HB 1409: Domestic relations; revise mandated reporting of child abuse

House Bill 1409 (AS PASSED HOUSE AND SENATE)

By: Representatives Camp of the 135th, Persinger of the 119th, Dempsey of the 13th, Hatchett of the 155th, Rice of the 139th, and others

A BILL TO BE ENTITLED

AN ACT

To amend Article 1 of Chapter 7 of Title 19 of the Official Code of Georgia Annotated, relating to provisions relative to parent and child relationship generally, so as to revise mandated reporting of child abuse; to provide for definitions; to provide for reporting requirements; to provide for the use of a secure web based reporting platform; to provide for related matters; to provide an effective date; to repeal conflicting laws to amend Title 28 of the Official Code of Georgia Annotated, relating to the General Assembly, so as to make portions of certain records of the General Assembly subject to public disclosure; to provide jurisdiction for enforcement; to provide for attorney’s fees and litigation expenses; to provide for good faith reliance as defense to action; to provide penalties for violations; to provide procedure for commencement of prosecution; to provide for application; to provide for construction;; and for other purposes.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:

SECTION 1.

Article 1 of Chapter 7 of Title 19 of the Official Code of Georgia Annotated, relating to provisions relative to parent and child relationship generally, is amended by revising Code Section 19-7-5, relating to reporting of child abuse, when mandated or authorized, content of report, to whom made, immunity from liability, report based upon privileged communication, penalty for failure to report, and spiritual treatment for illnesses, as follows:

"19-7-5.

(a) The purpose of this Code section is to provide for the protection of children. It is intended that mandatory reporting will cause the protective services of the state to be brought to bear on the situation in an effort to prevent abuses, to protect and enhance the welfare of children, and to preserve family life wherever possible. This Code section shall be liberally construed so as to carry out the purposes thereof.

(b) As used in this Code section, the term:

(1) 'Abandonment' means any conduct on the part of a parent, guardian, or legal custodian showing an intent to forgo parental duties or relinquish parental claims. Intent to forgo parental duties or relinquish parental claims may be evidenced by:

(A) Failure, for a period of at least six months, to communicate meaningfully with a child;

(B) Failure, for a period of at least six months, to maintain regular visitation with a child;

(C) Leaving a child with another person without provision for his or her support for a period of at least six months;

(D) Failure, for a period of at least six months, to participate in any court ordered plan or program designed to reunite a child with his or her parent, guardian, or legal custodian;

(E) Leaving a child without affording means of identifying such child or his or her parent, guardian, or legal custodian and:

(i) The identity of such child's parent, guardian, or legal custodian cannot be ascertained despite diligent searching; and

(ii) A parent, guardian, or legal custodian has not come forward to claim such child within three months following the finding of such child;

(F) Being absent from the home of his or her child for a period of time that creates a substantial risk of serious harm to a child left in the home;

(G) Failure to respond, for a period of at least six months, to notice of child protective proceedings; or

(H) Any other conduct indicating an intent to forgo parental duties or relinquish parental claims.

(2) 'Abortion' shall have the same meaning as set forth in Code Section 15-11-681.

(3) 'Abused' means subjected to child abuse.

(4) 'Child' means any person under 18 years of age.

(5) 'Child abuse' means:

(A) Physical injury or death inflicted upon a child by a parent, guardian, legal custodian, or other person responsible for the care of such child by other than accidental means; provided, however, that physical forms of discipline may be used as long as there is no physical injury to the child;

(B) Neglect of a child by a parent, guardian, legal custodian, or other person responsible for the care of such child;

(C) Emotional abuse of a child;

(D) Sexual abuse or sexual exploitation of a child;

(E) Prenatal abuse of a child by a parent;

(F) An act or failure to act that presents an imminent risk of serious harm to the child's physical, mental, or emotional health; or

(G) Trafficking a child for labor servitude.

(6) 'Child service organization personnel' means persons employed by or volunteering at a business or an organization, whether public, private, for profit, not for profit, or voluntary, that provides care, treatment, education, training, supervision, coaching, counseling, recreational programs, or shelter to children.

(7) 'Clergy' means ministers, priests, rabbis, imams, or similar functionaries, by whatever name called, of a bona fide religious organization.

