H. B. 4454
(By Delegates Mahan, Brown, Eldridge, Ennis,
Fragale, Frazier, Longstreth, Phillips, Rowan,
Schadler and Wooton)
[Introduced February 11, 2010
; referred to the
Committee on the Judiciary then Finance.]
A BILL to amend the Code of West Virginia, 1931, as amended, by
adding thereto a new article, designated §49-6F-1, §49-6F-2,
§49-6F-3, §49-6F-4, §49-6F-5, §49-6F-6, §49-6F-7, §49-6F-8 and
§49-6F-9, all relating to establishing the Office of Child
Advocacy; defining terms; providing powers and duties of the
Office of Child Advocacy; providing qualifications, term of
office and salary of the director; granting authority for the
director to hire staff; providing the director and staff of
the Office of Child Advocacy to investigate and monitor the
Division of Child Protective Services and Division of
Corrections; authorizing access to Child Protective Services
and certain Division of Corrections records and information;
allowing communication with children involved in Child
Protective Services investigations and in the custody of the
Division of Corrections; providing for confidentiality of
information; granting immunity from liability in certain
circumstances; establishing sunset provision.
Be it enacted by the Legislature of West Virginia:
That the Code of West Virginia, 1931, as amended, be amended
by adding thereto a new article, designated §49-6F-1, §49-6F-2,
§49-6F-3, §49-6F-4, §49-6F-5, §49-6F-6, §49-6F-7, §49-6F-8 and §49-
6F-9, all to read as follows:
ARTICLE 6F. OFFICE OF CHILD ADVOCACY.
§49-6F-1. Purpose.
The Legislature is committed to providing for the well being
of children and families of the State of West Virginia. Securing
a future for some of our most vulnerable citizens, those involved
in abuse and neglect proceedings, has proven to be a daunting and
on-going effort for the Legislature. Further, that monitoring the
confinement and treatment of adjudicated juvenile delinquents to
assure proper management and disposition of these children to
assure state resources are being maximized towards preventing
further criminal activity as they enter into adulthood is a vital
government function, and to continue to safeguard children and
their families in abuse and neglect proceedings, and to assure the
proper management and treatment of adjudicated juveniles under the
jurisdiction of the Division of Corrections, the Legislature
creates the Office of Child Advocacy. The director is charged with
coordinating efforts on behalf of children and families involved in
the state system; to work with advocacy groups; to advocate and
promote systematic reforms; and to recommend changes in law,
policy, rule or procedure necessary to enhance the protection of children and families involved in abuse and neglect and foster care
matters, and advance proper and effective management of adjudicated
juvenile delinquents.
§49-6F-2. Definitions.
In this article:
(1) "Child or children" means a person or persons yet to
attain the age of eighteen years, or a person who has attained the
age of eighteen years or older, when jurisdiction of the agency
over that person is continued as a result of jurisdiction over that
person when he or she was under the age of eighteen years.
(2) "Child abuse and neglect" means child abuse and neglect as
those terms are defined in section three, article one of this
chapter.
(3) "Child Fatality Review Team" means the group of
individuals established by section five, article five-d of this
chapter.
(4) "Child Protective Services" means the state agency within
the Department of Health and Human Resources charged with the
responsibility for review, investigation and placement of children
involved in child abuse and neglect matters established in article
six-a, chapter forty-nine of this code.
(5) "Director" means the Director of the Office of Child
Advocacy.
(6) "The Division of Corrections" means the state agency
within the Department of Military Affairs and Public Safety that has jurisdiction over adjudicated delinquent juveniles.
(7) "Multidisciplinary team" means multidisciplinary team as
defined by section three, article one of this chapter.
(8) "Office" means the Office of Child Advocacy.
(9) "Secretary" means the Secretary of the Department of
Health and Human Resources.
§49-6F-3. Office of Child Advocacy created to monitor child
protective services; office to be independent.
(a) There is created the Office of Child Advocacy to promote
public awareness and understanding of child protective services, to
monitor and ensure compliance with administrative acts, relevant
statutes, legislative rules and internal policies pertaining to
child protective services and the investigations, placement,
supervision and treatment of children in child abuse and neglect
cases, foster care and placement, treatment and state operated and
contracted youth and social services, including housing of status
offenders.
(b) The director reports directly to the Governor.
(c) The Office of the Child Advocacy and the staff of the
office is independent of the Department of Health and Human
Resources and the Division of Corrections. Neither agency may
prevent, inhibit or prohibit the office from initiating, carrying
out or completing any investigation, review or other activity
within the office's statutory duties and deemed necessary by the
director.
