SB 149-1_ Filed 03/12/2010, 14:18
CONFERENCE COMMITTEE REPORT
DIGEST FOR ESB 149
Citations Affected: IC 10-13-3; IC 29-3; IC 31-19; IC 31-27; IC 31-30-1; IC 31-33;
IC 31-34-21-7.7; IC 31-35-5-4.
Synopsis: Department of child services. Conference committee report for ESB 149. Removes
the department of child services (DCS) from the entities to which a clerk of the court must
forward a petition for adoption. Removes language regarding a child protection team being
required to provide diagnostic and prognostic services for DCS or a juvenile court. Specifies how
a child's death or near fatality may be determined to have been the result of abuse, abandonment,
or neglect for purposes of certain records. Removes certain duties of the office of the secretary
of family and social services regarding child welfare. Adds additional information required in
certain petitions. Requires DCS to be notified of certain guardianship petitions and to be allowed
to participate in a hearing on certain guardianship petitions. Permits a court to add conditions for
a parent to terminate or modify a guardianship. Requires a court to notify DCS if certain petitions
to terminate or modify a guardianship are filed. Removes the requirement that certain
guardianship petitions be sent to the prosecuting attorney. Allows a juvenile court to request a
probate court that retains jurisdiction over a guardianship to conduct additional proceedings.
Provides that DCS may petition a court if a parent, guardian, or custodian refuses to allow a child
to be interviewed. Prohibits the state police department from charging a fee for: (1) fingerprinting
expenses related to criminal history checks conducted by the department; and (2) certain limited
criminal history background checks conducted by the department. Requires juvenile courts or
the department to pay the Federal Bureau of Investigation for costs of certain fingerprinting.
Provides that if a juvenile court: (1) issues an order establishing or modifying a guardianship;
(2) issues an order modifying child custody, child support, or visitation; (3) issues an order
creating or modifying the establishment of paternity; or (4) closes certain child in need of
services cases; the court in which the original action was filed, or an appropriate court, shall
assume primary jurisdiction and shall conduct additional proceedings if necessary. Adds child
caring institutions, group homes, secure private facilities and child placing agencies to the list
of entities that may submit a report of suspected child abuse or neglect and then later receive a
report from DCS regarding the investigation of the report. Reduces the amount of time within
which a prosecuting attorney or DCS attorney must inform parties of the intent to have child
testimony outside the courtroom. Makes a technical correction. Makes other changes. (This
conference committee report: (1) removes language regarding procedural rights and duties
for certain determinations made by the department regarding rates for reimbursement of
certain entities; (2) removes language that requires the department to adopt rules
regarding the determination of rates for reimbursement of certain entities; (3) removes
language regarding the placement of children by juvenile courts outside of Indiana; (4)
provides that a court may grant a motion to interview a child after finding that the parent,
guardian, or custodian has been informed of the hearing and DCS made reasonable efforts
to obtain parental consent to interview the child; and (5) makes technical corrections.)
Effective: Upon passage; July 1, 2010.
CONFERENCE COMMITTEE REPORT
MADAM PRESIDENT:
Your Conference Committee appointed to confer with a like committee from the House
upon Engrossed House Amendments to Engrossed Senate Bill No. 149 respectfully reports
that said two committees have conferred and agreed as follows to wit:
that the Senate recede from its dissent from all House amendments and that
the Senate now concur in all House amendments to the bill and that the bill
be further amended as follows:
Delete everything after the enacting clause and insert the following:
SOURCE: IC 10-13-3-27.5; (10)CC014908.1.1. -->
SECTION 1. IC 10-13-3-27.5, AS AMENDED BY P.L.138-2007,
SECTION 1, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE
JULY 1, 2010]: Sec. 27.5. (a) If:
(1) exigent circumstances require the emergency placement of a
child; and
(2) the department will be unable to obtain criminal history
information from the Interstate Identification Index before the
emergency placement is scheduled to occur;
upon request of the department of child services established by
IC 31-25-1-1, a caseworker, or a juvenile probation officer, the
department may conduct a national name based criminal history record
check of each individual who is at least eighteen (18) years of age and
who is currently residing in the location designated as the out-of-home
placement at the time the child will reside in the location. The
department shall promptly transmit a copy of the report it receives from
the Interstate Identification Index to the agency or person that
submitted a request under this section.
(b) Not later than seventy-two (72) hours after the department of
child services, the caseworker, or the juvenile probation officer
receives the results of the national name based criminal history record
check, the department of child services, the caseworker, or the juvenile
probation officer shall provide the department with a complete set of
fingerprints for each individual who is at least eighteen (18) years of
age and who is currently residing in the location designated as the
out-of-home placement at the time the child will be placed in the
location. The department shall:
(1) use fingerprint identification to positively identify each
individual whose fingerprints are provided to the department
under this subsection; or
(2) submit the fingerprints to the Federal Bureau of Investigation
not later than fifteen (15) calendar days after the date on which
the national name based criminal history record check was
conducted.
The child shall be removed from the location designated as the
out-of-home placement if an individual who is at least eighteen (18)
years of age and who is currently residing in the location designated as
the out-of-home placement at the time the child will reside in the
location fails to provide a complete set of fingerprints to the department
of child services, the caseworker, or the juvenile probation officer.
