CHILD WELFARE MANUAL

Effective Date:  5-1-19

 

Section 210.150 RSMo defines individuals who may receive copies of records from the Central Registry. Those records may include child abuse/neglect (CA/N) investigations with a final determination of court adjudicated (including criminal convictions and/or juvenile court findings which arise from the facts of the CA/N investigation), preponderance of evidence, or probable cause. The Division also allows for subjects of reported concerns to request access to, or a copy of, unsubstantiated investigations, family assessments and non-CA/N referrals. Specific considerations and exceptions are outlined below. Section 210.150 defines persons who may receive copies of records from the Central Registry (includes court adjudicated, preponderance of evidence, probable cause, and criminal convictions) and those with access to unsubstantiated records and Family Assessment cases:

Release of Records When There Are No Exceptions Due to Court Involvement

The following outlines steps and processes whereby a “subject”, or his/her attorney, may request and receive a copy of the record to which they are entitled:

• The Division receives request by telephone, letter or in person, to view the record from a “subject” or his/her attorney.
  • Explain in writing, in-person, or by telephone that an appointment may be made to view the record or a copy of the record may be provided to the “subject” or his/her attorney.

Staff should clarify with the subject whether he/she wants to review the record on a specific incident, or also prior incidents, in order to adequately prepare the record.

• • Staff may allow immediate access to the subject or his/her attorney if the case is prepared. However, if the case is not ready, set a specific appointment within ten (10) working days and request that the subject contact the office if he/she does not intend to keep the appointment. However, this ten (10) day rule does not apply if the request falls under Supreme Court Rule 123.08 as seen below.

In most situations a copy of the record will be given to the subject or attorney in person. A copy of the record will be made available upon request. CD will furnish one copy of the record. Any additional copies will be made at the expense of the person requesting the copy.

• • Exceptions which allow mailing a copy include:
    • the subject lives out of state and is not able to pick up a copy,
    • incapacitation of the subject; or,
    • other reasons in the judgment of CD staff which preclude the subject from picking up a copy.
  • The envelope in which the copy is mailed shall be marked “CONFIDENTIAL”.
  • A cover document for the released record shall contain the following statement:

“Do Not Re-Release This Confidential Document To Anyone Even If They Are Also Authorized To Obtain A Copy Of This Document From The Division. Please Direct All Requests For Confidential Records To The Children’s Division.”

• • A subject’s attorney must have a written letter of authorization signed by the subject prior to the release of the information, unless a court order has been issued which authorizes release of the information to the attorney. Retain the authorizing document in the case record.
• Division staff should copy the CA/N record and redact all identifying information regarding the reporter or other information covered by the Health Insurance Portability and Accountability Act of 1996 (HIPAA), Public Law 104-191, prior to allowing a subject, or his/her attorney, to review or receive a copy of the CA/N.
• If, the subject, or his/her attorney, comes to a local office by appointment, he/she must present adequate identification prior to seeing the record.
• Document within one (1) working day, in the case narrative the time, place and person with whom the record was shared and material copied.
• Notify the custodial parent if a non-custodial parent requests to view the record.
• Information in the case record will be shared with minor children in accordance with the following guidelines:
  • If the child is in the custody of the Children’s Division, CD has the right to determine if the child should see the record. Division staff may request guidance from the court if there is a particular concern.
  • If the child is in the legal custody of another person (i.e., parent, guardian) contact that person to determine whether they want the child to view the record.
• Staff should determine if release of identifying information for any person named in the report, such as the child, a parent/guardian, witness, or collateral may place a person’s life or safety in danger:
  • During the investigation, staff should document in the record if there are situations, involving the persons named above, that may place danger if the information is released to any person with a right to the information.
  • In addition, staff should document in the record if they become aware of situations that may place a person named in the report in danger. This may include awareness of domestic violence, ex-parte orders, or other situations which verify a potentially dangerous situation.
  • The county designee shall use judgment, based on the above, regarding non-release of identifying information. Document in the record the reasons for not releasing the identifying information along with any available verification.

