Minnesota Legislature
Office of the Revisor of Statutes
Minnesota Session Laws - 1995, Regular Session
Key: (1) language to be deleted (2) new language
CHAPTER 187-S.F.No. 342
An act relating to children; modifying liability
provisions for child abuse investigations; providing
for attorney fees in certain actions; providing for
the establishment of protocols for investigations;
prohibiting certain conflicts of interest; providing
for access to data regarding determinations of
maltreatment; amending Minnesota Statutes 1994,
section 626.556, subdivisions 4, 5, 10, 10b, 10e, 10f,
and by adding a subdivision.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA:
Section 1. Minnesota Statutes 1994, section 626.556,
subdivision 4, is amended to read:
Subd. 4. [IMMUNITY FROM LIABILITY.] (a) The following
persons are immune from any civil or criminal liability that
otherwise might result from their actions, if they are acting in
good faith:
(1) any person making a voluntary or mandated report under
subdivision 3 or under section 626.5561 or assisting in an
assessment under this section or under section 626.5561;
(2) any social worker person with responsibility for
performing duties under this section or supervisor employed by a
local welfare agency or the commissioner complying with
subdivision 10d or the provisions of section 626.5561; and
(3) any public or private school, facility as defined in
subdivision 2, or the employee of any public or private school
or facility who permits access by a local welfare agency or
local law enforcement agency and assists in an investigation or
assessment pursuant to subdivision 10 or under section 626.5561.
(b) A person who is a supervisor or social worker person
with responsibility for performing duties under this section
employed by a local welfare agency or the commissioner complying
with subdivisions 10 and 11 or section 626.5561 or any related
rule or provision of law is immune from any civil or criminal
liability that might otherwise result from the person's actions,
if the person is (1) acting in good faith and exercising due
care, or (2) acting in good faith and following the information
collection procedures established under subdivision 10,
paragraphs (h), (i), and (j).
(c) This subdivision does not provide immunity to any
person for failure to make a required report or for committing
neglect, physical abuse, or sexual abuse of a child.
(d) If a person who makes a voluntary or mandatory report
under subdivision 3 prevails in a civil action from which the
person has been granted immunity under this subdivision, the
court may award the person attorney fees and costs.
Sec. 2. Minnesota Statutes 1994, section 626.556,
subdivision 5, is amended to read:
Subd. 5. [MALICIOUS AND RECKLESS REPORTS.] Any person who
knowingly or recklessly makes a false report under the
provisions of this section shall be liable in a civil suit for
any actual damages suffered by the person or persons so reported
and for any punitive damages set by the court or jury, plus
costs and reasonable attorney fees.
Sec. 3. Minnesota Statutes 1994, section 626.556,
subdivision 10, is amended to read:
Subd. 10. [DUTIES OF LOCAL WELFARE AGENCY AND LOCAL LAW
ENFORCEMENT AGENCY UPON RECEIPT OF A REPORT.] (a) If the report
alleges neglect, physical abuse, or sexual abuse by a parent,
guardian, or individual functioning within the family unit as a
person responsible for the child's care, the local welfare
agency shall immediately conduct an assessment and offer
protective social services for purposes of preventing further
abuses, safeguarding and enhancing the welfare of the abused or
neglected minor, and preserving family life whenever possible.
If the report alleges a violation of a criminal statute
involving sexual abuse, physical abuse, or neglect or
endangerment, under section 609.378, the local law enforcement
agency and local welfare agency shall coordinate the planning
and execution of their respective investigation and assessment
efforts to avoid a duplication of fact-finding efforts and
multiple interviews. Each agency shall prepare a separate
report of the results of its investigation. In cases of alleged
child maltreatment resulting in death, the local agency may rely
on the fact-finding efforts of a law enforcement investigation
to make a determination of whether or not maltreatment
occurred. When necessary the local welfare agency shall seek
authority to remove the child from the custody of a parent,
guardian, or adult with whom the child is living. In performing
any of these duties, the local welfare agency shall maintain
appropriate records.
(b) When a local agency receives a report or otherwise has
information indicating that a child who is a client, as defined
in section 245.91, has been the subject of physical abuse,
sexual abuse, or neglect at an agency, facility, or program as
defined in section 245.91, it shall, in addition to its other
duties under this section, immediately inform the ombudsman
established under sections 245.91 to 245.97.
