ENGROSSED
Senate Bill No. 149
(By Senators Wooton, Anderson, Bowman, Buckalew, Dittmar, Miller,
Oliverio, Schoonover, Scott, Ross and Yoder)
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[Originating in the Committee on the Judiciary;
reported January 25, 1996.]
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A BILL to amend and reenact section two, article six-a, chapter
forty-nine of the code of West Virginia, one thousand nine
hundred thirty-one, as amended; to further amend said chapter
by adding thereto a new article, designated article six-c; and
to amend and reenact section one, article seven of said
chapter, all relating to court-appointed special advocates;
adding court-appointed special advocates as persons mandated
to report suspected child abuse and neglect; permitting court-
appointed special advocates to review confidential records
when ordered by a court; defining terms; setting forth
qualifications of court appointing special advocates;
describing procedures and duties for the appointment of court-
appointed special advocates; setting forth limitations in duties and actions of court-appointed special advocates and
their volunteer organization, requiring the program to bear
all costs and limiting liability; and requiring that the
program expire and that article six-c, chapter forty-nine of
said code be repealed unless reauthorization of the program by
the Legislature occurs prior to the year one thousand nine
hundred ninety-eight.
Be it enacted by the Legislature of West Virginia:
That section two, article six-a, chapter forty-nine of the
code of West Virginia, one thousand nine hundred thirty-one, as
amended, be amended and reenacted; that said chapter be further
amended by adding thereto a new article, designated article six-c;
and that section one, article seven of said chapter be amended and
reenacted, all to read as follows:
ARTICLE 6A. REPORTS OF CHILDREN SUSPECTED TO BE ABUSED OR
NEGLECTED.
§49-6A-2. Persons mandated to report suspected abuse and neglect.
When any medical, dental or mental health professional,
christian science practitioner, religious healer, school teacher or
other school personnel, social service worker, child care or foster
care worker, court-appointed special advocate, emergency medical
services personnel, peace officer or law-enforcement official, member of the clergy, circuit court judge, family law master or
magistrate has reasonable cause to suspect that a child is
neglected or abused or observes the child being subjected to
conditions that are likely to result in abuse or neglect, such
person shall immediately, and not more than forty-eight hours after
suspecting this abuse, report the circumstances or cause a report
to be made to the state department of human services: Provided,
That in any case where the reporter believes that the child
suffered serious physical abuse or sexual abuse or sexual assault,
the reporter shall also immediately report, or cause a report to be
made to the division of public safety and any law-enforcement
agency having jurisdiction to investigate the complaint: Provided,
however, That any person required to report under this article who
is a member of the staff of a public or private institution,
school, facility or agency shall immediately notify the person in
charge of such institution, school, facility or agency or a
designated agent thereof, who shall report or cause a report to be
made. However, nothing in this article is intended to prevent
individuals from reporting on their own behalf.
In addition to those persons and officials specifically
required to report situations involving suspected abuse or neglect
of children, any other person may make a report if such person has reasonable cause to suspect that a child has been abused or
neglected in a home or institution or observes the child being
subjected to conditions or circumstances that would reasonably
result in abuse or neglect.
ARTICLE 6C. COURT-APPOINTED SPECIAL ADVOCATE.
§49-6C-1. Definitions.
As used in this article:
(a) "Court-appointed special advocate" and "CASA" means a
person appointed by the court pursuant to a CASA volunteer program
to act as special advocate for a child.
(b) "Court-appointed special advocate volunteer program" and
"CASA volunteer program" means a program approved or sanctioned by
the circuit judges in the county where the program operates which
recruits, trains and supervises volunteer persons to serve as
court-appointed special advocates.
§49-6C-2. Qualifications.
(a) Any person seeking appointment as a court-appointed
special advocate shall meet the following qualifications:
(1) Be at least twenty-one years of age;
(2) Provide, at his or her own cost, a copy of his or her
criminal history or certification that no conviction data is
maintained on him or her;
(3) Commit to a minimum of one year of service to a child
until a permanent placement is achieved for the child or until
relieved by the court, which ever is first; and
(4) Receive training consistent with nationally developed
standards.
(b) The training required by this section shall include an
evaluation before and after initial training to determine the
fitness of the court-appointed special advocate to perform the
duties permitted by this article.
(c) At the end of each year of service, the court-appointed
special advocate, with the approval of the court, may recommit for
an additional year.
(d) A court-appointed special advocate shall have no
associations which create a conflict of interest with his or her
duties as a court-appointed special advocate.
