1997 Regular Session
To: Public Health and Welfare
By: Senator(s) Bean
Senate Bill 2388
(As Passed the Senate)
AN ACT RELATING TO FAMILY AND CHILDREN'S SERVICES PROVIDED BY THE DEPARTMENT OF HUMAN SERVICES; TO AMEND SECTION 43-21-261, MISSISSIPPI CODE OF 1972, TO PROVIDE THAT INFORMATION FROM A CHILD'S DEPARTMENT OF HUMAN SERVICES CASE RECORD MAY BE DISCLOSED WITHOUT FURTHER COURT ORDER TO ANY PROPER FOSTER CARE REVIEW BOARD; TO AMEND SECTION 43-21-613, MISSISSIPPI CODE OF 1972, TO PROVIDE THAT THE ANNUAL REVIEW OF YOUTH COURT DISPOSITION ORDERS MAY BE MADE BY A COURT DESIGNATED AUTHORITY; TO AMEND SECTION 43-21-105, MISSISSIPPI CODE OF 1972, TO DELETE THE PROVISION THAT CHILD ABUSE SHALL INCLUDE PHYSICAL DISCIPLINE ONLY IF A PHYSICIAN HAS DETERMINED THAT PHYSICAL INJURY HAS OCCURRED, AND TO REDEFINE "OUT-OF-HOME SETTING" FOR PURPOSES OF CHILD ABUSE AND NEGLECT INVESTIGATION TO INCLUDE LICENSED PSYCHIATRIC/TREATMENT FACILITIES OR HEALTH CARE FACILITIES; TO AMEND SECTION 43-21-153, MISSISSIPPI CODE OF 1972, TO AUTHORIZE THE YOUTH COURT TO PUNISH FOR CONTEMPT OF COURT THOSE PERSONS WHO THREATEN HARM TO PUBLIC EMPLOYEES OR OFFICERS OF THE COURT WHILE PERFORMING THEIR OFFICIAL DUTIES; TO AMEND SECTION 43-21-353, MISSISSIPPI CODE OF 1972, TO PROVIDE THAT THOSE PERSONS HAVING THE DUTY TO INFORM THE DEPARTMENT OF HUMAN SERVICES OF SUSPECTED CASES OF CHILD ABUSE AND NEGLECT SHALL ALSO REPORT TO THE APPROPRIATE LAW ENFORCEMENT AGENCY; TO AMEND SECTION 43-21-451, MISSISSIPPI CODE OF 1972, TO PROVIDE THAT FORMAL YOUTH COURT PROCEEDINGS SHALL BE FILED WITHIN FIVE DAYS AFTER A DETENTION HEARING OR SHELTER HEARING; TO AMEND SECTION 45-31-12, MISSISSIPPI CODE OF 1972, TO PRESCRIBE A PROCEDURE TO BE FOLLOWED BY CERTAIN CHILD RESIDENTIAL FACILITIES IN OBTAINING CRIMINAL HISTORY RECORD INFORMATION CHECKS ON PROSPECTIVE EMPLOYEES, TO PROVIDE FOR FINGERPRINTING OF SUCH APPLICANTS BY LOCAL LAW ENFORCEMENT AND THE RESULT FORWARDED BY THE DEPARTMENT OF PUBLIC SAFETY TO THE FBI, TO PRESCRIBE THE INFORMATION TO BE RELEASED TO THE APPLYING ENTITY BY THE DEPARTMENT OF HUMAN SERVICES; AND FOR RELATED PURPOSES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
SECTION 1. Section 43-21-261, Mississippi Code of 1972, is amended as follows:
43-21-261. (1) Except as otherwise provided in this section, records involving children shall not be disclosed, other than to necessary staff of the youth court, except pursuant to an order of the youth court specifying the person or persons to whom the records may be disclosed, the extent of the records which may be disclosed and the purpose of the disclosure. Such court orders for disclosure shall be limited to those instances in which the youth court concludes, in its discretion, that disclosure is required for the best interests of the child, the public safety or the functioning of the youth court and then only to the following persons:
(a) The judge of another youth court or member of another youth court staff;
(b) The court of the parties in a child custody or adoption cause in another court;
(c) A judge of any other court or members of another court staff;
(d) Representatives of a public or private agency providing supervision or having custody of the child under order of the youth court;
(e) Any person engaged in a bona fide research purpose, provided that no information identifying the subject of the records shall be made available to the researcher unless it is absolutely essential to the research purpose and the judge gives prior written approval, and the child, through his or her representative, gives permission to release the information;
(f) The Mississippi Employment Security Commission, or its duly authorized representatives, for the purpose of a child's enrollment into the Job Corps Training Program as authorized by Title IV of the Comprehensive Employment Training Act of 1973 (29 U.S.C.A. Section 923 et seq.). However, no records, reports, investigations or information derived therefrom pertaining to child abuse or neglect shall be disclosed; and
(g) To any person pursuant to a finding by a judge of the youth court of compelling circumstances affecting the health or safety of a child and that such disclosure is in the best interests of the child.
