ENGROSSED
COMMITTEE SUBSTITUTE
FOR
Senate Bill No. 515
(By Senators Jones, Plymale, Humphreys,
Wooton and Whitlow)
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[Originating in the Committee on the Judiciary;
reported March 31, 1993.]
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A BILL to amend chapter forty-nine of the code of West Virginia,
one thousand nine hundred thirty-one, as amended, by adding
thereto a new article, designated five-e; to amend article
six of said chapter by adding thereto a new section,
designated section one-a; to amend and reenact section nine,
article six-a of said chapter; to further amend said article
by adding thereto a new section, designated section ten; to
amend and reenact sections one and twenty-four, article
seven of said chapter; to amend and reenact section three,
article eleven-a, chapter sixty-one of said code; and to
amend reenact sections seven and seven-a, article twelve,
chapter sixty-two of said code, all relating to commission
on child abuse; promulgation of rules relating to child
abuse; minimum staffing component for child protective
services; investigation of child abuse; court appointed
special advocates; definitions; duties; limitations;
liabilities; confidentiality of records; preliminary
investigation; report on probationers; presentence diagnosis
power of court; custody of convicted persons; victim impact
statement, when required; including certain effects on child
in presentence report; right of defendant to review
evidence; rules; and regulations of department.
Be it enacted by the Legislature of West Virginia:
That chapter forty-nine of the code of West Virginia, one
thousand nine hundred thirty-one, as amended, be amended by
adding thereto a new article, designated article five-e; that
article six of said chapter be amended by adding thereto a new
section, designated section one-a; that section nine, article
six-a of said chapter be amended and reenacted; that said article
be further amended by adding thereto a new section, designated
section ten; that sections one and twenty-four, article seven of
said chapter be amended and reenacted; that section three,
article eleven-a, chapter sixty-one of said code be amended and
reenacted; and that sections seven and seven-a, article twelve,
chapter sixty-two of said code be amended and reenacted, all to
read as follows:
CHAPTER 49. CHILD WELFARE.
ARTICLE 5E. COURT APPOINTED SPECIAL ADVOCATE.
§49-5E-1. Definitions.
Court appointed special advocate" means a qualified person,
duly certified by a circuit judge to participate in the court
appointed special advocate program and appointed by the court,
who may assist any appointed counsel to advocate for a child inan abuse and neglect proceeding or may assist a minor child in
criminal proceeding where a child is a witness, based on the
availability of volunteers. The volunteer advocate shall serve,
without compensation, until discharged by the court.
§49-5E-2. Special advocate; duties; limitations; liability.
(a) The court may appoint a special advocate as defined in
section one to assist any attorney appointed to represent a child
in any proceeding brought pursuant to article six of this chapter
or to assist a child who is a victim and a witness in a criminal
proceeding.
(b) A court-appointed special advocate shall serve without
compensation and shall have the qualifications and duties and
responsibilities as may be prescribed by the rule by the supreme
court of appeals.
(c) A court appointed special advocate shall receive notice
and may attend all depositions, hearings, and trial proceeding to
support the child and advocate for the protection of the child:
Provided, That a court appointed special advocate may not
participate in any proceeding when the court finds that such
participation is disruptive or when the advocate may be called as
a witness.
(d) A court appointed special advocate shall not be allowed
to introduce evidence, direct or cross examine witnesses,
participate in any ex parte communication with the judge or
introduce any report, except as may be otherwise permitted by the
rules of evidence.
§49-5E-4. Procedural Rules.
On or before the first day of October, one thousand ninehundred ninety-five, the supreme court shall, consistent with
this article, promulgate rules governing the procedure for
court-appointed special advocate programs in state courts.
ARTICLE 6. PROCEDURE IN CASES OF CHILD NEGLECT OR ABUSE.
§49-6-1a. Minimum staffing complement for child protective
services.
