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Introduced Version Senate Bill 171 History

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sb171 intr
Senate Bill No. 171

(By Senator Boley)

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[Introduced February 14, 2005; referred to the Committee

on the Judiciary.]

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A BILL to amend the Code of West Virginia, 1931, as amended, by adding thereto a new section, designated §49-2B-18, relating to a foster parents' bill of rights.

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 section, designated §49-2B-18, to read as follows:
ARTICLE 2B. DUTIES OF COMMISSIONER OF HUMAN SERVICES FOR CHILD WELFARE.

§49-2B-18. The "Foster Parents' Bill of Rights Act."

The Department of Health and Human Resources shall ensure that each foster parent shall have all of the following rights:
The Department and private contractors shall treat the foster parent(s) with dignity, respect, trust and consideration as a primary provider of foster care and a member of the professional team caring for foster children;
The Department and private contractors shall provide the foster parent(s) with a clear explanation and understanding of the role of the Department and private contractors or private contractors and the role of the members of the child?s birth family in a child?s foster care;
The foster parent(s) shall make decisions about the daily living concerns of the child, and shall be permitted to continue the practice of their own family values and routines while respecting the child?s cultural heritage. All discipline shall be consistent with state laws and regulations. The Division of Family Services shall allow foster parents to help plan visitation between the child and the child's biological family and recognizing that visitation with family members is an important right, foster parents shall be flexible and cooperative in regard to family visits;
The foster parent(s) shall be provided training and support for the purpose of improving skills in providing daily care and meeting the special needs of the child in foster care and they have the right to training, consultation, and assistance in evaluating, identifying, and accessing services to meet their needs related to their role as foster care providers;
Prior to the placement of a child in foster care, the Department and private contractors shall inform the foster parent(s) of issues relative to the child that may jeopardize the health and safety of the foster family including history of making allegations against former foster parents or issues which may alter the manner in which foster care should be administered;
Foster parent(s) shall have the right to communicate with other foster parents in order to share information regarding the foster child. In particular, receive any information concerning the number of times a foster child has been moved and the reasons why, and the names and telephone numbers of the previous foster parents;
The Department and private contractors shall provide a means by which the foster parent(s) can contact the Department and private contractors twenty-four hours a day, seven days a week for the purpose of receiving Departmental assistance and/or assistance from the private contractor;
The Department and private contractors shall provide the foster parent(s) timely, adequate financial reimbursement for the quality and knowledgeable care of a child in foster care, as specified in the plan: Provided, That such reimbursement shall not be counted as family income except for purposes of establishing due process rights. Additionally, if this is a child?s first foster home placement or the child lacks adequate clothing, initial clothing vouchers in the amount of three hundred dollars per child shall be provided to the foster parent(s). The foster parent(s) will then submit receipts proving purchase of clothing to the Department and private contractors or private agency.
The Department and private contractors shall provide clear, written explanation of the plan concerning the placement of a child in the foster parent?s home. For emergency placements where time does not allow prior preparation of such explanation, the Department and private contractors shall provide such explanation as it becomes available. This explanation shall include, but is not limited to, all information regarding the child?s contact with such child?s birth family and cultural heritage, if so outlined;
Prior to placement, the Department and private contractors shall allow the foster parent(s) to review written information concerning the child, meet with the child, and allow the foster parent(s) to assist in determining if such child would be a proper placement for the prospective foster family. Foster parents have the right to information concerning behavioral problems, health history, educational status, cultural and family background, and other issues relative to the child which are known to the Department at the time the child is placed in foster care prior to the child?s placement with a foster parent or parents. On an ongoing basis, the foster parents shall receive additional or necessary information that is relative to the care of the child. For emergency placements where time does not allow prior review of such information, the Department and private contractors shall provide information as it becomes available;
At the time of placement of a child in a foster home, and no later than at the time the foster care placement contract is signed, the foster parent shall be informed, in writing, through a succinct checklist form, of all information that is available to the Department regarding the child?s:
(a) Pending petitions, or adjudications of delinquency when the conduct constituting the delinquent act, if committed by an adult, would constitute first degree murder, second degree murder, rape, aggravated rape, aggravated robbery, especially aggravated robbery, kidnaping, aggravated kidnaping or especially aggravated kidnaping;
(b) Behavioral issues which may affect the care and supervision of the child;
(c) History of physical or sexual abuse;
(d) Special medical or psychological needs of the child; and (e) Current infectious diseases.