(c) The department and the person or agency that provided
fingerprints shall comply with all requirements of 42 U.S.C. 5119a and
any other applicable federal law or regulation regarding:
(1) notification to the subject of the check; and
(2) the use of the results obtained based on the check of the
person's fingerprints.
(d) If an out-of-home placement is denied as the result of a national
name based criminal history record check, an individual who is the
subject of the name based criminal history record check may contest
the denial by submitting to the department of child services, the
caseworker, or the juvenile probation officer:
(1) a complete set of the individual's fingerprints; and
(2) written authorization permitting the department of child
services, the caseworker, or the juvenile probation officer to
forward the fingerprints to the department for submission to the
Federal Bureau of Investigation;
not later than five (5) days after the out-of-home placement is denied.
(e) The
(1) department and
(2) Federal Bureau of Investigation
may charge a reasonable fee for processing a national name based
criminal history record check. The department shall adopt rules under
IC 4-22-2 to establish a reasonable fee for processing a national name
based criminal history record check and for collecting fees owed under
this subsection.
(f) The:
(1) department of child services, for an out-of-home placement
arranged by a caseworker or the department of child services; or
(2) juvenile court, for an out-of-home placement ordered by the
juvenile court;
shall pay the fee described in subsection (e), arrange for fingerprinting,
and pay the Federal Bureau of Investigation for the costs of
fingerprinting, if any.
(g) The department may not charge a fee for responding to a
request for a fingerprint based national criminal history
background check made by the department of child services under
this section.
SOURCE: IC 10-13-3-39; (10)CC014908.1.2. -->
SECTION 2. IC 10-13-3-39, AS AMENDED BY P.L.3-2008,
SECTION 85, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE
JULY 1, 2010]: Sec. 39. (a) The department is designated as the
authorized agency to receive requests for, process, and disseminate the
results of national criminal history background checks that comply with
this section and 42 U.S.C. 5119a.
(b) A qualified entity may contact the department to request a
national criminal history background check on any of the following
persons:
(1) A person who seeks to be or is employed with the qualified
entity. A request under this subdivision must be made not later
than three (3) months after the person is initially employed by the
qualified entity.
(2) A person who seeks to volunteer or is a volunteer with the
qualified entity. A request under this subdivision must be made
not later than three (3) months after the person initially volunteers
with the qualified entity.
(3) A person for whom a national criminal history background
check is required under any law relating to the licensing of a
home, center, or other facility for purposes of day care or
residential care of children.
(4) A person for whom a national criminal history background
check is required for purposes of placement of a child in a foster
family home, a prospective adoptive home, or the home of a
relative or other caretaker, or for purposes of a report concerning
an adoption as required by IC 31-19-8.
(c) A qualified entity must submit a request under subsection (b) in
the form required by the department and provide a set of the person's
fingerprints and any required fees with the request. The department
may not charge a fee for responding to a request for a national
criminal history background check made by the department of
child services if the request is made as a part of a background
investigation of an applicant for purposes of placement of a child
in a foster family home, a prospective adoptive home, or the home
of a relative or other caretaker.
(d) If a qualified entity makes a request in conformity with
subsection (b), the department shall submit the set of fingerprints
provided with the request to the Federal Bureau of Investigation for a
national criminal history background check. The department shall
respond to the request in conformity with:
(1) the requirements of 42 U.S.C. 5119a; and
(2) the regulations prescribed by the Attorney General of the
United States under 42 U.S.C. 5119a.
(e) Subsection (f):
(1) applies to a qualified entity that:
(A) is not a school corporation or a special education
cooperative; or
(B) is a school corporation or a special education cooperative
and seeks a national criminal history background check for a
volunteer; and
(2) does not apply to a qualified entity that is a:
(A) home health agency licensed under IC 16-27-1; or
(B) personal services agency licensed under IC 16-27-4.
(f) After receiving the results of a national criminal history
background check from the Federal Bureau of Investigation, the
department shall make a determination whether the person who is the
subject of a request has been convicted of:
(1) an offense described in IC 20-26-5-11;
(2) in the case of a foster family home, an offense described in
IC 31-27-4-13(a);
(3) in the case of a prospective adoptive home, an offense
described in IC 31-19-11-1(c);
(4) any other felony; or
(5) any misdemeanor;
and convey the determination to the requesting qualified entity.
(g) This subsection applies to a qualified entity that:
(1) is a school corporation or a special education cooperative; and
(2) seeks a national criminal history background check to
determine whether to employ or continue the employment of a
certificated employee or a noncertificated employee of a school
corporation or an equivalent position with a special education
cooperative.
After receiving the results of a national criminal history background
check from the Federal Bureau of Investigation, the department may
exchange identification records concerning convictions for offenses
described in IC 20-26-5-11 with the school corporation or special
education cooperative solely for purposes of making an employment
determination. The exchange may be made only for the official use of
the officials with authority to make the employment determination. The
exchange is subject to the restrictions on dissemination imposed under
P.L.92-544, (86 Stat. 1115) (1972).
(h) This subsection applies to a qualified entity (as defined in
IC 10-13-3-16) that is a public agency under IC 5-14-1.5-2(a)(1). After
receiving the results of a national criminal history background check
from the Federal Bureau of Investigation, the department shall provide
a copy to the public agency. Except as permitted by federal law, the
public agency may not share the information contained in the national
criminal history background check with a private agency.
(i) This subsection applies to a qualified entity that is a:
(1) home health agency licensed under IC 16-27-1; or
(2) personal services agency licensed under IC 16-27-4.
