LAWS PERTAINING TO CHILD ABUSE AND NEGLECT

South Dakota Codified Laws, specifically Chapter 26-8A and 26-7A. These sections define and provide guidance for responding to child abuse and neglect. The entire chapters may be found in South Dakota Codified Law, Volume 17 (http://legis.sd.gov/Statutes/Codified_Laws/). Because of the variations among Tribes, tribal codes are not listed. For the purposes of this mandatory reporting training, the following sections are noted:

26-8A-2. Abused or neglected child defined. In this chapter and chapter 26-7A the term “abused and neglected child” means a child:

  1. Whose parent, guardian or custodian has abandoned the child or has subjected the child to mistreatment or abuse;
  2. Who lacks proper parental care through the actions or omissions of the parent, guardian or custodian;
  3. Whose environment is injurious to his welfare;
  4. Whose parent, guardian or custodian fails or refuses to provide proper or necessary subsistence, supervision, education, medical care or any other care necessary for his health, guidance, or well-being; or
  5. Who is homeless, without proper care, or not domiciled with his parent, guardian or custodian through no fault of his parent, guardian or custodian;
  6. Who is threatened with substantial harm;
  7. Who has sustained emotional harm or mental injury as indicated by an injury to his intellectual or psychological capacity evidenced by an observable and substantial impairment in his ability to function within his normal range of performance and behavior, with due regard to his culture;
  8. Who is subject to sexual abuse, sexual molestation or sexual exploitation by his parent, guardian, custodian or any other person responsible for his care;
  9. Who was subject to prenatal exposure to abusive use of alcohol, marijuana or any controlled drug or substance not lawfully prescribed by a practitioner as authorized by chapters 22-42 and 3420B;
  10. Whose parent, guardian or custodian knowingly exposes the child to an environment that is being used for the manufacture, use or distribution of methamphetamine or any other unlawfully manufactured controlled drug or substance.

26-8A-3. Persons required to report child abuse or neglected child – Intentional failure as misdemeanor. Any physician, dentist, doctor of osteopathy, chiropractor, optometrist, mental health professional or counselor, podiatrist, psychologist, religious healing practitioner, social worker, hospital intern or resident, parole or court services officer, law enforcement officer, teacher, school counselor, school official, nurse, licensed or registered child welfare provider, employee or volunteer of domestic abuse shelter, employee or volunteer of a child advocacy organization or child welfare service provider, chemical dependency counselor, coroner, or any safety-sensitive position as defined in subdivision 23-3-64(2), who has reasonable cause to suspect that a child under the age of eighteen has been abused or neglected as defined in 26-8A-2 shall report that information in accordance with 26-8A-6, 26-8A-7, and 26-8A-8. Any person who intentionally fails to make the required report is guilty of a Class 1 Misdemeanor. Any person who knows or has reason to suspect that child has been abused or neglected as defined in 26-8A-2 may report that information as provided in 26-8A-8.

26-8A-4. Additional persons to report death resulting from abuse or neglect – Intentional failure as misdemeanor. In addition to the report required under 26-8A-3, any person who has reasonable cause to suspect that a child has died as a result of child abuse or neglect as defined in 26-8A-2 shall report that information to the medical examiner or coroner. Upon receipt of the report, the medical examiner or coroner shall cause an investigation to be made and submit written findings to the State’s Attorney and the Department of Social Services. Any person required to report under this section who knowingly and intentionally fails to make a report is guilty of a Class 1 Misdemeanor.

26-8A-5. Application of terms. As used in 26-8A-3 and 26-8A-7, the terms, “teacher”, “school counselor”, “school official”, “school administrator”, “school principal”, and “school superintendent”, apply to any person substantially performing the respective duties of such position, in any public or private school, whether accredited or unaccredited and to any person providing instruction pursuant to 13-27-3.

26-8A-6. Report of abuse or neglect by hospital personnel – Failure as misdemeanor. Written policy required. Any person who has contact with a child through the performance of services as member of a staff of a hospital or similar institution shall immediately notify the person in charge of the institution or his designee of suspected abuse or neglect. The person in charge shall report the information in accordance with the provisions of 26-8A-8. Any person required by this section to report shall also promptly submit to the state’s attorney complete copies of all medical examination, treatment, and hospital records regarding the child. Any person who knowingly and intentionally fails to make a required report and to submit copies of records is guilty of a Class 1 Misdemeanor. Each hospital or similar institution shall have a written policy on reporting of child abuse and neglect and submission of medical examination, treatment and hospital records to the state’s attorney.