(8) 'Emotional abuse' means acts or omissions by a parent, guardian, legal custodian, or other person responsible for the care of a child that cause any mental injury to such child's intellectual or psychological capacity as evidenced by an observable and significant impairment in such child's ability to function within a child's normal range of performance and behavior or that create a substantial risk of impairment.

(9) 'Labor servitude' means work or service of economic or financial value which is performed or provided by another individual and is induced or obtained by coercion or deception.

(10) 'Legal custodian' means:

(A) A person to whom legal custody of a child has been given by order of a court; or

(B) A public or private agency or other private organization licensed or otherwise authorized by law to receive and provide care for a child to which legal custody of such child has been given by order of a court.

(11) 'Neglect' means:

(A) The failure to provide proper parental care or control, subsistence, education as required by law, or other care or control necessary for a child's physical, mental, or emotional health or morals;

(B) The failure to provide a child with adequate supervision necessary for such child's well-being; or

(C) The abandonment of a child by his or her parent, guardian, or legal custodian.

(12) 'Person responsible for the care of a child' means:

(A) An adult member of a child's household;

(B) A person exercising supervision over a child for any part of the 24 hour day; or

(C) Any adult who, based on his or her relationship to the parent, guardian, or legal custodian or a member of a child's household, has access to such child.

(13) 'Pregnancy resource center' means an organization or facility that:

(A) Provides pregnancy counseling or information as its primary purpose, either for a fee or as a free service;

(B) Does not provide or refer for abortions;

(C) Does not provide or refer for FDA approved contraceptive drugs or devices; and

(D) Is not licensed or certified by the state or federal government to provide medical or health care services and is not otherwise bound to follow the federal Health Insurance Portability and Accountability Act of 1996, P.L. 104-191, or other state or federal laws relating to patient confidentiality.

(14) 'Prenatal abuse' means exposure to chronic or severe use of alcohol or the unlawful use of any controlled substance, as such term is defined in Code Section 16-13-21, which results in:

(A) Symptoms of withdrawal in a newborn or the presence of a controlled substance or a metabolite thereof in a newborn's body, blood, urine, or meconium that is not the result of medical treatment; or

(B) Medically diagnosed and harmful effects in a newborn's physical appearance or functioning.

(15) 'Reproductive health care facility' means any office, clinic, or any other physical location that provides abortions, abortion counseling, abortion referrals, or gynecological care and services.

(16) 'Secure web based platform' means a type of software that allows for the secure creation and transmission of reports required by this Code section. (16)(17) 'School' means any public or private pre-kindergarten, elementary school, secondary school, technical school, vocational school, college, university, or institution of postsecondary education.

(17)(18) 'Sexual abuse' means a person's employing, using, persuading, inducing, enticing, or coercing any minor who is not such person's spouse to engage in any act which involves:

(A) Sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal, whether between persons of the same or opposite sex;

(B) Bestiality;

(C) Masturbation;

(D) Lewd exhibition of the genitals or pubic area of any person;

(E) Flagellation or torture by or upon a person who is nude;

(F) Condition of being fettered, bound, or otherwise physically restrained on the part of a person who is nude;

(G) Physical contact in an act of apparent sexual stimulation or gratification with any person's clothed or unclothed genitals, pubic area, or buttocks or with a female's clothed or unclothed breasts;

(H) Defecation or urination for the purpose of sexual stimulation;

(I) Penetration of the vagina or rectum by any object except when done as part of a recognized medical procedure; or

(J) Any act described by subsection (c) of Code Section 16-5-46. Sexual abuse shall include consensual sex acts when the sex acts are between minors if any individual is less than 14 years of age; provided, however, that it shall not include consensual sex acts when the sex acts are between a minor and an adult who is not more than four years older than the minor. This provision shall not be deemed or construed to repeal any law concerning the age or capacity to consent.

