HB3960 96TH GENERAL ASSEMBLY

LRB096 04609 DRJ 14666 b

96TH GENERAL ASSEMBLY
State of Illinois
2009 and 2010
HB3960

Introduced 2/26/2009, by Rep. Constance A. Howard

SYNOPSIS AS INTRODUCED:

325 ILCS 5/3	from Ch. 23, par. 2053
325 ILCS 5/7.5a new

Amends the Abused and Neglected Child Reporting Act. Provides that certain interviews of a child who is alleged to be an abused child may not be conducted unless the interview is videotaped and audiotaped by the Department of Children and Family Services. Requires that the Department preserve those videotapes and audiotapes and other materials until all judgments in legal proceedings relating to the victim-sensitive interview are final and all direct and habeas corpus appeals are exhausted or such legal proceedings are barred by law. Provides for access to copies of the preserved materials by a party to a proceeding relating to the materials. Effective immediately.

FISCAL NOTE ACT MAY APPLY

A BILL FOR

AN ACT concerning children.

Be it enacted by the People of the State of Illinois, represented in the General Assembly:

Section 5. The Abused and Neglected Child Reporting Act is amended by changing Section 3 and by adding Section 7.5a as follows:

(325 ILCS 5/3) (from Ch. 23, par. 2053)

Sec. 3. As used in this Act unless the context otherwise requires:

"Child" means any person under the age of 18 years, unless legally emancipated by reason of marriage, or entry into a branch of the United States armed services, or a court order entered under the Emancipation of Minors Act.

"Department" means Department of Children and Family Services.

"Local law enforcement agency" means the police of a city, town, village or other incorporated area or the sheriff of an unincorporated area or any sworn officer of the Illinois Department of State Police.

"Abused child" means a child whose parent or immediate family member, or any person responsible for the child's welfare, or any individual residing in the same home as the child, or a paramour of the child's parent:

(a) inflicts, causes to be inflicted, or allows to be inflicted upon such child physical injury, by other than accidental means, which causes death, disfigurement, impairment of physical or emotional health, or loss or impairment of any bodily function;

(b) creates a substantial risk of physical injury to such child by other than accidental means which would be likely to cause death, disfigurement, impairment of physical or emotional health, or loss or impairment of any bodily function;

(c) commits or allows to be committed any sex offense against such child, as such sex offenses are defined in the Criminal Code of 1961, as amended, and extending those definitions of sex offenses to include children under 18 years of age;

(d) commits or allows to be committed an act or acts of torture upon such child;

(e) inflicts excessive corporal punishment;

(f) commits or allows to be committed the offense of female genital mutilation, as defined in Section 12-34 of the Criminal Code of 1961, against the child; or

(g) causes to be sold, transferred, distributed, or given to such child under 18 years of age, a controlled substance as defined in Section 102 of the Illinois Controlled Substances Act in violation of Article IV of the Illinois Controlled Substances Act or in violation of the Methamphetamine Control and Community Protection Act, except for controlled substances that are prescribed in accordance with Article III of the Illinois Controlled Substances Act and are dispensed to such child in a manner that substantially complies with the prescription.

A child shall not be considered abused for the sole reason that the child has been relinquished in accordance with the Abandoned Newborn Infant Protection Act.

"Neglected child" means any child who is not receiving the proper or necessary nourishment or medically indicated treatment including food or care not provided solely on the basis of the present or anticipated mental or physical impairment as determined by a physician acting alone or in consultation with other physicians or otherwise is not receiving the proper or necessary support or medical or other remedial care recognized under State law as necessary for a child's well-being, or other care necessary for his or her well-being, including adequate food, clothing and shelter; or who is abandoned by his or her parents or other person responsible for the child's welfare without a proper plan of care; or who has been provided with interim crisis intervention services under Section 3-5 of the Juvenile Court Act of 1987 and whose parent, guardian, or custodian refuses to permit the child to return home and no other living arrangement agreeable to the parent, guardian, or custodian can be made, and the parent, guardian, or custodian has not made any other appropriate living arrangement for the child; or who is a newborn infant whose blood, urine, or meconium contains any amount of a controlled substance as defined in subsection (f) of Section 102 of the Illinois Controlled Substances Act or a metabolite thereof, with the exception of a controlled substance or metabolite thereof whose presence in the newborn infant is the result of medical treatment administered to the mother or the newborn infant. A child shall not be considered neglected for the sole reason that the child's parent or other person responsible for his or her welfare has left the child in the care of an adult relative for any period of time. A child shall not be considered neglected for the sole reason that the child has been relinquished in accordance with the Abandoned Newborn Infant Protection Act. A child shall not be considered neglected or abused for the sole reason that such child's parent or other person responsible for his or her welfare depends upon spiritual means through prayer alone for the treatment or cure of disease or remedial care as provided under Section 4 of this Act. A child shall not be considered neglected or abused solely because the child is not attending school in accordance with the requirements of Article 26 of The School Code, as amended.

