Sharing confidential information Who DFCS can tell

Their records are Locked up tighter than Fort Knox, but I will see what I can do! DFCS won’t tell me anything, can you help ? This picture is an over dramatization of what someone would have to do to get a copy of a child abuse and neglect record. Myth – It would take an act of congress to get a copy of child abuse or neglect neglect Truth – the Statute allows a number of individuals to gain access to DFCS records. During the course of this presentation we will go through the law and the various number of individuals who the Department can share information with.

O.C.G.A. 49-5-40(b) “Each and every record concerning reports of child abuse and child controlled substance or marijuana abuse which is in the custody of the department or other state or local agency is declared to be confidential”. This code section makes reports of Child Abuse, and Child controlled substance or marijuana abuse In the custody of the Department confidential.

Child protective Services records Child abuse and neglect records include: Child protective Services records Foster care records on the child Child abuse and neglect records do not include: Child protective service records are protected from cover to cover Explain Would not include records maintained by the office for administrative purposes unrelated to the provision of services to a child or his or her family. For example: c.m. has created a form that tracks the number of home visits he or she makes in a day. Although the record contains information related to child abuse and neglect cases the record itself would be a public record. However, any information identifying the names of the children would have to be removed from the record before it is provided to the requester. Note: JJ v. Ledbetter Foster home records – records on the foster family, and those records are open to the extent that they do not contain information that is protected by a statute or regulation. Foster home records Statistical Information

O.C.G.A. Section 49-5-41 is broken up into five sections. a. Who the Department is required to share information with b. Research c. Who the Department may share information with in its discretion Section a. outlines those individuals and entities the Department must share information with. Outlines the method by which an individual can make review child abuse and neglect records for research purposes. Outlines the procedures by which the Department can provide records to individuals in their discretion d. Individuals or agencies who are providing foster care services to a child e. Child abuse and neglect records applicable to a deceased child

Who the Department has to share records with

A legally mandated, public or private, child protective agency of this state or any other state. The Department can only share information if: The agency is bound by similar confidentiality provisions. The agency is investigating a report of known or suspected child abuse or is treating a family that is the subject of a report or record. In order for the Department to share information with another child protective agency: Must be an agency that has legal authority to serve as a child protective agency The agency must be bound by similar confidentiality provisions Must be investigating a report of known or suspected child abuse or must be treating a child or family which is the subject of report or record.

A Court The Department must provide records to a court if: The court has issued a subpoena based on a finding that the records are necessary for determination of an issue before the court By subpoena There has to be A finding that access to the records is necessary for determination of an issue before the court. Court has to do an in camera inspection of the records unless 3. The court determines that public disclosure is necessary and the record is otherwise admissible under the rules of evidence.

A grand jury Records must be shared with a grand jury if: It has issued a subpoena based on its determination that access to the record is necessary in the conduct of its official business. The official business must be something the grand jury is authorized to do by law. If it is involved in a criminal matter. If the request is not tied to official business then the records can not be provided. For example. The grand jury can not conduct an investigation into how a local county office operates. It could however request the record if say for instance a charge of falsification of records was brought against a county employee.

A district attorney of any judicial circuit in this state or any assistant district attorney who may seek such access in connection with official duty The district attorney does not have to issue a subpoena. He or she just needs to make a request. Always try to get something in writing to place in the record.

The information is limited to: A mandated reporter who makes a report of suspected child abuse or neglect under the mandated reporter statute (O.C.G.A. 19-7-5) The information is limited to: Whether the investigation by the Department is completed or ongoing. If the investigation is completed, whether abuse was confirmed or unconfirmed (substantiated or unsubstantiated) Mandated reporters include: teachers, doctors, school social workers etc. Information can only be shared relating to the child that was the subject of the report. Note: The information can only be shared with the person making the report.

Any adult requesting information regarding investigations by the department or a governmental child protective agency regarding a deceased child. The individual requesting the information must specify the identity of the child. Access to information is limited to whether the investigation is completed or ongoing, and if completed, whether child abuse was substantiated or unsubstantiated. The person has to specify the identity of the child. Give examples. News report of child struck on highway Man hits child with car and wants to know if Department confirmed neglect against the parents. Information is limited to whether there is an ongoing investigation, and if completed whether child abuse was confirmed or unconfirmed. Note: Later we will discuss another section of the law regarding requests for information on a child that is deceased. The provision that applies depends on what the person is seeking and the way they make the request.

