(2)“Abuse” means any willful act or threatened act that results in any physical, mental, or sexual abuse, injury, or harm that causes or is likely to cause the child’s physical, mental, or emotional health to be significantly impaired

Transcript

1 Summary of Protection of Vulnerable Persons House Bill 1355 (Penn State Bill) Effective October 1, 2012 The bill adds to current mandatory reporting requirements in s. 39.201, F.S., by requiring reporting of known or reasonably suspected abuse of a chil d by any adult. The change removes the limitation that the only abuse reported to the Florida Abuse Hotline must be perpetrated a parent, legal custodian, caregiver, or other person on who knows, or responsible for the welfare of a child. The bill also requires that a pers has a reasonable suspicion, that a child is the victim of childhood sexual abuse or is the victim of a juvenile sexual offender, as defined in the bill, report that knowledge or reasonable suspicion to the Florida Abuse Hotline. F.S. 39.201(1) – Mandatory Reporting (1)(a)Any person who knows, or has reasonable cause to suspect, that a child is abused, abandoned, or neglected by a parent, legal custodian, caregiver, or other person responsible for the child’s welfare, as defined in this chapter, or that a child is in need of supervision and care and has no parent, legal custodian, or responsible adult relative immediately known and available to provide supervision and care shall report such tion (2). knowledge or suspicion to the department in the manner prescribed in subsec (b) Any person who knows, or who has reasonable cause to suspect, that a child is abused by an adult other than a parent, legal custodian, caregiver, or other person responsible for uch knowledge or suspicion to the child's welfare, as defined in this chapter, shall report s the department in the manner prescribed in subsection (2). (c) Any person who knows, or has reasonable cause to suspect, that a child is the victim of childhood sexual abuse or the victim of a known or suspected juvenile se xual offender, as defined in this chapter, shall report such knowledge or suspicion to the department in the manner prescribed in subsection (2). F.S. 39.201(2)(b) – Mandatory Reporting Each report of known or suspected child abuse by an adult other than a parent, legal custodian, caregiver, or other person responsible for the child's welfare, as defined in this chapter, shall be made immediately to the department's central abuse hotline. Such reports may be made on the single statewide toll -free telephone number or via fax, web- based chat, or web -based report. Such reports or calls shall be immediately electronically transferred to the appropriate county sheriff's office by the central abuse hotline. - 1 -

2 F. S. 39.01 Abuse ” means any willful act or threatened act that results in any physical, mental, (2) “ or sexual abuse, injury, or harm that causes or is likely to cause the child’s physical, mental, or emotional health to be significantly impaired. Abuse of a child includes acts or omissions. Corporal discipline of a child by a parent or legal custodian for disciplinary purposes does not in itself constitute abuse when it does not result in harm to the child. Caregiver ” means the parent, legal custodian, perm anent guardian, adult household (10) “ member, or other person responsible for a child’s welfare as defined in subsection (47). “ Child (12) ” or “ youth ” means any unmarried person under the age of 18 years who has not been emancipated by order of the court. (32) “ Harm ” to a child’s health or welfare can occur when any person: (a) Inflicts or allows to be inflicted upon the chil d physical, mental, or emotional injury. In determining whether harm has occurred, the following factors must be considered in evaluating any physical, mental, or emotional injury to a child: the age of the child; any prior history of injuries to the child ; the location of the injury on the body of the child; the , but is not multiplicity of the injury; and the type of trauma inflicted. Such injury includes limited to: 1.Willful acts that produce the following specific injuries: a.Sprains, dislocations, or cartilage damage. b.Bone or skull fractures. c.Brain or spinal cord damage. d.Intracranial hemorrhage or injury to other internal organs. e.Asphyxiation, suffoc ation, or drowning. f.Injury resulting from the use of a deadly weapon. g.Burns or scalding. h.Cuts, lacerations, punctures, or bites. i.Permanent or temporary disfigurement. j.Permanent or temporary loss or impairment of a body part or function. As u sed in this subparagraph, the term “willful” refers to the intent to perform an action, not to the intent to achieve a result or to cause an injury. 2. Purposely giving a child poison, alcohol, drugs, or other substances that substantially affect the child’s behavior, motor coordination, or judgment or that result in sickness or internal injury. For the purposes of this subparagraph, the term “drugs” means prescription drugs not prescribed for the child or not administered as prescribed, and controlled substances as outlined in Schedule I or Schedule II of s. 893.03 . 3. Leaving a child without adult supervision or arrangement appropriate for the child’s age or mental or physical condition, so that the child is unable to care for the child’s own needs or another’s basic needs or is unable to exercise good judgment in r esponding to any kind of physical or emotional crisis. - 2 -