(c) Authority of the local welfare agency responsible for
assessing the child abuse or neglect report and of the local law
enforcement agency for investigating the alleged abuse or
neglect includes, but is not limited to, authority to interview,
without parental consent, the alleged victim and any other
minors who currently reside with or who have resided with the
alleged perpetrator offender. The interview may take place at
school or at any facility or other place where the alleged
victim or other minors might be found or the child may be
transported to, and the interview conducted at, a place
appropriate for the interview of a child designated by the local
welfare agency or law enforcement agency. The interview may
take place outside the presence of the perpetrator alleged
offender or parent, legal custodian, guardian, or school
official. Except as provided in this paragraph, the parent,
legal custodian, or guardian shall be notified by the
responsible local welfare or law enforcement agency no later
than the conclusion of the investigation or assessment that this
interview has occurred. Notwithstanding rule 49.02 of the
Minnesota rules of procedure for juvenile courts, the juvenile
court may, after hearing on an ex parte motion by the local
welfare agency, order that, where reasonable cause exists, the
agency withhold notification of this interview from the parent,
legal custodian, or guardian. If the interview took place or is
to take place on school property, the order shall specify that
school officials may not disclose to the parent, legal
custodian, or guardian the contents of the notification of
intent to interview the child on school property, as provided
under this paragraph, and any other related information
regarding the interview that may be a part of the child's school
record. A copy of the order shall be sent by the local welfare
or law enforcement agency to the appropriate school official.
(d) When the local welfare or local law enforcement agency
determines that an interview should take place on school
property, written notification of intent to interview the child
on school property must be received by school officials prior to
the interview. The notification shall include the name of the
child to be interviewed, the purpose of the interview, and a
reference to the statutory authority to conduct an interview on
school property. For interviews conducted by the local welfare
agency, the notification shall be signed by the chair of the
local social services agency or the chair's designee. The
notification shall be private data on individuals subject to the
provisions of this paragraph. School officials may not disclose
to the parent, legal custodian, or guardian the contents of the
notification or any other related information regarding the
interview until notified in writing by the local welfare or law
enforcement agency that the investigation or assessment has been
concluded. Until that time, the local welfare or law
enforcement agency shall be solely responsible for any
disclosures regarding the nature of the assessment or
investigation.
Except where the alleged perpetrator offender is believed
to be a school official or employee, the time and place, and
manner of the interview on school premises shall be within the
discretion of school officials, but the local welfare or law
enforcement agency shall have the exclusive authority to
determine who may attend the interview. The conditions as to
time, place, and manner of the interview set by the school
officials shall be reasonable and the interview shall be
conducted not more than 24 hours after the receipt of the
notification unless another time is considered necessary by
agreement between the school officials and the local welfare or
law enforcement agency. Where the school fails to comply with
the provisions of this paragraph, the juvenile court may order
the school to comply. Every effort must be made to reduce the
disruption of the educational program of the child, other
students, or school staff when an interview is conducted on
school premises.
(e) Where the perpetrator alleged offender or a person
responsible for the care of the alleged victim or other minor
prevents access to the victim or other minor by the local
welfare agency, the juvenile court may order the parents, legal
custodian, or guardian to produce the alleged victim or other
minor for questioning by the local welfare agency or the local
law enforcement agency outside the presence of the perpetrator
alleged offender or any person responsible for the child's care
at reasonable places and times as specified by court order.
(f) Before making an order under paragraph (e), the court
shall issue an order to show cause, either upon its own motion
or upon a verified petition, specifying the basis for the
requested interviews and fixing the time and place of the
hearing. The order to show cause shall be served personally and
shall be heard in the same manner as provided in other cases in
the juvenile court. The court shall consider the need for
appointment of a guardian ad litem to protect the best interests
of the child. If appointed, the guardian ad litem shall be
present at the hearing on the order to show cause.
(g) The commissioner, the ombudsman for mental health and
mental retardation, the local welfare agencies responsible for
investigating reports, and the local law enforcement agencies
have the right to enter facilities as defined in subdivision 2
and to inspect and copy the facility's records, including
medical records, as part of the investigation. Notwithstanding
the provisions of chapter 13, they also have the right to inform
the facility under investigation that they are conducting an
investigation, to disclose to the facility the names of the
individuals under investigation for abusing or neglecting a
child, and to provide the facility with a copy of the report and
the investigative findings.
(h) The local welfare agency shall collect available and
relevant information to ascertain whether maltreatment occurred
and whether protective services are needed. Information
collected includes, when relevant, information with regard to
the person reporting the alleged maltreatment, including the
nature of the reporter's relationship to the child and to the
alleged offender, and the basis of the reporter's knowledge for
the report; the child allegedly being maltreated; the alleged
offender; the child's caretaker; and other collateral sources
having relevant information related to the alleged
maltreatment. The local welfare agency may make a determination
of no maltreatment early in an assessment, and close the case
and retain immunity, if the collected information shows no basis
for a full assessment or investigation.
