Friday, July 18, 2014

SB1001 - 432S - I Ver

 

Reference Title: child protective services; parental rights.

AN ACT
AMENDING SECTIONS 8-546.02, 8-803, 13-3620.01, 41-1376 AND 41-1380, ARIZONA REVISED STATUTES; AMENDING SECTION 41-1377, ARIZONA REVISED STATUTES, AS AMENDED BY LAWS 1997, CHAPTER 256, SECTION 18; REPEALING SECTION 41-1377, ARIZONA REVISED STATUTES, AS AMENDED BY LAWS 1997, CHAPTER 222, SECTION 71; AMENDING SECTION 41-1378, ARIZONA REVISED STATUTES, AS AMENDED BY LAWS 1997, CHAPTER 256, SECTION 19; REPEALING SECTION 41-1378, ARIZONA REVISED STATUTES, AS AMENDED BY LAWS 1997, CHAPTER 222, SECTION 72; MAKING AN APPROPRIATION; RELATING TO CHILD PROTECTIVE SERVICES.

Be it enacted by the Legislature of the State of Arizona:

Section 1. Section 8-546.02, Arizona Revised Statutes, is amended to read:

8-546.02 . Limitation of authority; duty to inform

A. Upon initial contact with a parent, guardian or custodian under investigation pursuant to this article, a protective services worker shall inform the family that the family is under investigation by the department and shall make clear that the protective services worker has no legal authority to compel the family to cooperate with the investigation or to receive protective services offered pursuant to the investigation. The PROTECTIVE SERVICES worker shall inform the family of his THE WORKER'S authority to petition the juvenile court for a determination that a child is dependent. THE PROTECTIVE SERVICES WORKER SHALL INFORM THE PARENT, GUARDIAN OR CUSTODIAN OF THAT PERSON'S RIGHT TO PARTICIPATE IN THE MEDIATION PROGRAM IN THE ATTORNEY GENERAL'S OFFICE, TO FILE A COMPLAINT WITH THE OMBUDSMAN-CITIZENS AIDE PURSUANT TO SECTION 41-1376 AND TO APPEAL DETERMINATIONS MADE BY CHILD PROTECTIVE SERVICES. THE WORKER SHALL PROVIDE THE TELEPHONE NUMBERS OF THESE STATE AGENCIES. THE PROTECTIVE SERVICES WORKER SHALL SUPPLY THE INFORMATION PRESCRIBED IN THIS SUBSECTION AND INFORMATION OUTLINING PARENTAL RIGHTS UNDER THE LAWS OF THIS STATE IN WRITING AND SHALL MAKE ALL REASONABLE EFFORTS TO RECEIVE WRITTEN ACKNOWLEDGMENT FROM THE PARENT, GUARDIAN OR CUSTODIAN.

B. The protective services worker shall also inform the person about whom the report was made about that person's right to respond to the allegations either verbally or in writing, including any documentation, and TO have this information considered in determining if the child is in need of protective services. The protective services worker shall tell the person that anything the person says or writes can be used in a court proceeding. If the person makes a verbal response, the protective services worker shall include the response in the written report of the investigation. If the person makes a written response, including any documentation, the protective services worker shall include this response and the documentation in the case file. Information provided in response to the allegations shall be considered during the investigation by the protective services worker. The protective services worker shall maintain the response and documentation in the case file and provide this information to the court before a hearing or trial relating to the dependency petition.

C. If the family declines to cooperate with the investigation or to accept or to participate in the offered services, or if the worker otherwise believes that the child should be adjudicated dependent, the worker may file with the juvenile court a petition requesting that the child in need of protective services be adjudicated dependent.

D. Refusal to cooperate in the investigation or to participate in the offered services does not constitute grounds for temporary custody of a child except if there is a clear necessity for temporary custody as provided in section 8-223.

