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ARIZONA STATE SENATE
Fifty-Fourth Legislature, Second Regular Session
caregiver protections; placement provider investigation
Purpose
Grants immunity from civil liability to parents or out-of-home placement providers under certain circumstances. Outlines procedures for the Department of Child Safety (DCS) investigations of out-of-placement provider abuse allegations and allegations other than abuse.
Background
The primary purpose of DCS is to protect children by: 1) investigating reports of abuse and neglect; 2) assessing, promoting and supporting the safety of a child in a safe and stable family or other appropriate placement in response to allegations of abuse or neglect; 3) working cooperatively with law enforcement regarding reports that include criminal conduct allegations; and 4) coordinating prevention, intervention and treatment services without compromising child safety (A.R.S. § 8-451). DCS operates a Centralized Intake Hotline (Hotline) 24 hours a day, seven days a week to protect children by receiving communications and referrals concerning suspected abuse or neglect. If an individual communicates suspected abuse or neglect to a DCS employee by any other means than through the Hotline, the DCS employee must refer the person or communication to the Hotline (A.R.S. § 8-455).
The DCS Central Registry is a database of substantiated child abuse and neglect reports and the investigation outcomes of the reports. DCS must conduct DCS Central Registry background checks and use information contained in the DCS Central Registry for certain statutory purposes, including to determine qualifications for: 1) foster home licensing; 2) adoptive parent certification; 3) individuals who apply for child welfare agency licensing; 4) child care home certification; 5) registration of unregulated child care homes with the child care resource and referral system; 6) home and community based services certification for services to children or vulnerable adults; and 7) an adult who works in a group home, residential treatment center, shelter or other congregate care setting (A.R.S. § 8-804).
Immediately upon out-of-home placement of a dependent child under DCS custody, DCS must provide the out-of-home placement provider with specific information, including the child's regional behavioral health authority (RBHA) designated point of contact. For a child who is eligible under Title XIX of the Social Security Act, a RBHA must dispatch an assessment team within 72 hours after being notified that the child has entered care in an out-of-home placement. However, if the out-of-home placement identifies an urgent need for the child to receive behavioral health services, the out-of-home placement may directly contact a RBHA for screening and evaluation of the child (A.R.S. § 8-512.01).
Out-of-home placement means the placing of a child in the custody of an individual or agency other than with the child's parent or legal guardian, including placement in temporary custody, voluntary placement or placement due to dependency actions (A.R.S. § 8-501).
There is no anticipated fiscal impact to the state General Fund associated with this legislation.
Provisions
Caregiver Immunity
1. Grants immunity from civil liability to a parent or out-of-home placement provider who brings into the home a biological, foster or adoptive child whose behavioral health needs pose a risk to other family members for:
a) acts or omissions while acting as a biological foster or adoptive parent; and
b) the child's acts or omissions while in the parent's or out-of-home placement provider's care.
2. Specifies that the immunity granted to a parent or out-of-home placement provider does not apply to acts or omissions that are:
a) not done in good faith; or
b) not in compliance with written instructions concerning specific care and supervision of the child prescribed by the child's behavioral health care provider or the department or agency that placed the child.
3. Establishes
a rebuttable presumption of clear and convincing evidence that a parent or
out-of-home placement provider has acted in good faith and in compliance with
written instructions concerning specific care and supervision of a child.
4. Allows a parent or out-of-home placement provider who perceives a danger to the safety and security of household members, pets or property to use reasonable force to protect the household members, pets or property, including any child in the household.
5. Grants immunity from civil liability to an out-of-home placement provider for any act or omission in allowing a child in their care to participate in an age or developmentally appropriate activity that the out-of-home placement provider made in accordance with the reasonable and prudent parenting standard, to the extent that it does not:
a) apply to any other act or omission of the out-of-home placement provider, including any act or omission that is contrary to a requirement for licensure, a behavioral health care provider's written instruction or any other law regarding the duty to protect the child's health, safety and welfare; or
b) affect any other immunity from, limitation on or defense to liability that is available to the out-of-placement provider under any other law.