The State Personnel Board An administrative law judge must issue a subpoena upon its finding that the record is necessary for determination of an issue involving a personnel matter. The personnel issue must be related to the employees conduct in a child related employment activity. Only records that are relevant to the child related employment activities can be provided , upon a finding by an administrative law judge appointed by the chief state administrative law judge pursuant to Article 2 of Chapter 13 of Title 50, that access to such records may be necessary for a determination of an issue involving departmental personnel and that issue involves the conduct of such personnel in child related employment activities, provided that only those parts of the record relevant to the child related employment activities shall be disclosed. The name of any complainant or client shall not be identified or entered into the record. Examples Child injured while in workers care Worker is constantly late, and disciplinary action is taken against him or her. The name of the reporter or client shall not be identified or entered on the record

A child advocacy center which is certified by a county child abuse protocol committee of the county which is operated for the purpose of investigation of known or suspected child abuse and treatment of a child or a family which is the subject of a report of abuse, and which has been created and supported through one or more intra community compacts between such advocacy center and one or more police agencies, the office of the district attorney, a legally mandated public or private child protective agency, a mental health board, and a community health service board. A child advocacy center that is certified by the local child abuse protocol committee for the purpose of investigating known or suspected child abuse providing treatment services to the child or family that is the subject of the report. The advocacy center must maintain the confidentiality of the records and will be subject to penalty for violating Georgia Law.

Police or any other law enforcement agency of this state or any other state or any medical examiner or coroner investigating a report of known or suspected abuse or any child abuse protocol committee. They can only have information if they are investigating a case of child abuse. A police officer investigating a robbery can not get the address or other identifying information from the Department.

Specifies the name of the child for which such access is sought, and The Governor, the Attorney General, the Lieutenant Governor, or the Speaker of the House of Representatives when such officer makes a written request to the commissioner of the department which: Specifies the name of the child for which such access is sought, and Which describes such officer’s need to have access to such records in order to determine whether the laws of this state are being complied with. This list does not include local senators and representatives or state senators or congressmen

Office of the child advocate The child advocate shall have the right to have access to all records and files of the Division concerning or relating to a child, ...including the right to inspect, copy and subpoena records. The office of the child advocate was created in 2000. The office provides independent oversight of persons, organizations and agencies responsible for providing services to or caring for children who are victims of child abuse and neglect. The child advocate does not have to use a subpoena to gain access to DFCS records.

Research

The juvenile court must conduct a hearing on the petition Pursuant to O.C.G.A. 49-5-41 (b) an individual can petition their local juvenile court for access to child abuse and neglect records when the individual is engaged in legitimate research for educational, scientific, or public purposes. The juvenile court must conduct a hearing on the petition The applicant must describe the research project, the records being sought, and the methodology the researcher will use to assure that information is not arbitrarily sought. Section b of 49-5-41 outlines the procedures under which an individual can use abuse and neglect reports to do research A few years ago, Jane Hansen did a series of articles about the child welfare system in Georgia. She used this code section to gain access to department records. The names and identifying information about clients must be removed from the record unless the court determines that having such information is essential to the research project and the clients permission must be obtained before the records are provided to the researcher.

Who the Department may share information with in its discretion. For the following categories of individuals the Department must determine in its discretion whether it is appropriate to share information with an individual or agency.

A physician If the physician has a child before him who he reasonably suspects may be abused.

A licensed child-placing agency, a licensed child-caring institution of this state which is assisting the Department of Human Resources by locating or providing foster or adoptive homes for children in the custody of the department, or An investigator appointed by a court to investigate a pending petition for adoption. This was added to the law last year. This section helps the Department to ensure that former child molesters or abusers don’t get to adopt children without the court first considering their history. Note: This is to help us. If the child is not in our custody, we have a little more difficulty in sharing information

A person legally authorized to place a child in protective custody when such person has before him a child he reasonably suspects may be abused and such person requires the information in the record or report in order to determine whether to place the child in protective custody. A judge A police officer A Doctor under the new law Another Agency

An agency or person having the legal custody, responsibility or authorization to care for, treat, or supervise the child who is the subject of a report or record. This is the catchall provision. Use your discretion in what should or should not be shared. It should only be that information which the person needs to help them provide services for the child. With the new HIPAA regulations, if the child is not in our custody we may have difficulty sharing certain protected health information. Mandated reporters, teachers, doctors, social workers

An agency, facility, or person having responsibility or authorization to assist in making a judicial determination for the child who is the subject of the report or record of child abuse citizen review panels, court appointed guardians ad litem, certified court appointed special advocate volunteers who are appointed by a county child abuse protocol committee or task force

A legally mandated public child protective agency or law enforcement agency of another state that: 1. Is Bound by similar confidentiality provisions and requirements, and 2. Is assisting the Department in locating an alleged abuser who has left the state while the department was investigating a report of child abuse. This provision can be used by the Department when the alleged abuser has left the state. You can contact a sister agency and share information with them for the purposes of locating the abuser.