(a)Notwithstanding any provision of this code, the
staffing complement of the department of health and human
resources shall be increased by the secretary of health and human
resources to assure that a child protective service worker does
not have more than thirty on-going cases and not more than
fifteen child protective services investigations each month.
Direct child protective service worker positions, necessary to
assure this staffing complement, are exempt from hiring
restrictions and personnel ceilings.
(b)Nothing in this section shall prevent any employee
of the department of health and human services from providing
services in emergency situations as designated by the governor.
ARTICLE 6A. REPORTS OF CHILDREN SUSPECTED TO BE ABUSED OR
NEGLECTED.
§49-6A-9. Establishment of child protective services; general
duties and powers; cooperation of other state agencies.
(a) The state department shall establish or designate in
every county a local child protective services office to perform
the duties and functions set forth in this article.
(b) The child protective services office shall investigate
all reports of child abuse or neglect: Provided, That under no
circumstances shall investigating personnel be relatives of theaccused, the child or the families involved. In accordance with
the local plan for child protective services, it shall provide
protective services to prevent further abuse or neglect of
children and provide for or arrange for and coordinate and
monitor the provision of those services necessary to ensure the
safety of children. The local child protective service shall be
organized to maximize the continuity of responsibility, care and
service of individual workers for individual children and
families: Provided, however, That under no circumstances may the
secretary or his or her designee promulgate rules or establish
any policy which restricts the scope or types of alleged abuse or
neglect of minor children which are to be investigated or the
types of services to be provided to abused or neglected children.
Each local child protective service shall:
(1) Receive or arrange for the receipt of all reports of
children known or suspected to be abused or neglected on a
twenty-four hour, seven-day-a-week basis and cross-file all such
reports under the names of the children, the family, any person
substantiated as being an abuser or neglecter by investigation of
the department of human services, with use of such cross-filing
of such person's name limited to the internal use of the
department;
(2) Provide or arrange for emergency children's services to
be available at all times;
(3) Upon notification of suspected child abuse or neglect,
commence or cause to be commenced a thorough investigation of the
report and the child's environment;
(4) Within seventy-two hours of notification of suspectedchild abuse or neglect, conclude the initial investigation which
shall, at a minimum include: A personal, face-to-face interview
with all witnesses: Provided, That when the notification
included allegations of serious physical abuse or sexual abuse,
any interview with a child who is a victim shall be videotaped
and the initial investigation shall include an examination by a
physician; and
(5) In addition to any requirements imposed by this section,
when any matter regarding child custody is pending, the circuit
court or family law master may direct the local child protective
services office to promptly investigate any allegations of child
abuse or neglect and make a written report to the circuit court
or family law master.
(c) In those cases in which the local child protective
services determines that the best interests of the child require
court action, the local child protective service shall initiate
the appropriate legal proceeding.
(d) The local child protective service shall be responsible
for providing, directing or coordinating the appropriate and
timely delivery of services to any child suspected or known to be
abused or neglected, including services to the child's family and
those responsible for the child's care.
(e) To carry out the purposes of this article, all
departments, boards, bureaus and other agencies of the state or
any of its political subdivisions and all agencies providing
services under the local child protective service plan shall,
upon request, provide to the local child protective service such
assistance and information as will enable it to fulfill itsresponsibilities.
§49-6A-11. Committee on crime, promulgation of rules on child
abuse.
