74th OREGON LEGISLATIVE ASSEMBLY--2007 Regular Session
 
NOTE:  Matter within  { +  braces and plus signs + } in an
amended section is new. Matter within  { -  braces and minus
signs - } is existing law to be omitted. New sections are within
 { +  braces and plus signs + } .
 
LC 532
 
                         House Bill 2189
 
Ordered printed by the Speaker pursuant to House Rule 12.00A (5).
  Presession filed (at the request of Governor Theodore R.
  Kulongoski for Department of Human Services)
 
 
                             SUMMARY
 
The following summary is not prepared by the sponsors of the
measure and is not a part of the body thereof subject to
consideration by the Legislative Assembly. It is an editor's
brief statement of the essential features of the measure as
introduced.
 
  Requires mandatory child abuse reporters to report likely and
actual child abuse. Increases scope of child abuse investigations
to include investigations of likely child abuse.
 
                        A BILL FOR AN ACT
Relating to child abuse; amending ORS 146.750, 417.815, 419B.005,
  419B.007, 419B.010, 419B.015, 419B.017, 419B.020, 419B.025,
  419B.035, 419B.040 and 419B.045.
Be It Enacted by the People of the State of Oregon:
  SECTION 1. ORS 419B.005 is amended to read:
  419B.005. As used in ORS 419B.005 to 419B.050, unless the
context requires otherwise:
  (1)(a) 'Abuse' means:
  (A) Any assault, as defined in ORS chapter 163, of a child and
any physical injury to a child which has been caused by other
than accidental means, including any injury which appears to be
at variance with the explanation given of the injury.
  (B) Any mental injury to a child, which shall include only
observable and substantial impairment of the child's mental or
psychological ability to function caused by cruelty to the child,
with due regard to the culture of the child.
  (C) Rape of a child, which includes but is not limited to rape,
sodomy, unlawful sexual penetration and incest, as those acts are
defined in ORS chapter 163.
  (D) Sexual abuse, as defined in ORS chapter 163.
  (E) Sexual exploitation, including but not limited to:
  (i) Contributing to the sexual delinquency of a minor, as
defined in ORS chapter 163, and any other conduct which allows,
employs, authorizes, permits, induces or encourages a child to
engage in the performing for people to observe or the
photographing, filming, tape recording or other exhibition which,
in whole or in part, depicts sexual conduct or contact, as
defined in ORS 167.002 or described in ORS 163.665 and 163.670,
sexual abuse involving a child or rape of a child, but not
including any conduct which is part of any investigation
conducted pursuant to ORS 419B.020 or which is designed to serve
educational or other legitimate purposes; and
  (ii) Allowing, permitting, encouraging or hiring a child to
engage in prostitution, as defined in ORS chapter 167.
  (F) Negligent treatment or maltreatment of a child, including
but not limited to the failure to provide adequate food,
clothing, shelter or medical care that is likely to endanger the
health or
  { - welfare - }   { + safety + } of the child.
    { - (G) Threatened harm to a child, which means subjecting a
child to a substantial risk of harm to the child's health or
welfare. - }
    { - (H) - }   { + (G) + } Buying or selling a person under 18
years of age as described in ORS 163.537.
    { - (I) - }   { + (H) + } Permitting a person under 18 years
of age to enter or remain in or upon premises where
methamphetamines are being manufactured.
    { - (J) - }   { + (I) + } Unlawful exposure to a controlled
substance, as defined in ORS 475.005, that subjects a child to a
substantial risk of harm to the child's health or safety.
  (b) 'Abuse' does not include reasonable discipline unless the
discipline results in one of the conditions described in
paragraph (a) of this subsection.
  (2) 'Child' means an unmarried person who is under 18 years of
age.
  (3) 'Public or private official' means:
  (a) Physician, including any intern or resident.
  (b) Dentist.
  (c) School employee.
  (d) Licensed practical nurse or registered nurse.
  (e) Employee of the Department of Human Services, State
Commission on Children and Families, Child Care Division of the
Employment Department, the Oregon Youth Authority, a county
health department, a community mental health and developmental
disabilities program, a county juvenile department, a licensed
child-caring agency or an alcohol and drug treatment program.
  (f) Peace officer.
  (g) Psychologist.
  (h) Member of the clergy.
  (i) Licensed clinical social worker.
  (j) Optometrist.
  (k) Chiropractor.
  (L) Certified provider of foster care, or an employee thereof.
  (m) Attorney.
  (n) Naturopathic physician.
  (o) Licensed professional counselor.