Sec. 2. Section 8-803, Arizona Revised Statutes, is amended effective from and after June 30, 1998 to read:

8-803 . Limitation of authority; duty to inform

A. Upon initial contact with a parent, guardian or custodian under investigation pursuant to this article, a protective services worker shall inform the family that the family is under investigation by the department and shall make clear that the protective services worker has no legal authority to compel the family to cooperate with the investigation or to receive protective services offered pursuant to the investigation. The PROTECTIVE SERVICES worker shall inform the family of his THE WORKER'S authority to petition the juvenile court for a determination that a child is dependent. THE PROTECTIVE SERVICES WORKER SHALL INFORM THE PARENT, GUARDIAN OR CUSTODIAN OF THAT PERSON'S RIGHT TO PARTICIPATE IN THE MEDIATION PROGRAM IN THE ATTORNEY GENERAL'S OFFICE, TO FILE A COMPLAINT WITH THE OMBUDSMAN-CITIZENS AIDE PURSUANT TO SECTION 41-1376 AND TO APPEAL DETERMINATIONS MADE BY CHILD PROTECTIVE SERVICES. THE WORKER SHALL PROVIDE THE TELEPHONE NUMBERS OF THESE STATE AGENCIES. THE PROTECTIVE SERVICES WORKER SHALL SUPPLY THE INFORMATION PRESCRIBED IN THIS SUBSECTION AND INFORMATION OUTLINING PARENTAL RIGHTS UNDER THE LAWS OF THIS STATE IN WRITING AND SHALL MAKE ALL REASONABLE EFFORTS TO RECEIVE WRITTEN ACKNOWLEDGMENT FROM THE PARENT, GUARDIAN OR CUSTODIAN.

B. The protective services worker shall also inform the person about whom the report was made about that person's right to respond to the allegations either verbally or in writing, including any documentation, and TO have this information considered in determining if the child is in need of protective services. The protective services worker shall tell the person that anything the person says or writes can be used in a court proceeding. If the person makes a verbal response, the protective services worker shall include the response in the written report of the investigation. If the person makes a written response, including any documentation, the protective services worker shall include this response and the documentation in the case file. Information provided in response to the allegations shall be considered during the investigation by the protective services worker. The protective services worker shall maintain the response and documentation in the case file and provide this information to the court before a hearing or trial relating to the dependency petition.

C. If the family declines to cooperate with the investigation or to accept or to participate in the offered services, or if the worker otherwise believes that the child should be adjudicated dependent, the worker may file with the juvenile court a petition requesting that the child in need of protective services be adjudicated dependent.

D. Refusal to cooperate in the investigation or to participate in the offered services does not constitute grounds for temporary custody of a child except if there is a clear necessity for temporary custody as provided in section 8-223.

Sec. 3. Section 13-3620.01, Arizona Revised Statutes, is amended to read:

13-3620.01 . False reports; violation; classification

A. A person acting with malice who knowingly and intentionally makes a false report of child abuse or neglect or a person acting with malice who coerces another person to make a false report of child abuse or neglect , is guilty of a class 3 1 misdemeanor.

B. A person who knowingly and intentionally makes a false report that a person has violated the provisions of subsection A of this section , is guilty of a class 3 1 misdemeanor.

Sec. 4. Section 41-1376, Arizona Revised Statutes, is amended to read:

41-1376 . Powers and duties

A. The ombudsman-citizens aide shall:

1. Investigate the administrative acts of agencies pursuant to section 41-1377, subsections A and B except as provided in section 41-1377, subsections C, D and E. The ombudsman-citizens aide shall investigate the administrative acts of an agency without regard to the finality of the administrative act.

2. Annually before January 1 prepare a written report to the governor, the legislature and the public that contains a summary of the ombudsman-citizens aide's activities during the previous fiscal year. The ombudsman-citizens aide shall semiannually present this report before the legislative council. This report shall include:

(a) The ombudsman-citizens aide's mission statement.

(b) The number of matters that were within each of the categories specified in section 41-1379, subsection B.

(c) Legislative issues affecting the ombudsman-citizens aide.

(d) Selected case studies that illustrate the ombudsman-citizens aide's work and reasons for complaints.

(e) Ombudsman-citizens aide's contact statistics.

(f) Ombudsman-citizens aide's staff.

3. Before conducting the first investigation adopt rules that ensure that confidential information that is gathered will not be disclosed.

4. Appoint a deputy ombudsman and prescribe the duties of employees or, subject to appropriation, contract for the services of independent contractors necessary to administer the duties of the office of ombudsman-citizens aide. All staff serves at the pleasure of the ombudsman-citizens aide, and they are exempt from chapter 4, articles 5 and 6 of this title. All staff shall be subject to the conflict of interest provisions of title 38, chapter 3, article 8.

