HB48 By Representative McCutcheon RFD Public Safety and Homeland Security Rd 1 03-MAR-15

SYNOPSIS: This bill would establish the Office of the Ombudsman For Child Welfare. The bill would provide for the State Advisory Committee to the ombudsman that would appoint the ombudsman. The bill would provide for the duties and powers of the ombudsman. The bill would prohibit discrimination or retaliation against persons filing complaints with the ombudsman and would provide criminal penalties for violations. The bill would also require protocols and require the presiding circuit judge to establish a protocol committee to recommend protocols for the investigation and prosecution of alleged cases of child abuse.

Amendment 621 of the Constitution of Alabama of 1901, now appearing as Section 111.05 of the Official Recompilation of the Constitution of Alabama of 1901, as amended, prohibits a general law whose purpose or effect would be to require a new or increased expenditure of local funds from becoming effective with regard to a local governmental entity without enactment by a 2/3 vote unless: it comes within one of a number of specified exceptions; it is approved by the affected entity; or the Legislature appropriates funds, or provides a local source of revenue, to the entity for the purpose.

The purpose or effect of this bill would be to require a new or increased expenditure of local funds within the meaning of the amendment. However, the bill does not require approval of a local governmental entity or enactment by a 2/3 vote to become effective because it comes within one of the specified exceptions contained in the amendment.

A BILL TO BE ENTITLED AN ACT

To establish the Office of the Ombudsman For Child Welfare; to provide for the Statewide Advisory Committee to the Ombudsman; to provide for the appointment of the ombudsman and the powers and duties of the ombudsman; to prohibit discrimination or retaliation for complaints and to provide criminal penalties for violations; to provide for a protocol committee in each county for the investigation and prosecution of alleged cases of child abuse; and in connection therewith would have as its purpose or effect the requirement of a new or increased expenditure of local funds within the meaning of Amendment 621 of the Constitution of Alabama of 1901, now appearing as Section 111.05 of the Official Recompilation of the Constitution of Alabama of 1901, as amended.

BE IT ENACTED BY THE LEGISLATURE OF ALABAMA:

Section 1. For the purposes of this act, the following words have the following meanings:

(1) DEPARTMENT. The Department of Human Resources.

(2) OMBUDSMAN. The director or agent of the Director for the Office of the Ombudsman for Child Welfare charged with carrying out the duties and responsibilities in this act.

Section 2. (a) There is created the Office of the Ombudsman for Child Welfare, referred to in this act as the ombudsman. The ombudsman shall be located within the Department of Children's Affairs for administrative and budgetary purposes.

(b) The ombudsman shall be a licensed attorney of this state and shall have knowledge of the child welfare system and the juvenile justice system and shall be qualified to perform the duties of the office as set forth in this act.

(c) The ombudsman shall act independently of any state official, department, or agency in the performance of his or her duties.

(d) The ombudsman or his or her designee shall be a member of the State Child Death Review Team.

Section 3. The purpose of the ombudsman is to conduct an independent and neutral investigation of any complaint that an action or failure to act has adversely affected the health, safety, or welfare of a child or the reunification of families and seek a resolution of the complaint. The ombudsman shall perform the following duties:

(1) Receive complaints concerning any action, inaction, or decision of a department or any contractor or agent thereof or any provider that receives public monies that may adversely affect the health, safety, or welfare of children or reunification of families.

(2) Investigate any complaint that he or she deems necessary and seek resolution of the complaint by appropriate action, which may include, but is not limited to, referring the complaint to the appropriate department, contractor, agent, provider, or law enforcement agency and making recommendations as needed for any action to resolve the complaint.

(3) Periodically review the facilities and procedures of any and all public or private institutions and residences where a juvenile has been placed by the juvenile court or the department.

(4) Review findings and recommendations by the State Advisory Committee to the ombudsman and the county protocol committees.

(5) Prepare a written annual report to the Governor, the Legislature, and the public on the summary of the actions taken by the ombudsman during the previous year.

(6) Establish policies and procedures for the Office of the Ombudsman for Child Welfare to accomplish the purposes of this act.

Section 4. The ombudsman shall have all of the following powers:

(1) To communicate privately, in writing or orally, with any child, parent, guardian of a child, or legal custodian.