The Department shall inform the foster parent(s) on the maintenance of a permanent record for each child containing all relevant information as to the medical, educational and social history of the child. The Department shall make a reasonable effort to ensure that a permanent record is maintained and travels with the child if the child is moved between foster care placements. The permanent record shall include, but is not limited to: The child?s medical history; the child?s family background and social history; the child?s therapeutic and psychiatric history; the child?s educational history; and the names and addresses of any of the child?s service providers.
Upon written request by the foster parents detailing a reasonable need for such information including protecting themselves from allegations of child abuse or neglect (which in this case the foster parents still have this right even if the child has been removed), the Department shall provide the foster parents with written authorization to contact and obtain information from any of the child?s past or present care providers or service providers, including, but not limited to, the child?s previous foster parents, doctors, psychiatrists, psychologists or educators. Confidential information received by the foster parents shall be maintained as such by the foster parents, except as necessary to promote or protect the health and welfare of the child.
The Department and private contractors shall permit the foster parent(s) to refuse placement within their home, or to request, upon reasonable notice to the Department and private contractors, the removal of a child from their home for good reason, without threat of reprisal, unless otherwise stipulated by contract or policy. When requesting removal of a child from their home, foster parents shall give reasonable advance notice, consistent with division policy, to the child?s caseworker, except in emergency situations;
The Department and private contractors shall inform the foster parent(s) of scheduled meetings and staffing concerning the foster child and the foster parent shall be permitted to actively participate in the case planning and decision-making process regarding the child in foster care. This shall include, but is not limited to: Multidisciplinary team meetings, individual service planning meetings, foster care reviews, and individual educational planning meetings;
The Department and private contractors shall inform a foster parent(s) of decisions made by the courts or the child welfare agency concerning the child;
The Department and private contractors shall solicit the input of a foster parent(s) concerning the plan of services for the child; this input shall be considered in the Department and private contractor?s ongoing development of the plan;
The Department and private contractors shall permit, through written consent, the foster parent(s) to communicate with professionals who work with the foster child, including any therapists, physicians and teachers that work directly with the child and to make appointments for the child. Foster parent(s) shall have the right to assist the Department in identifying the types of resources and services that would meet the needs of children currently in their care and of their families, advocate for the same and seek out and obtain such services;
The Department and private contractors shall provide all information regarding the child and the child?s family background and health history, in a timely manner to the foster parent(s). The foster parent(s) shall receive additional or necessary information, that is relevant to the care of the child, on an ongoing basis: Provided, That confidential information received by the foster parents shall be maintained as such by the foster parents, except as necessary to promote or protect the health and welfare of the child;
The Department and private contractors shall provide timely, written notification of changes in the case plan or written notice ten days prior to the termination of the placement and the reasons for the changes or termination of placement to the foster parent(s), except in the instances of imminent danger requiring immediate response for child protective services;
The right to notice and an opportunity to be heard, including timely information concerning all court hearings, shall be provided to foster parent(s). This notification may include, but is not limited to, notice of the date and time of the court hearing, the name of the guardian ad litem, name of the court appointed special advocate, if any, name of the judge or hearing officer hearing the case, the location of the hearing, and the court docket number of the case. Such notification shall be made upon the Department and private contractor?s receiving of this information, or at the same time that notification is issued to birth parents. The foster parent(s) shall be permitted to attend all such hearings and be permitted input and be encouraged to write and submit court reports concerning the child?s well being to all involved parties before each hearing. Foster parents must receive notice at least forty-eight hours before a hearing. No hearing may go forward unless foster parents have been served with notice.
If a foster parent is denied the opportunity to be heard, he or she may file a legal action against the court or public agency to enforce his or her right to be heard.
A court may grant any foster parent standing as a party if the court finds it is in the best interest of the child to do so.
The Department and private contractors shall provide, upon request by the foster parent(s), information regarding the child?s progress after a child leaves foster care. Information provided pursuant to this subsection shall only be provided from information already in possession of the Department and private contractors at the time of the request;
The Department and private contractors shall provide the foster parent(s) the training for obtaining support and information concerning a better understanding of the rights and responsibilities of the foster parent(s);
The Department and private contractors shall consider the foster parent(s) as the possible first choice permanent parents for the child, who, after being in the foster parent?s home for any length of time and no relative has stepped forward, becomes free for adoption or permanent foster care. Foster parents shall inform the child?s caseworker, the GAL, the CASA (if one has been appointed) and the court of their interest if a child reenters the system. If a foster child becomes free for adoption and the foster parents desire to adopt the child, they shall inform the caseworker in a timely manner. If they do not choose to pursue adoption, foster parents shall make every effort to support and encourage the child?s placement in a permanent home;