Law enforcement agencies may disclose information to the public concerning the taking of a child into custody for the commission of a delinquent act without the necessity of an order from the youth court. The information released shall not identify the child or his address unless the information involves a child convicted as an adult.
(2) Any records involving children which are disclosed under an order of the youth court and the contents thereof shall be kept confidential by the person or agency to whom the record is disclosed except as provided in the order. Any further disclosure of any records involving children shall be made only under an order of the youth court as provided in this section.
(3) Upon request, the parent, guardian or custodian of the child who is the subject of a youth court cause or any attorney for such parent, guardian or custodian, shall have the right to inspect any record, report or investigation which is to be considered by the youth court at a hearing, except that the identity of the reporter shall not be released, nor the name of any other person where the person or agency making the information available finds that disclosure of the information would be likely to endanger the life or safety of such person.
(4) Upon request, the child who is the subject of a youth court cause shall have the right to have his counsel inspect and copy any record, report or investigation which is filed with the youth court.
(5)(a) The youth court prosecutor or prosecutors, the county attorney, the district attorney, the youth court defender or defenders, or any attorney representing a child shall have the right to inspect any law enforcement record involving children.
(b) The Department of Human Services shall disclose to a county prosecuting attorney or district attorney any and all records resulting from an investigation into suspected child abuse or neglect when the case has been referred by the Department of Human Services to the county prosecuting attorney or district attorney for criminal prosecution.
(c) Agency records made confidential under the provisions of this section may be disclosed to a court of competent jurisdiction.
(6) Information concerning an investigation into a report of child abuse or child neglect may be disclosed by the Department of Human Services without order of the youth court to any attorney, physician, dentist, intern, resident, nurse, psychologist, social worker, child care giver, minister, law enforcement officer, public or private school employee making that report pursuant to Section 43-21-353(1) if the reporter has a continuing professional relationship with the child and a need for such information in order to protect or treat the child.
(7) Information concerning an investigation into a report of child abuse or child neglect may be disclosed without further order of the youth court to any interagency child abuse task force established in any county or municipality by order of the youth court of that county or municipality.
(8) Names and addresses of juveniles twice adjudicated as delinquent for an act which would be a felony if committed by an adult or for the unlawful possession of a firearm shall not be held confidential and shall be made available to the public.
(9) Names and addresses of juveniles adjudicated as delinquent for murder, manslaughter, burglary, arson, armed robbery, aggravated assault, any sex offense as defined in Section 45-33-1, or for any violation of Section 41-29-139(a)(1), shall not be held confidential and shall be made available to the public.
(10) The judges of the circuit and county courts, and presentence investigators for the circuit courts, as provided in Section 47-7-9, shall have the right to inspect any youth court records of a person convicted of a crime for sentencing purposes only.
(11) The victim of an offense committed by a child who is the subject of a youth court cause shall have the right to be informed of the child's disposition by the youth court.
(12) The Classification Committee of the state Department of Corrections, as provided in Section 47-5-103, shall have the right to inspect any youth court records, excluding abuse and neglect records, of any offender in the custody of the department who as a child or minor was a juvenile offender or was the subject of a youth court cause of action, and the State Parole Board, as provided in Section 47-7-17, shall have the right to inspect such records when said offender becomes eligible for parole.