(2) To have access to any department records relating to the care or custody of a child, and to have access, including the right to inspect, copy, and subpoena records held by clerks of the various courts, law enforcement agencies, service providers, including medical and mental health, and institutions, public or private, with which a particular child has been either voluntarily or otherwise placed for care or which provided treatment to the child in this state. All records obtained by the ombudsman shall be confidential, except disclosures may be permitted if the ombudsman deems it necessary to enable the ombudsman to perform his or her duties and to support any recommendations resulting from an investigation. Anyone wishing to obtain records held by the ombudsman shall petition the original source where the records are kept.

(3) To enter and inspect any and all public institutions, facilities, and residences where a child has been placed by a court or the department and where the child is currently residing.

(4) To interview any employee of a department or any employee of an agency and contractor thereof.

(5) To apply to the Governor to bring legal action to require a department or contractor or agent thereof to take or refrain from taking any action required or prohibited by law involving the protection of children.

(6) To apply for and accept grants, gifts, and bequests of funds from other states, federal and interstate agencies, independent authorities, private firms, individuals, and foundations for the purpose of carrying out the lawful responsibilities of the ombudsman.

(7) When less formal means of resolution do not achieve appropriate results, to pursue remedies provided by this act on behalf of children for the purpose of effectively carrying out this act.

(8) To recommend changes that would promote the child's best interest by amendment or addition to a department's administrative code or policies and to the Legislature.

(9) To provide education relating to the protection of children and the reunification of families.

Section 5. (a) No person shall discriminate or retaliate in any manner against any child, parent, guardian, or legal custodian of a child, employee of a facility, agency, institution, or other type of provider, or any other person because of the making of a complaint or providing of information in good faith to the ombudsman or willfully interfere with the ombudsman in the performance of his or her official duties.

(b) Any person violating this section shall be guilty of a Class C misdemeanor.

Section 6. (a) There is established the State Advisory Committee to the Ombudsman. The advisory committee shall consist of the following members: One attorney appointed by the Alabama State Bar Association; one juvenile court judge appointed by the Chief Justice of the Supreme Court; one pediatrician with expertise in child and adolescent treatment or child abuse and neglect appointed by the Medical Association of the State of Alabama; one psychologist with expertise in child and adolescent treatment appointed by the Alabama Psychological Association; one licensed independent clinical social worker appointed by the Alabama State Board of Social Work Examiners; one psychiatrist with expertise in child and adolescent treatment appointed by the Medical Association of the State of Alabama; and three members, one of whom is a parent or a person who as a child was formerly involved in the state child welfare system appointed by the child advocate.

(b) No member of the advisory committee shall be a person who is a volunteer for, a board member of, or is employed by or contractor of, any entity or agency subject to the review of, or evaluation or monitoring by the ombudsman, or who lobbies on behalf of any entity or agency subject to the review of, or evaluation or monitoring by, the ombudsman.

(c) Each member of the advisory committee shall serve a term of five years and may be reappointed at the conclusion of the term. All initial appointments to the advisory committee shall be made no later than October 1, 2015. Any vacancy in the membership of the committee shall be filled by the appointing authority for the unexpired portion of the term. The committee shall elect from among the members a chair and a vice chair.

(d) It shall be the duty of the advisory committee to provide advice and support to the ombudsman related to the duties described in this act. The committee's duties include, but are not limited to, the following:

(1) To establish a regular meeting schedule and form subcommittees as may be appropriate.

(2) To meet with the ombudsman and staff to review and assess patterns of treatment and services, policy implications, and necessary systemic improvements.

(3) To provide an annual report on its activities and recommendations in conjunction with the ombudsman, and submit the report to the Governor, the President of the Senate, and the Speaker of the House of Representatives, on or by December 31, 2016, and annually thereafter.

(e) The advisory committee shall maintain confidentiality of any personal information obtained by the committee.

Section 7. (a) Each county shall establish a protocol for the investigation and prosecution of alleged cases of child abuse.

(b) The chief judge of the circuit in which the county is located shall establish a protocol committee as provided in subsection (c) and shall appoint an interim chair who shall preside over the first meeting. The chief judge shall appoint persons to fill any vacancies on the protocol committee. The protocol committee shall thereafter elect a chair from its membership. The protocol committee shall be charged with developing local protocols for the investigation and prosecution of alleged cases of child abuse.

(c) Each of the following individuals, agencies, and entities shall designate a representative to serve on the protocol committee in each county:

(1) The sheriff.

(2) The county Department of Human Resources.

(3) The district attorney.

(4) The juvenile court judge.

(5) The county board of education.

(6) The county mental health organization.

(7) The chief of police of the largest municipality in the county.

(8) The county public health department.

(9) The coroner or county medical examiner.

