January 29, 2003, Introduced by Reps. Hager, Stahl, Julian, Meyer, Richardville, Vander Veen, Kratz, Sheen, Stewart, Woronchak, Daniels, Bieda, Hopgood, Palsrok, Tabor and LaJoy and referred to the Committee on Family and Children Services.
A bill to amend 1994 PA 204, entitled
"The children's ombudsman act,"
by amending the title and sections 2, 3, 4, 5, 6, 7, 8, 9, 10,
and 11 (MCL 722.922, 722.923, 722.924, 722.925, 722.926, 722.927,
722.928, 722.929, 722.930, and 722.931); and to repeal acts and
parts of acts.
THE PEOPLE OF THE STATE OF MICHIGAN ENACT:
1 TITLE
2 An
act to create establish the children's ombudsman
3 office; and to prescribe the powers and duties of the children's
4 ombudsman, certain state departments and officers, and certain
5 county and private
agencies serving children. ; and to provide
6 remedies from certain
administrative acts.
7 Sec. 2. As used in this act:
8 (a)
"Administrative act" includes an action, omission,
1 decision, recommendation,
practice, or other procedure of the
2 department of social
services, an adoption attorney, or a child
3 placing agency with
respect to a particular child related to
4 adoption, foster care,
or protective services.
5 (b) "Adoption
attorney" means that term as defined in section
6 22 of the adoption
code, being section 710.22 of the Michigan
7 Compiled Laws.
8 (c) "Adoption
code" means chapter X of Act No. 288 of the
9 Public Acts of 1939,
being sections 710.21 to 710.70 of the
10 Michigan Compiled
Laws.
11 (a) "Child" means an individual under the age of 18.
12 (b) "Child caring institution" means that term as defined in
13 section 1 of 1973 PA 116, MCL 722.111.
14 (c) (d) "Child
placing agency" means an organization
15 licensed or approved by
the department of social services under
16 Act No. 116 of the
Public Acts of 1973, being sections 722.111 to
17 722.128 of the
Michigan Compiled Laws consumer
and industry
18 services under 1973 PA 116, MCL 722.111 to 722.128, to receive
19 children for placement in private family homes for foster care or
20 adoption and to provide services related to adoption.
21 (e)
"Child" means an individual under the age of 18.
22 (f)
"Complainant" means an individual who makes a complaint
23 as provided in section
5.
24 (d) "Children's ombudsman" or "ombudsman" means the
25 individual appointed to the office of children's ombudsman under
26 section 3.
27 (e) (g) "Department"
means the department of social
1 services family independence agency.
2 (h) "Foster
parent" means an individual licensed by the
3 department of social
services under Act No. 116 of the Public
4 Acts of 1973 to
provide foster care to children.
5 (i)
"Official" means an official or employee of the
6 department or a child
placing agency.
7 (j)
"Ombudsman" means the children's ombudsman created in
8 section 3.
9 (f) "Foster care" means care provided to a child in a foster
10 family home, foster family group home, or child caring
11 institution licensed or approved by the department of consumer
12 and industry services under 1973 PA 116, MCL 722.111 to 722.128,
13 or care provided to a child in a relative's home under a court
14 order.
15 (g) "Office" means the children's ombudsman office
16 established under section 3.
17 Sec. 3. (1) As a means of effecting changes in policy,
18 procedure, and legislation, educating the public, investigating
19 and reviewing actions of state agencies or entities receiving
20 state funding, monitoring and ensuring compliance with relevant
21 statutes, rules, and policies pertaining to children's protective
22 services and the
placement, supervision, and treatment, and
23 improving delivery of care of children in foster care and
24 adoptive homes, the
children's ombudsman is created established
25 as an autonomous entity in the department of management and
26 budget. The
ombudsman shall exercise its powers and duties,
27 including the functions
of budgeting and procurement and other
1 management-related
functions, independently of the director of
2 the department of
management and budget. The office
of
3 children's ombudsman is established in the children's ombudsman
4 office. An individual appointed as ombudsman serves a term of
5 5 years and holds office until a successor is appointed and
6 qualified.
