HB2323 - 562R

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

Section 1. Section 8-821, Arizona Revised Statutes, is amended to read:

START_STATUTE8-821. Taking into temporary custody; medical examination; forensic interview; placement; interference; violation; classification; definition

A. A child shall be taken into temporary custody only pursuant to one of the following:

1. An order of the superior court.

2. Subsection E of this section.

3. The consent of the child's parent or guardian.

B. The superior court, on a dependency petition filed by an interested person, a peace officer, a child welfare investigator or a child safety worker under oath or on a sworn statement or testimony by a peace officer, a child welfare investigator or a child safety worker, may issue an order authorizing the department to take temporary custody of a child on finding that probable cause exists to believe that temporary custody is clearly necessary to protect the child from suffering abuse or neglect and it is contrary to the child's welfare to remain in the home. The superior court may not issue an order authorizing the department to take temporary custody of a child based ON A SWORN STATEMENT OR TESTIMONY THAT RELIES solely on the opinion of a PHYSICIAN who is licensed pursuant to title 32, chapter 13 or 17 OR a HEALTH CARE provider who is licensed pursuant to title 32 who performs evaluations for the department or who has not conducted a physical examination of the child.

C. If a child is taken into temporary custody pursuant to this section, the child's sibling shall also be taken into temporary custody only if independent probable cause exists to believe that temporary custody is clearly necessary to protect the child from suffering abuse or neglect.

D. If a child is taken into temporary custody pursuant to this section, the court shall order the department to initiate a due diligence search pursuant to section 8-514.07.

E. A child may be taken into temporary custody without a court order by a peace officer, a child welfare investigator or a child safety worker if temporary custody is clearly necessary to protect the child because exigent circumstances exist.

F. In determining if a child should be taken into temporary custody, the court, peace officer, child welfare investigator or child safety worker shall take into consideration as a paramount concern the child's health and safety.

G. A person who takes a child into custody because an exigent circumstance described in subsection L, paragraph 2 of this section exists shall immediately have the child forensically interviewed by a person who is trained in forensic interviewing pursuant to a protocol established pursuant to section 8-817 and may have the child examined by a physician who is licensed pursuant to title 32, chapter 13 or 17 or a health care provider who is licensed pursuant to title 32 and who has specific training in evaluations of child abuse. After the interview or examination, or both, the person shall release the child to the custody of the parent or guardian of the child unless the interview or examination reveals abuse. a determination of exigent circumstances described in subsection l, paragraph 2 of this section may not be based solely on the opinion of a PHYSICIAN who is licensed pursuant to title 32, chapter 13 or 17 OR a HEALTH CARE PROVIDER who is licensed pursuant to title 32 who performs evaluations for the department or who did not conduct a physical examination of the child. Temporary custody of a child taken into custody because an exigent circumstance described in subsection L, paragraph 2 of this section exists shall not exceed twelve hours.

H. A child who is taken into temporary custody pursuant to this article shall not be held in a police station, jail or lockup where adults or juveniles who are charged with or convicted of a crime are detained.

I. A child shall not remain in temporary custody for more than seventy-two hours excluding Saturdays, Sundays and holidays unless a dependency petition is filed.

J. To execute an order authorizing temporary custody, a peace officer may use reasonable force to enter any building in which the person named in the removal authorization is or is reasonably believed to be.

K. A person who knowingly interferes with the taking of a child into temporary custody under this section is guilty of a class 2 misdemeanor.

L. For the purposes of this section, "exigent circumstances" means there is probable cause to believe that the child is likely to suffer serious harm in the time it would take to obtain a court order for removal and either of the following is true:

1. There is no less intrusive alternative to taking temporary custody of the child that would reasonably and sufficiently protect the child's health or safety.

2. Probable cause exists to believe that the child is a victim of sexual abuse or abuse involving serious physical injury that can be diagnosed only by a physician who is licensed pursuant to title 32, chapter 13 or 17 or a health care provider who is licensed pursuant to title 32 and who has specific training in evaluations of child abuse. END_STATUTE

Sec. 2. Section 8-824, Arizona Revised Statutes, is amended to read:

START_STATUTE8-824. Preliminary protective hearing; probable cause; appointment of counsel

A. The court shall hold a preliminary protective hearing to review the taking into temporary custody of a child pursuant to section 8-821 not fewer than five days nor more than seven days after the child is taken into custody, excluding Saturdays, Sundays and holidays. If clearly necessary to prevent abuse or neglect, to preserve the rights of a party or for other good cause shown, the court may grant one continuance that does not exceed five days.

B. The following persons shall be present at the preliminary protective hearing:

1. The child's parents or guardian, unless they cannot be located or they fail to appear in response to the notice.

2. Counsel for the parents if one has been requested or retained.

3. The child's guardian ad litem or attorney.

4. The child safety worker and additional representatives of the department if requested by the department.

5. Counsel for the child safety worker.

C. If the court finds that it is in the best interests of the child, the court may allow the following to be present at the preliminary protective hearing:

1. The child.

2. Any relative or other interested person with whom the child is or might be placed as described in section 8-845, subsection A.

