OLR Bill Analysis

sHB 5131

AN ACT AMENDING THE STATUTES CONCERNING THE DEPARTMENT OF CHILDREN AND FAMILIES.

SUMMARY:

This bill makes several unrelated changes in statutes applicable to the Department of Children and Families (DCF). It revises, updates, and reorganizes DCF's confidential records law. It also:

1. permits DCF to transfer termination of parental rights and guardianship cases from probate to Superior Court and expands the transfer rights of parties to these cases;

2. expressly allows DCF to temporarily place children with friends and relatives who have been cleared by an FBI instant criminal record check in emergencies, codifying current practice; and

3. makes minor changes in the Safe Havens law, which permits parents to turn their newborns over to hospital personnel without facing criminal liability for child abandonment.

It also makes minor, technical, and conforming changes.

EFFECTIVE DATE: October 1, 2008, except the Safe Havens provisions are effective July 1, 2008.

2 & 8 — CHANGES IN CONFIDENTIAL RECORDS LAW

In general, DCF cannot disclose information it creates or obtains in connection with its child protection activities or other activities related to a child while that child is in its care or custody without (1) obtaining permission from the subject of the record or an authorized representative or (2) legal authorization to do so without the subject's consent. Existing law specifies many officials and entities to whom DCF must disclose information that would otherwise be confidential, in most cases stating the limited uses the recipients can make of the information. It also lists people and entities with whom DCF may share information when the commissioner or designee determines this is in the best interests of the person who is the subject of the record.

The bill adds additional officials and entities to both the mandatory and discretionary disclosure lists.

New Required Disclosures

Under the bill, DCF must disclose records without the subject's consent to:

1. DCF foster care and adoption contractors, for the purpose of identifying and assessing potential placements for the child who is the subject of the record, so long as no information that identifies biological parents is disclosed without their consent;

2. foster or prospective adoptive parents, but only records relating to social, medical, psychological, or educational needs of children currently placed with them or being considered for placement, and so long as no information that identifies biological parents is disclosed with out their consent;

3. employees of the Board of Pardons and Paroles, Department of Correction, or Judicial Branch, for the purposes of assessing treatment needs and determining terms or conditions of pretrial release; pretrial or post disposition detention; or incarceration, probation, or parole;

4. employees of the Department of Mental Health and Addiction Services, for the purpose of treatment planning for young adults who have transitioned from DCF care;

5. private counsel retained to represent DCF during the course of a legal proceeding involving the department or a DCF employee;

6. Superior Court judges in criminal prosecutions, for purposes of an in camera review if (a) the court has ordered that it given the record or (b) a party to the proceeding has subpoenaed the record;

7. employees of the Department of Developmental Services, for purposes of eligibility and enrollment of clients in its voluntary services program; and

8. courts or public agencies in other states and federally recognized Indian tribes which are responsible for child protection or provide services to families involved in the child welfare system.

The bill also expressly authorizes disclosure to any DCF employee for any purpose reasonably related to the department's business.

New Discretionary Disclosures

Under the bill, DCF is permitted to disclose records without the subject's consent to:

1. people it interviews in abuse and neglect investigations who are not otherwise entitled to this information, but disclosure is limited to the (a) general nature of the allegations, (b) child's identity, (c) alleged perpetrator, and (d) information necessary to further the course of the investigation;

2. mental health professionals who work for schools or have direct responsibility for implementing the educational plan of a child receiving DCF services, but disclosure is limited to information reasonably necessary for the provision of educational services;

3. people attempting to locate a missing parent or child, but disclosure is limited to information that assists them in doing so;

4. courts of competent jurisdiction, when a DCF employee has been subpoenaed to testify about the record's contents; and

5. people not employed by DCF who arrange, perform, or assist in performing functions or activities on DCF's behalf, including data analysis, processing, aggregation, or administration; utilization review; quality assurance; practice management; consultation; and accreditation services.

Changes the Use That Can Be Made of Disclosed Records

Current law does not limit the use a law enforcement agency can make of records DCF discloses to it. The bill specifies that disclosure is for the purpose of investigating cases of suspected child abuse. It also gives DCF the discretion to disclose records to police and prosecutors when the department has reasonable cause to believe that a child is the victim of criminal abuse or neglect.

The bill also restricts prosecutors' access to juvenile delinquency records. Current law gives prosecutors access to records for purposes of investigating or prosecuting child abuse or neglect allegations. Under the bill, access to records concerning a delinquency defendant who is not being charged with an offense related to child abuse is permitted only (1) if the defendant signs a release and (2) while the case is being prosecuted.

Changes in Disclosure Procedures

People Who Can Authorize Disclosure on a Child's Behalf. The bill eliminates the authority of a parent whose parental rights have been terminated to view that child's records or give consent to its disclosure. It gives a child's current guardian ad litem (a person representing a child's best interests) access to the child's records and authority to authorize disclosure. Currently only the child's attorney, parent, guardian, or conservator can authorize disclosure of the contents of the child's records.

Disclosure When Incident Has Been Publicized. When an incident of abuse or neglect has been made public or the DCF commissioner reasonable believes this will occur, under current law she can disclose whether DCF received a complaint and a general description of actions it took, so long as she does not disclose personally identifying information about the (1) victim or family or (2) suspected abuser unless that person has been arrested for the underlying conduct.