(18)(19) 'Sexual exploitation' means conduct by any person who allows, permits, encourages, or requires a child to engage in:

(A) Sexual servitude, as defined in Code Section 16-5-46; or

(B) Sexually explicit conduct for the purpose of producing any visual or print medium depicting such conduct, as defined in Code Section 16-12-100. (c)(1) The following persons having reasonable cause to believe that suspected child abuse has occurred shall report or cause reports of such abuse to be made as provided in this Code section:

(A) Physicians licensed to practice medicine, physician assistants, interns, or residents;

(B) Hospital or medical personnel;

(C) Dentists;

(D) Licensed psychologists and persons participating in internships to obtain licensing pursuant to Chapter 39 of Title 43;

(E) Podiatrists;

(F) Registered professional nurses or licensed practical nurses licensed pursuant to Chapter 26 of Title 43 or nurse's aides;

(G) Professional counselors, social workers, or marriage and family therapists licensed pursuant to Chapter 10A of Title 43;

(H) School teachers;

(I) School administrators;

(J) School counselors, visiting teachers, school social workers, or school psychologists certified pursuant to Chapter 2 of Title 20;

(K) Child welfare agency personnel, as such agency is defined in Code Section 49-5-12;

(L) Child-counseling personnel;

(M) Child service organization personnel;

(N) Law enforcement personnel; or

(O) Firefighters, as defined in Code Section 25-4-2, including career and volunteer firefighters certified or recognized by the Georgia Firefighter Standards and Training Council or its successor, who have reasonable cause to believe that suspected child abuse or neglect has occurred or is occurring while acting in their official capacity;

(P) Animal service workers, including animal control officers as defined in Code Section 4-11-2, humane society employees, animal cruelty investigators, and animal shelter personnel whose professional duties may bring them into contact with children or household conditions indicative of child abuse or neglect; or (O)(Q) Reproductive health care facility or pregnancy resource center personnel and volunteers.

(2) If a person is required to report child abuse pursuant to this subsection because such person attends to a child pursuant to such person's duties as an employee of or volunteer at a hospital, school, social agency, or similar facility, such person shall notify the person in charge of such hospital, school, agency, or facility, or the designated delegate thereof, and the person so notified shall report or cause a report to be made in accordance with this Code section. An employee or volunteer who makes a report to the person designated pursuant to this paragraph shall be deemed to have fully complied with this subsection. Under no circumstances shall any person in charge of such hospital, school, agency, or facility, or the designated delegate thereof, to whom such notification has been made exercise any control, restraint, or modification or make any other change to the information provided by the reporter, although each of the aforementioned persons may be consulted prior to the making of a report and may provide any additional, relevant, and necessary information when making the report.

(3) When a person identified in paragraph (1) of this subsection has reasonable cause to believe that child abuse has occurred involving a person who attends to a child pursuant to such person's duties as an employee of or volunteer at a hospital, school, social agency, or similar facility, the person who received such information shall notify the person in charge of such hospital, school, agency, or facility, or the designated delegate thereof, and the person so notified shall report or cause a report to be made in accordance with this Code section. An employee or volunteer who makes a report to the person designated pursuant to this paragraph shall be deemed to have fully complied with this subsection. Under no circumstances shall any person in charge of such hospital, school, agency, or facility, or the designated delegate thereof, to whom such notification has been made exercise any control, restraint, or modification or make any other change to the information provided by the reporter, although each of the aforementioned persons may be consulted prior to the making of a report and may provide any additional, relevant, and necessary information when making the report.

(d) Any other person, other than one specified in subsection (c) of this Code section, who has reasonable cause to believe that suspected child abuse has occurred may report or cause reports to be made as provided in this Code section.

(e)(1) As used in the subsection, the term:

(A) 'Active duty' means full-time duty status.

(B) 'Armed forces of the United States' or 'military' means the United States Army, United States Navy, United States Marine Corps, United States Coast Guard, United States Air Force, United States Space Force, United States National Guard, Georgia Army National Guard, or Georgia Air National Guard, or a reserve component thereof.

(C) 'Family advocacy program' means, for the particular branch, the program established by the military for the prevention, education, prompt reporting, investigation, intervention, or treatment of spouse or child abuse.

(D) 'Military law enforcement' means, for the particular branch, the police corps, division, branch, agency, or authority of the military responsible for law enforcement or force protection.