3 Inappropriate or excessively harsh disciplinary action that is likely to result in 4. physical injury, mental injury as defined in this section, or emotional injury. The significance of any injury mus t be evaluated in light of the following factors: the age of the child; any prior history of injuries to the child; the location of the injury on the body of the child; the multiplicity of the injury; and the type of trauma inflicted. Corporal discipline may be considered excessive or abusive when it results in any of the following or other similar injuries: a. Sprains, dislocations, or cartilage damage. b. Bone or skull fractures. c. Brain or spinal cord damage. d. Intracranial hemorrhage or injury to other internal organs. e. Asphyxiation, suffocation, or drowning. f. Injury resulting from the use of a deadly weapon. g. Burns or scalding. h. Cuts, lacerations, punctures, or bites. i. Permanent or temporary disfigurement. j. Permanent or temporary loss or impairment of a body part or function. k. Significant bruises or welts. (b)Commits, or allows to be committed, sexual battery, as defined in chapter 794, or lewd or lascivious acts, as defined in chapter 800, against the child. Allows, encourages, or forces the sexual exploitation of a child, which includes (c) allowing, encouraging, or forcing a c hild to: 1. Solicit for or engage in prostitution; or 2. Engage in a sexual performance, as defined by chapter 827. (d) Exploits a child, or allows a child to be exploited, as provided in s. 450.151 . (e) Abandons the child. Within the context of the definition of “harm,” the term “abandoned the child” or “abandonment of the child” means a situation in which the parent or legal custodian of a child or, in the absence of a parent or legal custodian, the caregiver, while being able, has made no significant contribution to the child’s care and maintenance or has failed to establish or maintain a substantial and posi tive relationship with the child, or both. For purposes of this paragraph, “establish or maintain a substantial and positive relationship” includes, but is not limited to, frequent and regular contact with the child through frequent and regular visitation or frequent and regular communication to or with the child, and the exercise of parental rights and responsibilities. Marginal efforts and incidental or token visits or communications are not sufficient to establish or maintain a substantial and positive r elationship with a child. The term “abandoned” does not include a surrendered newborn infant as described in s. , a child in need of services as defined in chapter 984, or a family in need of 383.50 services as defined in chapter 984. The incarceration, repeated incarceration, or extended incarceration of a parent, legal custodian, or caregiver responsible for a child’s welfare may support a finding of abandonment. (f) Neglects the child. Within the context of the definition of “harm,” the term “neglects the child” means that the parent or other person responsible for the child’s , welfare fails to supply the child with adequate food, clothing, shelter, or health care although financially able to do so or although offered financial or other means to do so. However, a parent or legal custodian who, by reason of the legitimate practice of - 3 -

4 religious beliefs, does not provide specified medical treatment for a child may not be considered abusive or neglectful for that reason alone, but such an exception does not: 1. Eliminate the requirement that such a case be reported to the department; 2. Prevent the department from investigating such a case; or 3. Preclude a court from ordering, when the health of the child requires it, the provision of medical services by a physician, as defined in this section, or treatment by a duly accredited practitioner who relies solely on spiritual means for healing in accordance with the tenets and practices of a well -recognized church or religious organization. (g) Exposes a child to a controlled substance or alcohol. Exposure to a controlled substance or alcohol is established by: 1. A test, administered at birth, which indicated that the child’s blood, urine, or meconium contained any amount of alcohol or a controlled substance or metabolites of such substances, the presence of which was not the result of medical treatment administered to the mother or the newborn infant; or 2. Evidence of extensive, abusive, and chronic use of a controlled substance or alcohol by a parent when the child is demonstrably adversely affected by such usage. As used in this paragraph, the term “controlled substance” means prescription drugs not prescribed for the parent or not administered as prescribed and controlled substances as outlined in Schedul e I or Schedule II of s. 893.03 . (h) Uses mechanical devices, unreasonable restraints, or extended periods of isolation to control a child. (i) Engages in violent behavior that demonstrates a wanton disregard for the presence of a child and could reasonably result in serious injury to t he child. (j) Negligently fails to protect a child in his or her care from inflicted physical, mental, or sexual injury caused by the acts of another. (k) Has allowed a child’s sibling to die as a result of abuse, abandonment, or neglect. (l) Makes the child unavailable for the purpose of impeding or avoiding a protective investigation unless the court determines that the parent, legal custodian, or caregiver was fleeing from a situation involving domestic violence. “ (35) Legal custody tatus created by a court which vests in a ” means a legal s custodian of the person or guardian, whether an agency or an individual, the right to have physical custody of the child and the right and duty to protect, nurture, guide, and discipline the child and to provide hi m or her with food, shelter, education, and ordinary medical, dental, psychiatric, and psychological care. (44) “ Neglect ” occurs when a child is deprived of, or is allowed to be deprived of, necessary food, clothing, shelter, or medical treatment or a child is permitted to live in an environment when such deprivation or environment causes the child’s physical, mental, or emotional health to be significantly impaired or to be in danger of being significantly impaired. The foregoing circumstances shall not be considered neglect if caused primarily by financial inability unless actual services for relief have been offered to and rejected by such person. A parent or legal custodian legitimately practicing religious beliefs in accordance with a recognized church or religious organization who thereby - 4 -