Information relevant to the assessment or investigation
must be asked for, and may include:
(1) the child's sex and age, prior reports of maltreatment,
information relating to developmental functioning, credibility
of the child's statement, and whether the information provided
under this clause is consistent with other information collected
during the course of the assessment or investigation;
(2) the alleged offender's age, a record check for prior
reports of maltreatment, and criminal charges and convictions.
The local welfare agency must provide the alleged offender with
an opportunity to make a statement. The alleged offender may
submit supporting documentation relevant to the assessment or
investigation;
(3) collateral source information regarding the alleged
maltreatment and care of the child. Collateral information
includes, when relevant: (i) a medical examination of the
child; (ii) prior medical records relating to the alleged
maltreatment or the care of the child and an interview with the
treating professionals; and (iii) interviews with the child's
caretakers, including the child's parent, guardian, foster
parent, child care provider, teachers, counselors, family
members, relatives, and other persons who may have knowledge
regarding the alleged maltreatment and the care of the child.
Nothing in this paragraph precludes the local welfare
agency from collecting other relevant information necessary to
conduct the assessment or investigation. Notwithstanding the
data's classification in the possession of any other agency,
data acquired by the local welfare agency during the course of
the assessment or investigation are private data on individuals
and must be maintained in accordance with subdivision 11.
(i) In the initial stages of an assessment or
investigation, the local welfare agency shall conduct a
face-to-face observation of the child reported to be maltreated
and a face-to-face interview of the alleged offender. The
interview with the alleged offender may be postponed if it would
jeopardize an active law enforcement investigation.
(j) The local welfare agency shall use a question and
answer interviewing format with questioning as nondirective as
possible to elicit spontaneous responses. The following
interviewing methods and procedures must be used whenever
possible when collecting information:
(1) audio recordings of all interviews with witnesses and
collateral sources; and
(2) in cases of alleged sexual abuse, audio-video
recordings of each interview with the alleged victim and child
witnesses.
Sec. 4. Minnesota Statutes 1994, section 626.556,
subdivision 10b, is amended to read:
Subd. 10b. [DUTIES OF COMMISSIONER; NEGLECT OR ABUSE IN A
FACILITY.] (a) The commissioner shall immediately investigate if
the report alleges that:
(1) a child who is in the care of a facility as defined in
subdivision 2 is neglected, physically abused, or sexually
abused by an individual in that facility, or has been so
neglected or abused by an individual in that facility within the
three years preceding the report; or
(2) a child was neglected, physically abused, or sexually
abused by an individual in a facility defined in subdivision 2,
while in the care of that facility within the three years
preceding the report.
The commissioner shall arrange for the transmittal to the
commissioner of reports received by local agencies and may
delegate to a local welfare agency the duty to investigate
reports. In conducting an investigation under this section, the
commissioner has the powers and duties specified for local
welfare agencies under this section. The commissioner or local
welfare agency may interview any children who are or have been
in the care of a facility under investigation and their parents,
guardians, or legal custodians.
(b) Prior to any interview, the commissioner or local
welfare agency shall notify the parent, guardian, or legal
custodian of a child who will be interviewed in the manner
provided for in subdivision 10d, paragraph (a). If reasonable
efforts to reach the parent, guardian, or legal custodian of a
child in an out-of-home placement have failed, the child may be
interviewed if there is reason to believe the interview is
necessary to protect the child or other children in the
facility. The commissioner or local agency must provide the
information required in this subdivision to the parent,
guardian, or legal custodian of a child interviewed without
parental notification as soon as possible after the interview.
When the investigation is completed, any parent, guardian, or
legal custodian notified under this subdivision shall receive
the written memorandum provided for in subdivision 10d,
paragraph (c).
(c) In conducting investigations under this subdivision the
commissioner or local welfare agency shall obtain access to
information consistent with subdivision 10, paragraphs (h), (i),
and (j).
Sec. 5. Minnesota Statutes 1994, section 626.556,
subdivision 10e, is amended to read:
Subd. 10e. [DETERMINATIONS.] Upon the conclusion of every
assessment or investigation it conducts, the local welfare
agency shall make two determinations: first, whether
maltreatment has occurred; and second, whether child protective
services are needed. Determinations under this subdivision must
be made based on a preponderance of the evidence.