26-8A-7. Child abuse or neglect reports by school personnel – Failure as misdemeanor. Written policy required. Any person who has contact with a child through the performance of services in any public or private school, whether accredited or unaccredited as a teacher, school nurse, school counselor, school official or administrator, or any person providing services pursuant to 13-27-3 shall notify the school principal or superintendent shall report the information in accordance with the provisions of 26-8A-8. Any person who knowingly and intentionally fails to make a report required is guilty of a Class 1 Misdemeanor. Each school district shall have a written policy on reporting of child abuse and neglect.

26-8A-8. Oral report of child abuse – To whom made – Responses report. The reports required by 26-8A-3, 26-8A-6 and 26-8A-7 and by other sections of this chapter shall be made orally and immediately by telephone or otherwise to the State’s Attorney of the county in which the child resides or is present, to the Department of Social Services, or to the law enforcement officers. The mandatory reporter who witnessed the disclosure or evidence of the abuse or neglect must be available to answer questions when the initial report is made pursuant to this section. The State’s Attorney or the law enforcement officers, upon receiving a report shall immediately notify the Department of Social Services. Any person receiving a report of suspected child abuse or child neglect shall keep the report confidential as provided in 26-8A-13, except as otherwise provided in Chapter 26-7A or this chapter.

The person receiving a report alleging child abuse or neglect shall ask whether or not the reporting party desires a response report. If requested by the reporting person, the Department of Social Services or the concerned law enforcement officer shall issue within thirty days, a written acknowledgement of receipt of the report and a response stating whether or not the report will be investigated.

26-8A-10. Reports to social services – Content. A report made pursuant to 26-8A-8 to the Department of Social Services shall include the date and place of birth of the child, the name and address of the child’s parents, guardian, custodian or responsible persons, and the date of the report, the suspected or proven instances of child abuse or neglect as defined in 26-8A-2. The Department of Social Services shall be the central registry for such information.

26-8A-13. Confidentiality of abuse or neglect information – Violation as misdemeanor release to certain parties. All investigative case records and files relating to reports of child abuse and neglect are confidential, and no disclosure of any such records, files or other information may be made except as authorized in Chapter 26-7A or this chapter. Any person who knowingly violates the confidential nature of the records, files or information is guilty of a Class 1 Misdemeanor. The Department of Social Services may release records, files or other information to the following parties upon the receipt by the department of a request showing that it is necessary for the parties to have such information in the performance of official functions relating to child abuse or neglect.

26-8A-14. Immunity from liability. Any person or party participating in good faith in the making of a report or the submitting of copies of medical examination, treatment or hospitalization records pursuant to 26-8A-3 to 26-8A-8 or pursuant to any other provisions of this chapter, is immune from any liability, civil or criminal that might otherwise be incurred or imposed, and has the same immunity for participation in any judicial proceeding resulting from the report. Immunity also extends in the same manner to persons requesting the taking of photographs and X-rays pursuant to 26-8A-16, to persons taking the photographs and X-rays to child protection teams established by the secretary of social services, to public officials or employees involved in the investigation and treatment of child abuse and neglect or making a temporary placement of the child pursuant to this chapter, or to any person who in good faith cooperates with a child protection team or the Department of Social Services in investigation, placement or a treatment plan. The provisions of this section or any other section granting or allowing the grant of immunity do not extend to any person alleged to have committed an act or acts of child abuse.

26-8A-16. Photographs, videotapes, or other images, and medical examinations without consent – Disposition. Any person receiving a report under 26-8A-3 may take or cause to be taken color photographs, videotapes, or other images of the areas of trauma visible on a child who is the subject of the report and may require a radiological or other medical examination or testing of the child without the consent of the child’s parents, guardian or custodian. All photographs, videotapes, or other images taken pursuant to this section shall be taken by a law enforcement official, the Department of Social Services, or a person authorized by a law enforcement official or the department. All photographs, videotapes, other images, X-rays and test results or copies of them, shall be sent to the appropriate law enforcement agency, State’s Attorney or to the Department of Social Services. These photographs, videotapes, and other images need not be made a part of the child’s medical or hospital records. Any photograph, videotapes, or other image in the possession of the Department of Social Services shall be destroyed by the Department of Social Services if no criminal prosecution or civil action is initiated within three years of the date that such material was received by the Department of Social Services.