Release of Records When There Are Pending Criminal Charges

When an alleged perpetrator requests a release of records, the redacted records must be released, except in a very limited set of circumstances as described below:

• 1. An alleged perpetrator shall have access to appropriately redacted CA/N investigative records in the following situations under Sections 210.150.2(5) and 210.150.3(3) RSMo:
     • There is a pending criminal investigation but no formal criminal charges have been filed in court;
     • The alleged perpetrator has been indicted for a misdemeanor;
     • The alleged perpetrator has been charged with a misdemeanor by the filing of an information;
     • The alleged perpetrator has been charged with a felony by indictment; or,
     • The alleged perpetrator has been charged with a felony by the filing of a criminal complaint in court arising out of the facts and circumstances identified in the investigative records, and the felony complaint has resulted in an information after a preliminary hearing has been held or the alleged perpetrator has waived preliminary hearing and information and the case has been bound over for trial.
  2. An alleged perpetrator shall not have access to hotline CA/N investigative records under Sections 210.150.2(5) and 210.150.3(3) RSMo in cases where the following applies:
     • The perpetrator has been formally charged with a felony by the filing of a criminal complaint in court arising out of the facts and circumstances identified in the investigative records; and,
     • The felony complaint has not yet resulted in an information after a preliminary hearing and the preliminary hearing has not been waived.
  3. Division staff may still redact in appropriate cases:
     • Protected Health Information (PHI) as outlined in the Child Welfare Manual at Section 5 Chapter 2.7 Health Insurance Portability and Accountability Act (HIPAA);
     • The information which would identify a hotline reporter;
     • Any “identifying information” when the Division determines that a person’s life or safety may be in danger. The Division must document this decision with clearly stated facts that disclosure of identifying information would endanger a person’s life or safety; and,
     • Any other information which may be required to be redacted as provided by law.

Release of Records When There is Juvenile Court Involvement

Supreme Court Rule 123.08 regarding informal discovery in juvenile court requires the Children’s Division and the Juvenile Officer to provide access to records and information within specific time frames without a formal discovery request. Within ten (10) days of the protective custody hearing or within fourteen (14) days of the filing of the petition or motion to modify, the Children’s Division and Juvenile Officer must allow for certain records to be made available to all parties. The records may include the following and should be relevant to the allegations in the petition:

• 1. Medical records of the juvenile;
  2. Law enforcement records, including incident reports. If information regarding an active investigation is requested, CD staff should request permission from law enforcement to release the information. If law enforcement will not approve the release due to an active investigation, CD should notify all parties that the information cannot be released at this time;
  3. Written statements, videotapes, and audiotapes regarding the juvenile and or parents/guardians;
  4. Reports and affidavits submitted by the Children’s Division to the juvenile office recommending protective custody or a petition to be filed;
  5. Completed CD reports and safety plans;
  6. Written service agreements; and
  7. Completed hotline reports, redacted as required by law. If the hotline report is not completed by the timeframes set forth in the initial court hearing, the report should be made available upon completion.

CD must also make available to all parties any new relevant information related to the allegations obtained within ten (10) days of receipt of the request. This rule only requires CD to make available completed documents in their case record. The rule does not require CD to request additional records not currently in its possession for any other party.

The Supreme Court rule does not supersede HIPAA and other statutes and regulations which govern the confidentiality of information in the hands of the Children’s Division. Information which may be confidential and may need to be redacted may include:

• 1. Information which would identify the reporter of a hotline call;
  2. Protected health information of persons other than the child in CD’s custody, such as parents, grandparents and other third parties (e.g. medical records, therapy records);
  3. Investigative reports prepared by law enforcement of active criminal investigations;
  4. Federally protected, confidential information relating to the testing, diagnosis and treatment for substance abuse.

It is therefore very important to make certain that any information provided under this rule is reviewed and appropriate redactions made before the information is released. If staff have any concerns about what information needs to be redacted they should contact the Children’s Division’s privacy officer. If the privacy officer is unable to resolve the question a referral for legal advice should be made to the Division of Legal Services, DLS.

Staff are not required to have a release of information form signed by the parents to release information related to the allegations pursuant to a request made under this rule as long as there is an order of appointment by the court or entry of appearance made by the attorney. However, a signed release of information form is required to release confidential materials regarding the parents’ protected health information or materials not covered in the rule.

The rule states that CD must make these materials available for all parties, thus staff should have their case files ready for review within the specified timeframes. Parents without representation also have access to these records and staff should notify parents of this right at the protective custody hearing. It may also be beneficial for staff to put information regarding this rule in the parent pack that is provided to the parents at the time of custody. This information has also been added to the Handbook for Parents of Children in Alternative Care, CS-304.

