Senate Bill No. 467
(By Senators Wagner, Dittmar, Love, Buckalew, Whitlow,
Schoonover, Wiedebusch, Helmick, Miller, Anderson, Scott, White,
Bowman, Bailey, Macnaughtan, Ross and Grubb)
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[Introduced February 19, 1996; referred to the Committee
on Government Organization; and then to the Committee on
Finance.]
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A BILL to amend and reenact sections five, ten and sixteen,
article four, chapter forty-eight of the code of West
Virginia, one thousand nine hundred thirty-one, as amended;
to amend and reenact sections nine, ten, eleven and twelve,
article two, chapter forty-nine of said code; and to amend
and reenact article six-d of said chapter, all relating to
creating the office of children's services; transfer of
authority for adoption, foster care and child protective
services from department of health and human resources;
authorizing a director; powers and duties of director; and
special revenue account.
Be it enacted by the Legislature of West Virginia:
That sections five, ten and sixteen, article four, chapter
forty-eight of the code of West Virginia, one thousand nine
hundred thirty-one, as amended, be amended and reenacted; that sections nine through twelve, article two, chapter forty-nine of
said code be amended and reenacted; and that article six-d of
said chapter be amended and reenacted, all to read as follows:
CHAPTER 48. DOMESTIC RELATIONS.
ARTICLE 4. ADOPTION.
§48-4-5. Revocation of consent or relinquishment for
adoption; when given; professional fees.
(a) Parental consent or relinquishment of legal custody for
adoption purposes, whether given by an adult or minor, is
irrevocable from the time of execution, except where a court of
competent jurisdiction finds that, notwithstanding the terms of
the consent or relinquishment, such consent or relinquishment was
obtained by fraud or duress, if:
(1) The consent or relinquishment is executed after the
expiration of seventy-two hours after the birth of the child, and
the consent so states;
(2) The parent executing the consent or relinquishment is
informed that the consent is irrevocable from the time executed,
and the consent so states;
(3) The consent or relinquishment includes a statement that
the parent executing the consent does so of his or her own free
will, that the consent was not obtained through fraud or duress,
that the parent executing the consent believes the adoption of
the child to be in the best interests of the child, expressly
waives notice of any adoption proceeding to be filed, and joins in the petition to be filed and the prayer that the child be
adopted; and
(4) In the case of a consenting parent under the age of
eighteen, either a guardian ad litem is appointed pursuant to the
provisions of section four of this article and the consent
reviewed and approved by the court, or the consent or
relinquishment is executed in the presence of and approved by a
judge of a court of record in the county in which such the
relinquishment is made.
(b) Any parental consent or relinquishment of legal custody
for adoption purposes which does not conform to the requirements
of subsection (a) of this section may be revoked by such the
parent within ten days after the consent is executed and, whether
given by an adult or a minor, is irrevocable thereafter except
where a court of competent jurisdiction finds that such the
consent or relinquishment for adoption was obtained by fraud or
duress.
(c) A consent or relinquishment of legal custody which is
revocable pursuant to the provisions of subdivision (b)
hereunder, if executed in this state, shall set forth the method
by which the same may be revoked, including the name and location
of the person to contact in the event the person desires to
exercise his or her right of revocation. Notwithstanding any
provision of this section to the contrary, any revocable consent
which does not so state the method of revocation may be revoked within twenty days of the time of execution and, whether given by
an adult or a minor, is irrevocable thereafter except where a
court of competent jurisdiction finds that such the consent or
relinquishment for adoption was obtained by fraud or duress.
(d) Notwithstanding any other provision of this section to
the contrary, a relinquishment of legal custody for adoption of
a child given by a minor to a licensed private child welfare
agency or to the state department of human services office of
children's services shall be with section one, article three,
chapter forty-nine of this code.
(e) Any payment to physicians, attorneys, adoption agencies
or to any other person involved in the adoption process shall be
limited to cover fees from services rendered.
§48-4-10. Recordation of order; fees; disposition of records;
names of adopting parents and persons previously
entitled to parental rights not to be disclosed;
disclosure of identifying and nonidentifying
information; certificate for state registrar of
vital statistics; birth certificate.