  (p) Licensed marriage and family therapist.
  (q) Firefighter or emergency medical technician.
  (r) A court appointed special advocate, as defined in ORS
419A.004.
  (s) A child care provider registered or certified under ORS
657A.030 and 657A.250 to 657A.450.
  (t) Member of the Legislative Assembly.
  (4) 'Law enforcement agency' means:
  (a) Any city or municipal police department.
  (b) Any county sheriff's office.
  (c) The Oregon State Police.
  (d) A county juvenile department.
  SECTION 2. ORS 419B.007 is amended to read:
  419B.007. The Legislative Assembly finds that for the purpose
of facilitating the use of protective social services to prevent
  { - further - }  abuse, safeguard and enhance the welfare of
abused children, and preserve family life when consistent with
the protection of the child by stabilizing the family and
improving parental capacity, it is necessary and in the public
interest to require mandatory reports and investigations of
 { + situations in which children are abused or are likely to
suffer + } abuse   { - of children - }  and to encourage
voluntary reports.
  SECTION 3. ORS 419B.010 is amended to read:
  419B.010. (1) { + (a) + } Any public or private official having
reasonable cause to believe that any child with whom the official
comes in contact has suffered abuse or  { + is likely to suffer
abuse, or + } that any person with whom the official comes in
contact has abused a child shall immediately report or cause a
report to be made in the manner required in ORS 419B.015.
   { +  (b) + } Nothing contained in ORS 40.225 to 40.295 or
419B.234 (6) affects the duty to report imposed by this section,
except that a psychiatrist, psychologist, member of the clergy,
attorney or guardian ad litem appointed under ORS 419B.231 is not
required to report such information communicated by a person if
the communication is privileged under ORS 40.225 to 40.295 or
419B.234 (6).
   { +  (c) + } An attorney is not required to make a report
under this section by reason of information communicated to the
attorney in the course of representing a client if disclosure of
the information would be detrimental to the client.
  (2) Notwithstanding subsection (1) of this section, a report
need not be made under this section if the public or private
official acquires information relating to abuse by reason of a
report made under this section, or by reason of a proceeding
arising out of a report made under this section, and the public
or private official reasonably believes that the information is
already known by a law enforcement agency or the Department of
Human Services.
  (3) A person who violates subsection (1) of this section
commits a Class A violation. Prosecution under this subsection
shall be commenced at any time within 18 months after commission
of the offense.
  SECTION 4. ORS 419B.015 is amended to read:
  419B.015. (1)(a) A person making a report   { - of child
abuse, - }  { + that a child is abused or is likely to suffer
abuse,  + }  { - whether voluntarily or pursuant to - }
 { + whether the report is made voluntarily or as required by
 + }ORS 419B.010 { +  or otherwise + }, shall make an oral report
by telephone or otherwise to the local office of the Department
of Human Services, to the designee of the department or to a law
enforcement agency within the county where the person making the
report is located at the time of the contact. The report shall
contain, if known, the names and addresses of the child and the
parents of the child or other persons responsible for care of the
child, the child's age, the nature and extent of the abuse,
including any evidence of previous abuse, the explanation given
for the abuse and any other information that the person making
the report believes might be helpful in establishing the cause of
the abuse and the identity of the perpetrator.
  (b) When a report   { - of child abuse - }  is received by the
department, the department shall notify a law enforcement agency
within the county where the report was made. When a report
 { - of child abuse - }  is received by a designee of the
department, the designee shall notify, according to the contract,
either the department or a law enforcement agency within the
county where the report was made. When a report   { - of child
abuse - }  is received by a law enforcement agency, the agency
shall notify the local office of the department within the county
where the report was made.
  (2) When a report   { - of child abuse - }  is received under
subsection (1)(a) of this section, the entity receiving the
report shall make the notification required by subsection (1)(b)
of this section according to rules adopted by the department
under ORS 419B.017.
  SECTION 5. ORS 419B.017 is amended to read:
  419B.017. (1) The Department of Human Services shall adopt
rules establishing:
 
