Provides immunity from prosecution for leaving an unharmed newborn at a hospital within 72 hours of birth. Provides immunity from liability for hospitals and their personnel for receiving a newborn; allows public safety officers, sheriffs, and deputy sheriffs to assume protective custody of child abuse victim; requires public safety officers, sheriffs, and deputy sheriffs to report child abuse cases. (SD3)

A BILL FOR AN ACT

Part I

SECTION 1. Current law allows for the prosecution of parents who abandon their newborn infants. These parents are often young mothers who are unable to deal with the harsh reality of parenthood. Their solution is leaving the newborn in a populated area with the hope that someone will find and care for the child. Although the possibility of prosecution was intended to deter mothers from taking such a careless approach, newborn infants have suffered and died as the result of abandonment in life-threatening situations.

"Baby drop-off" laws take a different approach by placing the immediate concern on the child's needs rather than focusing on the mother's liability. The goal is to create a system where parents can safely leave their newborns without fear of being prosecuted for child abandonment. Anonymity, confidentiality, and freedom from prosecution for parents may encourage them to leave a newborn infant safely, and thus save the newborn infant's life.

The purpose of this part is to:

SECTION 2. The Hawaii Revised Statutes is amended by adding a new chapter to be appropriately designated and to read as follows:

"Chapter

§ -1 Definitions. As used in this chapter:

"Department" means the department of human services.

"Health care provider" means an individual licensed, certified, or otherwise authorized or permitted by law to provide health care in the ordinary course of business or practice of a profession.

"Hospital" means a facility licensed as a hospital by the department of health and accredited by the Joint Commission on Accreditation of Health Care Organizations.

"Law enforcement officer" means any public servant, whether employed by the State or any county, or by the United States, vested by law with a duty to maintain public order, to make arrests for offenses, or to enforce the criminal laws, whether that duty extends to all offenses or is limited to a specific class of offenses. "Law enforcement officer" includes the attorney general, deputy attorneys general, county prosecuting attorneys, and deputy prosecuting attorneys engaged in the enforcement of criminal law.

"Unharmed condition" means no evidence of injury to a child's physical or psychological health or welfare, as evidenced in any case where:

(1) The child exhibits no evidence of:

§ -2 Unharmed newborns left at hospitals; avoidance of prosecution. A person may leave a newborn with a health care provider at a hospital without being subjected to prosecution for abandonment of a child pursuant to section 709-902; provided that:

§ -3 Safe place for newborns. (a) A hospital may receive a newborn left with a health care provider on the hospital premises; provided that:

(b) The hospital shall not:

provided the newborn is unharmed when presented to the hospital. The hospital shall notify law enforcement that a newborn was received for purposes of matching the child with missing children reports. The hospital may ask the mother or the person leaving the newborn about the medical history of the mother or newborn. The mother or the person leaving the newborn may provide any information. The hospital may provide the mother or the person leaving the newborn with information about how to contact relevant social service agencies.

(c) If a hospital receives a newborn left with a health care provider pursuant to subsection (a), the health care provider shall perform any act necessary, in accordance with generally accepted standards of professional practice, to protect, preserve, or aid the physical health or safety of the newborn during the temporary physical custody.

§ -4 Reporting. Within twenty-four hours of receiving a newborn under section -3, the hospital shall inform the department that a newborn has been left at the hospital. The hospital shall not inform the department before the mother or the person leaving the newborn leaves the hospital.

§ -5 Immunity. (a) A hospital with responsibility for performing duties under this chapter, and any health care provider working at the hospital, shall be immune from any criminal liability that otherwise might result from their actions, if they are acting in good faith in receiving a newborn, and shall be immune from any civil liability that otherwise might result from merely receiving a newborn.

(b) A hospital performing duties under this chapter, or any health care provider working at the hospital, who is a mandated reporter under section 350-1.1, shall be immune from any criminal or civil liability that otherwise might result from the failure to make a report under section 350-1.1 if the person is acting in good faith in complying with this section.