§49-6F-4. Appointment; qualifications; term of office.
(a) The Office of Child Advocacy is under the direct
supervision of the director. The director is the executive and
administrative head of the office and shall be appointed by the
Governor with the advice and consent of the Senate. The director
shall be qualified by training and experience to direct the
operations of the Office of Child Advocacy.
(b) The director:
(1) Shall serve on a full-time basis and may not be engaged in
any other profession or occupation;
(2) May not hold political office in the government of the
state either by election or appointment while serving as director;
(3) Shall be a citizen of the United States and a citizen of
the state;
(4) Is entitled to receive an annual salary as provided by the
Governor; and
(5) Is exempt from coverage under the classified service as
provided in section four, article six, chapter twenty-nine of this
code.
(c) The director shall hold office for a term of three years
and shall continue to hold office until reappointed or until a
successor is appointed. The Governor may remove the director only
for neglect of duty, misconduct or inability to perform duties.
Any vacancy shall be filled by similar appointment for the
remainder of the unexpired term.
§49-6F-5. Powers and duties of the Office of Child Advocacy;
hiring of staff.
(a) The powers and duties of the director include, but are not
limited to:
(1) Review, monitoring and investigation of the performance of
services for children as rendered by the state, including child
abuse and neglect matters, foster care and placement, treatment,
and state operated and contracted youth and social services,
including housing of status offenders and incarceration of
adjudicated delinquent children;
(2) Inspection and review of the operations, policies and
procedures of foster homes, group homes, residential treatment
facilities, shelters for the care of abused or neglected children,
facilities and programs for adjudicated juvenile delinquents or any
other public or private residential setting in which a child has
been placed by the state.
(3) Intervention in pending litigation involving abused or
neglected children in order to insure circuit or family court
judges and prosecuting attorneys comply with legal requirements
related to abused or neglected children, and to appeal judicial
acts or orders to the West Virginia Supreme Court of Appeals in the
event the acts or orders appear not to be in compliance with
applicable legal requirements;
(4) Intervention in disposition orders and placements, by
petition to the court for hearings for modification of a dispositional order as authorized by section fourteen, article
five, chapter forty-nine of this code when the director believes
the best interests of a juvenile are not reflected in the
disposition order. The presiding court shall consider the petition
and at the discretion of the court may revise or modify the order
accordingly. The director may, at his or her discretion, appeal any
such order.
(4) Reporting to the Legislative Oversight Commission on
Health and Human Resources Accountability annually by December 31
of each calendar year, concerning the state of each state entity's
specific duties in child abuse and neglect matters, and provide
nonconfidential information and assistance to the commission as it
may otherwise request;
(5) Acting as a neutral and nonadversarial arbiter in disputes
between citizens and the Division of Child Protective Services;
(6) Making recommendations to the Governor for legislative or
administrative changes designed to improve the state's performance
in responding to child abuse and neglect cases as well as the
prosecuting attorney and judiciary's role in the protection of
children from child abuse and child neglect, and for the housing
and treatment of adjudicated delinquent youth;
(7) Reviewing, evaluating, reporting on and making
recommendations concerning the procedures established by the state
in providing services to children who are at risk of abuse or
neglect, in the custody of the state or any child who receives child protective services;
(8) Reviewing, evaluating, reporting on and making
recommendations concerning the selection, assistance and monitoring
of foster care homes, to assure proper placement and services to
children placed in foster homes;
(9) Remaining knowledgeable and informed regarding current
law, changes in the law and trends in the law vis a vis child abuse
child neglect and juvenile services, and to answer queries from the
public regarding same;
(10) Remaining knowledgeable and informed concerning the
state's administrative practices, procedures and policies as they
relate to the protection of children;
(11) Filing legal actions in abuse and neglect cases and for
issues arising from incarceration and disposition of adjudicated
juvenile delinquents, including, but not limited to, actions in
mandamus, prohibition or declaratory judgement actions that seek to
require governmental officials to perform necessary activities to
adequately serve and protect children or to prohibit those
officials from engaging in actions that are counterproductive to
the protection and welfare of children;
(12) Dissemination of information to the public on the
objectives of the office, the services the office provides and the
methods by which the office may be contacted, including, but not
limited to, a toll-free telephone number to receive and respond to
calls from citizens and a web page describing the services available through the office;
(13) Aiding the Governor and the Legislature in proposing
methods of achieving increased coordination and collaboration among
state agencies and entities, including the judiciary, to ensure
maximum effectiveness and efficiency in the provision of services
to children;
(14) Providing necessary training and technical assistance to
Child Protective Services, the Division of Corrections, prosecuting
attorneys and the judiciary on issues relevant to the performance
of their respective duties with regard to child abuse and child
neglect;
(15) To apply for and accept grants, gifts and bequests of
funds from other entities, states, federal and interstate agencies
for the purpose of carrying out the lawful responsibilities of the
Office of Child Advocacy; and
(16) Doing all necessary activities intended to improve the
Child Protective Services Division and treatment of juveniles
within the Division of Corrections.
