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ARIZONA STATE SENATE
Fifty-Sixth Legislature, Second Regular Session
DCS; specialty medical evaluations
Purpose
Prohibits the superior court from issuing an order authorizing the Department of Child Safety (DCS) to take temporary custody of a child based on a sworn statement or testimony that relies solely on the opinion of a licensed physician, licensed osteopathic physician or a licensed health care provider who performs evaluations for DCS or who has not conducted a physical examination of the child.
Background
Current statute requires a child to be taken into temporary custody only by: 1) an order of the superior court; 2) a peace officer, a child welfare investigator or a child safety worker, without a court order, if temporary custody is clearly necessary to protect the child because exigent circumstances exist; or 3) the consent of the child's parent or guardian. The superior court, on an outlined dependency petition or on a sworn statement or testimony by a peace officer, a child welfare investigator or child safety worker, may issue an order authorizing DCS 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 (A.R.S. § 8-821).
The court must
hold a preliminary protective hearing to review the taking into temporary
custody of a child not fewer than five business days nor more than seven
business days after the child is taken into custody. At the hearing, the court
must: 1) provide an opportunity for the child's parent or guardian, if present,
and any other person who has relevant knowledge, to provide relevant testimony;
2) 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 the services; 3) inform the child's parent or guardian that the
hearing may result in further proceedings to terminate parental rights; and
4) comply with other outlined requirements (A.R.S.
§ 8-824).
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 are 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; and 2) probable cause exists to believe that the child is a victim of sexual abuse or abuse involving serious physical injury (A.R.S. § 8-821).
There is no anticipated fiscal impact to the state General Fund associated with this legislation.
Provisions
Temporary Custody of a Child
1. Prohibits the superior court from issuing an order authorizing DCS to take temporary custody of a child based on a sworn statement or testimony that relies solely on the opinion of a licensed physician, licensed osteopathic physician or a licensed health care provider who performs evaluations for DCS or who has not conducted a physical examination of the child.
2. Prohibits, when determining if exigent circumstances exist for taking a child into temporary custody without a court order by a peace officer, the determination to be based solely on the opinion of the outlined physicians or health care provider.
Preliminary Protective Hearings
3. Requires the court, at a preliminary protective hearing, to consider the opinion of an outlined physician or health care provider who is obtained by the person against whom the allegation of suspected abuse or neglect is being made.
4. Allows the court's determination in the preliminary protective hearing to be based on evidence that is hearsay, in whole or in part, on the opinion of an outlined physician or health care provider who is obtained by the person against whom the allegation of suspected abuse or neglect is being made.
Specialty Medical Evaluations
5. Requires DCS, during the course of an investigation of suspected abuse or neglect, to refer a child who is taken into temporary custody for a specialty medical evaluation for any of the following reasons:
a) DCS determines that the child requires a specialty medical evaluation with a physician;
b) 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; or
c) the child's parent, legal guardian or the attorney for the child requests a specialty medical evaluation.
6. Requires DCS, if a child is referred for a specialty medical evaluation, to refer the child to a physician or health care provider who meets all of the following:
a) is an outlined physician or health care provider;
b) is board certified in the field or specialty that is relevant to diagnosing and treating the condition that required the specialty medical evaluation; and
c) did not report the suspected abuse or neglect of the child.
7. Prohibits a physician or health care provider who reports suspected abuse or neglect of the child from participating in the specialty medical evaluation.
8. Requires DCS, before referring a child for a specialty medical evaluation, to provide the child's parent, legal guardian or the attorney for the child with written notice of the name, contact information and credentials of the specialist.
9. Allows the child's parent, legal guardian or the attorney for the child to object to the proposed referral and request a referral to another specialist.
10. Requires DCS and the parent, legal guardian or attorney to collaborate in good faith to select an acceptable specialist.
11. Allows DCS to refer the child to a specialist over the objection of the child's parent, legal guardian or the attorney for the child.
12. Allows DCS to 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.
13. Stipulates that the outlined requirements do not prohibit a child's parent, legal guardian or the attorney for the child from obtaining an alternative opinion.
14. Stipulates that the child's parent, legal guardian or the attorney for the child is responsible for the cost of the alternative opinion.
15. Requires DCS to accept and consider the alternative option.
Miscellaneous
16. Becomes effective on the general effective date.
House Action
HHS 2/12/24 DP 5-4-1-0
3rd Read 2/22/24 31-28-0-0-1
Prepared by Senate Research
March 12, 2024
ZD/SB/cs