(2) With respect to reporting Reports required by subsection (c) of this Code section, an oral report by telephone or other oral communication or a written report by electronic submission or facsimile shall:

(A) Shall be made immediately, but in no case later than 24 hours from the time there is reasonable cause to believe that suspected child abuse has occurred.;

(B) If the report is made by telephone or other oral communication, it shall be made to the Division of Family and Children Services of the Department of Human Services, a child welfare agency providing protective services, as designated by the Division of Family and Children Services of the Department of Human Services or, in the absence of such agency, to an appropriate police authority, military law enforcement, or district attorney. All telephonic or other oral reports shall be followed by a later written report submitted to the Division of Family and Children Services of the Department of Human Services as specified in subparagraph (C) of this paragraph;

(C) All written reports When a report is being made by electronic submission or facsimile to the Division of Family and Children Services of the Department of Human Services, it shall be done shall be made in the manner specified by the division. Oral reports shall be followed by a later report in writing, if requested, to a child welfare agency providing protective services, as designated by the Division of Family and Children Services of the Department of Human Services, or, in the absence of such agency, to an appropriate police authority or district attorney. this subparagraph as follows:

(i) The Division of Family and Children Services of the Department of Human Services shall make its website and a model form for reports available for any person to complete and securely submit a report to the division;

(ii) The Division of Family and Children Services of the Department of Human Services shall allow persons specified in subsection (c) of this Code section to submit reports directly to the division through the division's website or to the division through a secure web based platform;

(iii) Such report shall be provided to military law enforcement, if applicable., through a method or methods identified by military law enforcement; and (iv) If a report of child abuse is made to or received by the child welfare agency or if the report is independently discovered by the agency, and the agency has reasonable cause to believe such report is true or the report contains any allegation or evidence of child abuse, then the agency shall immediately notify the appropriate police authority or district attorney and notify military law enforcement, if applicable.; and

(D) Reports required by this Code section Such reports shall contain the names and addresses of the child and the child's parents or caretakers, if known, the child's age, the nature and extent of the child's injuries, including any evidence of previous injuries,. The reporting mechanism and model form created by the Division of Family and Children Services of the Department of Human Services shall also permit the person completing the report to provide and any other information that the reporting person believes might be helpful in establishing the cause of the injuries and the identity of the perpetrator. A secure web based platform may utilize prompts or other methods to assist the person completing the report to provide information deemed relevant or important. Photographs of the child's injuries to be used as documentation in support of allegations by hospital employees or volunteers, physicians, law enforcement personnel, school officials, or employees or volunteers of legally mandated public or private child protective agencies may be taken without the permission of the child's parent or guardian. Such photographs shall be made available as soon as possible to the chief welfare agency providing protective services, the appropriate police authority, and military law enforcement.

(3) A report made in accordance with this subsection shall be received by the receiving agency and thoroughly evaluated to determine child safety and whether an allegation of child abuse exists. A report will be screened in or screened out based only on the criteria set forth in law. The Division of Family and Children Services of the Department of Human Services shall not refuse to receive, log, or process a report submitted via the division website or a secure web based platform that satisfies subsection (k) of this Code section. Reports shall thereafter be screened in or screened out based solely on whether the child maltreatment allegations satisfy the definition of child abuse or neglect criteria and applicable law and policy without regard to the manner or method of submission. (3)(4) For each child who is the subject of child abuse allegations, the child welfare agency as provided for in paragraph (1) of this subsection shall make efforts as soon as practicable to determine whether a parent or guardian of such child is on active duty in the armed forces of the United States. If such agency determines that a parent or guardian of such child is on active duty in the armed forces of the United States, such agency shall notify the applicable military installation's family advocacy program of the allegation of child abuse that relates to the parent or guardian of such child.

(5) By January 1, 2027, the department shall review and update the applicable chapters of its Child Welfare Policy Manual that address and set forth criteria and standards relevant to the intake, disposition, and investigation of reports of abuse or neglect. Any revisions to the Child Welfare Policy Manual based on this paragraph shall be consistent with the provisions of this Code section.

(f) Any person or persons, partnership, firm, corporation, association, hospital, or other entity participating in the making of a report or causing a report to be made, and individuals who otherwise provide information or assistance, including, but not limited to, medical evaluations or consultations, in connection with a report made to a child welfare agency providing protective services, an appropriate police authority, or military law enforcement pursuant to this Code section or any other law or participating in any judicial proceeding or any other proceeding resulting therefrom shall in so doing be immune from any civil or criminal liability that might otherwise be incurred or imposed, provided that such participation pursuant to this Code section or any other law is made in good faith. Any person making a report, whether required by this Code section or not, shall be immune from liability as provided in this subsection.