5. Before conducting the first investigation, adopt rules that establish procedures for receiving and processing complaints, including guidelines to ensure each complainant has exhausted all reasonable alternatives within the agency, conducting investigations, incorporating agency responses into recommendations and reporting findings.

6. Notify the chief executive or administrative officer of the agency in writing of the intention to investigate unless notification would unduly hinder the investigation or make the investigation ineffectual.

7. APPOINT AN ASSISTANT TO HELP THE OMBUDSMAN-CITIZENS AIDE INVESTIGATE COMPLAINTS RELATING TO CHILD PROTECTIVE SERVICES IN THE DEPARTMENT OF ECONOMIC SECURITY. THE ASSISTANT SHALL HAVE EXPERTISE IN CHILD PROTECTIVE SERVICES PROCEDURES AND LAWS. NOTWITHSTANDING ANY LAW TO THE CONTRARY, THE OMBUDSMAN-CITIZENS AIDE AND THE ASSISTANT HAVE ACCESS TO CHILD PROTECTIVE SERVICES RECORDS AND TO ANY AUTOMATED CASE MANAGEMENT SYSTEM USED BY CHILD PROTECTIVE SERVICES IN THE DEPARTMENT OF ECONOMIC SECURITY.

B. After the conclusion of an investigation and notice to the head of the agency pursuant to section 41-1379, the ombudsman-citizens aide may present the ombudsman-citizens aide's opinion and recommendations to the governor, the legislature, the office of the appropriate prosecutor or the public, or any combination of these persons. The ombudsman-citizens aide shall include in the opinion the reply of the agency, including those issues that were resolved as a result of the ombudsman-citizens aide's preliminary opinion or recommendation.

Sec. 5. Section 41-1377, Arizona Revised Statutes, as amended by Laws 1997, chapter 256, section 18, is amended to read:

41-1377 . Scope of investigations

A. On receiving a complaint the ombudsman-citizens aide may investigate administrative acts of agencies that the ombudsman-citizens aide has reason to believe may be:

1. Contrary to law.

2. Unreasonable, unfair, oppressive, arbitrary, capricious, an abuse of discretion or unnecessarily discriminatory, even though they may be in accordance with law.

3. Based on a mistake of fact.

4. Based on improper or irrelevant grounds.

5. Unsupported by an adequate statement of reasons.

6. Performed in an inefficient or discourteous manner.

7. Otherwise erroneous.

B. On receiving a complaint the ombudsman-citizens aide may investigate to find an appropriate remedy.

C. On receiving a complaint the ombudsman-citizens aide may refuse to investigate an administrative act of an agency that otherwise qualifies for investigation under subsection A of this section if:

1. There is presently available an adequate remedy for the grievance stated in the complaint.

2. The complaint relates to a matter that is outside the duties of the ombudsman-citizens aide.

3. The complaint relates to an administrative act that the complainant has had knowledge of for an unreasonable time period before filing the complaint.

4. The complainant does not have a sufficient personal interest in the subject matter of the complaint.

5. The complaint is trivial or made in bad faith.

6. The resources of the office of ombudsman-citizens aide are insufficient to adequately investigate the complaint.

D. The ombudsman-citizens aide shall refuse to investigate complaints filed by a person in the custody of the state department of corrections.

E. On receiving a complaint that involves confidential information as defined in section 42-108, the ombudsman-citizens aide shall either:

1. Work with the department of revenue problem resolution officer or an employee of the department of revenue who is authorized to access confidential taxpayer information.

2. Obtain a power of attorney from the taxpayer to access confidential information specific to the complainant in a form acceptable to the department of revenue.

F. On receiving a complaint that involves confidential information relating to section 36-2903, subsection J, section 36-2917, section 36-2932, subsection F or section 36-2972, the ombudsman-citizens aide shall either:

1. Work with the Arizona health care cost containment system administration employee who is authorized to access confidential information.

2. Obtain a power of attorney from the complainant to access confidential information specific to the complainant in a form acceptable to the Arizona health care cost containment system administration.