The rule does not require CD to make copies of the information. Staff may schedule an appointment for the party to review the relevant information in the record. If the party or attorney would like copies of the documents, they may provide a written or verbal request. If copies of the information are requested, the Children’s Division must follow the timeframes established in this rule as this rule supersedes the CD policy which allows ten (10) days to prepare the case file. Only one copy per party will be made. Any additional copies will be made at the expense of the person requesting the copy.

3.4.1 Exceptions to a Person’s Right of Access

Access to case record information by a subject may not be in the best interest of the child/family if any of the following situations exist:

• • Repeated harassment calls by a parent or spouse;
  • Documentation of previous physical abuse by a parent or spouse;
  • Documentation of domestic violence in household and/or threat or risk of harm to child(ren) and/or adult victim;
  • Knowledge of criminal action by parent or spouse;
  • Pending litigation such as dissolution of marriage.

Determine, with supervisory consultation, that there is a valid reason to believe that access to information by a “subject” could reasonably be detrimental to the physical or emotional well-being of the child or family group. With the Regional Director’s approval, withhold information and document the reason(s) in the narrative section if above circumstances exist.

Statute 211.321, RSMo. prohibits Juvenile Court Records and Law Enforcement records from being open to inspection, except by order of the court or under the requirements of Supreme Court Rule 123.08. Information received from the Juvenile Court and Law Enforcement that is included in CD family records will not be shared with the subjects, attorney, or their designee. The subject, their designee, or attorney requesting this information shall be referred to the Juvenile Court or Law Enforcement Agency to obtain a copy of these materials.

Federal law prohibits the release of information which is obtained from a federally funded drug/alcohol facility. This information shall not be released to any individual or agency, except a child fatality review team, without written consent of the individual receiving treatment, the agency providing the service, or a court order. When receiving drug and alcohol treatment material, staff will need to ask the provider if the information is covered under the federal drug and alcohol statutes.

If an employer inquires about an employee who has a CA/N report with a “Preponderance of Evidence” or “Probable Cause” finding, asking particularly for recommendations regarding personnel action, staff should tell the employer the Division does not make such recommendations and cannot discuss the report with them. The employer should be referred to the Department of Health and Senior Services, Child Care Licensing, or Residential Program Unit staff.

• • If the subject or his/her attorney wishes to read the record in the office, this should be done in privacy, but in the presence of the local office designee.
  • The initial copy of the record will be furnished at the expense of CD. If additional copies are needed by the subject, he/she should use their copy to make copies at their own expense.

3.4.2 Duty to Warn

At any time a worker has concerns regarding the safety of a child, another person, self, or agency staff, and there is a foreseeable danger or a threat to harm exists, the worker shall immediately assess and analyze the risk of the threat with their supervisor or Circuit Manager.

The analysis should determine:

• • Does the person have the ability to carry out the threat immediately or in the future?
  • What is the nature of the threat and is it specific?
  • Does the threat identify a specific person or group?
  • Does the agency have past information on the person carrying out the threat?

If it is determined the threat is imminent, the worker should document in the case record the facts supporting the decision to report the threat. The worker and supervisor need to determine if releasing the information would be a breach of confidentiality based on the Health Insurance Portability and Accountability Act (HIPAA) regulations and Protected Health Information (PHI), and according to 210.150 RSMo, which addresses confidentiality. Disclosure of personal health information (PHI) is permissible when there is an imminent threat to public safety. Disclosure of PHI must meet the minimum necessary standard, in that only that information necessary to the reporting of the threat should be disclosed. Except in situations where the supervisor is unavailable and the imminent nature of the threat requires otherwise, the supervisor should be involved in making the calls to the person(s) and authorities.

If the threat to harm is made to another agency employee staff should follow the procedures in the DSS Manual Threat to Employees.

If the threat is regarding a non-agency person, and the worker, supervisor and/or Circuit Manager have determined there is imminent risk of harm; the following steps should be taken:

• • Contact the person or ascertainable group and disclose the nature of the threat. Reasonable steps should be made to directly contact the person(s) in imminent danger. The Children’s Service Worker should “disclose the least amount of confidential information necessary to achieve the desired purpose (NASW Code of Ethics).”  Leaving a message or writing a letter are not acceptable methods of notification.
  • Make reasonable efforts to notify law enforcement.
  • Thoroughly document date, times, subject and content of all contacts in the case record.

Reporting Criminal Behavior

Staff must also report any criminal behavior, acquaintance and statutory rape to law enforcement as soon as such is known.