§ -6 Authority to reunify; authority to search for relatives; preferences not applicable. (a) Upon receiving custody of a newborn after discharge from a hospital that received a newborn pursuant to section -3, the department may reunify the newborn with the newborn's parents.

(b) The department may:

provided that the department has information as to the identity of the newborn, the newborn's mother, or the newborn's father.

§ -7 Status of child. For purposes of proceedings under this chapter and adoption proceedings, a newborn left at a hospital under section -3 shall be considered an abandoned child."

SECTION 3. Section 709-902, Hawaii Revised Statutes, is amended to read as follows:

"§709-902 Abandonment of a child. (1) A person commits the offense of abandonment of a child if, being a parent, guardian, or other person legally charged with the care or custody of a child less than fourteen years old, the person deserts the child in any place with intent to abandon it.

[(2)] (3) Abandonment of a child is a misdemeanor."

Part II

SECTION 4. The legislature finds that public safety officers, sheriffs, and deputy sheriffs have occasion to witness child abuse on a daily basis in the course of their work in serving arrest warrants or providing security at the State’s airports. Under current law, public safety officers, sheriffs, and deputy sheriffs are not mandated to report child abuse to the department of human services or the police, and lack authority to assume protective custody of the child. The legislature further finds that the safety and welfare of the child would be protected if public safety officers, sheriffs, and deputy sheriffs were conferred with the same statutory authority as exists for law enforcement agencies and police officers in child abuse cases.

The purpose of this part is to clarify that public safety officers, sheriffs, and deputy sheriffs shall report child abuse cases and be conferred with the authority to take the child victim into protective custody.

SECTION 5. Section 350-1.1, Hawaii Revised Statutes, is amended as follows:

"(a) Notwithstanding any other state law concerning confidentiality to the contrary, the following persons who, in their professional or official capacity, have reason to believe that child abuse or neglect has occurred or that there exists a substantial risk that child abuse or neglect may occur in the reasonably foreseeable future, shall immediately report the matter orally to the department or to the police department:

2. By amending subsection (c) to read:

"(c) The initial oral report shall be followed as soon as possible by a report in writing to the department. If a police department or the department of public safety is the initiating agency, a written report shall be filed with the department for cases that the police or the department of public safety take further action on or for active cases in the department under this chapter. All written reports shall contain the name and address of the child and the child's parents or other persons responsible for the child's care, if known, the child's age, the nature and extent of the child's injuries, and any other information that the reporter believes might be helpful or relevant to the investigation of the child abuse or neglect. This subsection shall not be construed to serve as a cause of action against the department [or], the police[.], or department of public safety."

SECTION 6. Section 587-2, Hawaii Revised Statutes, is amended by amending the definition of "police officer" to read as follows:

""Police officer" means a person employed by any county in this State, or public safety officer appointed under section 353C-4, including sheriffs and deputy sheriffs, to enforce the laws and ordinances for preserving the peace, safety, and good order of the community."

SECTION 7. Section 587-22, Hawaii Revised Statutes, is amended by amending subsection (a) to read as follows:

"(a) A police officer who witnesses child abuse or neglect while in the course of duty, shall assume protective custody of the child without a court order and without the consent of the child's family regardless of whether the child's family is absent, if in the discretion of the police officer, the child is in such circumstance or condition that the child's continuing in the custody or care of the child's family presents a situation of imminent harm to the child.

A police officer may assume protective custody of the child without a court order and without the consent of the child's family regardless of whether the child's family is absent, if in the discretion of the police officer:

(1) The child has no legal custodian who is willing and able to provide a safe family home for the child; or

(2) There is evidence that the parent or legal guardian of the child has subjected the child to harm or threatened harm and that the parent or legal guardian is likely to flee the jurisdiction of the court with the child."

PART III

SECTION 8. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.

SECTION 9. This Act shall take effect upon its approval.