The Department and private contractors shall consider the former foster family as a placement option when a foster child who was formerly placed with the foster parent(s) is to be reentered into foster care: It will be the foster family?s option to request removal of short term foster children in order to make room for former foster children with whom a bond has already been established. The Department shall give the previous foster parents the right to continue foster care of a child who comes back into foster care unless the Department can document a justified reason why the previous foster parents should not resume care of the child. The previous foster parents shall be considered an interested party;
The Division of Family Services shall establish reasonably accessible respite care for children in foster care for short periods of time, jointly determined by foster parents and the child?s caseworker;
The Department and private contractors shall permit the foster parent(s) a period of respite, free from placement of foster children in the family?s home with follow-up contacts by the agency occurring a minimum of every two months. The foster parent(s) shall provide reasonable notice, to be determined in the promulgation of rules, to the Department and private contractors for respite;
Foster parents have the right to be free of coercion, discrimination, and reprisal in serving foster children, including the right to voice grievances about treatment furnished or not furnished to the foster child;
Child abuse/neglect investigations involving the foster parent(s) shall be investigated pursuant to the Department and private contractor?s child protective services policy and procedures except that the Department shall notify the foster parents of any charges brought against the foster parents within fourteen days of the commencement of the Department?s investigation. A child protective services case manager from another county shall be assigned investigative responsibility. Removal of a foster child will be conducted pursuant to West Virginia code and Departmental policy and procedures. The Department and private contractors shall permit an advocate that is educated concerning the procedures relevant to investigations of alleged abuse and neglect by the Department and private contractors and the rights of the accused foster parent(s) to accompany and assist foster parent(s) who are under investigation. Such advocate shall be permitted to be present at all portions of investigations where the accused foster parent(s) are present; and all communication received by such advocate therein shall be strictly confidential. The foster parents? advocate will be permitted to represent the foster parents? interests in any actions taken against the foster care license or which affects such foster parents ability to care for children in need of care placed in such foster parents homes. Foster parents shall have timely access to the child placement agency?s appeals process, and shall be free from acts of retaliation when exercising the right to appeal. The investigation shall be concluded within thirty days and if the allegations are unsubstantiated the foster children shall be placed back into the home.
Foster parents have the right to be provided a fair, timely, and impartial investigation of complaints concerning the foster parent?s licensure, to be provided the opportunity to have a person of the foster parent?s choosing present during the investigation, to have the right to face their accuser, to have the right to subpoena for any administrative hearings and to be provided due process during the investigation; the right to be provided the opportunity to request and receive mediation or an administrative review of decisions that affect licensing parameters, or both mediation and an administrative review; and the right to have decisions concerning a licensing corrective action plan specifically explained and tied to the licensing standards violated.
Upon request, the Department and private contractors shall provide within forty-eight hours the foster parent(s) copies of all information relative to their family and services contained in the personal foster home record and records of any prior and ongoing investigations of abuse; and
The Department and private contractors shall advise the foster parent(s) of mediation efforts and their right to a fair hearing and/or grievance hearing and immediately supply three copies of a fair hearing request form and three copies of the grievance application form and the address of the hearing review board. The foster parent(s) may file for mediation efforts, fair hearings or a grievance in response to any violations of the preceding tenets and the blank forms shall be automatically supplied for them to do so. At this time, foster parent(s) shall automatically be given a copy of the policy and procedure manuals for child abuse and neglect and for foster care.
After exhausting all administrative remedies, the foster parents, who believe that such foster parents? license was revoked or a foster child was removed by the Department without just cause,
may petition the court in which the foster child in need of care case was adjudicated to review the Department?s decision. The court shall have the discretion to review the Department?s decision and reinstate the foster parents? license and mandate reinstatement of the placement of the child in the foster parents? home, or both, if the court finds that such placement is in the child?s best interest.
Except as otherwise provided, in order to protect the privacy of children who are the subject of a child in need of care record or report, all records and reports concerning children in need of care, including the juvenile intake and assessment report, received by the Department of Social and Rehabilitation Services, a Law-Enforcement Agency or any juvenile intake and assessment worker shall be kept confidential except: (1) To those persons or entities with a need for information that is directly related to achieving the purposes of this code, or (2) upon an order of a court of competent jurisdiction pursuant to a determination by the court that disclosure of the reports and records is in the best interests of the child or are necessary for the proceedings before the court, or both, and are otherwise admissible in evidence. Such access shall be limited to in-camera inspection, unless the court otherwise issues an order specifying the terms of disclosure.