(13) The youth court shall notify the Department of Public Safety of the name, and any other identifying information such department may require, of any child who is adjudicated delinquent as a result of a violation of the Uniform Controlled Substances Law.
(14) The Administrative Office of Courts shall have the right to inspect any youth court records in order that the number of youthful offenders may be tracked with specificity through the youth court and adult justice system, and to utilize tracking forms for such purpose.
(15) Information from a child's Department of Human Services' case record may be disclosed without further order from the youth court to any Foster Care Review Board properly established in any county or municipality.
SECTION 2. Section 43-21-613, Mississippi Code of 1972, is amended as follows:
43-21-613. (1) If the youth court finds, after a hearing which complies with the sections governing adjudicatory hearings, that the terms of a delinquency or child in need of supervision disposition order, probation or parole have been violated, the youth court may, in its discretion, revoke the original disposition and make any disposition which it could have originally ordered. The hearing shall be initiated by the filing of a petition which complies with the sections governing petitions in this chapter and which includes a statement of the youth court's original disposition order, probation or parole, the alleged violation of that order, probation or parole, and the facts which show the violation of that order, probation or parole. Summons shall be served in the same manner as summons for an adjudicatory hearing.
(2) On motion of a child or a child's parent, guardian or custodian, the youth court may, in its discretion, conduct an informal hearing to review the disposition order. If the youth court finds a material change of circumstances relating to the disposition of the child, the youth court may modify the disposition order to any appropriate disposition of equal or greater precedence which the youth court could have originally ordered.
(3) Unless the youth court's jurisdiction has been terminated, all disposition orders for supervision, probation or placement of a child with an individual or an agency shall be reviewed by the youth court judge, * * * referee or court designated authority at least annually to determine if continued placement, probation or supervision is in the best interest of the child or the public. Notice of such review shall be given in accordance with the provisions of Section 43-21-505(5). In conducting the review, the judge, * * * referee or court designated authority may require a written report, information or statements from the child's youth court counselor, parent, guardian or custodian which includes, but is not limited to, an evaluation of the child's progress and recommendations for further supervision or treatment. After the review, the youth court may modify the disposition order to any appropriate disposition which the youth court could have originally ordered. The judge or referee shall, at the review hearing, determine the future status of the child, including, but not limited to, whether the child should be returned to the parent, should be continued in foster care for a specified period, should be placed for adoption or should, because of the child's special needs or circumstances, be continued in foster care on a permanent or long-term basis and, if the child is in an out-of-state placement, the dispositional hearing shall determine whether the out-of-state placement continues to be appropriate and in the best interest of the child. The provisions of this subsection shall also apply to review of cases involving a dependent child; provided, however, such reviews shall take place not less frequently than once each one hundred eighty (180) days. A dependent child shall be ordered by the youth court judge or referee to be returned to the custody and home of the child's parent, guardian or custodian unless the judge or referee, upon such review, makes a written finding that the return of the child to the home would be contrary to the child's best interests.
SECTION 3. Section 43-21-105, Mississippi Code of 1972, is amended as follows:
43-21-105. The following words and phrases, for purposes of this chapter, shall have the meanings ascribed herein unless the context clearly otherwise requires:
(a) "Youth court" means the Youth Court Division.
(b) "Judge" means the judge of the Youth Court Division.
(c) "Designee" means any person that the judge appoints to perform a duty which this chapter requires to be done by the judge or his designee. The judge may not appoint a person who is involved in law enforcement to be his designee.
(d) "Child" and "youth" are synonymous, and each means a person who has not reached his eighteenth birthday. A child who has not reached his eighteenth birthday and is on active duty for a branch of the armed services or is married is not considered a "child" or "youth" for the purposes of this chapter.
(e) "Parent" means the father or mother to whom the child has been born, or the father or mother by whom the child has been legally adopted.
(f) "Guardian" means a court-appointed guardian of the person of a child.
(g) "Custodian" means any person having the present care or custody of a child whether such person be a parent or otherwise.
(h) "Legal custodian" means a court-appointed custodian of the child.
(i) "Delinquent child" means a child who has reached his tenth birthday and who has committed a delinquent act or, while being required to attend an alternative school program provided under Section 37-13-92, willfully and habitually absents himself therefrom.