7 (2) The ombudsman
shall be appointed by the governor and
8 shall serve at the
pleasure of the governor. The
governor shall
9 appoint an individual as the ombudsman, with the advice and
10 consent of the senate, from a list of not less than 3 individuals
11 submitted to the governor by a committee consisting of the
12 following members:
13 (a) Two attorneys appointed by the state bar of Michigan.
14 (b) Two judges who are serving in the family division of
15 circuit court appointed by the supreme court.
16 (c) One physician appointed by the Michigan state medical
17 society.
18 (d) One member of the house of representatives appointed by
19 the speaker of the house of representatives.
20 (e) One member of the senate appointed by the senate majority
21 leader.
22 (f) One psychologist appointed by the governor.
23 (g) One social worker appointed by the national association
24 of social workers of Michigan.
25 (h) One representative of a child placing agency appointed by
26 the governor.
27 (i) One representative of the Michigan domestic violence
1 prevention and treatment board, appointed by the Michigan
2 domestic violence prevention and treatment board or its
3 designee.
4 (j) One member of the general public appointed by the
5 governor.
6 (k) One representative of the department of state police
7 appointed by the director of the department of state police.
8 (3) The committee established under subsection (2) shall
9 recommend not less than 3 individuals to the governor for
10 selection as the children's ombudsman. The committee shall not
11 recommend an individual unless the individual is qualified by
12 training and experience to perform the duties and exercise the
13 powers of the children's ombudsman and the children's ombudsman
14 office as provided in this act.
15 (4) If the office of children's ombudsman becomes vacant, a
16 committee consisting of members as provided in subsection (2)
17 shall be formed and shall meet to interview and consider
18 individuals to recommend for appointment as the children's
19 ombudsman under the guidelines established by subsection (3).
20 Not more than 60 days after a vacancy occurs, the committee shall
21 submit to the governor a list of not less than 3 individuals,
22 ranked in order of committee preference.
23 (5) Not more than 60 days after the committee submits its
24 recommendations, the governor shall appoint 1 of the individuals
25 recommended under subsection (4) to fill the vacancy. An
26 appointment to fill a vacancy in the office of the children's
27 ombudsman is subject to the advice and consent of the senate. If
1 the governor fails to make the appointment within 60 days, the
2 individual ranked the highest in the committee's recommendation
3 under subsection (4) is appointed as the children's ombudsman.
4 (6) The governor may remove the children's ombudsman from
5 office for cause that includes, but is not limited to,
6 incompetency to properly exercise duties, official misconduct,
7 habitual or willful neglect of duty, or any other misfeasance or
8 malfeasance in connection with the operation of the office of the
9 children's ombudsman. The governor shall report the reason for
10 the removal to the legislature.
11 Sec. 4. (1) The Independently
from the department of
12 management and budget and from the executive office of the
13 governor, the ombudsman shall establish procedures for the office
14 for budgeting, expending funds
money, and employing personnel.
15 Subject to annual appropriations, the ombudsman shall employ
16 sufficient personnel to carry out the duties and powers
17 prescribed by this act.
18 (2) The ombudsman shall establish procedures for receiving
19 and processing complaints
from complainants the public,
20 conducting investigations, holding informal hearings, and
21 reporting findings resulting from investigations.
22 (3) Personnel employed by the office of the children's
23 ombudsman shall receive mandatory training conducted by the
24 Michigan domestic violence prevention and treatment board in
25 domestic violence and in handling complaints of abuse or neglect
26 that involve a history of domestic violence.
27 (4) If the subject matter of a complaint falls within the
1 duties and powers of the ombudsman to investigate, any individual
2 may submit the complaint to the ombudsman. The ombudsman has the
3 sole discretion and authority to determine if a complaint falls
4 within his or her duties and powers to investigate. The
5 ombudsman may initiate an investigation without receiving a
6 complaint. The ombudsman defines the scope, duration, and issues
7 to be considered as part of the investigation.
8 (5) The ombudsman, on his or her own initiative, may
9 investigate cases in which the department did not investigate a
10 report made according to section 3 of the child protection law,
11 1975 PA 238, MCL 722.623. The ombudsman, on his or her own
12 initiative, may investigate a case in which the department
13 conducted an investigation but did not classify the case as a
14 central registry case as defined in section 2 of the child
15 protection law, 1975 PA 238, MCL 722.622.