3. Witnesses called by the parties.

4. An advocate or interested person as requested by the parent or guardian.

5. Other persons who have knowledge of or an interest in the welfare of the child.

D. At the hearing, the court shall advise the parent or guardian of the following rights:

1. The right to counsel, including appointed counsel if the parent or guardian is indigent.

2. The right to cross-examine all witnesses who are called to testify against the parent or guardian.

3. The right to trial by court on the allegations in the petition.

4. The right to use the process of the court to compel the attendance of witnesses.

E. At the hearing, the court:

1. Shall receive a report of any agreement reached pursuant to section 8-823, subsection D. The report may be made orally.

2. Shall provide an opportunity for the child's parent or guardian, if present, and any other person who has relevant knowledge, to provide relevant testimony.

3. May limit testimony and evidence that is beyond the scope of the removal of the child, the child's need for continued protection, placement, visitation and services to be provided to the child and family.

4. May take into consideration as a mitigating factor the participation of the parent or guardian in the healthy families program established by section 8-481.

5. Shall take into consideration as a mitigating factor the availability of reasonable services to the parent or guardian to prevent or eliminate the need for removal of the child and the effort of the parent or guardian to obtain and participate in these services.

6. Shall inform the child's parent or guardian that the hearing may result in further proceedings to terminate parental rights.

7. Shall order the parent or guardian to provide the court with the names, the type of relationship and all available information necessary to locate persons who are related to the child or who have a significant relationship with the child. If there is not sufficient information available to locate a relative or person with a significant relationship with the child, the parent or guardian shall inform the court of this fact. The court shall further order the parent or guardian to inform the department immediately if the parent or guardian becomes aware of information related to the existence or location of a relative or person with a significant relationship to the child.

8. Shall inform the parent that substantially neglecting or wilfully refusing to remedy the circumstances that cause the child to be in an out-of-home placement, including refusing to participate in reunification services, is grounds for termination of parental rights to a child.

9. Shall give paramount consideration to the health and safety of the child.

10. Shall determine whether the department is attempting to identify and assess placement of the child with a grandparent or another member of the child's extended family including a person who has a significant relationship with the child.

11. Shall inform a foster parent, a preadoptive parent or a member of the child's extended family with whom the department has placed the child of the right to be heard in any proceeding to be held with respect to the child.

12. SHALL CONSIDER THE OPINION OF A PHYSICIAN who is licensed pursuant to title 32, chapter 13 or 17 OR a HEALTH CARE provider who is licensed pursuant to title 32 who is OBTAINED BY THE PERSON AGAINST WHOM THE ALLEGATION OF suspected ABUSE OR NEGLECT IS BEING MADE.

F. The petitioner has the burden of presenting evidence as to whether there is probable cause to believe that continued temporary custody is clearly necessary to prevent abuse or neglect pending the hearing on the dependency petition.

G. The department must make reasonable efforts to place a child with siblings and, if that is not possible, to maintain frequent visitation or other ongoing contact between all siblings.

H. If the child is in the temporary custody of the department, the department shall submit not later than the day before the hearing a written report to the court and the parties that states:

1. The reasons the child was removed from the parent's or guardian's custody.

2. Any services that have been provided to the child or the child's parent or guardian to prevent removal.

3. The need, if any, for continued temporary custody.

4. The types of service needed to facilitate the return of the child to the custody of the child's parents or guardian.

5. If the child is not placed with a grandparent, whether the child has any relatives or other interested parties as described in section 8-845, subsection A who may be able and willing to take temporary custody.

6. Any services that are requested by the parent or guardian but that are not provided and the reasons the services were not provided.

7. What efforts the department has made to place siblings together, and if they are not placed together, the specific reasons why this did not occur.

8. If the placement of siblings together was not possible for all or any of the siblings, efforts the department has made to facilitate communications among siblings and a proposal for frequent visitation or contact pursuant to subsection G of this section. If frequent visitation or contact with siblings is not recommended, the department shall state the reasons why this would be contrary to the child's or a sibling's safety or well-being.

9. A proposal for visitation with the child's parents or guardian and the results of any visitation that has occurred since the child was removed. The requirements of this paragraph do not apply to a specific parent or guardian if there is a court order relating to a criminal case that prohibits that parent or guardian from contact with the child. Before the department allows visitation it must first determine that there are no court orders relating to any superior court criminal case that prohibit the parent or guardian from contact with the child.

10. A proposed case plan for services to the family.

11. The department's efforts to identify, notify and assess adult relatives of the child and persons with a significant relationship with the child pursuant to section 8-514.07.

I. The parent or guardian shall state whether the parent or guardian admits or denies the allegations in the petition filed pursuant to section 8-841. If the parent or guardian admits or does not contest the allegations in the petition, the court shall determine that the parent or guardian understands the rights described in subsection D of this section and that the parent or guardian knowingly, intelligently and voluntarily waives these rights.

