Chapter 20 - Child Protection

Chapter 20 - Child Protection

45.2001 Definitions.

As used in this chapter unless the context otherwise requires:

(a)( 1) “Abuse” or “child abuse or neglect” means an act or omission in one of the following categories which seriously threatens the health or welfare of a child:

(A) when a child exhibits evidence of serious bruising, bleeding, malnutrition, failure to thrive, mental injury, burns, fracture of a bone, subdural hematoma, soft tissue swelling, or death, and the condition or death is not justifiably explained, or where the history given concerning the condition or death is at variance with the degree or type of the condition or death, or circumstances indicate that the condition or death may not be the product of an accidental occurrence;

(B) when a child is subject to the sexual offenses contained in 46.3601 to 46.3617 and 46.3802, or is allowed, permitted, or encouraged by the child’s parents, legal guardian, custodian, or any other person responsible for the child’s health and welfare, to engage in prostitution or be the subject of obscene or pornographic photographing, filming, or depicting;

(C) any case in which the child’s parents, legal guardians, custodians or any other person responsible for the child’s health and welfare fail to take the action to provide adequate food, clothing, shelter, medical care, or supervision that a prudent parent would take.

(2) In all cases, those investigating reports of child abuse shall take into account accepted child rearing practices of the culture. Nothing in subparagraph (a)(l)(B) refers to acts which could be construed to be a reasonable exercise of parental discipline as defined in subsection (20) of 45.0103.

(b) “Agency” means Child Protection Agency of the Department of Human Resources.

(c) “Department” means the Department of Public Safety.

(d) “Neglect” means acts which can reasonably be construed to fall under the definition of “child abuse or neglect” as defined in subsection (a) above.

(e) “Receiving agency” means the Department of Health or law enforcement agency first receiving a report of alleged child abuse.

(f) “Responsible person” means a child’s parent, legal guardian, or custodian, any employee of a residential facility, any staff person providing out-of-home care or under any other settings in which children are provided care, or any other person responsible for the child’s health and welfare.

(g) “Unfounded report” means any report made under this chapter which is not supported by some credible evidence.

45.2002 Mandated reports of abuse or neglect.

(a) Any person specified in subsection (b) who has reasonable cause to know or suspect that a child has been subjected to abuse or neglect or who has observed the child being subjected to circumstances or conditions which would reasonably result in abuse or neglect shall immediately report or cause a report to be made of that fact to the agency, who immediately informs the department.

(b) Persons required to report the abuse or neglect or circumstances or conditions includes any:

(1) physician or surgeon, including a physician in training;

(2) child health associate;

(3) medical examiner or coroner;

(4) dentist;

(5) osteopath;

(6) optometrist;

(7) chiropractor;

(8) chiropodist or podiatrist;

(9) registered nurse or licensed practical nurse;

(10) hospital personnel engaged in the admission, care, or treatment of patients;

(11) Christian Science practitioner;

(12) school official or employee;

(13) social worker or worker in a family care home or child care center; and

(14) mental health professional.

(c) In addition to those persons specifically required by this section to report known or suspected child abuse or neglect and circumstances or conditions which might reasonably result in abuse or neglect, any other persons are urged and authorized to report known or suspected child abuse or neglect and circumstances and conditions which might reasonably result in child abuse or neglect to a the department or the agency.

(d) Any person who willfully violates the provisions of subsection (a):

(1) commits a Class A misdemeanor; and

(2) is liable for those damages proximately caused.

(e) If the agency feels there is evidence of possible child abuse, the department must be notified.

45.2003 Mandatory report to medical examiner-Post-mortem investigations.

Any person who is required by 45.2002 to report known or suspected child abuse or neglect and anyone who has reasonable cause to suspect that a child died as a result of child abuse or neglect shall report that fact immediately to the department. The department accepts the report for investigation and reports its findings to the Attorney General and the agency.