6. Establishes a rebuttable presumption of clear and convincing evidence that an out-of-home placement provider who allows a child in their care to participate in an age or developmentally appropriate activity has acted in accordance with the reasonable and prudent parenting standard.
Out-of-Home Placement Provider Abuse Allegations
7. Requires DCS, in response to an allegation of abuse made against an out-of-home placement provider where a child is not at risk of significant harm, to:
a) provide the out-of-home placement provider with the same safeguards and procedures statutorily provided to a parent who is alleged to have committed abuse;
b) temporarily withdraw any DCS employees who are directly dealing with the out-of-home placement provider and the DCS employees' immediate supervisors until the investigation of the abuse allegation is completed;
c) provide a safety monitor plan to maintain the placement of the child in the out-of-home placement until the investigation of the abuse allegation is completed;
d) inform the out-of-home placement provider of the right to an attorney, including an appointed attorney if the out-of-home placement provider is indigent;
e) inform the out-of-home placement provider of the right to have an advocate or interested person to assist in representing the out-of-home placement provider's best interests, including providing process information and advice, emotional support or mediation between the out-of-home placement provider and DCS;
f) investigate the allegation in person, including speaking with the child and all relevant professionals involved in the child's care with a neutral party present from a local foster care review board, before taking further action in order to maintain the child's safety and wellbeing;
g) video record all meetings and interviews conducted as part of the investigation and make the video record available to any party on request; and
h) accompany the child and the out-of-home placement provider to urgent care or an emergency room for a clinical evaluation of the child within 12 hours after a reasonably believed abuse allegation is made to a DCS employee and use the medical evaluation to determine whether to proceed with the investigation.
8. Requires DCS to provide an out-of-home placement provider written findings within 30 days after completing an investigation.
9. Entitles an out-of-home placement provider to the right to an attorney and a preliminary protective hearing if DCS finds the out-of-home placement provider committed a substantiated case of abuse.
10. Requires DCS to provide an out-of-home placement provider the opportunity to participate in services that address abuse issues prior to entering the out-of-home provider's substantiated abuse allegation into the DCS Central Registry, unless a child is at risk of significant harm.
11. Prohibits DCS from recording an abuse allegation in the DCS Central Registry or requiring an out-of-home placement provider to take any additional action or training to maintain licensure, if the:
a) abuse allegation is unsubstantiated;
b) out-of-home placement provider is found not guilty of a criminal abuse allegation; or
c) out-of-placement provider successfully completes services to address abuse issues.
12. Affirms the rights of an out-of-home placement provider.
Other Allegations Against Out-of-Home Placement Providers
13. Requires DCS to hold a conflict resolution conference within three days after an allegation other than abuse is made against an out-of-home placement provider that includes:
a) the out-of-home placement provider;
b) a DCS worker;
c) a child safety worker's supervisor or their designee;
d) the child involved, if the child is at least 12 years old;
e) two members of a local foster care review board; and
f) any other qualified person, either participating in all or in part of the conflict resolution conference, who is identified by the out-of-home placement provider and who has evaluated or provided treatment for the child.
14. Requires a conflict resolution conference process to include:
a) an identification of civil liability exemptions;
b) a strengths and needs evaluation, including identification of potential stressors for the family and child;
c) the development of a safety plan or crisis plan, or both;
d) an assessment of support, training, services and strategies to assist an out-of-home placement provider in caring for the child; and
e) a timeline for providing identified services that begin within seven working days after the conflict resolution is complete.
15. Permits an out-of-home placement provider who disputes DCS's determinations on an allegation other than abuse to file a written request for a hearing with a presiding juvenile court judge.
Miscellaneous
16. Defines reasonable and prudent parenting standard as the practice of making careful and sensible parental decisions that maintain a child's health, safety and best interests while at the same time encouraging a child's emotional and developmental growth when determining whether to allow the child to participate in extracurricular, enrichment, cultural and social activities.
17. Defines out-of-home placement.
18. Makes technical and conforming changes.
19. Becomes effective on the general effective date.
Prepared by Senate Research
February 11, 2020
JA/AB/kja