 
  (a) The time within which the notification required by ORS
419B.015   { - (1)(a) - }  { +  (1)(b) + } must be made. At a
minimum, the rules shall:
  (A) Establish which reports   { - of child abuse - }  require
notification within 24 hours after receipt;
  (B) Provide that all other reports   { - of child abuse - }
require notification within 10 days after receipt; and
  (C) Establish criteria that enable the department, the designee
of the department or a law enforcement agency to quickly and
easily identify reports that require notification within 24 hours
after receipt.
  (b) How the notification is to be made.
  (2) The department shall appoint an advisory committee to
advise the department in adopting rules required by this section.
The department shall include as members of the advisory committee
representatives of law enforcement agencies and multidisciplinary
teams formed pursuant to ORS 418.747 and other interested
parties.
  (3) In adopting rules required by this section, the department
shall balance the need for providing other entities with the
information contained in a report received under ORS 419B.015
with the resources required to make the notification.
  (4) The department may recommend practices and procedures to
local law enforcement agencies to meet the requirements of rules
adopted under this section.
  SECTION 6. ORS 419B.020 is amended to read:
  419B.020. (1) Upon receipt of an oral report   { - of child
abuse - }  { +  that a child is abused or is likely to suffer
abuse, whether the report is voluntary or is required by ORS
419B.010 or otherwise + }, the Department of Human Services or
the law enforcement agency shall immediately:
  (a) Cause an investigation to be made to determine the nature
and cause of the abuse  { + or likely abuse + } of the child; and
  (b) Notify the Child Care Division if the alleged child abuse
 { +  or alleged likely child abuse + } occurred in a child care
facility as defined in ORS 657A.250.
  (2) If the law enforcement agency conducting the investigation
finds reasonable cause to believe that abuse has occurred, the
law enforcement agency shall notify by oral report followed by
written report the local office of the department. The department
shall provide protective social services of its own or of other
available social agencies if necessary to  { + protect the child
and to + } prevent further   { - abuses to - }   { + abuse of + }
the child   { - or to safeguard the child's welfare - } .
  (3) If a child is taken into protective custody by the
department, the department shall promptly make reasonable efforts
to ascertain the name and address of the child's parents or
guardian.
  (4)(a) If a child is taken into protective custody by the
department or a law enforcement official, the department or law
enforcement official shall, if possible, make reasonable efforts
to advise the parents or guardian immediately, regardless of the
time of day, that the child has been taken into custody, the
reasons the child has been taken into custody and general
information about the child's placement, and the telephone number
of the local office of the department and any after-hours
telephone numbers.
  (b) Notice may be given by any means reasonably certain of
notifying the parents or guardian, including but not limited to
written, telephonic or in-person oral notification. If the
initial notification is not in writing, the information required
by paragraph (a) of this subsection also shall be provided to the
parents or guardian in writing as soon as possible.
  (c) The department also shall make a reasonable effort to
notify the noncustodial parent of the information required by
paragraph (a) of this subsection in a timely manner.
  (d) If a child is taken into custody while under the care and
supervision of a person or organization other than the parent,
the department, if possible, shall immediately notify the person
or organization that the child has been taken into protective
custody.
  (5) If a law enforcement officer or the department, when taking
a child into protective custody, has reasonable cause to believe
that the child has been affected by sexual abuse and rape of a
child as defined in ORS 419B.005 (1)(a)(C) and that physical
evidence of the abuse exists and is likely to disappear, the
court may authorize a physical examination for the purposes of
preserving evidence if the court finds that it is in the best
interest of the child to have such an examination. Nothing in
this section affects the authority of the department to consent
to physical examinations of the child at other times.
  (6) A minor child of 12 years of age or older may refuse to
consent to the examination described in subsection (5) of this
section. The examination shall be conducted by or under the
supervision of a physician licensed under ORS chapter 677 or a
nurse practitioner licensed under ORS chapter 678 and, whenever
practicable, trained in conducting such examinations.
  SECTION 7. ORS 419B.025 is amended to read:
  419B.025. Anyone participating in good faith in the making of a
report   { - of child abuse - }   { + that a child is abused or
is likely to suffer abuse, whether the report is voluntary or is
required by ORS 419B.010 or otherwise,  + }and who has reasonable
grounds for   { - the making thereof - }   { + making the
report + } shall have immunity from any liability, civil or
criminal, that might otherwise be incurred or imposed with
respect to the making or content of such report. Any such
participant shall have the same immunity with respect to
participating in any judicial proceeding resulting from such
report.
  SECTION 8. ORS 419B.035 is amended to read:
  419B.035. (1) Notwithstanding the provisions of ORS 192.001 to
192.170, 192.210 to 192.505 and 192.610 to 192.990 relating to
confidentiality and accessibility for public inspection of public
records and public documents, reports and records compiled under
the provisions of ORS 419B.010 to 419B.050 are confidential and
may not be disclosed except as provided in this section. The
Department of Human Services shall make the records available to:
  (a) Any law enforcement agency or a child abuse registry in any
other state for the purpose of subsequent investigation of child
abuse;
  (b) Any physician, at the request of the physician, regarding
any child brought to the physician or coming before the physician
for examination, care or treatment;
  (c) Attorneys of record for the child or child's parent or
guardian in any juvenile court proceeding;
  (d) Citizen review boards established by the Judicial
Department for the purpose of periodically reviewing the status
of children, youths and youth offenders under the jurisdiction of
the juvenile court under ORS 419B.100 and 419C.005. Citizen
review boards may make such records available to participants in
case reviews;
  (e) A court appointed special advocate in any juvenile court
proceeding in which it is alleged that a child has been subjected
to child abuse or neglect { +  or is likely to suffer abuse + };
  (f) The Child Care Division for certifying, registering or
otherwise regulating child care facilities;
  (g) The Office of Children's Advocate; and
  (h) Any person, upon request to the Department of Human
Services, if the reports or records requested regard an incident
in which a child, as the result of abuse, died or suffered
serious physical injury as defined in ORS 161.015. Reports or
 