After receiving the results of a national criminal history background
check from the Federal Bureau of Investigation, the department shall
make a determination whether the applicant has been convicted of an
offense described in IC 16-27-2-5(a) and convey the determination to
the requesting qualified entity.
SOURCE: IC 29-3-5-1; (10)CC014908.1.3. -->
SECTION 3. IC 29-3-5-1, AS AMENDED BY SEA 65-2010,
SECTION 10, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE
JULY 1, 2010]: Sec. 1. (a) Any person may file a petition for the
appointment of a person to serve as guardian for an incapacitated
person or minor under this chapter or to have a protective order issued
under IC 29-3-4. The petition must state the following:
(1) The name, age, residence, and post office address of the
alleged incapacitated person or minor for whom the guardian is
sought to be appointed or the protective order issued.
(2) The nature of the incapacity.
(3) The approximate value and description of the property of the
incapacitated person or minor, including any compensation,
pension, insurance, or allowance to which the incapacitated
person or minor may be entitled.
(4) If a limited guardianship is sought, the particular limitations
requested.
(5) Whether a protective order has been issued or a guardian has
been appointed or is acting for the incapacitated person or minor
in any state.
(6) The residence and post office address of the proposed
guardian or person to carry out the protective order and the
relationship to the alleged incapacitated person of:
(A) the proposed guardian; or
(B the person proposed to carry out the protective order.
(7) The names and addresses, as far as known or as can
reasonably be ascertained, of the persons most closely related by
blood or marriage to the person for whom the guardian is sought
to be appointed or the protective order is issued.
(8) The name and address of the person or institution having the
care and custody of the person for whom the guardian is sought
to be appointed or the protective order is issued.
(9) The names and addresses of any other incapacitated persons
or minors for whom the proposed guardian or person to carry out
the protective order is acting if the proposed guardian or person
is an individual.
(10) The reasons the appointment of a guardian or issuance of a
protective order is sought and the interest of the petitioner in the
appointment or issuance.
(11) The name and business address of the attorney who is to
represent the guardian or person to carry out the protective order.
(12) A statement whether a child in need of services petition
or a program of informal adjustment has been filed regarding
the minor for whom a guardianship is sought, and, if so,
whether the case is open at the time the guardianship petition
is filed.
(b) Notice of a petition under this section for the appointment of a
guardian or the issuance of a protective order and the hearing on the
petition shall be given under IC 29-3-6.
(c) After the filing of a petition, the court shall set a date for hearing
on the issues raised by the petition. Unless an alleged incapacitated
person is already represented by counsel, the court may appoint an
attorney to represent the incapacitated person.
(d) A person alleged to be an incapacitated person must be present
at the hearing on the issues raised by the petition and any response to
the petition unless the court determines by evidence that:
(1) it is impossible or impractical for the alleged incapacitated
person to be present due to the alleged incapacitated person's
disappearance, absence from the state, or similar circumstance;
(2) it is not in the alleged incapacitated person's best interest to be
present because of a threat to the health or safety of the alleged
incapacitated person as determined by the court;
(3) the incapacitated person has knowingly and voluntarily
consented to the appointment of a guardian or the issuance of a
protective order and at the time of such consent the incapacitated
person was not incapacitated as a result of a mental condition that
would prevent that person from knowingly and voluntarily
consenting; or
(4) the incapacitated person has knowingly and voluntarily
waived notice of the hearing and at the time of such waiver the
incapacitated person was not incapacitated as a result of a mental
condition that would prevent that person from making a knowing
and voluntary waiver of notice.
(e) A person alleged to be an incapacitated person may present
evidence and cross-examine witnesses at the hearing. The issues raised
by the petition and any response to the petition shall be determined by
a jury if a jury is requested no later than seventy-two (72) hours prior
to the original date and time set for the hearing on the petition.
However, in no event may a request for a jury trial be made after thirty
(30) days have passed following the service of notice of a petition.
(f) Any person may apply for permission to participate in the
proceeding, and the court may grant the request with or without hearing
upon determining that the best interest of the alleged incapacitated
person or minor will be served by permitting the applicant's
participation. The court may attach appropriate conditions to the
permission to participate.
(g) The department of child services shall be notified and be
allowed to participate in a hearing under this section if there:
(1) has been a child in need of services case filed; or
(2) is a program of informal adjustment pending;
involving a minor.
SOURCE: IC 29-3-8-9; (10)CC014908.1.4. -->
SECTION 4. IC 29-3-8-9 IS ADDED TO THE INDIANA CODE
AS A
NEW SECTION TO READ AS FOLLOWS [EFFECTIVE JULY
1, 2010]:
Sec. 9. (a) A probate or juvenile court may include in its
order creating a guardianship of a minor the following
requirements:
(1) That the minor must reside with the guardian until the
guardianship is terminated or modified.
(2) Any terms and conditions that a parent must meet in order
to seek modification or termination of the guardianship.
(b) Except as provided in IC 29-3-12, if an order creating a
guardianship contains conditions described in subsection (a)(2), the
court may modify or terminate the guardianship only if the parent:
(1) complies with the terms and conditions; and
(2) proves the parent's current fitness to assume all parental
obligations by a preponderance of the evidence.