J. At the hearing, if the child is not returned to the parent or guardian, the court shall:

1. Enter orders regarding the placement of the child pending the determination of the dependency petition and visitation, if any.

2. If a relative is identified as a possible placement for the child, notify the relative of the right to be heard in any proceeding to be held with respect to the child.

3. Determine if the tasks and services set forth in the case plan are reasonable and necessary to carry out the case plan. END_STATUTE

Sec. 3. Section 8-825, Arizona Revised Statutes, is amended to read:

START_STATUTE8-825. Court determinations in preliminary protective hearing

A. The court's determination in the preliminary protective hearing may be based on evidence that is hearsay, in whole or in part, in the following forms:

1. The allegations of the petition.

2. An affidavit.

3. Sworn testimony.

4. The written reports of expert witnesses.

5. The department's written reports if the child safety worker is present and available for cross-examination.

6. Documentary evidence without foundation if there is a substantial basis for believing the foundation will be available at the dependency hearing and the document is otherwise admissible.

7. The testimony of a witness concerning the declarations of another person if the evidence is cumulative or there is a reasonable ground to believe that the other person will be personally available for trial.

8. The opinion of a PHYSICIAN who is licensed pursuant to title 32, chapter 13 or 17 OR a HEALTH CARE provider who is licensed pursuant to title 32 who is obtained by the person against whom the ALLEGATION OF suspected ABUSE OR NEGLECT IS BEING MADE.

B. Evidence considered by the court pursuant to subsection A of this section shall also include any available evidence of substantiated allegations of abuse or neglect committed in another jurisdiction.

C. The court shall determine whether temporary custody of the child is clearly necessary to prevent abuse or neglect pending the hearing on the dependency petition. The court:

1. On finding that the petitioner has not met the burden prescribed in section 8-824, subsection F, shall return the child to the child's parent, guardian or custodian pending the dependency hearing.

2. On finding that the petitioner has met the burden prescribed in section 8-824, subsection F, may declare the child a temporary ward of the court pending the dependency hearing.

D. The court shall also determine if reasonable efforts were made to prevent or eliminate the need for removal of a child from the child's home and if services are available that would eliminate the need for continued removal. If the child is:

1. In the custody of the department, the court shall order the department to make reasonable efforts to provide services to the child and parent to facilitate the reunification of the family, except as provided in section 8-846.

2. Not in the custody of the department and the department is not a party, the court may direct the parties to participate in reasonable services that will facilitate reunification of the family or another permanent plan for the child. The court shall not require the department to provide services pursuant to this paragraph. END_STATUTE

Sec. 4. Title 8, chapter 4, article 9, Arizona Revised Statutes, is amended by adding section 8-828, to read:

START_STATUTE8-828. Specialty medical evaluations; alternative opinion

A. During the course of an investigation of suspected abuse or neglect, the department shall refer a child who is taken into temporary custody pursuant to this article for a specialty medical evaluation for any of the following reasons:

1. The department determines that the child requires a specialty medical evaluation with a physician.

2. The child's primary care physician or other primary health care provider who provided health care or treatment to or otherwise evaluated the child recommends a specialty medical evaluation.

3. The child's parent or legal guardian or the attorney for the child or the child's parent or legal guardian requests a specialty medical evaluation.

B. If a child is referred for a specialty medical evaluation, the department shall refer the child to a physician or health care provider who meets all of the following:

1. is a physician who is licensed pursuant to title 32, chapter 13 or 17 or a health care provider who is licensed pursuant to title 32.

2. Is board certified in the field or specialty that is relevant to diagnosing and treating the condition that required the specialty medical evaluation.

3. Did not report the suspected abuse or neglect of the child. A physician or health care provider who reports suspected abuse or neglect of the child may not participate in the specialty medical evaluation.

c. Before referring a CHILD for a specialty medical evaluation, the department shall provide the child's parent or legal guardian or the attorney of the child or the child's parent or legal guardian with written notice of the name, contact information and credentials of the specialist. The child's parent or legal guardian or the attorney of the child or the child's parent or legal guardian may object to the proposed referral and request a referral to another specialist. The DEPARTMENT and the parent, legal guardian or attorney shall collaborate in good faith to select an acceptable specialist. The department may refer the CHILD to a specialist over the objection of the child's parent or legal guardian or the attorney for the child or the child's parent or legal guardian.

d. The department may obtain consultations with physicians or health care providers with the ability to diagnose and treat unique health conditions that mimic child maltreatment or that increase the risk of misdiagnosis of child maltreatment.

E. This section does not prohibit a child's parent or legal guardian or the attorney of the child or the child's parent or legal guardian from obtaining an alternative opinion. The child's parent or legal guardian or the attorney for the child or the child's parent or legal guardian is responsible for the cost of the alternative opinion. The department shall accept and consider an alternative opinion obtained pursuant to this subsection. END_STATUTE