G. On receiving a complaint involving personally identifiable information contained in the records of the department of economic security concerning child protective services cases pursuant to section 8-546.07, the ombudsman-citizens aide shall either:

1. Work with the department of economic security employee who is authorized to access confidential information.

2. Obtain a power of attorney from the complainant to access confidential information specific to the complainant in a form acceptable to the department of economic security.

H. G. On receiving a complaint that involves confidential information relating to sections 36-507, 36-509 and 36-2220, the ombudsman-citizens aide shall either:

1. Work with the department of health services employee who is authorized to access confidential information.

2. Obtain a power of attorney from the complainant to access confidential information specific to the complainant in a form acceptable to the department of health services.

Sec. 6. Repeal

Section 41-1377 , Arizona Revised Statutes, as amended by Laws 1997, chapter 222, section 71, is repealed.

Sec. 7. Section 41-1378, Arizona Revised Statutes, as amended by Laws 1997, chapter 256, section 19, is amended to read:

41-1378 . Complaint; investigation; investigative authority; violation; classification

A. All complaints shall be addressed to the ombudsman-citizens aide. If an agency receives correspondence between a complainant and the ombudsman-citizens aide, it shall hold that correspondence in trust and shall promptly forward the correspondence, unopened, to the ombudsman-citizens aide.

B. Within thirty days of receipt of the complaint, the ombudsman-citizens aide shall notify the complainant of the decision to investigate or not to investigate the complaint. If the ombudsman-citizens aide decides not to investigate and if requested by the complainant, the OMBUDSMAN-CITIZENS aide shall provide the reasons for not investigating in writing.

C. The ombudsman-citizens aide shall not charge any fees for investigations or complaints.

D. In an investigation, the ombudsman-citizens aide may:

1. Make inquiries and obtain information considered necessary subject to the restrictions in section 41-1377.

2. Enter without notice to inspect agency premises with agency staff on the premises.

3. Hold hearings.

4. Notwithstanding any other law, have access to all state agency records, including confidential records, except:

(a) Sealed court records without a subpoena.

(b) Active criminal investigation records.

(c) Records that could lead to the identity of confidential police informants.

(d) Attorney work product and communications that are protected under the attorney-client privilege.

(e) Confidential information as defined in section 42-108 except as provided in section 42-108, subsection D, paragraph 13.

(f) Information protected by section 6103(d), 6103(p)(8) or 7213 of the internal revenue code.

(g) Confidential information relating to section 36-2903, subsection J, section 36-2917, section 36-2932, subsection F or section 36-2972.

(h) Confidential information as prescribed in section 8-546.07.

(i) (h) Confidential information relating to sections 36-507, 36-509 and 36-2220.

E. It is contrary to the public policy of this state for any state agency or any individual acting for a state agency to take any adverse action against an individual in retaliation because the individual cooperated with or provided information to the ombudsman-citizens aide or the ombudsman-citizens aide's staff.

F. If requested by the complainants or witnesses, the ombudsman-citizens aide shall maintain confidentiality with respect to those matters necessary to protect the identities of the complainants or witnesses. The ombudsman-citizens aide shall ensure that confidential records are not disclosed by either the ombudsman-citizens aide or staff to the ombudsman-citizens aide. The ombudsman-citizens aide shall maintain the confidentiality of an agency record. With respect to requests made pursuant to title 39, chapter 1, article 2 or other requests for information, the ombudsman-citizens aide shall maintain all records in the same manner that the ombudsman-citizens aide receives from the custodial agency as those on the custodial agency.

G. The ombudsman-citizens aide or any staff member or other employee of the ombudsman-citizens aide who knowingly divulges or makes known in any manner not permitted by law any particulars of any record, document or information for which the law restricts disclosure is guilty of a class 5 felony.

Sec. 8. Repeal

Section 41-1378 , Arizona Revised Statutes, as amended by Laws 1997, chapter 222, section 72, is repealed.

Sec. 9. Section 41-1380, Arizona Revised Statutes, is amended to read:

41-1380 . Ombudsman-citizens aide protections

A. A civil action may not be brought against the ombudsman-citizens aide or the staff of the ombudsman-citizens aide for any action or omission in performing the duties under this article except for gross negligence or intentional wrongful acts or omissions except as provided in title 38, chapter 3, article 8.