16 Sec. 5. All of
the following individuals may make a
17 complaint to the
ombudsman with respect to a particular child,
18 alleging that an
administrative act is contrary to law, rule, or
19 policy, imposed
without an adequate statement of reason, or based
20 on irrelevant,
immaterial, or erroneous grounds:
21 (a) The child, if
he or she is able to articulate a
22 complaint.
23 (b) A biological
parent of the child.
24 (c) A foster
parent of the child.
25 (d) An adoptive
parent or a prospective adoptive parent of
26 the child.
27 (e) A legally
appointed guardian of the child.
1 (f) A guardian ad
litem of the child.
2 (g) An adult who
is related to the child within the fifth
3 degree by marriage,
blood, or adoption, as defined in section 22
4 of the adoption code,
being section 710.22 of the Michigan
5 Compiled Laws.
6 (h) A Michigan
legislator.
7 (i) An attorney
for any individual described in subparagraphs
8 (a) to (g). The children's ombudsman has the authority to do
all
9 of the following:
10 (a) Pursue all necessary action, including, but not limited
11 to, legal action, to protect the rights and welfare of each child
12 who is under the jurisdiction, control, or supervision of the
13 department, the Michigan children's institute, the family
14 division of circuit court under section 2(a)(1) of chapter XIIA
15 of the probate code of 1939, 1939 PA 288, MCL 712A.2, a child
16 caring institution, or a child placing agency.
17 (b) Pursue all possible legislative advocacy in the best
18 interests of children.
19 (c) Review policies and procedures relating to the
20 department's involvement with children and make recommendations
21 for improvement.
22 (d) Investigate each child's death that may have resulted
23 from abuse or neglect.
24 Sec. 6. The ombudsman may do all of the following in
25 relation to a child who may be abused or neglected:
26 (a) Upon its his
or her own initiative or upon receipt of a
27 complaint, from
a complainant, investigate an administrative
1 act or omission that is alleged to be contrary to law or rule,
2 or contrary to policy of the department or a child
placing
3 agency, imposed without an adequate statement of reason, or based
4 on irrelevant, immaterial, or erroneous grounds.
5 (b) Decide, in its
his or her discretion, whether to
6 investigate a complaint.
7 (c) Upon its own
initiative or upon receipt of a complaint,
8 from a complainant,
conduct a preliminary conduct an
9 investigation to
determine whether an adoption attorney
10 involved in an adoption
may have committed an administrative
11 act or omission that is alleged to be contrary to law, rule, or
12 the Michigan rules of professional conduct adopted by the
13 Michigan supreme court.
14 (d) In the sole discretion of the ombudsman, and after
15 submitting a written request, access, inspect, and copy all
16 records and reports the ombudsman considers relevant and
17 necessary to carry out his or her duties and powers under this
18 act, including, but not limited to, records of the department,
19 child placing agency records, family court records including
20 those otherwise made confidential by law, medical records,
21 medical examiner records, mental health records, and school
22 records. To the extent these records are made confidential by
23 law, the rules of confidentiality are abrogated to the extent
24 that they are abrogated by section 11 of the child protection
25 law, 1975 PA 238, MCL 722.631.
26 (e) Issue a subpoena requiring the production of a record or
27 report necessary to carry out the ombudsman's duties and powers.
1 If the person to whom a subpoena is issued fails or refuses to
2 produce the record or report, the ombudsman may petition the
3 court for enforcement of the subpoena.
4 (f) (d) Hold
informal hearings and request that individuals
5 appear before the ombudsman and give testimony or produce
6 documentary or other evidence that the ombudsman considers
7 relevant to a matter under investigation. The ombudsman may
8 issue a subpoena requiring a person to appear at an informal
9 hearing. If the person to whom a subpoena is issued fails or
10 refuses to appear at the hearing, the ombudsman may petition the
11 court for enforcement of the subpoena.
12 (g) (e) Make
recommendations to the governor and the
13 legislature concerning the need for children's protective
14 services, adoption, or foster care legislation, policy, or
15 practice without prior review by other offices, departments, or
16 agencies in the executive branch.
