H. B. 2271
(By Delegates Mahan and Amores)
[Introduced February 11, 2005; referred to the
Committee on the Judiciary.]
A BILL to amend and reenact §49-6-4 of the Code of West Virginia,
1931, as amended, relating to the payment of expert fees in
child abuse and neglect cases.
Be it enacted by the Legislature of West Virginia:
That §49-6-4 of the Code of West Virginia, 1931, as amended,
be amended and reenacted to read as follows:
ARTICLE 6. PROCEDURE IN CASES OF CHILD NEGLECT OR ABUSE.
§49-6-4. Medical and mental examinations.
(a) At any time during proceedings under this article the
court may, upon its own motion or upon motion of the child or other
parties, order the child or other parties to be examined by a
physician, psychologist or psychiatrist, and may require testimony
from such expert, subject to cross-examination and the rules of
evidence: Provided, That the court shall not terminate parental or
custodial rights of a party solely because the party refuses to submit to the examination, nor shall the court hold such party in
contempt for refusing to submit to an examination. The physician,
psychologist or psychiatrist shall be allowed to testify as to the
conclusions reached from hospital, medical, psychological or
laboratory records provided the same are produced at the hearing.
The court by order shall provide for the payment of all such expert
witnesses. If the child, parent or custodian is indigent, such
witnesses shall be compensated out of the Treasury of the State,
upon certificate of the court wherein the case is pending. No
evidence acquired as a result of any such examination of the parent
or any other person having custody of the child may be used against
such person in any subsequent criminal proceedings against such
person.
(b) If a person with authority to file a petition under the
provisions of this article shall have probable cause to believe
that evidence exists that a child has been abused or neglected and
that such evidence may be found by a medical examination, the
person may apply to a circuit judge or juvenile referee for an
order to take such child into custody for delivery to a physician
or hospital for examination. The application may be on forms
prescribed by the Supreme Court of Appeals or prepared by the
prosecuting attorney or the applicant, and shall set forth facts
from which it may be determined that probable cause exists for such
belief. Upon such sworn testimony or other evidence as the judge or referee deems sufficient, the judge or referee may order any
law-enforcement officer to take the child into custody and deliver
the child to a physician or hospital for examination. If a referee
issues such an order the referee shall by telephonic communication
have such order orally confirmed by a circuit judge of the circuit
or an adjoining circuit who shall on the next judicial day enter an
order of confirmation. Any child welfare worker and the child's
parents, guardians or custodians may accompany the officer for such
examination. After the examination the officer may return the
child to the custody of his or her parent, guardian or custodian,
retain custody of the child or deliver custody to the state
department until the end of the next judicial day, at which time
the child shall be returned to the custody of his or her parent,
guardian or custodian unless a petition has been filed and custody
of the child has been transferred to the department under the
provisions of section three of this article.
NOTE: The purpose of this bill is to eliminate the conflicting
statutory provisions found in W.Va. Code §§49-6-4 and 49-7-33
concerning the award of expert fees in child neglect and abuse
proceedings. This change is considered necessary in light of the
opinion rendered by the State Supreme Court of appeals in Hewitt v.
W.Va. D.H.H.R., 212 W.Va. 698, 575 S.E.2d 308 (W.Va. 2002).
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.