(g) Suspected child abuse which is required to be reported by any person pursuant to this Code section shall be reported notwithstanding that the reasonable cause to believe such abuse has occurred or is occurring is based in whole or in part upon any communication to that person which is otherwise made privileged or confidential by law; provided, however, that a member of the clergy shall not be required to report child abuse reported solely within the context of confession or other similar communication required to be kept confidential under church doctrine or practice. When a clergy member receives information about child abuse from any other source, the clergy member shall comply with the reporting requirements of this Code section, even though the clergy member may have also received a report of child abuse from the confession of the perpetrator.

(h) Any person or official required by subsection (c) of this Code section to report a suspected case of child abuse who knowingly and willfully fails to do so shall be guilty of a misdemeanor.

(i) A report of child abuse or information relating thereto and contained in such report, when provided to a law enforcement agency or district attorney pursuant to subsection (e) of this Code section or pursuant to Code Section 49-5-41, shall not be subject to public inspection under Article 4 of Chapter 18 of Title 50 even though such report or information is contained in or part of closed records compiled for law enforcement or prosecution purposes unless:

(1) There is a criminal or civil court proceeding which has been initiated based in whole or in part upon the facts regarding abuse which are alleged in the child abuse reports and the person or entity seeking to inspect such records provides clear and convincing evidence of such proceeding; or

(2) The superior court in the county in which is located the office of the law enforcement agency or district attorney which compiled the records containing such reports, after application for inspection and a hearing on the issue, shall permit inspection of such records by or release of information from such records to individuals or entities who are engaged in legitimate research for educational, scientific, or public purposes and who comply with the provisions of this paragraph. When those records are located in more than one county, the application may be made to the superior court of any one of such counties. A copy of any application authorized by this paragraph shall be served on the office of the law enforcement agency or district attorney which compiled the records containing such reports. In cases where the location of the records is unknown to the applicant, the application may be made to the Superior Court of Fulton County. The superior court to which an application is made shall not grant the application unless:

(A) The application includes a description of the proposed research project, including a specific statement of the information required, the purpose for which the project requires that information, and a methodology to assure the information is not arbitrarily sought;

(B) The applicant carries the burden of showing the legitimacy of the research project; and

(C) Names and addresses of individuals, other than officials, employees, or agents of agencies receiving or investigating a report of abuse which is the subject of a report, shall be deleted from any information released pursuant to this subsection unless the court determines that having the names and addresses open for review is essential to the research and the child, through his or her representative, gives permission to release the information.

(j) The treatment of a child in good faith solely by spiritual means through prayer in accordance with the tenets and practices of a recognized church or religious denomination by a duly accredited practitioner thereof shall not in and of itself be considered child abuse. (k)(1) Agencies that employ mandated reporters may authorize its employees to create or transmit reports required by this Code section through a secure web based platform designated by the agency. An agency may only designate one secure web based platform for its employees to use to create or transmit the reports, and the agency may designate a secure web based platform if:

(A) The secure web based platform functions in compliance with applicable federal law; and

(B) The agency is satisfied that the secure web based platform complies with the Health Insurance Portability and Accountability Act, Federal Bureau of Investigation's Criminal Justice Information Services Security Policy, or Family Educational Rights and Privacy Act, as applicable;

(C) The secure web based platform provider demonstrates to the agency that it has been deemed compliant with the relevant security standard by a federal, state, or local government agency or by a third party that has been approved by a federal, state, or local government agency for security and compliance attestation; or

(D) The secure web based platform meets all technical standards and specifications established by the Georgia Technology Authority.

(2) A reporting agency that utilizes a secure web based platform shall notify the Division of Family and Children Services of the Department of Human Services not less than ten days before implementing the secure web based platform. The notice shall identify the name of the secure web based platform provider and any domain names utilized by the secure web based platform to submit reports.

(l) Mandatory reporting training shall be required for users of any secure web based platform used to submit reports under this Code section. Training requirements may be satisfied by a course provided either by the Division of Family and Children Services of the Department of Human Services or by an organization with demonstrated subject matter expertise in mandated reporting, including accredited continuing education providers, law enforcement training entities, school training entities, or child advocacy organizations. The Division of Family and Children Services of the Department of Human Services may publish learning objectives, but shall not require platform specific training, exclusive delivery methods, or requirements that have the effect of excluding otherwise compliant platforms.