(a) For the purposes of this subdivision, "maltreatment"
means any of the following acts or omissions committed by a
person responsible for the child's care:
(1) physical abuse as defined in subdivision 2, paragraph
(d);
(2) neglect as defined in subdivision 2, paragraph (c);
(3) sexual abuse as defined in subdivision 2, paragraph
(a); or
(4) mental injury as defined in subdivision 2, paragraph
(k).
(b) For the purposes of this subdivision, a determination
that child protective services are needed means that the local
welfare agency has documented conditions during the assessment
or investigation sufficient to cause a child protection worker,
as defined in section 626.559, subdivision 1, to conclude that a
child is at significant risk of maltreatment if protective
intervention is not provided and that the individuals
responsible for the child's care have not taken or are not
likely to take actions to protect the child from maltreatment or
risk of maltreatment.
(c) This subdivision does not mean that maltreatment has
occurred solely because the child's parent, guardian, or other
person responsible for the child's care in good faith selects
and depends upon spiritual means or prayer for treatment or care
of disease or remedial care of the child, in lieu of medical
care. However, if lack of medical care may result in serious
danger to the child's health, the local welfare agency may
ensure that necessary medical services are provided to the child.
Sec. 6. Minnesota Statutes 1994, section 626.556,
subdivision 10f, is amended to read:
Subd. 10f. [NOTICE OF DETERMINATIONS.] Within ten working
days of the conclusion of an assessment, the local welfare
agency shall notify the parent or guardian of the child, the
person determined to be maltreating the child, and if
applicable, the director of the facility, of the determinations.
Within ten working days of completing an investigation of a
licensed facility, the local welfare agency shall notify the
person alleged to be maltreating the child, the director of the
facility, and the parent or guardian of the child of the
determinations determination and a summary of the specific
reasons for the determination. The notice must also include a
certification that the information collection procedures under
subdivision 10, paragraphs (h), (i), and (j), were followed and
a notice of the right of a data subject to obtain access to
other private data on the subject collected, created, or
maintained under this section. In addition to the
determinations, the notice shall include the length of time that
the records will be kept under subdivision 11c. When there is
no determination of either maltreatment or a need for services,
the notice shall also include the alleged perpetrator's right to
have the records destroyed.
Sec. 7. Minnesota Statutes 1994, section 626.556, is
amended by adding a subdivision to read:
Subd. 14. [CONFLICT OF INTEREST.] (a) A potential conflict
of interest related to assisting in an assessment under this
section resulting in a direct or shared financial interest with
a child abuse and neglect treatment provider or resulting from a
personal or family relationship with a party in the
investigation must be considered by the local welfare agency in
an effort to prevent unethical relationships.
(b) A person who conducts an assessment under this section
or section 626.5561 may not have:
(1) any direct or shared financial interest or referral
relationship resulting in a direct shared financial gain with a
child abuse and neglect treatment provider; or
(2) a personal or family relationship with a party in the
investigation.
If an independent assessor is not available, the person
responsible for making the determination under this section may
use the services of an assessor with a financial interest,
referral, or personal or family relationship.
Sec. 8. [INFORMATION SHEET ON INVESTIGATION PROCESS.]
The commissioner must distribute to all local welfare
agencies an information sheet that summarizes the investigation
process and is based upon the commissioner's report titled
"Recommended Standards for Use when Investigating Reports of
Maltreatment in Child Care Facilities." The local welfare
agency shall give this information sheet to all parties involved
in information collection procedures under Minnesota Statutes,
section 626.556, subdivision 10.
Sec. 9. [ALTERNATIVE DISPUTE RESOLUTION PROCEDURES;
RECOMMENDATIONS.]
The commissioner of human services, in consultation with
county attorneys, law enforcement personnel, representatives of
parent and foster parent groups, facilities, attorneys and other
advocates who represent the interests of persons who may be
accused of child abuse and neglect, other professional human
services associations, and the representatives of communities of
color shall review and make recommendations to the chairs of the
legislative committees on health and human services, judiciary,
family services, and crime prevention on possible alternative
dispute resolution or fair hearing procedures to be used in
reviewing and resolving issues of alleged maltreatment and
determinations of whether child protective services are needed.
The purpose of the alternative dispute resolution process shall
be to provide a prompt and nonadversarial opportunity to resolve
allegations of maltreatment. The commissioner shall make these
recommendations by January 15, 1996.
Presented to the governor May 16, 1995
Signed by the governor May 18, 1995, 11:37 a.m.
Official Publication of the State of Minnesota
Revisor of Statutes