45.2004 Evidence of abuse-Color photographs and X-rays.

(a) Any person who is required, or authorized, by 45.2002 to report known or sus-pected child abuse or neglect who has before him a child he reasonably believes has been abused or neglected may take or cause to be taken color photographs of the areas of trauma visible on the child. If medically indicated, the person may take or cause to be taken X-rays of the child.

(b) Any color photographs or X-rays which show evidence of child abuse shall be immediately forwarded to a receiving agency.

45.2005 Protective custody.

A law enforcement officer or any officer of the agency may take a child into custody without the consent of the parent or guardian, whether or not additional medical treatment is required if the circumstances or conditions of the child are such that continuing in his place of residence or in the care and custody of the parent, guardian, custodian or other person responsible for the child’s care presents an imminent danger to that child’s life or health: provided, however, that the custody does not exceed 96 hours and that the Court and the agency are notified immediately in order that the child-protective proceedings may be initiated. The agency may give effective consent for medical, dental, health, and hospital services for any abused child.

45.2010 Reporting procedures.

(a) Reports of known or suspected child abuse or neglect made under this chapter are immediately made to the department by a written report prepared by those persons required to report, if so requested by the receiving agency. The receiving agency forwards a copy of its own report to the central registry on forms supplied by the registry. If at any time a report of suspected child abuse or neglect is made to the agency, the department must be notified. If a report of suspected child abuse or neglect is made to the department, the agency must be notified.

(b) The reports, when possible, shall include the following information:

(1) the name, address, age, sex, religion and race of the child;

(2) the name and address of the responsible person;

(3) the nature and extent of the child’s injuries, including any evidence of previous known or suspected abuse or neglect of the child or the child’s siblings;

(4) the names and addresses of the persons responsible for the suspected abuse or neglect. if known;

(5) the family composition;

(6) the name, address, and occupation of the person making the report;

(7) any action taken by the reporting source; and

(8) any other information that the person making the report believes may be helpful in furthering the purposes of this chapter.

(c) Copies of the report of known or suspected child abuse or neglect are immediately transmitted by the receiving agency to the Attorney General’s office and to the department.

(d) A written report from persons or officials required by this chapter to report known or suspected child abuse or neglect is admissible as evidence in any proceeding relating to child abuse.

45.2011 Agency duties upon receipt of report.

(a) The agency makes a thorough investigation promptly upon receiving either the oral or the written report. The primary purpose of the investigation is the protection of the child.

(b) The investigation shall include the nature, extent and cause of the child abuse, sexual abuse, or neglect; the identity of the person responsible; the names and conditions of other children in the home; an evaluation of the parents or persons responsible for their care; and all other pertinent data.

(c) The investigation includes a visit to the child’s home; a physical, and psychological, or psychiatric evaluation of all children in the home; and an interview with the subject child. If the admission to the home, school, or any other place that the child may be, or permission of the parent or other persons responsible for the children for the physical and psychological, or psychiatric evaluation cannot be obtained, then the Court, upon cause shown, orders the parents and persons responsible and in charge of any place where the child may be to allow entrance for the interview, above evaluations and investigations.

(d) If, before the evaluation is complete, the opinion of the investigators is that immediate removal is necessary to protect children from further abuse or neglect, the court, on petition by the investigators and with good cause shown, shall issue an order for temporary removal and custody.

(e) The agency shall make a written report or case summary, together with services of-fered and accepted, to the central registry on forms supplied by the registry.

45.2012 Immunity from liability-Persons reporting.

Any person participating in good faith in the preparation of a report or in a judicial proceeding held under this chapter and any person responsible for the taking of photographs or X-rays, or the placing temporary protective custody of a child under this chapter, is immune from any liability, civil or criminal, that otherwise might result by reason of the reporting. For the purpose of any proceedings, civil or criminal, any person reporting child abuse, any person taking, or causing to be taken, photographs or X-rays, or any person who has legal authority to place a child in protective custody is presumed to have acted in good faith.