(b) The director may appoint an adequate number of staff to
properly perform the duties of the office. The total compensation
of the staff shall be within the limits of the amounts appropriated
by the Legislature for personal services of the office. All staff
shall serve at the will and pleasure of the director.
§49-6F-6. Access to information; communication with children;
confidentiality.
(a) The director shall have access to:
(1) All written reports of child abuse and neglect matters
including the names of all children involved in investigation,
treatment or placement by Child Protective Services;
(2) All records of local multidisciplinary teams created
pursuant to the provisions of section two, article five-d of this
chapter;
(3) All current and archived records maintained by Child
Protective Services;
(4) All court documents, including but not limited to,
pleadings, petitions, orders and discovery information;
(5) All on-line case management information;
(6) All records of child fatality review teams created
pursuant to section five, article five-d of this chapter;
(7) All state institutions serving children, and state
licensed facilities or residences for the purposes of carrying out
this article; and
(8) All current and archived records maintained by the
Division of Corrections relating to juvenile offenders.
(b) The director may communicate privately, by mail or orally,
with any child who is the subject of a Child Protective Services
investigation, treatment or placement in the custody of the
Division of Corrections;
(c) All records of the office pertaining to the care and
treatment of a child shall remain confidential and are subject to the same confidentiality requirements as set forth in article
seven, section one of this chapter. These records are not subject
to any method of legal compulsion without a showing of good cause
by the circuit or family court. Information contained in those
records may not be disclosed publicly in any manner that would
disclose identifying information about complainants or witnesses.
These records are exempt from the freedom of information act as
provided for in chapter twenty-nine-b of this code.
§49-6F-7. Admissibility of evidence; testimony regarding official
duties; exceptions.
(a) Neither the director nor the staff of the Office of Child
Advocacy may be compelled in any judicial or administrative
proceeding to testify or produce evidence regarding the exercise of
the official duties of the director. All related memoranda, work
product, notes and case files of the office are confidential, not
subject to discovery, judicial or administrative subpoena or other
method of legal compulsion and are not admissible as evidence in a
judicial or administrative proceeding.
(b) The privilege described in subsection (a) of this section
does not apply when:
(1) The office has direct knowledge of an alleged crime and
the testimony, evidence or discovery sought is relevant to that
allegation;
(2) The office has received a threat of, or becomes aware of
a risk of, imminent serious harm to any person, and the testimony, evidence or discovery sought is relevant to that threat or risk; or
(3) The director has been asked to provide general information
regarding the general operation of or the general processes
employed at his or her office.
§49-6F-8. Immunity from liability for good faith performance of
duties.
(a) An employee of the Office of the Child Advocacy is not
liable for good faith performance under this article.
(b) No discriminatory, disciplinary or retaliatory action may
be taken against an employee of the state, an employee of a
contracting agency of the state, a foster parent, a child under the
custody of the Division of Corrections, or a recipient of service
from Child Protective Services for any communication made, or
information given or disclosed, to aid the Office of the Child
Advocacy in carrying out its responsibilities, unless the
communication or information is made, given or disclosed
maliciously or not in good faith.
(c) All communications by the employees of the Office of Child
Advocacy if reasonably related to the requirements of this section
and done in good faith are privileged. This privilege serves as a
defense in any action brought in libel or slander.
§49-6F-9. Sunset Provision.
The Office of Child Advocacy shall continue to exist, pursuant
to article ten, chapter four of this code, until July 1, 2013,
unless sooner terminated, continued or reestablished by the provisions of that article.
NOTE: The purpose of this bill is to create the Office of
Child Advocacy. The bill, additionally, authorizes the director
of the office to hire staff; to investigate and monitor the
Department of Health and Human Resources Division of Child
Protective Services and the Division of Corrections; sets forth
powers and duties of the office; defines terms; provides for access
to information; sets forth the confidentiality requirements for
that information; and provides for the office to sunset on July 1,
2013.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.