advocate coordinator" means a person or entity receiving
32 moneys from the grant administrator for the purpose of carrying out any of the
33 duties as set forth in section 16-1630, Idaho Code.
34 (7) "Circumstances of the child" includes, but is not limited to, the
35 joint legal custody or joint physical custody of the child.
36 (8) "Commit" means to transfer legal and physical custody.
37 (9) "Concurrent planning" means a planning model that prepares for and
38 implements different outcomes at the same time.
39 (10) "Court" means district court or magistrate's division thereof, or if
40 the context requires, a magistrate or judge thereof.
41 (11) "Custodian" means a person, other than a parent or legal guardian, to
42 whom legal or joint legal custody of the child has been given by court order
43 or who is acting in loco parentis.
44 (12) "Department" means the department of health and welfare and its
45 authorized representatives.
46 (13) "Family or household member" shall have the same meaning as in sec-
47 tion 39-6303(3), Idaho Code.
48 (14) "Foster care" means twenty-four (24) hour substitute care for chil-
49 dren placed away from their parents or guardians and for whom the state agency
50 has placement and care responsibility.
51 (15) "Grant administrator" means any such organization or agency as may be
52 designated by the supreme court from time to time to administer funds from the
53 guardian ad litem account in accordance with the provisions of this chapter.
54 (16) "Guardian ad litem" means a person appointed by the court pursuant to
55 a guardian ad litem volunteer program to act as special advocate for a child
3
1 under this chapter.
2 (17) "Guardian ad litem program" means the program to recruit, train and
3 coordinate volunteer persons to serve as guardians ad litem for abused,
4 neglected or abandoned children.
5 (18) "Law enforcement agency" means a city police department, the prose-
6 cuting attorney of any county, state law enforcement officers, or the office
7 of a sheriff of any county.
8 (19) "Legal custody" means a relationship created by order of the court,
9 which vests in a custodian the following duties and rights:
10 (a) To have physical custody and control of the child, and to determine
11 where and with whom the child shall live.
12 (b) To supply the child with food, clothing, shelter and incidental
13 necessities.
14 (c) To provide the child with care, education and discipline.
15 (d) To authorize ordinary medical, dental, psychiatric, psychological, or
16 other remedial care and treatment for the child, including care and treat-
17 ment in a facility with a program of services for children; and to autho-
18 rize surgery if the surgery is deemed by two (2) physicians licensed to
19 practice in this state to be necessary for the child.
20 (e) Where the parents share legal custody, the custodian may be vested
21 with the custody previously held by either or both parents.
22 (20) "Mental injury" means a substantial impairment in the intellectual or
23 psychological ability of a child to function within a normal range of perfor-
24 mance and/or behavior, for short or long terms.
25 (21) "Neglected" means a child circumstances in which any reasonable per-
26 son aware of all relevant facts would conclude that:
27 (a) Who The child is without proper parental care and control, or subsis-
28 tence, education, medical or other care or control necessary for his well-
29 being because of the conduct or omission of his parents, guardian or other
30 custodian or their neglect or refusal to provide them; provided, however,
31 no child whose parent or guardian chooses for such child treatment by
32 prayers through spiritual means alone in lieu of medical treatment, shall
33 be deemed for that reason alone to be neglected or lack parental care nec-
34 essary for his health and well-being, but further provided this subsection
35 shall not prevent the court from acting pursuant to section 16-1616, Idaho
36 Code; or
37 (b) Whose The child's parents, guardian or other custodian are unable to
38 discharge their responsibilities to and for the child because of incarcer-
39 ation, hospitalization, or other physical or mental incapacity; or
40 (c) Who The child has been placed for care or adoption in violation of
41 law.
42 (22) "Permanency hearing" means a hearing to review, approve, reject or
43 modify the permanency plan of the department, and review reasonable efforts in
44 accomplishing the permanency plan.
45 (23) "Permanency plan" means a plan for a continuous residence and mainte-
46 nance of nurturing relationships during the child's minority.
47 (24) "Planning hearing" means a hearing to:
48 (a) Review, approve, modify or reject the case plan; and
49 (b) Review reasonable efforts being made to rehabilitate the family; and
50 (c) Review reasonable efforts being made to reunify the children with a
51 parent or guardian.
52 (25) "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
54 period not to exceed three (3) months unless otherwise stated herein. Failure
55 to comply with the order shall be a misdemeanor.
4
1 (26) "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 (27) "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 the right to consent to adoption, the right to determine religious affilia-
8 tion, the right to family counseling when beneficial, and the responsibility
9 for support.
10 (28) "Shelter care" means places designated by the department for tempo-
11 rary care of children pending court disposition or placement.
12 SECTION 3. That Section 16-1612, Idaho Code, be, and the same is hereby
13 amended to read as follows:
14 16-1612. EMERGENCY REMOVAL.
15 (a) (1) A child may be taken into shelter care by a peace officer or
16 other person appointed by the court without an order issued pursuant to
17 subsection (d) of section 16-1606 or section 16-1608, Idaho Code, only
18 where: the child is endangered in his surroundings and prompt removal is
19 necessary to prevent serious physical or mental injury to the child or
20 where the
21 (i) The parent by knowing action or omission has caused the child
22 to suffer serious physical or mental injury; or
23 (ii) The parent by knowing action or omission has placed the child
24 in circumstances that any reasonably prudent person would conclude
25 has placed the child in a position of unacceptable risk of serious
26 physical or mental injury; or
27 (iii) The parent is not present and the child has been found in cir-
28 cumstances that any reasonably prudent person would conclude make
29 prompt removal of the child necessary to prevent serious physical or
30 mental injury to the child; or
31 (iv) The child is an abandoned child pursuant to the provisions of
32 chapter 81, title 39, Idaho Code.