records disclosed under this paragraph must be disclosed in
accordance with ORS 192.410 to 192.505.
  (2)(a) When disclosing reports and records pursuant to
subsection (1)(h) of this section, the Department of Human
Services may exempt from disclosure the names, addresses and
other identifying information about other children, witnesses,
victims or other persons named in the report or record if the
department determines, in written findings, that the safety or
well-being of a person named in the report or record may be
jeopardized by disclosure of the names, addresses or other
identifying information, and if that concern outweighs the
public's interest in the disclosure of that information.
  (b) If the Department of Human Services does not have a report
or record of abuse regarding a child who, as the result of abuse,
died or suffered serious physical injury as defined in ORS
161.015, the department may disclose that information.
  (3) The Department of Human Services may make reports and
records compiled under the provisions of ORS 419B.010 to 419B.050
available to any person, administrative hearings officer, court,
agency, organization or other entity when the department
determines that such disclosure is necessary to administer its
child welfare services and is in the best interests of the
affected child, or that such disclosure is necessary to
investigate, prevent or treat child abuse and neglect, to protect
children from abuse and neglect or for research when the Director
of Human Services gives prior written approval. The Department of
Human Services shall adopt rules setting forth the procedures by
which it will make the disclosures authorized under this
subsection or subsection (1) or (2) of this section. The name,
address and other identifying information about the person who
made the report may not be disclosed pursuant to this subsection
and subsection (1) of this section.
  (4) A law enforcement agency may make reports and records
compiled under the provisions of ORS 419B.010 to 419B.050
available to other law enforcement agencies, district attorneys,
city attorneys with criminal prosecutorial functions and the
Attorney General when the law enforcement agency determines that
disclosure is necessary for the investigation or enforcement of
laws relating to child abuse and neglect.
  (5) A law enforcement agency, upon completing an investigation
and closing the file in a specific case relating to child abuse
or neglect, shall make reports and records in the case available
upon request to any law enforcement agency or community
corrections agency in this state, to the Department of
Corrections or to the State Board of Parole and Post-Prison
Supervision for the purpose of managing and supervising offenders
in custody or on probation, parole, post-prison supervision or
other form of conditional or supervised release. A law
enforcement agency may make reports and records compiled under
the provisions of ORS 419B.010 to 419B.050 available to law
enforcement, community corrections, corrections or parole
agencies in an open case when the law enforcement agency
determines that the disclosure will not interfere with an ongoing
investigation in the case. The name, address and other
identifying information about the person who made the report may
not be disclosed under this subsection or subsection (6)(b) of
this section.
  (6)(a) Any record made available to a law enforcement agency or
community corrections agency in this state, to the Department of
Corrections or the State Board of Parole and Post-Prison
Supervision or to a physician in this state, as authorized by
subsections (1) to (5) of this section, shall be kept
confidential by the agency, department, board or physician. Any
record or report disclosed by the Department of Human Services to
other persons or entities pursuant to subsections (1) and (3) of