(c) If:
(1) a petition is filed for modification, resignation, or removal
of the guardian or termination of the guardianship before the
terms and conditions described in subsection (a)(2) are
proven; and
(2) the child:
(A) was the subject of a petition alleging the child to be a
child in need of services; or
(B) is in a program of informal adjustment;
the petition shall be referred to the department of child services to
determine placement of the child in accordance with the best
interests of the child.
(d) A court shall notify the department of child services if:
(1) a guardianship is created concerning a child who is subject
to a:
(A) petition alleging the child to be a child in need of
services; or
(B) program of informal adjustment; and
(2) at least one (1) of the following petitions is filed:
(A) A petition to modify or terminate the guardianship.
(B) Any petitions regarding the:
(i) death;
(ii) resignation; or
(iii) removal;
of the guardian and any related hearings.
(e) At a hearing regarding a petition filed under this section and
if the child was the subject of a petition alleging the child to be a
child in need of services or is in a program of informal adjustment,
the court shall:
(1) consider the position of the department of child services;
and
(2) if requested by the department of child services, allow the
department of child services to present evidence regarding:
(A) whether the guardianship should be modified or
terminated;
(B) the fitness of the parent to provide for the care and
supervision of the minor at the time of the hearing;
(C) the appropriate care and placement of the child; and
(D) the best interests of the child.
SOURCE: IC 31-19-2-12; (10)CC014908.1.5. -->
SECTION 5. IC 31-19-2-12, AS AMENDED BY P.L.131-2009,
SECTION 14, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE
JULY 1, 2010]: Sec. 12. As soon as a petition for adoption is found to
be in proper form, the clerk of the court shall forward one (1) copy of
the petition for adoption to
(1) a licensed child placing agency as described in IC 31-19-7-1,
with preference to be given to the agency, if any, sponsoring the
adoption, as shown by the petition for adoption. and
(2) the department.
SOURCE: IC 31-19-9-14; (10)CC014908.1.6. -->
SECTION 6. IC 31-19-9-14 IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JULY 1, 2010]: Sec. 14.
Except as
provided in section 17(b) of this chapter, a putative father whose
consent to adoption of a child is implied under this chapter or
IC 31-19-5-18 is not entitled to establish paternity under IC 31-14.
SOURCE: IC 31-27-2-4; (10)CC014908.1.7. -->
SECTION 7. IC 31-27-2-4, AS AMENDED BY P.L.131-2009,
SECTION 35, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE
JULY 1, 2010]: Sec. 4. (a) The department shall adopt rules under
IC 4-22-2, including emergency rules under IC 4-22-2-37.1, concerning
the licensing and inspection of child caring institutions, foster family
homes, group homes, and child placing agencies after consultation with
the following:
(1) State department of health.
(2) Fire prevention and building safety commission.
(b) The rules adopted under subsection (a) shall be applied by the
department and state fire marshal in the licensing and inspection of
applicants for a license and licensees under this article.
(c) The rules adopted under IC 4-22-2 must establish minimum
standards for the care and treatment of children in a secure private
facility.
(d) The rules described in subsection (c) must include standards
governing the following:
(1) Admission criteria.
(2) General physical and environmental conditions.
(3) Services and programs to be provided to confined children.
(4) Procedures for ongoing monitoring and discharge planning.
(5) Procedures for the care and control of confined persons that
are necessary to ensure the health, safety, and treatment of
confined children.
(e) The department shall license a facility as a private secure
private facility if the facility:
(1) meets the minimum standards required under subsection (c);
(2) provides a continuum of care and services; and
(3) is:
(A) licensed under IC 12-25, IC 16-21-2, or IC 31-27-3; or
(B) a unit of a facility licensed under IC 12-25 or IC 16-21-2;
regardless of the facility's duration of or previous licensure as a child
caring institution.
(f) A waiver of the rules may not be granted for treatment and
reporting requirements.
SOURCE: IC 31-27-4-5; (10)CC014908.1.8. -->
SECTION 8. IC 31-27-4-5, AS AMENDED BY P.L.138-2007,
SECTION 51, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE
JULY 1, 2010]: Sec. 5. (a) An applicant must apply for a foster family
home license on forms provided by the department.
(b) An applicant must submit the required information as part of the
application.
(c) An applicant must submit with the application a statement
attesting the following:
(1)
That Whether the applicant has
not been convicted of:
(A) a felony; or
(B) a misdemeanor relating to the health and safety of
children.
(2)
That Whether the applicant has
not been charged with:
(A) a felony; or
(B) a misdemeanor relating to the health and safety of
children;
during the pendency of the application.
(d) An applicant shall submit the necessary information, forms, or
consents for the department to conduct a criminal history check for
each individual who is an applicant.
(e) The department or, at the discretion of the department, an
applicant, shall conduct a criminal history check of:
(1) the applicant's employees and volunteers who have or will
have direct contact, on a regular and continuing basis, with
children who are or will be under the direct supervision of the
applicant; and
(2) all household members who are at least fourteen (14) years of
age.
(f) If the applicant conducts criminal history checks under
subsection (e), the applicant shall maintain records of the information
received concerning each individual subject of a criminal history
check.
(g) If the department conducts a criminal history check on behalf of
an applicant under subsection (e), the department shall:
(1) make a determination whether the subject of a national
fingerprint based criminal history check has a record of a
conviction for:
(A) a felony; or
(B) a misdemeanor relating to the health and safety of a child;
(2) notify the applicant of the determination under subdivision (1)
without identifying a specific offense or other identifying
information concerning a conviction contained in the national
criminal history record information;
(3) submit to the applicant a copy of any state limited criminal
history report that the department receives on behalf of any person
described in subsection (e); and
(4) maintain a record of every report and all information the
department receives concerning a person described in subsection
(e).