(10) Any other person the chief judge deems necessary to achieve the duties as set forth in this section.

(d) If any designated agency fails to carry out its duties relating to participation on the protocol committee, the chief circuit court judge of the circuit may issue an order requiring the participation of the agency. Failure to comply with the order shall be cause for punishment as contempt of court.

(e) The protocol committee in a county shall elect a chair who shall be responsible for ensuring that written protocol procedures are followed by all agencies. The person appointed may be independent of agencies listed in subsection (c). The protocol committee may appoint additional members as necessary and proper to accomplish the purposes of the protocol committee.

(f) The protocol committee shall adopt a written protocol which shall be filed with the department, a copy of which shall be furnished to each agency in the county handling the cases of abused children. The protocol shall be a written document outlining in detail the procedures to be used in investigation and prosecuting cases arising from alleged child abuse and the methods to be used in coordinating treatment programs for the perpetrator, the family, and the child. The protocol shall also outline procedures to be used when child abuse occurs in a household where there is violence between past or present spouses, persons who are parents of the same child, parents and children, stepparents and stepchildren, foster parents and foster children, or other persons living or formerly living in the same household. The protocol adopted shall not be inconsistent with the policies and procedures of the department.

(g) The purpose of the protocol shall be to ensure coordination and cooperation between all agencies involved in a child abuse case so as to increase the efficiency of all agencies handling the cases, to minimize the stress created for the allegedly abused child by the legal and investigatory process, and to ensure that more effective treatment is provided for the perpetrator, the family, and the child, including counseling.

(h) Upon adoption in writing of the protocol, the protocol committee shall continue in existence and shall meet at least semiannually for the purpose of evaluating the effectiveness of the protocol and appropriately modifying and updating the same.

(i) Each protocol committee shall adopt or amend its written protocol to specify the circumstances under which law enforcement officers are required or are not required to accompany investigators from the county department of human resources when the investigators investigate reports of child abuse. In determining when law enforcement officers accompany investigators, the protocol committee shall consider the need to protect the alleged victim and the need to preserve the confidentiality of the report. Each protocol committee shall establish joint work efforts between the law enforcement and investigative agencies in child abuse investigations. The adoption or amendment of the protocol shall also describe measures which may be taken within the county to prevent child abuse and shall be filed with and furnished to the same entities with or to which an original protocol is required to be filed or furnished. The protocol shall be further amended to specify procedures to be adopted by the protocol committee to ensure that written protocol procedures are followed.

(j) The protocol committee shall issue a report no later than the first day of July each year. The report shall evaluate the extent to which investigations of child abuse during the 12 months prior to the report have complied with the protocols of the protocol committee, recommend measures to improve compliance, and describe which measures taken within the county to prevent child abuse have been successful. The report shall be transmitted to the county governing authority, the Office of the Ombudsman for Child Welfare, and the chief circuit judge.

(k) The protocol committee shall adopt a written sexual abuse and sexual exploitation protocol which shall be filed with the department and the Office of the Ombudsman for Child Welfare, a copy of which shall be furnished to each agency in the county handling the cases of sexually abused or exploited children. The sexual abuse and sexual exploitation protocol shall be a written document outlining in detail the procedures to be used in investigating and prosecuting cases arising from alleged sexual abuse and sexual exploitation and the procedures to be followed concerning the obtainment of and payment for sexual assault examinations. Each protocol committee shall adopt or amend its written sexual abuse and sexual exploitation protocol. The sexual abuse and sexual exploitation protocol adopted shall be consistent with the policies and procedures of the department. A sexual abuse and sexual exploitation protocol is not intended to, and does not and may not be relied upon to create any rights, substantive or procedural, enforceable at law by any party in any matter civil or criminal. The protocol shall not limit or otherwise restrict a prosecuting attorney in the exercise of his or her discretion nor in the exercise of any otherwise lawful legal actions.

Section 8. Although this bill would have as its purpose or effect the requirement of a new or increased expenditure of local funds, the bill is excluded from further requirements and application under Amendment 621, now appearing as Section 111.05 of the Official Recompilation of the Constitution of Alabama of 1901, as amended, because the bill defines a new crime or amends the definition of an existing crime.

Section 9. All laws or parts of laws which conflict with this act are repealed.

Section 10. This act shall become effective on the first day of the third month following its passage and approval by the Governor, or its otherwise becoming law.

Human Resources Department

Ombudsman For Child Welfare

Child Abuse

Crimes and Offenses

Criminal Law and Procedure

Children