MISSISSIPPI LEGISLATURE

1999 Regular Session

To: Judiciary

By: Senator(s) Bean

AN ACT TO AMEND SECTION 43-21-121, MISSISSIPPI CODE OF 1972, TO REVISE THE FEE TO BE PAID TO A GUARDIAN AD LITEM; TO AMEND SECTION 43-21-155, MISSISSIPPI CODE OF 1972, TO CLARIFY THE INSTANCES IN WHICH THE YOUTH COURT MAY TRANSFER A CASE TO THE YOUTH COURT OF ANOTHER COUNTY; TO AMEND SECTION 43-21-257, MISSISSIPPI CODE OF 1972, TO PROVIDE FOR THE RELEASE OF NON-IDENTIFYING INFORMATION CONCERNING ALLEGATIONS OF CHILD ABUSE IN CERTAIN SITUATIONS; TO AMEND SECTION 43-20-17, MISSISSIPPI CODE OF 1972, IN CONFORMITY; TO AMEND SECTION 43-21-605, MISSISSIPPI CODE OF 1972, TO EXPAND THE DISPOSITION ALTERNATIVES AVAILABLE IN DELINQUENCY CASES, AND TO REMOVE THE ORDER OF PREFERENCE; TO AMEND SECTION 45-31-12, MISSISSIPPI CODE OF 1972, TO MAKE A TECHNICAL CORRECTION; AND FOR RELATED PURPOSES.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:

SECTION 1. Section 43-21-121, Mississippi Code of 1972, is amended as follows:

43-21-121. (1) The youth court shall appoint a guardian ad litem for the child:

(a) When a child has no parent, guardian or custodian;

(b) When the youth court cannot acquire personal jurisdiction over a parent, a guardian or a custodian;

(c) When the parent is a minor or a person of unsound mind;

(d) When the parent is indifferent to the interest of the child or if the interests of the child and the parent, considered in the context of the cause, appear to conflict;

(e) In every case involving an abused or neglected child which results in a judicial proceeding; or

(f) In any other instance where the youth court finds appointment of a guardian ad litem to be in the best interest of the child.

(2) The guardian ad litem shall be appointed by the court when custody is ordered or at the first judicial hearing regarding the case, whichever occurs first.

(3) In addition to all other duties required by law, a guardian ad litem shall have the duty to protect the interest of a child for whom he has been appointed guardian ad litem. The guardian ad litem shall investigate, make recommendations to the court or enter reports as necessary to hold paramount the child's best interest. The guardian ad litem is not an adversary party and the court shall insure that guardians ad litem perform their duties properly and in the best interest of their wards. The guardian ad litem shall be a competent person who has no adverse interest to the minor. The court shall insure that the guardian ad litem is adequately instructed on the proper performance of his duties.

(4) The court may appoint either a suitable attorney or a suitable layman as guardian ad litem. In cases where the court appoints a layman as guardian ad litem, the court shall also appoint an attorney to represent the child. From and after January 1, 1999, in order to be eligible for an appointment as a guardian ad litem, such attorney or lay person must have received child protection and juvenile justice training provided by or approved by the Mississippi Judicial College within the year immediately preceding such appointment. The Mississippi Judicial College shall determine the amount of child protection and juvenile justice training which shall be satisfactory to fulfill the requirements of this section. The Administrative Office of Courts shall maintain a roll of all attorneys and laymen eligible to be appointed as a guardian ad litem under this section and shall enforce the provisions of this subsection.

(5) Upon appointment of a guardian ad litem, the youth court shall continue any pending proceedings for a reasonable time to allow the guardian ad litem to familiarize himself with the matter, consult with counsel and prepare his participation in the cause.

(6) Upon order of the youth court, the guardian ad litem shall be paid a reasonable fee as determined by the youth court judge or referee out of the county general fund as provided under Section 43-21-123. To be eligible for such fee, the guardian ad litem shall submit an accounting of the time spent in performance of his duties to the court. * * *

(7) The court, in its sound discretion, may appoint a volunteer trained layperson to assist children subject to the provisions of this section in addition to the appointment of a guardian ad litem.