(h) Except as provided in subsection (i), a criminal history check
described in subsection (e) is required only at the time an application
for a new license or the renewal of an existing license is submitted.
(i) With the exception of a fingerprint based criminal history
background check under IC 31-9-2-22.5(1)(B) for a person described
in subsection (e)(1), a criminal history check concerning a person
described in subsection (e) must be completed on or before the date on
which the subject of the check is first employed or assigned as a
volunteer in a position described in subsection (e)(1) or first becomes
a resident of the applicant's household as described in subsection
(e)(2). A fingerprint based criminal history background check under
IC 31-9-2-22.5(1)(B) for a person described in subsection (e)(1) must
be completed not later than the conclusion of the first ninety (90) days
of employment in or assignment of a volunteer. However, if a person
described in this subsection has been the subject of a criminal history
check that was conducted not more than one (1) year before the date
the license application is submitted to the department, a new criminal
history check of that person is not required.
(j) An applicant or a licensee described in subsection (e)(1) may
provisionally employ an individual or assign a volunteer for whom a
criminal history check is required during the period after the process of
requesting fingerprint based criminal history background check
information has been initiated by or on behalf of the applicant or
licensee but before the determination is obtained by or communicated
to the applicant or licensee. If the determination is not received by not
later than ninety (90) days after the effective date of hire or volunteer
assignment, the employee or volunteer relationship must be terminated
or suspended until a determination is received. An employee or
volunteer whose determination has not yet been received may not have
direct contact with a child who is or will be placed at a facility operated
by the applicant or licensee unless the direct contact occurs only in the
presence of a volunteer or employee of the applicant or licensee who
has been the subject of a completed and approved criminal history
check. In determining whether to provisionally hire or assign as a
volunteer an individual described in subsection (e)(1), the applicant or
licensee shall consider the following:
(1) The training time required by an employee or a volunteer.
(2) The safety and security of the children under the supervision
of the applicant or licensee.
(3) The safety and security of the other staff and volunteers
working under the supervision of the applicant or licensee.
(4) The staffing concerns of the applicant or licensee.
(5) Any other factor relating to the safety and security of the
applicant's or licensee's operations.
(k) The department shall, at the applicant's request, inform the
applicant whether the department has or does not have a record of the
person who is the subject of a criminal history background check and
if the department has identified the person as an alleged perpetrator of
abuse or neglect. The department may not provide to the applicant any
details or personally identifying information contained in any child
protective investigation report.
(l) A person who is the subject of a criminal history check
conducted in accordance with this section may request the state police
department to provide the person with a copy of any state or national
criminal history report concerning the person.
SOURCE: IC 31-30-1-6; (10)CC014908.1.9. -->
SECTION 9. IC 31-30-1-6, AS AMENDED BY P.L.145-2006,
SECTION 275, IS AMENDED TO READ AS FOLLOWS
[EFFECTIVE JULY 1, 2010]: Sec. 6. (a) Subject to subsections (b) and
(c), this article does not prohibit a probate court from exercising its
jurisdiction over guardianship of a person who is less than eighteen
(18) years of age.
(b) If allegations in the petition for guardianship or allegations
produced at guardianship proceedings indicate that the person for
whom the guardianship is requested meets the definition of a child in
need of services under IC 31-34-1, the probate court on its own motion
or at the request of a party shall:
(1) send the petition for guardianship or the record of
guardianship proceedings, or both, to the prosecuting attorney or
the attorney for the department of child services; and
(2) direct the prosecuting attorney or the attorney for the
department of child services to initiate an investigation and
proceedings in the juvenile court to determine whether the person
for whom the guardianship is requested is a child in need of
services.
(c) The probate court retains jurisdiction over the matter until the
juvenile court authorizes the filing of a petition under IC 31-34-9.
(d) If a juvenile court issues an order establishing or modifying
a guardianship over a minor:
(1) the probate court that retains jurisdiction over the case; or
(2) an appropriate court;
shall conduct additional proceedings if the juvenile court requests
the additional proceedings.
SOURCE: IC 31-30-1-12; (10)CC014908.1.10. -->
SECTION 10. IC 31-30-1-12 IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JULY 1, 2010]: Sec. 12. (a) Subject to
subsection (b), a court having jurisdiction under IC 31-17-2 of a child
custody proceeding in a marriage dissolution has concurrent original
jurisdiction with the juvenile court for the purpose of modifying
custody of a child who is under the jurisdiction of the juvenile court
because:
(1) the child is the subject of a child in need of services
proceeding;
(2) the child is the subject of a juvenile delinquency proceeding
that does not involve an act described under IC 31-37-1-2; or
(3) the child is the subject of a paternity proceeding.
(b) Whenever the court having child custody jurisdiction under
IC 31-17-2 in a marriage dissolution modifies child custody as
provided by this section, the modification is effective only when the
juvenile court:
(1) enters an order approving the child custody modification; or
(2) terminates the child in need of services proceeding, the
juvenile delinquency proceeding, or the paternity proceeding.
(c) If a juvenile court issues an order modifying child custody,
child support, or parenting time, the juvenile court may terminate
the child in need of services proceeding or the juvenile delinquency
proceeding.