(a)?The governor's committee on crime, delinquency and
correction shall develop and promulgate rules for state, county
and municipal law-enforcement officers and law enforcement
agencies and prosecuting attorneys regarding the duties of law
enforcement officers, law-enforcement agencies and prosecuting
attorneys with respect to child abuse. The notice of the public
hearing on the rules shall be published before the first day of
July, one thousand nine hundred ninety-four. Prior to the
publication of the proposed rules, the governor's committee on
crime, delinquency and correction shall convene a meeting or
meetings of an advisory committee to assist in the development of
the rules. The advisory committee shall be composed of persons
invited by the committee to represent the department of health
and human resources or designee, the attorney general, the
association of prosecuting attorneys or the prosecutors advisory
council, the court appointed special advocate program, an
attorney who frequently represents children in abuse and neglect
proceedings and two persons who have been directly affected by a
perpetrator of child abuse. The rules and revisions thereof as
provided in this section shall be promulgated as legislative
rules in accordance with chapter twenty-nine-a of this code. In
addition the committee may prepare and issue a model protocol for
local multidisciplinary teams regarding investigation and
prosecution of child abuse, including specific protocols for
child sexual abuse; review and approve protocols prepared bylocal multidisciplinary teams; seek funding to support special
projects relating to the operation of local multidisciplinary
teams; and make recommendations to the governor and the
Legislature for changes in state programs, legislation,
regulations, policies, budgets and treatment and service
standards which will facilitate effective intervention of child
abuse cases, the investigation and prosecution of perpetrators of
child abuse, and which will improve the opportunity for victims
of child abuse to receive treatment.
ARTICLE 7. GENERAL PROVISIONS.
§49-7-1. Confidentiality of records.
All records of the state department, the court and its
officials, law-enforcement agencies and other agencies or
facilities concerning a child as defined in this chapter shall be
kept confidential and shall not be released: Provided, That such
records, except adoption records, juvenile court records and
records disclosing the identity of a complainant of child abuse
or neglect, shall be made available: (1) Where authorized by
this chapter; (2) to the child, parent or the attorney of the
child or parent, whether or not in connection with judicial
proceedings; (3) with the written consent of the child or of
someone authorized to act in the child's behalf; (4) to a court
appointed special advocate; or (5) pursuant to subpoena or order
of a court of record: Provided, however, That a subpoena for
such records may be quashed if the court determines that
disclosure is not for a bona fide purpose and compromises the
confidentiality intended by this section. The official court file
pertaining to the person who is the subject of a neglect or abuseproceeding shall be open for inspection only to the child, the
child's parent or custodian, their counsel, any court appointed
special advocate and other parties to the proceedings before the
court. No record or information shall be transmitted to any
federal or state agency except as specifically provided herein.
Except in juvenile proceedings which are transferred to
criminal proceedings, law-enforcement records and files
concerning a child shall be kept separate from the records and
files of adults and not included within the court files. Law-
enforcement records and files concerning a child shall be open to
inspection pursuant to the provisions of section seventeen,
article five of this chapter.
Any person who willfully violates this section shall be
guilty of a misdemeanor, and, upon conviction thereof, shall be
fined not more than one thousand dollars, or confined in jail not
more than six months, or both such fine and imprisonment, and
shall be liable for damages in the amount of three hundred
dollars or actual damages, whichever is greater.
§49-7-24. Rules and regulations under chapter.
The state secretary of the department of health and human
services shall prepare and promulgate rules and regulations
necessary to give effect to the provisions of this chapter:
Provided, That notwithstanding any provision of this code to the
contrary, the state secretary of the department of health and
human services shall prepare and promulgate rules and regulations
only in accordance with chapter twenty-nine-a of this code
necessary to give effect to the provisions of article six and
article six-a of this chapter.
CHAPTER 61. CRIMES AND THEIR PUNISHMENT.
ARTICLE 11A. VICTIM PROTECTION ACT OF 1984.
§61-11A-3. Victim impact statement; when required; contents;
use; right of defendant to review and present evidence.
(a) In every case in which a presentence report is ordered
by the court, such presentence report shall contain a victim
impact statement unless the court orders otherwise, if the
defendant, in committing a felony or misdemeanor, caused
physical, psychological or economic injury or death of the
victim.