33 (2) An alleged offender may be removed from the home of the victim of
34 abuse or neglect by a peace officer or other person appointed by the court
35 without an order, issued pursuant to subsection (e) of section 16-1606,
36 Idaho Code, only where the child is endangered and prompt removal of an
37 alleged offender is necessary to prevent serious physical or mental injury
38 to the child.
39 (b) When a child is taken into shelter care under subsection (a) of this
40 section, he may be held for a maximum of forty-eight (48) hours, excluding
41 Saturdays, Sundays and holidays, unless a shelter care hearing has been held
42 pursuant to section 16-1614, Idaho Code, and the court orders an adjudicatory
43 hearing.
44 (c) When an alleged offender is removed from the home under subsection
45 (a) (2) of this section, a motion based on a sworn affidavit by the department
46 must be filed simultaneously with the petition and the court shall determine
47 at a shelter care hearing, held within a maximum of twenty-four (24) hours,
48 excluding Saturdays, Sundays and holidays, whether the relief sought shall be
49 granted, pending an adjudicatory hearing. Notice of such hearing shall be
50 served upon the alleged offender at the time of removal or other protective
51 relief.
52 SECTION 4. That Section 16-1616, Idaho Code, be, and the same is hereby
5
1 amended to read as follows:
2 16-1616. AUTHORIZATION OF EMERGENCY MEDICAL TREATMENT. (a) At any time
3 whether or not a child is under the authority of the court, the court may
4 authorize medical or surgical care for a child when:
5 (1) A parent, legal guardian or custodian is not immediately available
6 and cannot be found after reasonable effort in the circumstances of the
7 case and the condition of the child is such that any reasonably prudent
8 person would conclude that treatment is immediately necessary to save the
9 child's life or to avoid unacceptable risk of complication of the child's
10 condition; or
11 (2) A physician informs the court orally or in writing that in his pro-
12 fessional opinion, the life of the child would be greatly endangered with-
13 out certain treatment and the parent, guardian or other custodian refuses
14 or fails to consent.
15 (b) If time allows in a situation under subsection (a)(2) of this sec-
16 tion, The parent, guardian or other custodian refuses or fails to consent to
17 treatment and, after consulting with the physician and other persons rendering
18 health care to the child, the judge, after hearing all readily available evi-
19 dence, finds that any reasonable person would conclude:
20 (i) That the parent's, legal guardian's or custodian's refusal of
21 treatment is not made on rational consideration of the risks
22 involved; and
23 (ii) That the refused treatment is immediately necessary to save the
24 child's life or to avoid unacceptable risk of complication of the
25 child's condition.
26 (b) If treatment is contemplated pursuant to subsection (a)(2) of this
27 section, before ordering such treatment, the court shall cause every effort to
28 be made to grant each of the parents or legal guardian or custodian an immedi-
29 ate informal hearing to hear the grounds upon which the parents or legal
30 guardian or custodian have refused treatment and what alternatives have been
31 proposed to treat the child's condition, but the timing of this hearing shall
32 not be allowed to further jeopardize the child's life.
33 (c) In making its order under subsection (a) of this section, the court
34 shall take into consideration:
35 (1) The rights of the parents, legal guardian or custodian in determining
36 what care is appropriate for the child;
37 (2) Where natural or other nonmedical treatment has been proposed by the
38 parents, legal guardian or custodian, the relative risks posed by the
39 treatment proposed by a medical physician versus the risks posed by the
40 treatment proposed by the parents, legal guardian or custodian;
41 (3) Aany treatment being given the child by prayer through spiritual
42 means alone, if the child or his parent, guardian or legal custodian are
43 adherents of a bona fide religious denomination that relies exclusively on
44 this form of treatment in lieu of medical treatment.
45 (d) After entering any authorization under subsection (a) of this sec-
46 tion, the court shall reduce the circumstances, finding and authorization to
47 writing and enter it in the records of the court and shall cause a copy of the
48 authorization to be given to the physician or hospital, or both, that was
49 involved.
50 (e) Oral authorization by the court is sufficient for care or treatment
51 to be given by and shall be accepted by any physician or hospital. No physi-
52 cian or hospital nor any nurse, technician or other person under the direction
53 of such physician or hospital shall be subject to criminal or civil liability
54 for performance of care or treatment in reliance on the court's authorization,
6
1 and any function performed thereunder shall be regarded as if it were per-
2 formed with the child's and the parent's authorization.
STATEMENT OF PURPOSE
RS 12959C1
This revises the manner in which and the grounds on which a
child may be removed for shelter care on an emergency basis. It
adds an objective standard for review, promotes protection of
parental rights wherever possible and adds recognition of non-
medical health care as a consideration by the judge.
FISCAL IMPACT
None.
Contact
Name: Rep. Bill Sali
Phone: 332-1000
STATEMENT OF PURPOSE/FISCAL NOTE H 240