SECTION 2. Section 43-21-155, Mississippi Code of 1972, is amended as follows:

43-21-155. (1) If a child is alleged to be a delinquent child or a child in need of supervision, the proceedings shall be commenced in any county where any of the alleged acts are said to have occurred. After adjudication, the youth court may, in the best interest of the child, transfer the case at any stage of the proceeding for disposition to the county where the child resides or to a county where a youth court has previously acquired jurisdiction.

(2) If a child is alleged to be an abused or neglected child, the proceedings shall be commenced in the county where the child's custodian resides or in the county where the child is present when the report is made to the intake unit.

SECTION 3. Section 43-21-257, Mississippi Code of 1972, is amended as follows:

43-21-257. (1) Unless otherwise provided in this section, any record involving children, including valid and invalid complaints, and the contents thereof maintained by the Department of Human Services, or any other state agency, shall be kept confidential and shall not be disclosed except as provided in Section 43-21-261.

(2) The Division of Youth Services shall maintain a state central registry containing the number and disposition of all cases together with such other useful information regarding such cases as may be requested and is obtainable from the records of the youth court. The Division of Youth Services shall annually publish a statistical record of the number and disposition of all cases, but the names or identity of any children shall not be disclosed in the reports or records. The Division of Youth Services shall adopt such rules as may be necessary to carry out this subsection. The central registry files and the contents thereof shall be confidential and shall not be open to public inspection. Any person who shall disclose or encourage the disclosure of any record involving children from the central registry shall be subject to the penalty in Section 43-21-267. The youth court shall furnish, upon forms provided by the Division of Youth Services, the necessary information, and these completed forms shall be forwarded to the Division of Youth Services.

(3) The Department of Human Services shall maintain a state central registry on neglect and abuse cases containing (a) the name, address and age of each child, (b) the nature of the harm reported, (c) the name and address of the person responsible for the care of the child, and (d) the name and address of the substantiated perpetrator of the harm reported. The Department of Human Services shall adopt such rules and administrative procedures, especially those procedures to afford due process to individuals who have been named as substantiated perpetrators prior to the release of their name from the registry, as may be necessary to carry out this subsection. The central registry shall be confidential and shall not be open to public inspection. Any person who shall disclose or encourage the disclosure of any record involving children from the central registry without following the rules and administrative procedures of the department shall be subject to the penalty in Section 43-21-267. The Department of Human Services and its employees are hereby exempt from any civil liability as a result of any action taken pursuant to the compilation and/or release of information on the registry pursuant to this section and any other applicable section of the code. The Department of Human Services shall obtain an order of disclosure pursuant to Section 43-21-261 from the youth court of appropriate jurisdiction authorizing the release of information from the registry.

(4) The Mississippi State Department of Health may release the findings of investigations into allegations of abuse within licensed day care centers made under the provisions of Section 43-21-353(8) to any parent of a child who is enrolled in the day care center at the time of the alleged abuse or at the time the request for information is made. The findings of any such investigation may also be released to parents who are considering placing children in the day care center. No information concerning such investigations may contain the names or identifying information of individual children.

The Department of Health shall not be held civilly liable for the release of information on any findings, recommendations or actions taken pursuant to investigations of abuse that have been conducted pursuant to Section 43-21-353(8).

SECTION 4. Section 43-20-17, Mississippi Code of 1972, is amended as follows:

43-20-17. Information received by the licensing agency shall not be disclosed publicly in such manner as to identify individuals or facilities, except in a proceeding involving the question of licensure or pursuant to Sections 43-21-353(8) and 43-21-257 concerning the release of findings from investigations into allegations of abuse within the licensed facility. No information concerning such investigations may contain the names or identifying information of individual children.