17 Sec. 7. (1) Upon rendering
a decision deciding to
18 investigate a complaint,
from a complainant, the ombudsman
19 shall notify the complainant
complaining individual of the
20 decision to investigate and shall notify the department,
21 adoption attorney, or child placing agency of the intention to
22 investigate. If the ombudsman declines to investigate a
23 complaint or continue an investigation, the ombudsman shall
24 notify the complainant
complaining individual and the
25 department, adoption attorney,
or child placing agency of the
26 decision and of the reasons for the ombudsman's action.
27 (2) If the
preliminary an investigation described in
1 section 6 leads the ombudsman to believe that the matter may
2 involve misconduct by an adoption
attorney, the ombudsman shall
3 immediately refer the complaint to the attorney grievance
4 commission of the state bar of Michigan.
5 (3) The ombudsman may
advise a complainant complaining
6 individual to pursue all administrative remedies or channels of
7 complaint open to the complainant
individual before pursuing a
8 complaint with the ombudsman. Subsequent to the administrative
9 processing of a complaint, the ombudsman may conduct further
10 investigations of any
a complaint upon the request of the
11 complainant or upon
the ombudsman's own initiative complaining
12 individual.
13 (4) If the ombudsman finds in the course of an investigation
14 that an individual's action is in violation of state or federal
15 criminal law, the ombudsman shall immediately report that fact to
16 the county prosecutor or the attorney general. If the complaint
17 is against a child placing agency, the ombudsman shall refer the
18 matter to the department
of social consumer and industry
19 services or its successor department for further action with
20 respect to licensing.
21 (5) The ombudsman
may file a petition on behalf of a child
22 requesting the court
to take jurisdiction under section 2(b) of
23 chapter XIIA of Act
No. 288 of the Public Acts of 1939, being
24 section 712A.2 of the
Michigan Compiled Laws, or a petition for
25 termination of
parental rights under section 19b of chapter XIIA
26 of Act No. 288 of the
Public Acts of 1939, being section 712A.19b
27 of the Michigan
Compiled Laws, if the ombudsman is satisfied that
1 the complainant has
contacted the department, the prosecuting
2 attorney, the child's
attorney, and the child's guardian ad
3 litem, if any, and
that none of these persons intend to file a
4 petition as described
in this subsection. The ombudsman
may take
5 any legal action that he or she considers appropriate to protect
6 an individual child or the welfare of this state's abused and
7 neglected children as a class.
8 Sec. 8. (1) The department and a child placing agency shall
9 do all of the following:
10 (a) Upon the ombudsman's request, grant the ombudsman or
11 its his or her designee access to all relevant
information,
12 records, and documents in the possession of the department or
13 child placing agency that the ombudsman considers relevant and
14 necessary in an investigation.
15 (b) Assist the ombudsman to obtain the necessary releases of
16 those documents that are specifically restricted.
17 (c) Provide Upon
the ombudsman's request, Provide the
18 ombudsman upon
request with progress reports concerning the
19 administrative processing of a complaint.
20 (d) Upon the ombudsman's request, provide the ombudsman
21 information he or she requests under subdivision (a) within 5
22 business days after the date of request. Upon the ombudsman's
23 request, the attorney general may take appropriate action to
24 require that the information requested be provided to the
25 ombudsman.
26 (2) The department,
an adoption attorney involved with an
27 adoption, and a child placing agency shall provide information to
1 a biological parent, prospective adoptive parent, or foster
2 parent regarding the provisions of this act.
3 (3) The department shall provide the ombudsman with access,
4 in the ombudsman's own office, to departmental computer networks
5 where child abuse and neglect records are kept.