All foster parents shall be given a list of other foster parents in the State and their contact information.
For purposes of this section, "foster parent" means a resource family providing care of children in state custody. This includes both licensed and unlicensed homes, formal and informal foster care arrangements with relatives, both Departmental and privately contracted foster parents and prospective adoptive parents.
Foster parent rights shall not supercede parental rights or the rights of relatives. The best interest of the child shall be the paramount concern.
Foster parents will be notified, permitted to attend and have input, any staffings held concerning their foster home or foster children.
All persons wishing to be foster parents shall have the right to be a foster parent unless the criminal records checks reveals that a court of competent jurisdiction has ever convicted the prospective foster or adoptive parent of a felony involving the following:
Child abuse or neglect;
Spousal abuse;
A Crime against a child or children (including child pornography); or
A crime involving violence, including rape, sexual assault or homicide, but not other physical assault or battery, 45 C.F.R statue 1356.30(b).
Additionally, a home may not be approved if a court of competent jurisdiction convicted the prospective foster or adoptive parent in the last five years of a felony involving:
Physical assault;
Battery; or
A drug-related offense 45 C.F.R. statue 1356.30 (e) The criminal records check provision also does not apply to relative homes that are not licensed or approved in accordance with state standards because children in such homes are not eligible for Title IV-E funding. In other words, the criminal records check provision is strictly a Title IV-E funding requirement 65 FR 4067.
In promulgation of rules pursuant to subsection (a), the Department and private contractors shall provide forty-five days' written notification of public hearings, to the President of the West Virginia Foster/Adoptive Parent Association and the president?s designee.
In order for foster parents to have a stronger voice in the system and to be able to draw on each others? experiences and provide a way to reach out to other foster parents, the Department shall provide the President of the West Virginia Foster/Adoptive Parent Association with a list of all state foster parents including those on hold or appealing a decision for closure.
GRIEVANCE PROCEDURES.
Complaints and Mediation --
Any foster parent who determines that the Department and private contractors is in violation of the foster parents? bill of rights or otherwise has a complaint should first discuss their concerns with the case manager assigned to the foster home and attempt to work out an agreement. This step may involve showing the foster parent the written policy and procedures relative to approval of a foster home or ongoing casework activities. The case manager must respond to the foster parent?s complaint within three working days.
If the case manager and the foster parent cannot reach an understanding, then the foster parent shall notify the director of foster care and request assistance from the director of foster care in mediating the conflict between the case manager and the foster parent. The director of foster care must respond to the foster parent?s complaint and request for assistance within five working days.
Grievances --
If the case manager and the homefinder cannot make corrections or adjustments, the foster parent shall be given a pre-hearing conference. A scheduled meeting between all parties must take place within seven working days of the receipt of the foster parent complaint. The results of this meeting shall be documented in writing within two working days of the meeting; responsibility for the documentation is with the foster care case manager. The director of foster care must then make a recommendation in writing for corrective action (or no action). Copies of the director's decision must be forwarded to all participants within two working days.
Two copies of the grievance form application, one copy of the grievance process and the address of the hearing review board must be given to each foster parent each time a new child is accepted into their home and again when a child is removed from their home. Additionally, these forms and information must be given to each person during their initial foster parent training and then again yearly at a specified training.
Appeals --
Within ten working days of the grievance hearing, the foster parents may elect to file an appeal with the hearing review board and private contractors of children?s services. Upon receipt of an appeal, the board reviews all the information, and either accepts the recommendation of the hearing officer, or, at their discretion, may schedule an additional interview with the foster parent(s), CPS staff, or other relevant parties. Copies of the review board?s approval or modification of the hearing officers' recommendation must be forwarded to all participants.
All unsubstantiated, unfounded, or false allegations shall be expunged from the case files, both computer and written, after eighteen months to protect the civil rights of the people from the possibility of these charges being abused and used against them in the future. This shall be done automatically and voluntarily by the state agency or private agency without further action on the part of the person(s) against whom the allegations were made.
For the sake of the children who have already lost their biological family, the whole process for foster parents from the beginning of the investigation until the completion of the hearings and appeal, shall not take more than ninety days if the child or children have been removed from the home.
This article shall immediately be applied to all open cases and any case for which the final order was made within the past twelve months.


NOTE: The purpose of this bill is to create a bill of rights for foster parents.

This section is new; therefore, strike-throughs and underscoring have been omitted.
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