(m) Nothing in this Code section shall require the department to take an action for which it has not received notice from an appropriate federal agency that such action would not comply with federal law."

SECTION 2.

Section 1 shall become effective on July 1, 2027.

SECTION 3.

Title 28 of the Official Code of Georgia Annotated, relating to the General Assembly, is amended by adding a new Code section to read as follows:

"28-1-18.

(a) If any claim of an unlawful employment practice made against a member of the General Assembly, including, but not limited to, a claim of sexual harassment, discriminatory harassment, discrimination, or retaliation, is resolved in whole or in part by a settlement agreement, a memorandum of agreement or understanding, or other similar document, however denominated, such agreement shall be subject to public disclosure with the identity of the claimant and any other party thereto redacted, except for the identity of the member. This subsection shall be applicable to any claims made on or after January 1, 2019. The provisions of Code Section 28-4-3.1 shall not be construed to prohibit the disclosure of any such documents.

(b) Any requests for public disclosure of such documents pursuant subsection (a) shall be made to the Office of the Speaker of the House of Representatives if such request relates to a member of the House and shall be made to the Office of the Lieutenant Governor and the Office of the President Pro Tempore if such request relates to a member of the Senate. All documents responsive to a request shall be produced within three business days of receipt of a request.

(c) (1) The superior courts of this state shall have jurisdiction in law and in equity to entertain actions against the Speaker of the House of Representatives for documents related to members of the House and against the President of the Senate or the President Pro Tempore of the Senate for documents related to members of the Senate to enforce compliance with the provisions of subsections (a) and (b) of this Code section. Such actions may be brought by any person, firm, corporation, or other entity. In addition, the Attorney General shall have authority to bring such actions in his or her discretion as may be appropriate to enforce compliance with subsections (a) and (b) of this Code section and to seek either civil or criminal penalties or both.

(2) In any action brought to enforce the provisions of subsections (a) and (b) of this Code section in which the court determines that either party acted without substantial justification either in not complying with subsections (a) and (b) of this Code section or in instituting the litigation, the court shall, unless it finds that special circumstances exist, assess in favor of the complaining party reasonable attorney's fees and other litigation costs reasonably incurred. Whether the position of the complaining party was substantially justified shall be determined on the basis of the record as a whole which is made in the proceeding for which fees and other expenses are sought.

(3) Any officer named in paragraph (1) of subsection (c) knowingly and willfully violating the provisions of subsections (a) and (b) of this Code section by failing or refusing to provide access to records subject to such subsections, by knowingly and willingly failing or refusing to provide access to such records within three business days, or by knowingly and willingly frustrating or attempting to frustrate the access to records by intentionally making records difficult to obtain shall be guilty of a misdemeanor and upon conviction shall be punished by a fine not to exceed $1,000.00 for the first violation. Alternatively, a civil penalty may be imposed by the court in any civil action brought pursuant to this article against any such officer who negligently violates the terms of this article in an amount not to exceed $1,000.00 for the first violation. A civil penalty or criminal fine not to exceed $2,500.00 per violation may be imposed for each additional violation that the violator commits within a 12 month period from the date the first penalty or fine was imposed. It shall be a defense to any criminal action under this Code section that an officer has acted in good faith in his or her actions. In addition, persons, officers, or entities that destroy records for the purpose of preventing their disclosure under this article may be subject to prosecution under Code Section 45-11-1.

(4) A prosecution under this subsection may only be commenced by issuance of a citation in the same manner as an arrest warrant for a peace officer pursuant to Code Section 17-4-40; such citation shall be personally served upon the accused. The defendant shall not be arrested prior to the time of trial, except that a defendant who fails to appear for arraignment or trial may thereafter be arrested pursuant to a bench warrant and required to post a bond for his or her future appearance.

(d) The General Assembly and its members, officers, staff, committees, commissions, and offices are not subject to the provisions of Code Sections 50-18-70 through 50-18-78 or Chapter 14 of Title 50 and nothing in this Code section shall be construed or applied to the contrary."

(e) This Act shall become effective upon signature of the Governor except as for Section 1.

SECTION 4.

All laws and parts of laws in conflict with this Act are repealed.