SECTION 5. Section 43-21-605, Mississippi Code of 1972, is amended as follows:

43-21-605. (1) In delinquency cases, the disposition order may include any of the following alternatives * * *:

(a) Release the child without further action;

(b) Place the child in the custody of the parents, a relative or other persons subject to any conditions and limitations, including restitution, as the youth court may prescribe;

(c) Place the child on probation subject to any reasonable and appropriate conditions and limitations, including restitution, as the youth court may prescribe;

(d) Order terms of treatment calculated to assist the child and the child's parents or guardian which are within the ability of the parent or guardian to perform;

(e) Order terms of supervision which may include participation in a constructive program of service or education or civil fines not in excess of Five Hundred Dollars ($500.00), or restitution not in excess of actual damages caused by the child to be paid out of his own assets or by performance of services acceptable to the victims and approved by the youth court and reasonably capable of performance within one (1) year;

(f) Suspend the child's driver's license by taking and keeping it in custody of the court for not more than one (1) year;

(g) Give legal custody of the child to any of the following:

(i) The Department of Human Services for appropriate placement; or

(ii) Any public or private organization, preferably community-based, able to assume the education, care and maintenance of the child, which has been found suitable by the court; or

(iii) The Department of Human Services for placement in a wilderness training program or a state-supported training school, except that no child under the age of ten (10) years shall be committed to a state training school. The training school may retain custody of the child until the child's twentieth birthday but for no longer. The superintendent of a state training school may parole a child at any time he may deem it in the best interest and welfare of such child. Twenty (20) days prior to such parole, the training school shall notify the committing court of the pending release. The youth court may then arrange subsequent placement after a reconvened disposition hearing except that the youth court may not recommit the child to the training school or any other secure facility without an adjudication of a new offense or probation or parole violation. Prior to assigning the custody of any child to any private institution or agency, the youth court through its designee shall first inspect the physical facilities to determine that they provide a reasonable standard of health and safety for the child. The youth court shall not place a child in the custody of a state training school for truancy, unless such child has been adjudicated to have committed an act of delinquency in addition to truancy;

(h) Recommend to the child and the child's parents or guardian that the child attend and participate in the Youth Challenge Program under the Mississippi National Guard, as created in Section 43-27-203, subject to the selection of the child for the program by the National Guard; however, the child must volunteer to participate in the program. The youth court may not order any child to apply or attend the program;

(i) (i) Adjudicate the juvenile to the Statewide Juvenile Work Program if the program is established in the court's jurisdiction. The juvenile and his parents or guardians must sign a waiver of liability in order to participate in the work program. The judge will coordinate with the youth services counselors as to placing participants in the work program;

(ii) The severity of the crime, whether or not the juvenile is a repeat offender or is a felony offender will be taken into consideration by the judge when adjudicating a juvenile to the work program. The juveniles adjudicated to the work program will be supervised by police officers or reserve officers. The term of service will be from twenty-four (24) to one hundred twenty (120) hours of community service. A juvenile will work the hours to which he was adjudicated on the weekends during school and week days during the summer. Parents are responsible for a juvenile reporting for work. Noncompliance with an order to perform community service will result in a heavier adjudication. A juvenile may be adjudicated to the community service program only two (2) times;

(iii) The judge shall assess an additional fine on the juvenile which will be used to pay the costs of implementation of the program and to pay for supervision by police officers and reserve officers. The amount of the fine will be based on the number of hours to which the juvenile has been adjudicated; * * *

(j) Order the child to participate in a youth court work program as provided in Section 43-21-627 ; or

(k) Order the child into a juvenile detention center operated by the county or into a juvenile detention center operated by any county with which the county in which the court is located has entered into a contract for the purpose of housing delinquents. The time period for such detention cannot exceed ninety (90) days. The youth court judge may order that the number of days specified in the detention order be served either throughout the week or on weekends only.

(2) In addition to any of the disposition alternatives authorized under subsection (1) of this section, the disposition order in any case in which the child is adjudicated delinquent for an offense under Section 63-11-30 shall include an order denying the driver's license and driving privileges of the child as required under subsection (8) of Section 63-11-30.

(3) Fines levied under this chapter shall be paid into the general fund of the county but, in those counties wherein the youth court is a branch of the municipal government, it shall be paid into the municipal treasury.

(4) Any institution or agency to which a child has been committed shall give to the youth court any information concerning the child as the youth court may at any time require.

(5) The youth court shall not place a child in another school district who has been expelled from a school district for the commission of a violent act. For the purpose of this subsection, "violent act" means any action which results in death or physical harm to another or an attempt to cause death or physical harm to another.

SECTION 6. Section 45-31-12, Mississippi Code of 1972, is amended as follows:

45-31-12. (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 Public Safety 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 Public Safety 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 7. This act shall take effect and be in force from and after July 1, 1999.