(d) If:
(1) child custody, child support, or parenting time is modified;
and
(2) a child in need of services proceeding or a juvenile
delinquency proceeding is terminated;
under subsection (c), the court having concurrent original
jurisdiction under subsection (a) shall assume or reassume primary
jurisdiction of the case to address all issues.
(e) A court that assumes or reassumes jurisdiction of a case
under subsection (d) may modify child custody, child support, or
parenting time in accordance with applicable modification statutes.
(f) An order modifying child custody, child support, or
parenting time issued under this section survives the termination
of the child in need of services proceeding or the juvenile
delinquency proceeding, until the court having concurrent or
original jurisdiction assumes primary jurisdiction and modifies the
order.
SOURCE: IC 31-30-1-13; (10)CC014908.1.11. -->
SECTION 11. IC 31-30-1-13 IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JULY 1, 2010]: Sec. 13. (a) Subject to
subsection (b), a court having jurisdiction under IC 31-14 of a child
custody proceeding in a paternity proceeding has concurrent original
jurisdiction with another juvenile court for the purpose of modifying
custody of a child who is under the jurisdiction of the other juvenile
court because:
(1) the child is the subject of a child in need of services
proceeding; or
(2) the child is the subject of a juvenile delinquency proceeding
that does not involve an act described under IC 31-37-1-2.
(b) Whenever the court having child custody jurisdiction under
IC 31-14 in a paternity proceeding modifies child custody as provided
by this section, the modification is effective only when the juvenile
court with jurisdiction over the child in need of services proceeding or
juvenile delinquency proceeding:
(1) enters an order approving the child custody modification; or
(2) terminates the child in need of services proceeding or the
juvenile delinquency proceeding.
(c) If a juvenile court issues an order creating or modifying the
establishment of paternity under this section, the juvenile court
may terminate the child in need of services proceeding or the
juvenile delinquency proceeding.
(d) If:
(1) paternity is created or modified; and
(2) a child in need of services proceeding or a juvenile
delinquency proceeding is terminated;
under subsection (c), the court having concurrent original
jurisdiction under subsection (a) shall assume or reassume primary
jurisdiction of the case to address all other issues.
(e) An order creating or modifying paternity under this section
survives the termination of the child in need of services proceeding
or the juvenile delinquency proceeding.
SOURCE: IC 31-33-3-5; (10)CC014908.1.12. -->
SECTION 12. IC 31-33-3-5, AS AMENDED BY P.L.234-2005,
SECTION 104, IS AMENDED TO READ AS FOLLOWS
[EFFECTIVE JULY 1, 2010]: Sec. 5. The community child protection
team
(1) shall provide diagnostic and prognostic services for the
department or the juvenile court; and
(2) may recommend to the department that a petition be filed in
the juvenile court on behalf of the subject child if the team
believes this would best serve the interests of the child.
SOURCE: IC 31-33-7-8; (10)CC014908.1.13. -->
SECTION 13. IC 31-33-7-8, AS AMENDED BY P.L.131-2009,
SECTION 42, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE
JULY 1, 2010]: Sec. 8. (a) This section applies if the department
receives a report of suspected child abuse or neglect from:
(1) a hospital;
(2) a community mental health center;
(3) a managed care provider (as defined in IC 12-7-2-127(b));
(4) a referring physician;
(5) a dentist;
(6) a licensed psychologist; or
(7) a school;
(8) a child caring institution licensed under IC 31-27;
(9) a group home licensed under IC 31-27 or IC 12-28-4;
(10) a secure private facility; or
(11) a licensed child placing agency.
(b) Not later than thirty (30) days after the date the department
receives a report of suspected child abuse or neglect from a person
described in subsection (a), the department shall send a report to:
(1) the administrator of the hospital;
(2) the community mental health center;
(3) the managed care provider;
(4) the referring physician;
(5) the dentist; or
(6) the principal of the school;
(7) the licensed psychologist;
(8) the child caring institution;
(9) the group home;
(10) the secure private facility; or
(11) the licensed child placing agency.
The report must contain the items listed in subsection (e) that are
known at the time the report is sent.
(c) Not later than ninety (90) days after the date the department
receives a report of suspected child abuse or neglect, the department
shall send a report that contains any additional items listed in
subsection (e) that were not covered in the prior report if available.
(d) The administrator, director, referring physician, dentist, licensed
psychologist, or principal may appoint a designee to receive the report.
(e) A report made by the department under this section must contain
the following information:
(1) The name of the alleged victim of child abuse or neglect.
(2) The name of the alleged perpetrator and the alleged
perpetrator's relationship to the alleged victim.
(3) Whether the case is closed.
(4) Whether information concerning the case has been expunged.
(5) The name of any agency to which the alleged victim has been
referred.
(6) Whether the department has made an assessment of the case
and has not taken any further action.
(7) Whether a substantiated case of child abuse or neglect was
informally adjusted.
(8) Whether the alleged victim was referred to the juvenile court
as a child in need of services.
(9) Whether the alleged victim was returned to the victim's home.
(10) Whether the alleged victim was placed in residential care
outside the victim's home.
(11) Whether a wardship was established for the alleged victim.
(12) Whether criminal action is pending or has been brought
against the alleged perpetrator.
(13) A brief description of any casework plan that has been
developed by the department.
(14) The caseworker's name and telephone number.
(15) The date the report is prepared.