(j) "Delinquent act" is any act, which if committed by an adult, is designated as a crime under state or federal law, or municipal or county ordinance other than offenses punishable by life imprisonment or death. A delinquent act includes escape from lawful detention and violations of the Mississippi School Compulsory Attendance Law, violations of the Uniform Controlled Substances Law and violent behavior.
(k) "Child in need of supervision" means a child who has reached his seventh birthday and is in need of treatment or rehabilitation because the child:
(i) Is habitually disobedient of reasonable and lawful commands of his parent, guardian or custodian and is ungovernable; or
(ii) While being required to attend school, willfully and habitually violates the rules thereof or willfully and habitually absents himself therefrom; or
(iii) Runs away from home without good cause; or
(iv) Has committed a delinquent act or acts.
(l) "Neglected child" means a child:
(i) Whose parent, guardian or custodian or any person responsible for his care or support, neglects or refuses, when able so to do, to provide for him proper and necessary care or support, or education as required by law, or medical, surgical, or other care necessary for his well-being; provided, however, a parent who withholds medical treatment from any child who in good faith is under treatment by spiritual means alone through prayer in accordance with the tenets and practices of a recognized church or religious denomination by a duly accredited practitioner thereof shall not, for that reason alone, be considered to be neglectful under any provision of this chapter; or
(ii) Who is otherwise without proper care, custody, supervision or support; or
(iii) Who, for any reason, lacks the special care made necessary for him by reason of his mental condition, whether said mental condition be mentally retarded or mentally ill; or
(iv) Who, for any reason, lacks the care necessary for his health, morals or well-being.
(m) "Abused child" means a child whose parent, guardian or custodian or any person responsible for his care or support, whether legally obligated to do so or not, has caused or allowed to be caused upon said child sexual abuse, sexual exploitation, emotional abuse, mental injury, nonaccidental physical injury or other maltreatment. * * * "Sexual abuse" includes obscene or pornographic photographing, filming or depiction of children for commercial purposes, or the rape, molestation, incest, prostitution or other such forms of sexual exploitation of children under circumstances which indicate that the child's health or welfare is harmed or threatened.
(n) "A child in need of special care" means a child with any mental or physical illness that cannot be treated with the dispositional alternatives ordinarily available to the youth court.
(o) A "dependent child" means any child who is not a child in need of supervision, a delinquent child, an abused child or a neglected child, and which child has been voluntarily placed in the custody of the Department of Human Services by his parent, guardian or custodian.
(p) "Custody" means the physical possession of the child by any person.
(q) "Legal custody" means the legal status created by a court order which gives the legal custodian the responsibilities of physical possession of the child and the duty to provide him with food, shelter, education and reasonable medical care, all subject to residual rights and responsibilities of the parent or guardian of the person.
(r) "Detention" means the care of children in physically restrictive facilities.
(s) "Shelter" means care of children in physically nonrestrictive facilities.
(t) "Records involving children" means any of the following from which the child can be identified:
(i) All youth court records as defined in Section 43-21-251;
(ii) All social records as defined in Section 43-21-253;
(iii) All law enforcement records as defined in Section 43-21-255;
(iv) All agency records as defined in Section 43-21-257; and
(v) All other documents maintained by any representative of the state, county, municipality or other public agency insofar as they relate to the apprehension, custody, adjudication or disposition of a child who is the subject of a youth court cause.
(u) "Any person responsible for care or support" means the person who is providing for the child at a given time. This term shall include, but is not limited to, stepparents, foster parents, relatives, nonlicensed babysitters or other similar persons responsible for a child and staff of residential care facilities and group homes that are licensed by the Department of Human Services.
(v) The singular includes the plural, the plural the singular and the masculine the feminine when consistent with the intent of this chapter.
(w) "Out-of-home" setting shall include, but is not limited to, the temporary supervision or care of children by the staff of licensed day care centers, the staff of public, private and state schools, the staff of juvenile detention facilities, the staff of licensed psychiatric/treatment facilities or health care facilities, the staff of unlicensed residential care facilities and group homes and the staff of, or individuals representing, churches, civic or social organizations.