(e) An adult otherwise qualified to act as a court-appointed
special advocate shall not be discriminated against based upon sex,
socioeconomic, religious, racial, ethnic or age factors.
(f) The court appointed special advocate volunteer program
shall insure that all qualifications and requirements listed herein
are met prior to providing the name of the volunteer to the court
for appointment.
§49-6C-3. Procedures.
(a) A circuit court judge, a family law master or a
magistrate, upon motion of any party or sua sponte, may appoint a
court-appointed special advocate to advocate for a child in an
abuse and neglect action, a criminal action when the child is the
victim, a custody proceeding before the family law master or a
proceeding upon a petition filed pursuant to article two-a, chapter
forty-eight of this code when the action involves a child that may
be abused or neglected.
(b) A circuit court judge, a family law master or a magistrate
may appoint a court-appointed special advocate at any point in any
proceedings listed in subsection (a) of this section.
(c) Upon appointment, the program director of the court-
appointed special advocate volunteer program shall assign a
qualified person as a court-appointed special advocate when
requested by the court. If no qualified volunteer is available for
the appointment, the volunteer program shall place that child's
name on a list and that child shall be assigned the next available
court-appointed special advocate.
(d) At the time of the appointment of the court-appointed
special advocate, the court shall determine what duties the court-
appointed special advocate may perform and shall further incorporate the listing of the duties in the order appointing the
court-appointed special advocate. These duties are limited to the
following:
(1) To investigate all relevant information about the case;
(2) To advocate for the child, assuring that all relevant
facts are brought before the court;
(3) To monitor all court orders to insure compliance and to
bring to appointed counsel and the court's attention any change in
circumstances that may require a modification of the court's order;
(4) To assist a guardian ad litem to represent the child in
providing effective representation of the child's needs and best
interests;
(5) To report any incidents of suspected child abuse or
neglect in conformity with article six-a of this chapter;
(6) To monitor the case by visiting the child as often as
necessary to observe whether the child's essential needs are being
met, and whether court orders are actually being carried out;
(7) To participate in any treatment planning, conferences and
reviews involving the child in order to keep informed of the
child's permanent plan; and
(8) To perform such other and further duties as may be
expressly imposed by the court order.
(e) At the time of the appointment of a special advocate, the
court may order that the court-appointed special advocate have
authority to review specific documents contained in the court file
or in the file maintained by the department in order to accomplish
the duties required in this section.
(f) All records and information acquired or reviewed by a
court-appointed special advocate during the course of the duties
shall be deemed confidential and shall be disclosed only pursuant
to court order.
§49-6C-4. Limitations.
(a) The court-appointed special advocate is not a party to the
case to which he or she is assigned and may not call witnesses or
examine witnesses.
(b) The court-appointed special advocate may not, with respect
to the case to which he or she is assigned, provide legal counsel
or advice to any person, appear as counsel in court or in
proceedings which are part of the judicial process, or engage in
the unauthorized practice of law.
(c) The court-appointed special advocate may testify if called
as a witness.
(d) A court-appointed special advocate may not participate in
any ex parte communication with the judge.
(e) Any provision of this article which shall cause the state
to lose federal funding shall be considered null and void.
§49-6C-5. Costs; liability.
(a) Court-appointed special advocates shall serve as
volunteers without compensation.
(b) All costs associated with the appointment and duties of
the court-appointed special advocate shall be paid by the court-
appointed special advocate or the court-appointed special advocate
volunteer program. No moneys of the state may be expended on any
court-appointed special advocate volunteer program.
(c) A court-appointed volunteer, a board member or employee of
the court-appointed special advocate volunteer program or a member
of a volunteer board for the court-appointed special advocate
volunteer program is not liable for civil damages for a
recommendation made or opinion rendered while serving or having
served as a court-appointed volunteer, board member or employee of
a volunteer advocate charitable organization or member of an
administrative review board under this section unless the act or
failure to act is willfully wrong, committed with conscious
indifference or reckless disregard for the safety of another,
committed in bad faith or with malice or is grossly negligent.
§49-6C-6. Termination of court-appointed special advocate program.
This article shall remain in effect only until the first day
of January, one thousand nine hundred ninety-eight, and as of that
date, is repealed, unless a later enacted statute, which is enacted
before the first day of January, one thousand nine hundred ninety-
eight, deletes or extends that date.
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; or (4) 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 abuse proceeding shall be
open for inspection only to the child, the child's parent or
custodian, their counsel, any person appointed by the court to
advocate for the child pursuant to an order entered releasing that
information as authorized by article six-c of this chapter and to
any party 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 three hundred 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.