(16) Other information that the department may prescribe.
(f) A report made under this section:
(1) is confidential; and
(2) may be made available only to:
(A) the agencies named in this section; and
(B) the persons and agencies listed in IC 31-33-18-2.
SOURCE: IC 31-33-8-7; (10)CC014908.1.14. -->
SECTION 14. IC 31-33-8-7, AS AMENDED BY P.L.131-2009,
SECTION 46, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE
JULY 1, 2010]: Sec. 7. (a) The department's assessment, to the extent
that is reasonably possible, must include the following:
(1) The nature, extent, and cause of the known or suspected child
abuse or neglect.
(2) The identity of the person allegedly responsible for the child
abuse or neglect.
(3) The names and conditions of other children in the home.
(4) An evaluation of the parent, guardian, custodian, or person
responsible for the care of the child.
(5) The home environment and the relationship of the child to the
parent, guardian, or custodian or other persons responsible for the
child's care.
(6) All other data considered pertinent.
(b) The assessment may include the following:
(1) A visit to the child's home.
(2) An interview with the subject child.
(3) A physical, psychological, or psychiatric examination of any
child in the home.
(c) If:
(1) admission to the home, the school, or any other place that the
child may be; or
(2) permission of the parent, guardian, custodian, or other persons
responsible for the child for the physical, psychological, or
psychiatric examination;
under subsection (b) cannot be obtained, the juvenile court, upon good
cause shown, shall follow the procedures under IC 31-32-12.
(d) If a custodial parent, guardian, or custodian refuses to allow
the department to interview a child after the caseworker has
attempted to obtain parental consent to interview the child, the
department may petition a court to order the parent, guardian, or
custodian to make the child available to be interviewed by the
caseworker. If the court finds that the:
(1) parent, guardian, or custodian has been informed of the
hearing; and
(2) department has made reasonable efforts to obtain parental
consent to interview the child;
the court shall specify in the order the efforts the department made
to obtain parental consent and may grant the motion to interview
the child, either with or without the parent, guardian, or custodian
being present.
SOURCE: IC 31-33-18-1.5; (10)CC014908.1.15. -->
SECTION 15. IC 31-33-18-1.5, AS AMENDED BY
P.L.182-2009(ss), SECTION 379, IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE UPON PASSAGE]: Sec. 1.5. (a) This
section applies to records held by:
(1) the division of family resources;
(2) (1) a county office;
(3) (2) the department;
(4) (3) a local child fatality review team established under
IC 31-33-24;
(5) (4) the statewide child fatality review committee established
under IC 31-33-25; or
(6) (5) the department of child services ombudsman established
by IC 4-13-19-3;
regarding a child whose death or near fatality may have been the result
of abuse, abandonment, or neglect.
(b) For purposes of subsection (a), a child's death or near fatality
may have been the result of abuse, abandonment, or neglect if:
(1) an entity described in subsection (a) determines that the child's
death or near fatality is the result of abuse, abandonment, or
neglect; or
(2) a prosecuting attorney files:
(A) an indictment or information; or
(B) a complaint alleging the commission of a delinquent act;
that, if proven, would cause a reasonable person to believe that
the child's death or near fatality may have been the result of
abuse, abandonment, or neglect.
Upon the request of any person, or upon its own motion, the court
exercising juvenile jurisdiction in the county in which the child's death
or near fatality occurred shall determine whether the allegations
contained in the indictment, information, or complaint described in
subdivision (2), if proven, would cause a reasonable person to believe
that the child's death or near fatality may have been the result of abuse,
abandonment, or neglect.
(c) If the juvenile court finds that the conditions of subsection
(b)(2) are met, the court shall make written findings and provide
a copy of the findings and the indictment, information, or
complaint to the department.
(c) (d) As used in this section:
(1) "case" means:
(A) any intake report generated by the department;
(B) any investigation or assessment conducted by the
department; or
(C) ongoing involvement between the department and a
child or family that is the result of:
(i) a program of informal adjustment;
(ii) a child in need of services action; or
(iii) a service referral agreement;
that has not been expunged as required by another law or
by a court at the time and date when the department is
notified of a fatality or near fatality;
(2) "contact" means in person communication with a
caseworker in a case in which:
(A) the child who is the victim of a fatality or near fatality
is alleged to be a victim; or
(B) the perpetrator of the fatality or near fatality is alleged
to be the perpetrator;
(1) (3) "identifying information" means information that identifies
an individual, including an individual's:
(A) name, address, date of birth, occupation, place of
employment, and telephone number;
(B) employer identification number, mother's maiden name,
Social Security number, or any identification number issued by
a governmental entity;
(C) unique biometric data, including the individual's
fingerprint, voice print, or retina or iris image;
(D) unique electronic identification number, address, or
routing code;
(E) telecommunication identifying information; or
(F) telecommunication access device, including a card, a plate,
a code, an account number, a personal identification number,
an electronic serial number, a mobile identification number, or
another telecommunications service or device or means of
account access; and
(2) (4) "near fatality" has the meaning set forth in 42 U.S.C.
5106a.
(d) (e) Unless information in a record is otherwise confidential
under state or federal law, a record described in subsection (a) that has
been redacted in accordance with this section is not confidential and
may be disclosed to any person who requests the record. The person
requesting the record may be required to pay the reasonable expenses
of copying the record.