SECTION 4. Section 43-21-153, Mississippi Code of 1972, is amended as follows:
43-21-153. (1) The youth court shall have full power and authority to issue all writs and processes including injunctions necessary to the exercise of jurisdiction and to carrying out the purpose of this chapter.
(2) Any person who willfully violates, neglects or refuses to obey, perform or comply with any order of the youth court or intimidates, threatens, coerces, harms or attempts to harm any officer of the court or public official engaged in duties pursuant to the chapter, shall be in contempt of court and punished by a fine not to exceed Five Hundred Dollars ($500.00) or by imprisonment in jail not to exceed ninety (90) days, or by both such fine and imprisonment.
SECTION 5. Section 43-21-353, Mississippi Code of 1972, is amended as follows:
43-21-353. (1) Any attorney, physician, dentist, intern, resident, nurse, psychologist, social worker, child care giver, minister, law enforcement officer, public or private school employee or any other person having reasonable cause to suspect that a child is a neglected child or an abused child, shall cause an oral report to be made immediately by telephone or otherwise and followed as soon thereafter as possible by a report in writing to the Department of Human Services and to the law enforcement agency having jurisdiction, and immediately a referral shall be made by the Department of Human Services to the intake unit and where appropriate to the youth court prosecutor. Upon receiving a report that a child has been abused and that the abusive act would be a felony under state law, the Department of Human Services shall promptly notify the law enforcement agency in whose jurisdiction the abuse occurred and shall notify the district attorney's office within seventy-two (72) hours. The law enforcement agency shall investigate the reported abuse immediately and shall file a preliminary report with the district attorney's office within twenty-four (24) hours and shall file a final report with the district attorney's office within seventy-two (72) hours.
(2) Any report to the Department of Human Services shall contain the names and addresses of the child and his parents or other persons responsible for his care, if known, the child's age, the nature and extent of the child's injuries, including any evidence of previous injuries and any other information that might be helpful in establishing the cause of the injury and the identity of the perpetrator.
(3) The Department of Human Services shall maintain a statewide incoming wide-area telephone service or similar service for the purpose of receiving reports of suspected cases of child abuse; provided that any attorney, physician, dentist, intern, resident, nurse, psychologist, social worker, child care giver, minister, law enforcement officer or public or private school employee who is required to report under subsection (1) of this section shall report in the manner required in subsection (1).
(4) Reports of abuse and neglect made under this chapter and the identity of the reporter are confidential except when the court in which the investigation report is filed, in its discretion, determines the testimony of the person reporting to be material to a judicial proceeding.
(5) Reports made under subsection (1) of this section by the Department of Human Services to the law enforcement agency and to the district attorney's office shall include the following, if known to the department:
(a) The name and address of the child;
(b) The names and addresses of the parents;
(c) The name and address of the suspected perpetrator;
(d) The names and addresses of all witnesses, including the reporting party if a * * * witness to the abuse;
(e) A brief statement of the facts indicating that the child has been abused and any other information from the agency files or known to the social worker making the investigation, including medical records or other records, which may assist law enforcement or the district attorney in investigating and/or prosecuting the case; and
(f) What, if any, action is being taken by the Department of Human Services.
(6) In any investigation of a report made under this chapter of the abuse or neglect of a child as defined in Section 43-21-105(m), the Department of Human Services may request the appropriate law enforcement officer with jurisdiction to accompany the department in its investigation, and in such cases the law enforcement officer shall comply with such request.
(7) Anyone who willfully violates any provision of this section shall be, upon being found guilty, punished by a fine not to exceed Five Thousand Dollars ($5,000.00), or by imprisonment in jail not to exceed one (1) year, or both.
(8) If a report is made directly to the Department of Human Services that a child has been abused or neglected in an out-of-home setting, a referral shall be made immediately to the law enforcement agency in whose jurisdiction the abuse occurred and the department shall notify the district attorney's office within seventy-two (72) hours. The law enforcement agency shall investigate the reported abuse immediately and shall file a preliminary report with the district attorney's office within twenty-four (24) hours and shall file a final report with the district attorney's office within seventy-two (72) hours. If the out-of-home setting is a licensed facility, an additional referral shall be made by the Department of Human Services to the licensing agency.