45.2015 Child abuse and child neglect diversion program.

(a) The Attorney General, upon recommendation of the agency, may refer a person accused or suspected of child abuse or neglect to a nonjudicial source of treatment or assistance upon conditions set forth by the agency and the Attorney General. If a person is so diverted from the criminal justice system, the Attorney General shall not file charges in connection with the case if the person participates to the satisfaction of the agency and the attorney general in the diversion program offered.

(b) The initial diversion shall be for a period not to exceed 2 years. This diversion period may be extended for 1 additional 1-year period by the Attorney General if necessary. Decisions regarding extending diversion time periods shall be made following review of the person diverted by the Attorney General and the agency.

(c) If the person diverted successfully completes the diversion program to the satisfaction of the agency and the Attorney General, he is released from the terms and conditions of the program.

(d) Participation by a person accused or suspected of child abuse in any diversion program is voluntary.

45.2016 Abrogation of privileged communication.

The privileged communication between patient and physician and between husband and wife is not a ground for excluding evidence in any judicial proceeding resulting from a report under this chapter.

45.2017 Court proceedings-Guardian ad litem.

(a) The Department of Law Enforcement Agency receiving a report under 45.2002 or 45.2003, in addition to taking immediate steps under paragraph (a)(2) of 45.0201 and 45.2005 as may be required to protect a child, shall inform the Court within 72 hours that the child appears to be within the Court’s jurisdiction. Upon receipt of the information, the Court makes an immediate investigation to determine whether protection of the child from further abuse is required and upon that determination may authorize the filing of a petition, as provided for in 45.0302.

(b) In any proceeding initiated under this section, the Court shall name as respondents all persons alleged by the petition to have caused or permitted the abuse or neglect alleged in the petition. In each case, the responsible person is named as respondent. Summons is issued for all named respondents in accordance with 45.0311 to 45.0318.

(c) The Court in each case filed under this section appoints a guardian ad litem in accordance with 45.0326. The guardian ad litem is given access to all reports relevant to the case made to or by any public agency or person under this chapter and 45.0304 and to reports of any examination of the responsible person made under this section. The guardian ad litem is charged in general with the representation of the child’s interests. To that end he makes further investigation he considers necessary to ascertain the facts, interview witnesses, and examine and cross-examine witnesses in both the adjudicatory and dispositional hearings and may introduce and examine his own witnesses, make recommendations to the Court concerning the child’s welfare, and participate further in the proceedings to the degree necessary to adequately represent the child.

(d) If the prayer of the petition is granted, the costs of this proceeding, including guardian ad litem and expert witness fees, may be charged by the Court against the respondent. If the prayer of the petition is not granted, the costs may be charged against the Territory of American Samoa.

45.2020 Central registry-Establishment.

There is established within the agency a central registry for child abuse, sexual abuse, or neglect under this chapter.

45.2021 Central registry-Telephone number for reporting cases.

There is a single telephone number that all persons, whether mandated by law or not, may use to report cases of suspected child abuse, sexual abuse, or neglect and that all persons so authorized by this chapter may use for determining the existence of prior records in order to evaluate the condition or circumstances of the child before them. The oral telephone reports are immediately transmitted by the central registry to the Director of Health together with any previous report concerning the subject of the report or any other pertinent information.

45.2022 Central registry-Contents.

The central registry contains, but is not limited to:

(1) all information in the written report;

(2) record of the final disposition of the report including services offered and services accepted;

(3) the plan for rehabilitative treatment;

(4) the names and identifying dates, and circumstances of any persons requesting or receiving information from the registry; and

(5) any other information which might be helpful in furthering the purpose of this chapter.