Any person reporting child abuse A child welfare agency or school where the department has investigated allegations of child abuse made against any employee of such agency or school and any child remains at risk from exposure to that employee, except that such access or release shall protect the identity of: Any person reporting child abuse Any other person whose life or safety has been determined by the department or agency likely to be endangered if the identity were not so protected Employees of the school or child welfare agency To protect the safety of the child

An employee of a school or employee of a child welfare agency, against whom allegations of child abuse have been made, when the department has been unable to determine the extent of the employee’s involvement in alleged child abuse against any child in the care of that school or agency. The Department can share its investigative findings with the school or child welfare agency if the employee signs a release. An employee of a school or child welfare agency against whom allegations of child abuse have been made and the Department is unable to determine the extent of the employee’s involvement in the alleged abuse. The information shared with the employer must protect the identity of: any person reporting the child abuse, and any other person whose life or safety would be endangered if their identity was not protected. We need to assess the risk to the children before we decide to share information.

Any person with an on-going relationship with a child named in an abuse or neglect report or record provided that the person was a mandated reporter on January 1, 1990 Physicians, interns or residents Hospitals and all medical personnel Dentists Licensed psychologist and all persons participating in internships for this license RNs, LPNs School teachers, guidance counselors, social workers, administrators Child welfare agency personnel Law enforcement personnel.

Any school principal or any school guidance counselor, school social worker, or school psychologist who is certified and who is counseling a student as a part of such counseling person’s school employment duties.

The Office of School Readiness or the Department of Education, Division of School Readiness

Pursuant to O.C.G.A. 49-5-41(d) Foster parents, child caring agencies and child placing agencies shall have reasonable access to non identifying information from the placement or child protective services record, on a child that has been placed in the care or custody of such foster parent or agency or for whom foster care is being sought. Records obtained from outside sources can not be provided if state or federal law prohibits the re-disclosure of the record. The department must respond to a request for records from these individuals within 14 days of receiving the written request. The f.P. and child placing, and child caring agencies are bound by law to protect the records from disclosure. Records which can be shared include reports of abuse social histories of the child and his or her family The medical history of the child including psychological, and psychiatric evaluations, educational records

In the Custody of a state department or agency or foster parent. Pursuant to O.C.G.A. Section 49-5-41(e) child abuse and deprivation records applicable to a child who at the time of his or her death was: In the Custody of a state department or agency or foster parent. A child that received protective services from the agency, or whose siblings, parents or caretakers received services from the Department, provided that the request for records is made within five years of the child’s death. Note: The legal services office handles the preparation of child death records. If a request is handled, you will only be asked to get a copy of the record to us. Since we only have three days to prepare the record, we ask that you overnight the material to us, if you have the ability to do so. The subject of an investigation, report, referral, or complaint being handled by the Office of the Child advocate.

An individual who unlawfully discloses information from a child abuse or neglect record shall be guilty of a misdemeanor An individual who obtains information from a record under false pretenses is shall be guilty of a misdemeanor.

Child abuse and neglect records or information contained therein can not be made a part of any record which is open to the public Exception: A district attorney may use and make public the record or information from the record in the course of any criminal prosecution for any offense which constitutes or results from child abuse.

EXAMPLES

A California Children and Family Services worker investigating a sexual abuse case involving a child who was once the subject of a DFCS child abuse investigation Yes

State Senator T. Williams No

trying a child molestation case A District Attorney trying a child molestation case Yes

A newspaper reporter May under the following circumstances In accordance with O.C.G.A. 49-5-41(c) is conducting research The reporter is doing a story on a deceased child

A School Social Worker Yes if they are providing services to the child. The S.W. should only get the information necessary to help him or her provide services to the child.

FBI Agent Investigating a Burglary Case No

A Representative from the Office of the Child Advocate Yes

A Florida Police Officer Maybe If the officer is helping us to locate a parent who has left the state Or the officer is investigating a case of child abuse or neglect

A grandmother has not seen her grandchild in three months A grandmother has not seen her grandchild in three months. She heard that DFCS has an open CPS case on the family. She is concerned about the child’s well-being and would like to know the status of the investigation. The child is not in DFCS custody. No

A pediatrician has a new patient with a broken arm A pediatrician has a new patient with a broken arm. She can not tell the cause of the injury and would like to know if DFCS has any history on the family that would help her with her medical assessment Yes