(b) The victim impact statement shall be prepared by the
probation officer and shall include the identity of the victim,
an itemization of any economic loss suffered by the victim as a
result of the offense, a description of the nature and extent of
any physical or psychological injury suffered by the victim as a
result of the offense, the details of any change in the victim's
personal welfare, lifestyle or family relationships as a result
of the offense, whether there has been any request for
psychological or medical services initiated by the victim or the
victim's family as a result of the offense and such other
information related to the impact of the offense upon the victim
as may be required by the court.
(c) If the court does not order a presentence investigation
and report, the prosecuting attorney may request that the
probation officer prepare a victim impact statement. The victim
impact statement shall be considered by the court as a factor in
determining the appropriate sentence. Additionally, the
statement may be utilized for the determination of claims byvictims of crimes pursuant to the provisions of article two-a,
chapter fourteen of this code
(d) In cases that involve child victims of offenses defined
in section twelve, article eight of this chapter or article
eight-b or eight-d of this chapter, any victim impact statement
in a presentence report may include a statement from a therapist,
psychologist or physician who is providing treatment to the child
as to the recommendations regarding the effect that possible
disposition may have on the child.
A victim impact statement prepared in accordance with the
provisions of this section, other than for claims by victims of
crimes pursuant to the provisions of article two-a, chapter
fourteen of this code, shall be made available to the defendant,
and his counsel if he is so represented, at least ten days prior
to the date set for pronouncement of his sentence. The court
shall, upon motion by or on behalf of the defendant, grant the
defendant a hearing, whereby he may introduce testimony or other
information related to any alleged factual inaccuracies in the
statement.
CHAPTER 62. CRIMINAL PROCEDURE
ARTICLE 12. PROBATION AND PAROLE.
§62-12-7. Preliminary investigation; report on prospective
probationers.
When directed by the court, the probation officer shall make
a careful investigation of, and a written report with
recommendations concerning, any prospective probationer. Insofar
as practicable this report shall include information concerning
the offender's court and criminal record, occupation, familybackground, education, habits and associations, mental and
physical condition, the names, relationship, ages and condition
of those dependent upon him for support and such other facts as
may aid the court in determining the propriety and conditions of
his release on probation. No person convicted of a felony or of
any offense described in article eight-b or eight-d, chapter
sixty-one of said code against a minor child, may be released on
probation until this report shall have been presented to and
considered by the court. The court may in its discretion request
such a report concerning any person convicted of a misdemeanor.
The presentence report of any person convicted of an offense
described in article eight-b or eight-d of said chapter or
section twelve, article eight of said chapter may include a
statement from a therapist, psychologist, or physician who is
providing treatment to the child. A copy of all reports shall be
filed with the board of probation and parole.
§62-12-7a. Presentence diagnosis and classification; power of
court; custody of convicted person; provision for
presentence reports; penalty for escape.
Notwithstanding any other provision of law, when any person
has been found guilty of, or pleads guilty to, a felony, or any
offense described in article eight-d or eight-b, chapter
sixty-one of this code, against a minor child, the court may,
prior to pronouncing of sentence, direct that the person be
delivered into the custody of the commissioner of corrections,
for the purpose of diagnosis and classification for a period not
to exceed sixty days: Provided, That the court shall require
that a presentence report be completed by the probation officerassigned to that person and be made available to the commissioner
of corrections prior to delivery of the person to a statutorily
approved diagnosis and classification unit of the division of
corrections. While at the diagnosis and classification unit the
person shall undergo examination, diagnosis and classification
and shall then be remanded and delivered to the custody of the
sheriff of the county wherein he or she was found guilty or
entered such plea. Within ten days following the termination of
the examination, diagnosis and classification, the commissioner
of corrections shall make or cause to be made a report to the
court wherein the person was found guilty, or entered a plea of
guilty, containing the results, findings, conclusions and
recommendations of the commissioner with respect to such person.
Whenever a person is remanded into the custody of the
commissioner of corrections pursuant to this section, the person
shall be given credit on any sentence subsequently imposed by the
court equal to the time spent in such custody.