2003 Legislation
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HOUSE BILL NO. 240 – Child protection, parental rights

HOUSE BILL NO. 240

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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

Bill Text


                                                                        
                                                                        
  ||||              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
                                                                        
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  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.
                                                                        
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  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 / Fiscal Impact



                       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