45.2023 Central registry-Availability of information.

Reports made under this chapter as well as any other information obtained, and reports written or photographs taken concerning those reports in the possession of the department and agency are confidential and are made available only to:

(1) Attorney General at all times;

(2) a physician who has before him a child whom he reasonably believes may have been abused, sexually abused, or neglected;

(3) a person authorized to place a child in protective custody when that person has before him a child whom he reasonably believes may have been abused, sexually abused, or neglected and that person requires the information to determine whether to place the child in protective custody;

(4) another duly authorized agency having responsibility for the care or supervision of the subject or a report;

(5) any person who is the subject of a report;

(6) a Court where it determines that information is necessary for the determination of an issue before the Court; or

(7) any person engaged in bona fide research after a showing that such information is essential to the research and after first obtaining written permission from both the Director of Health and the child through its representative.

45.2024 Central registry-Access to records.

After a child, who is the subject of a report, reaches 18 years of age, access to a child’s record under this section is permitted only if a sibling or offspring of the child is before that person and is a suspected victim of child abuse, sexual abuse, or neglect.

45.2025 Central registry-Information expunged when.

Unless an investigation of a report conducted under this chapter determines there is some credible evidence of alleged abuse, sexual abuse, or neglect, all information identifying the subject of the report is immediately expunged from the central registry.

45.2026 Central registry-Records sealed.

In all other cases, the record of the report to the central registry is sealed at no later than 10 years after the subject child’s 18th birthday. Once sealed, the record shall not otherwise be available, unless the head of the central registry upon notice to the subjects of the report, gives his personal approval for an appropriate reason.

45.2027 Central registry-Subject of report may receive information.

At any time, the subject of a report may receive, upon request, a report of all information contained in the central registry; provided, however, that the head of the registry may prohibit the release of data that would identify the person who made the report or who cooperated in a subsequent investigation which he reasonably finds to be detrimental to the safety or interests of that person.

45.2028 Central registry-Request to alter report.

At any time, subsequent to the completion of the investigation, but in no event later than 10 years after the receipt of the report, a subject of the report may request the head of the registry to amend, seal, or expunge the record of the report. If he refuses or does not act within a reasonable time, but in no event later than 30 days after the request, the subject shall have the right to a fair hearing to determine whether the record of the report in the central registry should be amended or expunged on the grounds that it is inaccurate or it is being maintained in a manner inconsistent with this chapter. The burden, in the hearing, shall be on the department. In the hearings, the fact that there was a finding of child abuse, sexual abuse, or neglect is presumptive evidence that the report was sub-stantiated.

45.2029 Central registry-Written notice of amendment.

Written notice of any amendment or expungement made under this chapter, is served on each subject of the report.

45.2030 Central registry-Release of data or information.

Any person who willfully permits and any other person who encourages the release of data or information contained in the central registry to persons not permitted the information by this chapter, is upon conviction, guilty of a class B misdemeanor.

45.2031 Child abuse commission-Creation-Review.

(a) In the event a child is taken from parents due to child abuse, the parents may appeal, within 10 days, by written notice of appeal, to the Child Abuse Commission. The Commission shall be appointed by the Governor: 1 member of the medical staff from the LBJ Tropical Medical Center; 1 member of the Attorney General’s staff; the Secretary of Samoan Affairs or his designee; 1 clergyman and the juvenile probation officer; and 2 members of the community at large.

(b) The Commission renders its decision in 5 days and may order other conditions or changes as it considers best for the child. The Commission may retain jurisdiction and review cases, from time to time, on a continuing basis. Decisions of the Commission are final for purposes of judicial review. Timely appeal to the Commission is a condition precedent to judicial review.

45.2032 Education program.

The Child Abuse Commission cooperates with the Child Protection Agency in developing an active program of education and training in the villages, with the cooperation of religious organizations, private organizations, public health nurses, medical personnel, and in direct cooperation with the matais of respective families, to train parents regarding the differences between normal parental discipline and child abuse. This program is designed to establish an awareness of the medical and social problems of child abuse and the need for protective action.