5 does not provide specific medical treatment for a child may not, for that reason alone, be considered a negligent parent or legal custodian; however, such an exception does not preclude a court from ordering the following services to be provided, when the health of the child so requires: (a) Medical services from a licens ed physician, dentist, optometrist, podiatric physician, or other qualified health care provider; or (b) Treatment by a duly accredited practitioner who relies solely on spiritual means for healing in accordance with the tenets and practices of a well -recognized church or religious organization. Neglect of a child includes acts or omissions. (47) “ Other person responsible for a child’s welfare ” includes the child’s legal guardian or foster parent; an employee of any school, public or private child day care center, residential home, institution, facility, or agency; a law enforcement officer employed in any facility, service, or program for children that is operated or contracted by the Department of Juvenile Justice; or any other person legally responsible for the child’s welfare in a residential setting; and also includes an adult sitter or relative entrusted with a child’s care. For the purpose of departmental investigative jurisdiction, this definition does not include the following persons when they are acting in an official capacity: law enforcement officers, except as otherwise provided in this subsection; employees of municipal or county detention facilities; or employees of the Department of Corrections. Parent (49) “ ” means a woman who gives birth t o a child and a man whose consent to the adoption of the child would be required under s. 63.062 (1). If a child has been legally adopted, the term “parent” means the adoptive mother or father of the child. The term does not include an individual whose parental relationship to the child has been legally ntal status falls within the terminated, or an alleged or prospective parent, unless the pare 39.503(1) or s. 63.062 (1). For purposes of this chapter only, when the phrase terms of s. “parent or legal custodian” is used, it refers to rights or responsibilities of the parent and, only if t here is no living parent with intact parental rights, to the rights or responsibilities of the legal custodian who has assumed the role of the parent. (75) “ Temporary legal custody ” means the relationship that a court creates between a child and an adult relative of the child, legal custodian, agency, or other person approved by the court until a more permanent arrangement is ordered. Temporary legal custody confers upon the custodian the right to have temporary physical custody of the child and the right and duty to protect, nurture, guide, and discipline the child and to provide the child with food, shelter, and education, and ordinary medical, dental, psychiatric, and psychological care, unless these rights and duties are otherwise enlarged or limited b y the court order establishing the temporary legal custody relationship. (76) “ Victim ” means any child who has sustained or is threatened with physical, mental, or emotional injury identified in a report involving child abuse, neglect, or -child sexual abuse. -on abandonment, or child - 5 -

6 F.S. 39.205  univer sity, or non (3) Any Florida College System institution, state university, or school , as defined in s. 1000.21 or s. 1005.02, whose administrators knowingly and willfully, upon receiving inf ormation from faculty, staff, or other institution employees, fail to report known or suspected child abuse, abandonment, or neglect committed on the property of the university, college, or school, or during an event or function sponsored by the universit y, college, or school, or who knowingly and willfully prevent another person from doing so, shall be subject to fines of $1 million for each such failure. (a) A Florida College System institution subject to a fine shall be assessed by the State Board of E ducation. (b) A state university subject to a fine shall be assessed by the Board of Governors. (c) A nonpublic college, university, or school subject to a fine shall be assessed by the Commission for Independent Education. (4) Any Florida College Syste m institution, state university, or nonpublic college, university, or school, as defined in s. 1000.21 or s. 1005.02, whose law enforcement agency fails to report known or suspected child abuse, abandonment, or neglect committed on the property of the uni versity, college, or school, or during an event or function sponsored by the university, college, or school, shall be subject to fines of $1 million for each such failure assessed in the same manner as subsection (3). (5) Any Florida College System institution, state university, or nonpublic college, university or school, as defined in s. 1000.21 or s. 1005.02, shall have the right to challenge the determination that the institution acted knowingly and willfully under subsection (3) or subsection (4) in an administrative hearing pursuant to s. 120.57; however, if it is found that actual knowledge and information of known or suspected child abuse was in fact received by the institution's administrators and was not reported, a presumption of a knowing and wil lful act will be established. F.S. 39.203 Immunity from liability in cases of child abuse, abandonment, or neglect (1)(a) Any person, official, or institution participating in good faith in any act authorized or required by this chapter, or reporting i n good faith any instance of child abuse, abandonment, or neglect to the department or any law enforcement agency, shall be immune from any civil or criminal liability which might otherwise result by reason of such action. (b) Except as provided in this c hapter, nothing contained in this section shall be deemed to grant immunity, civil or criminal, to any person suspected of having abused, abandoned, or neglected a child, or committed any illegal act upon or against a child. of a facility serving children may be subjected to (2)(a) No resident or employee reprisal or discharge because of his or her actions in reporting abuse, abandonment, or neglect pursuant to the requirements of this section. - 6 -

7 (b) Any person making a report under this section shall have a civil cause of action for appropriate compensatory and punitive damages against any person who causes detrimental changes in the employment status of such reporting party by reason of his or her making such report. Any detrimental change made in the resi dency or employment status of such person, including, but not limited to, discharge, termination, demotion, transfer, or reduction in pay or benefits or work privileges, or negative evaluations within a prescribed period of time shall establish a rebuttabl e presumption that such action was retaliatory. - 7 -

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