this section shall be kept confidential.
  (b) Notwithstanding paragraph (a) of this subsection:
  (A) A law enforcement agency, a community corrections agency,
the Department of Corrections and the State Board of Parole and
Post-Prison Supervision may disclose records made available to
them under subsection (5) of this section to each other, to law
enforcement, community corrections, corrections and parole
agencies of other states and to authorized treatment providers
for the purpose of managing and supervising offenders in custody
or on probation, parole, post-prison supervision or other form of
conditional or supervised release.
  (B) A person may disclose records made available to the person
under subsection (1)(h) of this section if the records are
disclosed for the purpose of advancing the public interest.
  (7) An officer or employee of the Department of Human Services
or of a law enforcement agency or any person or entity to whom
disclosure is made pursuant to subsections (1) to (6) of this
section may not release any information not authorized by
subsections (1) to (6) of this section.
  (8) As used in this section, 'law enforcement agency' has the
meaning given that term in ORS 181.010.
  (9) A person who violates subsection (6)(a) or (7) of this
section commits a Class A violation.
  SECTION 9. ORS 419B.040 is amended to read:
  419B.040. (1) In the case of  { + child + } abuse   { - of a
child - }  { +  or when a child is likely to suffer abuse + },
the privileges created in ORS 40.230 to 40.255, including the
psychotherapist-patient privilege, the physician-patient
privilege, the privileges extended to nurses, to staff members of
schools and to registered clinical social workers and the
husband-wife privilege, shall not be a ground for excluding
evidence regarding   { - a child's - }   { + the + } abuse { +
or likelihood of abuse + }, or the cause thereof, in any judicial
proceeding resulting from a report made pursuant to ORS 419B.010
to 419B.050.
  (2) In any judicial proceedings resulting from a report made
pursuant to ORS 419B.010 to 419B.050, either spouse shall be a
competent and compellable witness against the other.
  SECTION 10. ORS 419B.045 is amended to read:
  419B.045. If an investigation   { - of a report of child
abuse - }  is conducted  { + under ORS 419B.020  + }on public
school premises, the school administrator shall first be notified
that the investigation is to take place, unless the school
administrator is a subject of the investigation. The school
administrator or a school staff member designated by the
administrator may, at the investigator's discretion, be present
to facilitate the investigation. The Department of Human Services
or the law enforcement agency making the investigation shall be
advised of the child's disabling conditions, if any, prior to any
interview with the affected child. A school administrator or
staff member is not authorized to reveal anything that transpires
during an investigation in which the administrator or staff
member participates nor shall the information become part of the
child's school records. The school administrator or staff member
may testify at any subsequent trial resulting from the
investigation and may be interviewed by the respective litigants
prior to any such trial.
  SECTION 11. ORS 146.750 is amended to read:
  146.750. (1) Except as required in subsection (3) of this
section, any physician, including any intern and resident, having
reasonable cause to suspect that a person brought to the
physician or coming before the physician for examination, care or
treatment has had injury, as defined in ORS 146.710, inflicted
upon the person other than by accidental means, shall report or
cause reports to be made in accordance with the provisions of
subsection (2) of this section.
 