B. A proceeding or decision of the ombudsman-citizens aide may be reviewed in superior court only to determine if it is contrary to this article.

C. The ombudsman-citizens aide and the staff of the ombudsman-citizens aide shall not be required to testify in court regarding matters that come to their attention in the exercise of their duties except as may be necessary to enforce this article.

D. RECORDS AND FILES MAINTAINED BY THE OMBUDSMAN-CITIZENS AIDE ARE NOT PUBLIC RECORDS AND ARE EXEMPT FROM TITLE 39, CHAPTER 1. THE INFORMATION CONTAINED IN THESE RECORDS AND FILES THAT WERE PREPARED PURSUANT TO AN INVESTIGATION CONDUCTED UNDER THIS ARTICLE ARE NOT SUBJECT TO DISCLOSURE EXCEPT TO THE ATTORNEY GENERAL OR ANY COUNTY ATTORNEY IN CONNECTION WITH AN INVESTIGATION THAT HAS BEEN REFERRED TO THE ATTORNEY GENERAL OR A COUNTY ATTORNEY PURSUANT TO SECTION 41-1379. FOR THE PURPOSES OF THIS SUBSECTION, "RECORDS AND FILES" INCLUDES ALL INFORMATION THE DEPARTMENT GATHERS DURING THE COURSE OF A CHILD PROTECTIVE SERVICES INVESTIGATION CONDUCTED UNDER THIS ARTICLE FROM THE TIME A FILE IS OPENED AND UNTIL IT IS CLOSED. RECORDS AND FILES DOES NOT INCLUDE INFORMATION THAT IS CONTAINED IN CHILD WELFARE AGENCY LICENSING RECORDS.

Sec. 10. Joint legislative oversight committee on child protective services; membership; duties

A. The joint legislative oversight committee on child protective services is established consisting of the following members:

1. Five members of the house of representatives appointed by the speaker of the house of representatives, not more than three of whom represent the same political party. The speaker of the house of representatives shall designate one of these members to Chaucer the committee.

2. Five members of the senate appointed by the president of the senate, not more than three of whom represent the same political party. The president of the senate shall designate one of these members to cochair the committee.

B. The committee shall:

1. Conduct periodic performance reviews of the division of child protective services in the department of economic security.

2. Review and recommend reform measures for the child protective services system.

3. Work in conjunction with the auditor general to ensure that the auditor general's recommendations are implemented.

4. Submit semiannual reports of its findings and recommendations to the president of the senate, the speaker of the house of representatives, the joint legislative budget committee, the secretary of state and the director of the department of library, archives and public records.

Sec. 11. Delayed repeal

Section 10 of this act is repealed on December 31, 1998.

Sec. 12. Appropriation; purpose; exemption from lapsing

A. The sum of $7,518,300 is appropriated from the state general fund for fiscal year 1997-1998 as follows:

1. $1,143,600 to the division of child protective services in the department of economic security for an additional twenty-seven full-time child protective services worker employees and related expenses.

2. $643,200 to the attorney general for an additional fifteen full-time employees and related expenses to address dependency petitions.

3. $46,300 to the office of the ombudsman-citizens aide for an assistant as prescribed in section 41-1376, subsection A, paragraph 7, Arizona Revised Statutes, as amended by this act.

4. $3,553,600 to the division of child protective services in the department of economic security for the expansion of the current family builders pilot program in Maricopa county and Pima county and as established pursuant to Laws 1997, chapter 223, section 2.

5. $2,008,600 to the division of child protective services in the department of economic security for support services for increased response rates to telephone calls made to child protective services in Maricopa county and Pima county.

6. $53,000 to the division of child protective services in the department of economic security for two full-time employees to coordinate intake and referral of telephone calls related to the family builders pilot program.

7. $70,000 to the division of child protective services in the department of economic security for the audiotaping of initial telephone reports made by the public to the division.

B. The appropriation made in subsection A of this section is exempt from the provisions of section 35-190, Arizona Revised Statutes, relating to lapsing of appropriations.

Sec. 13. Emergency

This act is an emergency measure that is necessary to preserve the public peace, health or safety and is operative immediately as provided by law.

 

http://www.azleg.state.az.us/legtext/43leg/2s/bills/sb1001p.htm