The bill also allows DCF to confirm or deny the accuracy of information that has been made public and generally describe the case's current legal status. It specifies that the prohibition on disclosing identifying information about victims and their families applies even when this information is available from other sources.

Disclosure in Custody Matters. Currently, DCF records must be disclosed to parties in custody matters involving abuse or neglect allegations. Under the bill, disclosure extends to all types of custody cases, including divorce, but only to necessary parties and judges.

Further Disclosure of Record. Current law prohibits information that is disclosed from a person's record from being further disclosed without consent unless it is disclosed pursuant to an order issued by a court in which a criminal prosecution or an abuse, neglect, commitment, or termination of parental rights proceeding involving the record's subject is pending. The bill permits further disclosure based on an order issued by any court of competent jurisdiction.

The bill permits parties to civil litigation to petition juvenile court for an order authorizing disclosure to other parties in the litigation. The court can grant the order after reviewing the records in question and determining that the records are material and relevant and that good cause for disclosure exists. It specifies that “good cause” includes situations in which the party seeking the record has no other means available to obtaining the information.

Denying Access to Records. Under current law, the DCF commissioner can refuse to disclose a record to the person who is its subject when she determines that disclosure is not in the person (or representative's) best interests, so long as she gives her reasons in writing and advises the person that he or she may challenge this action in court. Under the bill, she retains the authority to refuse to disclose records, but the basis for doing so is no longer restricted to considerations of the requestor's best interests. When she refuses a request, the bill requires that she notify the requestor of the general nature of the records being withheld, in addition to providing her reasons and notice of judicial review options.

The bill also expands the reasons courts may use to uphold DCF's non-disclosure decisions. Currently, after a hearing and private review of the challenged records, the court must order disclosure unless it determines this could be contrary to the requestor or requestor representative's best interests. Under the bill, the court may also uphold the commission's non-disclosure decision when it determines that disclosure (1) would be contrary to the best interests of the person who is the subject of the record, (2) could reasonably result in the risk of harm to any person, or (3) would contravene the state's public policy.

3-5 — TRANSFERRING GUARDIANSHIP AND TERMINATION OF PARENTAL RIGHTS CASES TO SUPERIOR COURT

The bill expands the circumstances under which probate court cases that involve revoking a parent's guardianship of a child or terminating parental rights can be transferred to the Superior Court. Currently, contested cases must be transferred when a party who did not file the probate petition requests this. But DCF is not a party and cannot make transfer requests.

Under the bill, contested cases must also be transferred at DCF's requests. And the probate court must transfer uncontested cases in the same manner as contested cases.

1 — FBI NAME-BASED CRIMINAL RECORDS CHECKS FOR EMERGENCY CHILD PLACEMENTS

State and federal law prohibit DCF from placing children in homes without conducting a fingerprint-based criminal records check of all adults living there. This bill codifies DCF's ability to use the FBI's instant name-based data base of people who have been arrested for felonies and serious misdemeanors when it seeks to place children with people who know them (such as relatives, friends, or neighbors ) when their primary caretaker becomes suddenly unable to care for them. It authorizes DCF to request a criminal justice agency (presumably the state police) to perform the check and share the results with the department.

Under the bill, DCF may later request that the state police conduct fingerprint-based state and national criminal history checks of household members. It must make the request within 15 days of the date the name-based check was conducted and follow existing statutory procedures for submitting fingerprints and paying for those checks. DCF must remove children if any adult refuses a request to (1) give written permission for the records check or (2) provide fingerprints.

When DCF denies an emergency placement or removes a child from a household based on the results of a name-based criminal history check, this bill allows the resident whose reported criminal history resulted in the denial to challenge the denial by requesting the State Police Bureau of Identification to conduct a fingerprint-based check following procedures specified in existing law. The subject must do this within 15 days of the date on which the name-based check was conducted.

6-7 — SAFE HAVENS

Connecticut's Safe Havens for Newborns Act allows a parent to voluntarily give up custody of an infant, age 31 days or younger, to the nursing staff of a Connecticut hospital emergency room without being subject to arrest for abandonment. This bill makes express DCF's authority to initiate guardianship or termination of parental rights proceedings on behalf of infants who come into its custody under the Safe Havens Program. The department must notify parents whose identities it knows when it brings a case in court. The department can already take any action authorized under state law to achieve safety and permanency for these infants.

The bill also lifts restrictions on hospital employees' ability to disclose information about the parent or parent's representative who left the baby with him or her. Under current law, this information (other than medical history information the parent provides) is confidential. The bill, instead, bars designated Safe Haven employees from disclosing information about a parent or parent's representative when that person has requested confidentiality.

BACKGROUND

Criminal Background History Checks for DCF Caregivers

The law prohibits DCF from placing children in households if any adult resident has been convicted of:

1. injury or risk of injury to a minor, impairing the morals of a minor, or similar offenses;

2. a violent crime against a person or similar offense;

3. within the last five years, possession, use, or sale of controlled substances; or

4. illegal use of a firearm or similar offense.

COMMITTEE ACTION

Select Committee on Children

Joint Favorable Substitute Change of Reference

Yea

9

Nay

0

(03/04/2008)

Human Services Committee

Joint Favorable

Yea

18

Nay

0

(03/18/2008)