(e) (f) When a person requests a record described in subsection (a),
the entity having control of the record shall immediately transmit a
copy of the record to the court exercising juvenile jurisdiction in the
county in which the death or near fatality of the child occurred.
However, if the court requests that the entity having control of a record
transmit the original record, the entity shall transmit the original record.
(f) (g) Upon receipt of the record described in subsection (a), the
court shall, within thirty (30) days, redact the record to exclude:
(1) identifying information described in subsection (c)(1)(B)
(d)(3)(B) through (c)(1)(F) (d)(3)(F) of a person; and
(2) all identifying information of a child less than eighteen (18)
years of age.
(g) (h) The court shall disclose the record redacted in accordance
with subsection (f) (g) to any person who requests the record, if the
person has paid:
(1) to the entity having control of the record, the reasonable
expenses of copying under IC 5-14-3-8; and
(2) to the court, the reasonable expenses of copying the record.
(h) (i) The data and information in a record disclosed under this
section must include the following:
(1) A summary of the report of abuse or neglect and a factual
description of the contents of the report.
(2) The date of birth and gender of the child.
(3) The cause of the fatality or near fatality, if the cause has been
determined.
(4) Whether the department or the office of the secretary of family
and social services had any contact with the child or a member of
the child's family or household the perpetrator before the fatality
or near fatality, and, if the department or the office of the
secretary of family and social services had contact, the following:
(A) The frequency of the contact or communication with the
child or a member of the child's family or household the
perpetrator before the fatality or near fatality and the date on
which the last contact or communication occurred before the
fatality or near fatality.
(B) A summary of the status of the child's case at the time of
the fatality or near fatality, including:
(i) whether the child's case was closed by the department or
the office of the secretary of family and social services
before the fatality or near fatality; and
(ii) if the child's case was closed as described under item (i),
the date of closure and the reasons that the case was
closed.
(i) (j) The court's determination under subsection (f) (g) that certain
identifying information or other information is not relevant to
establishing the facts and circumstances leading to the death or near
fatality of a child is not admissible in a criminal proceeding or civil
action.
SOURCE: IC 31-34-21-7.7; (10)CC014908.1.16. -->
SECTION 16. IC 31-34-21-7.7 IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JULY 1, 2010]: Sec. 7.7. (a) If the juvenile
court approves a permanency plan under section 7 of this chapter that
provides for the appointment of a guardian for a child, the juvenile
court may appoint a guardian of the person and administer a
guardianship for the child under IC 29-3.
(b) If a guardianship of the person proceeding for the child is
pending in a probate court, the probate court shall transfer the
proceeding to the juvenile court.
(c) In creating a guardianship of a minor, a probate or juvenile
court may include in an order the requirements set forth in
IC 29-3-8-9.
(d) If the juvenile court closes the child in need of services case
after creating a guardianship, the juvenile court order survives the
closure of the child in need of services case.
(e) If the juvenile court closes the child in need of services case
after creating a guardianship, the probate court may assume or
reassume jurisdiction of the guardianship and take further action
as necessary.
SOURCE: IC 31-35-5-4; (10)CC014908.1.17. -->
SECTION 17. IC 31-35-5-4, AS AMENDED BY P.L.145-2006,
SECTION 334, IS AMENDED TO READ AS FOLLOWS
[EFFECTIVE JULY 1, 2010]: Sec. 4. The court may not make an order
under section 2 or 3 of this chapter unless:
(1) the testimony to be taken is the testimony of a child who at the
time of the trial is:
(A) less than fourteen (14) years of age; or
(B) at least fourteen (14) years of age but less than eighteen
(18) years of age and has a disability attributable to an
impairment of general intellectual functioning or adaptive
behavior that:
(i) is likely to continue indefinitely;
(ii) constitutes a substantial impairment of the child's ability
to function normally in society; and
(iii) reflects the child's need for a combination and sequence
of special, interdisciplinary, or generic care, treatment, or
other services that are of lifelong or extended duration and
are individually planned and coordinated; and
(C) found by the court to be a child who should be permitted
to testify outside the courtroom because:
(i) a psychiatrist, physician, or psychologist has certified that
the child's testifying in the courtroom creates a substantial
likelihood of emotional or mental harm to the child;
(ii) a physician has certified that the child cannot be present
in the courtroom for medical reasons; or
(iii) evidence has been introduced concerning the effect of
the child's testifying in the courtroom and the court finds
that it is more likely than not that the child's testifying in the
courtroom creates a substantial likelihood of emotional or
mental harm to the child;
(2) the prosecuting attorney or the attorney for the department has
informed the parties and their attorneys by written notice of the
intention to have the child testify outside the courtroom; and
(3) the prosecuting attorney or the attorney for the department
informed the parties and their attorneys under subdivision (2) at
least twenty (20) seven (7) days before the proceedings to give
the parties and their attorneys a fair opportunity to prepare a
response before the proceedings to the motion of the prosecuting
attorney or the motion of the attorney for the department to permit
the child to testify outside the courtroom.
SOURCE: ; (10)CC014908.1.18. -->
SECTION 18.
An emergency is declared for this act.
(Reference is to ESB 149 as printed February 22, 2010.)
Conference Committee Report
on
Engrossed Senate Bill 149
Text Box
S
igned by:
____________________________ ____________________________
Senator Lawson CRepresentative Avery
Chairperson
____________________________ ____________________________
Senator LananeRepresentative Bell
Senate Conferees House Conferees