6 Sec. 9. (1) The
ombudsman shall treat all matters under
7 investigation,
including the identities of recipients or
8 individuals from whom
information is acquired, as confidential,
9 except so far as
disclosures may be necessary to enable the
10 ombudsman to perform
the duties of the office and to support any
11 recommendations
resulting from an investigation. A record of the
12 office of the
ombudsman is confidential, shall be used only for
13 purposes set forth in
this act, and is not subject to court
14 subpoena. A record of
the office of the ombudsman is exempt from
15 disclosure under the
freedom of information act, Act No. 442 of
16 the Public Acts of
1976, being sections 15.231 to 15.246 of the
17 Michigan Compiled
Laws. Subject to subsection (2),
all
18 information obtained or generated by the office of the children's
19 ombudsman is confidential and exempt from disclosure under the
20 freedom of information act, 1976 PA 442, MCL 15.231 to 15.246, is
21 not subject to a court subpoena, and is not discoverable in a
22 legal proceeding.
23 (2) The ombudsman may disclose confidential information
24 obtained or generated by the office of the children's ombudsman
25 that is otherwise exempt from disclosure if the ombudsman
26 determines that the disclosure is in the best interest of the
27 child, is in the general public interest, or is necessary to
1 enable the ombudsman to perform his or her responsibilities under
2 this act. If the ombudsman determines that disclosure of
3 information is necessary to identify, prevent, or treat the abuse
4 or neglect of a child, the ombudsman may disclose that
5 information to the appropriate agency responsible for the welfare
6 of the child. The ombudsman may not disclose information that is
7 confidential and that concerns a pending law enforcement or child
8 protective services investigation or a pending prosecution, or
9 the identity of an individual making a child abuse or neglect
10 complaint unless that individual intentionally makes a false
11 complaint under section 11.
12 Sec. 10. (1) The ombudsman shall prepare a report of the
13 factual findings of an investigation and make recommendations to
14 the department or child placing agency if the ombudsman finds
15 1 or more of the following:
16 (a) A matter should be further considered by the department
17 or child placing agency.
18 (b) An administrative
act or omission should be modified,
19 or canceled, or corrected.
20 (c) Reasons should be
given for an administrative act or
21 omission.
22 (d) Other action should be taken by the department or child
23 placing agency.
24 (2) Before
announcing a conclusion or recommendation that
25 expressly or by
implication criticizes an individual, the
26 department, or a child
placing agency, the ombudsman shall
27 consult with that
individual, the department, or the child
1 placing agency. When
publishing an opinion adverse to the
2 department or child
placing agency, the ombudsman shall include
3 in the publication any
statement of reasonable length made to the
4 ombudsman by the
department or child placing agency in defense or
5 mitigation of the
action. The ombudsman may request to be
6 notified by the
department or child placing agency, within a
7 specified time, of any
action taken on any recommendation
8 presented.
9 (2) (3) The
ombudsman shall notify the complainant
10 complaining individual of the actions taken by the ombudsman and
11 by the department or child placing agency.
12 (4) The ombudsman
shall provide the complainant with a copy
13 of its recommendations
on a complaint.
14 (3) The ombudsman may provide the complaining individual with
15 a copy of the ombudsman's recommendations in response to a
16 complaint. Subject to section 9, the ombudsman has discretion to
17 determine what confidential information shall be provided to the
18 complaining individual but shall not disclose confidential
19 information to the complaining individual if disclosure endangers
20 the health or safety of any individual.
21 (4) (5) The
ombudsman shall submit to the governor, the
22 director of the department, and the legislature an annual report
23 on the ombudsman's
conduct, of the ombudsman, including any
24 recommendations regarding the need for legislation or for change
25 in rules or policies.
26 Sec. 11. (1) An Subject
to subsection (4), an official,
27 the department, or a child placing agency shall not penalize any
1 person for filing a complaint or cooperating with the ombudsman
2 in investigating a complaint.
3 (2) An individual,
the department, an adoption attorney
4 involved in an adoption, or a child placing agency shall not
5 hinder the lawful actions of the ombudsman or employees of the
6 ombudsman.
7 (3) A report by the ombudsman is not subject to prior
8 approval by a person outside of the office.
9 (4) A person who intentionally makes a false complaint of
10 child abuse or neglect under this act is subject to the penalties
11 contained in section 13(5) of the child protection law, 1975 PA
12 238, MCL 722.633.
13 Enacting section 1. Sections 13, 14, and 15 of the
14 children's ombudsman act, 1994 PA 204, MCL 722.933, 722.934, and
15 722.935, are repealed.