SECTION 6. Section 43-21-451, Mississippi Code of 1972, is amended as follows:
43-21-451. All proceedings seeking an adjudication that a child is a delinquent child, a child in need of supervision, a neglected child or an abused child shall be initiated by the filing of a petition. Upon authorization of the youth court, the petition shall be drafted and filed by the youth court prosecutor unless the youth court has designated some other person to draft and file the petition. The petition shall be filed within five (5) days from the date of a detention hearing or shelter hearing continuing custody. Unless another period of time is authorized by the youth court or its designee, in noncustody cases the petition shall be filed within ten (10) days of the court order authorizing the filing of a petition. The court may, in its discretion, dismiss the petition for failure to comply with the time schedule contained herein.
SECTION 7. Section 45-13-12, Mississippi Code of 1972, is amended as follows:
45-13-12. (1) For the purposes of this section, the following terms shall have the meanings ascribed in this subsection:
(a) "Child" or "children" means any person under eighteen (18) years of age.
(b) "Sex offense" means any offense listed in Section 45-31-3(i).
(c) "Sex offense criminal history record information" has the meaning ascribed to this phrase in Section 45-31-3(j).
(2) Any institution, facility, clinic, organization or other entity that provides services to children in a residential setting where care, lodging, maintenance, and counseling or therapy for alcohol or controlled substance abuse or for any other emotional disorder or mental illness is provided for children, whether for compensation or not, that holds itself out to the public as providing such services, and that is entrusted with the care of the children to whom it provides services, because of the nature of the services and the setting in which the services are provided shall be subject to the provisions of this section.
(3) Each entity to which subsection (2) applies shall complete, through the appropriate governmental authority, sex offense criminal history record information, as authorized under Section 45-31-1 et seq., and felony conviction record information checks for each employee, prospective employee, volunteer or prospective volunteer of the entity who provides or would provide services to children for the entity. In order to determine the applicant's suitability for employment, the entity shall ensure that the applicant * * * be fingerprinted by local law enforcement, and the results forwarded to the Department of Public Safety. If no disqualifying record is identified at the state level, the fingerprints shall be forwarded by the Department of Public Safety to the FBI for a national criminal history record check.
(4) Upon receipt of the information from the FBI as to the national criminal history record check, the Department of Human Services shall submit to the applicable entity the following:
(a) The applicant meets the criteria for employment/licensing under the above state statute; or
(b) The applicant's fingerprints submitted to the FBI were unclassifiable. As a result, only a name-check was conducted, and no criminal record was located. If you desire a further check by fingerprints, please attach a new set of fingerprints to the unclassifiable set and resubmit them to this office for transmittal to the FBI Identification Division; or
(c) The applicant does not meet the criteria for employment/licensing under the above state statute.
No further information shall be released unless specifically authorized by the FBI.
The Department of Human Services and its employees are hereby exempt from any civil liability as a result of any action taken as to the compilation and/or release of information pursuant to this section and any applicable section of the code.
(5) No entity to which subsection (2) applies shall employ any person, or allow any person to serve as a volunteer, who would provide services to children for the entity if the person:
(a) * * * Has a felony conviction for a crime against persons;
(b) Has a felony conviction under the Uniform Controlled Substances Act;
(c) Has a conviction for a crime of child abuse or neglect;
(d) Has a conviction for any sex offense as defined in Section 45-31-3; or
(e) Has a conviction for any other offense committed in another jurisdiction or any federal offense which would constitute one (1) of the offenses listed in this subsection without regard to its designation in that jurisdiction or under federal law.
* * *
(6) All fees incurred in compliance with this section shall be borne by the entity to which subsection (2) applies.
(7) Any entity that violates the provisions of this section by failure to complete sex offense criminal history record information and felony conviction record information checks, as required under subsection (3) of this section, shall be subject to a penalty of up to Ten Thousand Dollars ($10,000.00) for each such violation and may be enjoined from further operation until it complies with this section in actions maintained by the Attorney General.
SECTION 8. This act shall take effect and be in force from and after July 1, 1997.