"Child Protective Service Unit" means certain specialized State employees of the Department assigned by the Director to perform the duties and responsibilities as provided under Section 7.2 of this Act.

"Person responsible for the child's welfare" means the child's parent; guardian; foster parent; relative caregiver; any person responsible for the child's welfare in a public or private residential agency or institution; any person responsible for the child's welfare within a public or private profit or not for profit child care facility; or any other person responsible for the child's welfare at the time of the alleged abuse or neglect, or any person who came to know the child through an official capacity or position of trust, including but not limited to health care professionals, educational personnel, recreational supervisors, members of the clergy, and volunteers or support personnel in any setting where children may be subject to abuse or neglect.

"Temporary protective custody" means custody within a hospital or other medical facility or a place previously designated for such custody by the Department, subject to review by the Court, including a licensed foster home, group home, or other institution; but such place shall not be a jail or other place for the detention of criminal or juvenile offenders.

"An unfounded report" means any report made under this Act for which it is determined after an investigation that no credible evidence of abuse or neglect exists.

"An indicated report" means a report made under this Act if an investigation determines that credible evidence of the alleged abuse or neglect exists.

"An undetermined report" means any report made under this Act in which it was not possible to initiate or complete an investigation on the basis of information provided to the Department.

"Victim-sensitive interview" means an interview of a child who is alleged to be an abused child by a multidisciplinary team that may include representatives from the Department, law enforcement, child protection, criminal prosecution, victim advocacy, and the medical and mental health fields.

"Subject of report" means any child reported to the central register of child abuse and neglect established under Section 7.7 of this Act and his or her parent, guardian or other person responsible who is also named in the report.

"Perpetrator" means a person who, as a result of investigation, has been determined by the Department to have caused child abuse or neglect.

"Member of the clergy" means a clergyman or practitioner of any religious denomination accredited by the religious body to which he or she belongs.

(Source: P.A. 94-556, eff. 9-11-05; 95-443, eff. 1-1-08.)

(325 ILCS 5/7.5a new)

Sec. 7.5a. Victim-sensitive interviews.

(a) A victim-sensitive interview of a child who is alleged to be an abused child may not be conducted unless the interview is videotaped and audiotaped by the Department. The videotaping and audiotaping of the victim-sensitive interview must begin at the start of the interview and continue without interruption until the interview is concluded.

(b) The Department must preserve every videotape and audiotape of a victim-sensitive interview of a child who is alleged to be an abused child, together with the written notes and reports of the members of the multidisciplinary team participating in or observing the interview, until all judgments in legal proceedings relating to the victim-sensitive interview are final and all direct and habeas corpus appeals are exhausted or such legal proceedings are barred by law.

(c) Any party to a proceeding relating to a victim-sensitive interview of a child who is alleged to be an abused child is entitled to obtain by subpoena a copy of the videotape and audiotape of the interview and copies of any written notes or reports of the members of the multidisciplinary team participating in or observing the interview.

(d) Notwithstanding any other law to the contrary, the inspection and copying of a videotape or audiotape of a victim-sensitive interview of a child who is alleged to be an abused child by any person who is not one of the following is prohibited: a judge, State's Attorney, Assistant State's Attorney, psychologist, psychiatrist, social worker, doctor, parent, parole agent, probation officer, attorney, guardian ad litem or child's representative for the child, petitioner or petitioner's attorney, plaintiff or plaintiffs attorney, defendant or defendant's attorney, or respondent or respondent's attorney, in a criminal proceeding or an investigation related a criminal proceeding, in a child abuse or child neglect proceeding, in a child custody or child guardianship proceeding, or in an adoption proceeding.

(e) A non-offending caretaker of a child who is alleged to be an abused child is entitled to receive a copy of the videotape and audiotape, together with copies of any written notes or reports prepared by participants or observers in the victim-sensitive interview, within 30 days after serving on the Department a written request for those materials. The caretaker must submit the written request to the Department within 30 days after the completion of the victim-sensitive interview or notice of the finding, whichever occurs later. The Department is responsible for all costs associated with preparing copies of the videotapes, audiotapes, and written notes and reports. The Department must provide notice of the right to request copies of the materials to all parties at the time of the victim-sensitive interview.

Section 99. Effective date. This Act takes effect upon becoming law.