  (2) An oral report shall be made immediately by telephone or
otherwise, and followed as soon thereafter as possible by a
report in writing, to the appropriate medical examiner.
  (3) When either an injury as defined in ORS 146.710 or abuse as
defined in ORS 419B.005 occurs { + , or is likely to occur, + }
to an unmarried person who is under 18 years of age, the
provisions of ORS 419B.005 to 419B.050 shall apply.
  SECTION 12. ORS 417.815 is amended to read:
  417.815. (1) The Office of Children's Advocate shall be
accessible to the public through the state toll-free telephone
line maintained pursuant to ORS 417.805 and through other
electronic and written forms of communication. The office shall:
  (a) Disseminate information and educate the public about the
detection and prevention of child abuse and about the prosecution
of persons accused of child abuse;
  (b) Cooperate with other units within the Department of Human
Services and law enforcement officials in performing duties under
ORS 418.747 and 418.748 and 419B.005 to 419B.050 when the
investigation involves alleged child abuse { +  or the likelihood
of abuse + };
  (c) Provide technical assistance in the development and
implementation of state and local programs that relate to child
abuse;
  (d) In cooperation with the department, objectively review the
department's systems for handling child abuse cases; and
  (e) Analyze data collected by the office to discern general
patterns and trends, chronic problems and other systemic
difficulties in the detection, reporting, investigation,
prosecution and resolution of cases of child abuse.
  (2) In addition to the duties required under subsection (1) of
this section, the office shall:
  (a) Review any complaint regarding the department's involvement
in a specific child abuse case, unless the office determines
there is an adequate remedy for the complaint;
  (b) Make any appropriate referrals of the complaint or
complainant at the time the office receives the complaint or
during the office's review process;
  (c) Inform the complainant of the referral of the complaint or
any other action taken by the office on the complaint;
  (d) Inform the department of the office's intention to review
the department's action, unless the office determines that
advance notice will unduly hinder the review; and
  (e) Conduct a review of the department's action when
appropriate, and inform the department of the results of the
review, including any recommendation the Children's Advocate
believes would resolve any case or any systemic issues identified
in the review.
  (3) If the office has knowledge of confidential information
relating to a child involved or allegedly  { + or likely to
be + } involved in child abuse, the office shall keep the
information confidential from public disclosure. However, the
office is subject to legal mandates in ORS 418.747 and 418.748
and 419B.005 to 419B.050.
  (4) A person who files a complaint under this section or ORS
417.805 or participates in any investigation under this section
may not be, because of that action:
  (a) Subject to any penalties, sanctions or restrictions imposed
by the department;
  (b) Subject to any penalties, sanctions or restrictions
connected with the person's employment; or
  (c) Denied any right, privilege or benefit.
  (5) If deemed necessary by the Children's Advocate for the
purposes of carrying out the duties of the office, the office may
conduct criminal records checks pursuant to ORS 181.537 on a
person through the Law Enforcement Data System maintained by the
Department of State Police.
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