(a) The order of adoption shall be recorded in a book kept
for that purpose, and the clerk shall receive the same fees as in
other cases. All records of proceedings in adoption cases and
all papers and records relating to such proceedings shall be kept
in the office of the clerk of the circuit court in a sealed file,
which file shall be kept in a locked or sealed cabinet, vault or other container and shall may not be open to inspection or copy
by anyone, except as otherwise provided in this article, or upon
court order for good cause shown. No person in charge of
adoption records shall may disclose the names of the adopting
parent or parents, the names of persons previously entitled to
parental rights, or the name of the adopted child, except as
otherwise provided in this article, or upon court order for good
cause shown. The clerk of the court keeping and maintaining the
records in adoption cases shall keep and maintain an index of
such cases separate and distinct from all other indices kept or
maintained by him or her, and the index of adoption cases shall
be kept in a locked or sealed cabinet, vault or other container
and shall may not be open to inspection or copy by anyone, except
as otherwise provided in this article, or upon court order for
good cause shown. Nonidentifying information, the collection of
which is provided for in article four-a of this chapter, shall be
provided to the adoptive parents as guardians of the adopted
child, or to the adult adoptee, by their submitting a duly
acknowledged request to the clerk of the court. The clerk may
charge the requesting party for copies of any documents, as
provided in section eleven, article one, chapter fifty-nine of
this code. Either birth parent may from time to time submit
additional social, medical or genetic history for the adoptee,
which information shall be placed in the court file by the clerk,
who shall bring the existence of this medical information to the attention of the court. The court shall immediately transmit all
such nonidentifying medical, social or genetic information to the
adoptive parents or the adult adoptee.
(b) If an adoptee, or parent of a minor adoptee, is
unsuccessful in obtaining identifying information by use of the
mutual consent voluntary adoption registry provided for in
article four-a of this chapter, identifying information may be
sought through the following process:
(1) Upon verified petition of an adoptee at least eighteen
years of age, or, if less than eighteen, his or her adoptive
parent or legal guardian, the court may also attempt, either
itself, or through its designated agent, to contact the birth
parents, if known, to obtain their consent to release identifying
information to the adoptee. The petition shall state the reasons
why the adoptee desires to contact his or her birth parents,
which reasons shall be disclosed to the birth parents if
contacted. The court and its agent shall take any and all care
possible to assure that none but the birth parents themselves are
informed of the adoptee's existence in relationship to them. The
court may appoint the department of human services office of
children's services, or a private agency which provides adoption
services in accordance with standards established by law, to
contact birth parents as its designated agent, the said agent and
the agent shall report to the court the results of said the
contact.
(2) Upon the filing of a verified petition as provided in
subdivision (1) of this subsection, should the court be unable to
obtain consent from either of the birth parents to release
identifying information, the court may release such the
identifying information to the adoptee, or if a minor, the
adoptee's parents or guardian, after notice to the birth parents
and a hearing thereon, at which hearing the court must shall
specifically find that there exists evidence of compelling
medical or other good cause for release of such the identifying
information.
(c) Identifying information may only be obtained with the
duly acknowledged consent of the mother or the legal or
determined father who consented to the adoption or whose rights
were otherwise relinquished or terminated, together with the duly
acknowledged consent of the adopted child upon reaching majority,
or upon court order for good cause shown. Any person previously
entitled to parental rights may from time to time submit
additional social or medical information which, notwithstanding
other provisions of this article, shall be inserted into the
record by the clerk of the court.
(d) Immediately upon the entry of such the order of
adoption, the court shall direct the clerk thereof forthwith to
make and deliver to the state registrar of vital statistics a
certificate under the seal of said the court, showing:
(1) The date and place of birth of the child, if known;
(2) The name of the mother of the child, if known, and the
name of the legal or determined father of the child, if known;
(3) The name by which said the child has previously been
known;
(4) The names and addresses of the adopting parents;
(5) The name by which the child is to be thereafter known;
and
(6) Such other information from the record of the adoption
proceedings as may be required by the law governing vital
statistics and as may enable the state registrar of vital
statistics to carry out the duties imposed upon him or her by
this section.
(e) Upon receipt of the certificate, the registrar of vital
statistics shall forthwith issue and deliver by mail to the
adopting parents at their last-known address and to the clerk of
the county commission of the county wherein such the order of
adoption was entered a birth certificate in the form prescribed
by law, except that the name of the child shown in said the
certificate shall be the name given him or her by the order of
adoption. The clerk shall record such the birth certificate in
the manner set forth in section twelve, article five, chapter
sixteen of this code.
§48-4-16. Prohibition of purchase or sale of child; penalty;
definitions; exceptions.
(a) Any person or agency who knowingly offers, gives or agrees to give to another person money, property, service or
other thing of value in consideration for the recipient's
locating, providing or procuring a minor child for any purpose
which entails a transfer of the legal or physical custody of said
the child, including, but not limited to, adoption or placement,
shall be is guilty of a felony and subject to fine and
imprisonment as provided herein.
(b) Any person who knowingly receives, accepts or offers to
accept money, property, service or other thing of value to
locate, provide or procure a minor child for any purpose which
entails a transfer of the legal or physical custody of said the
child, including, but not limited to, adoption or placement,
shall be is guilty of a felony and subject to fine and
imprisonment as provided herein.
(c) Any person who violates the provisions of this section
shall be is guilty of a felony, and, upon conviction thereof, may
be imprisoned in the penitentiary for not less than one year nor
more than five years or, in the discretion of the court, be
confined in jail not more than one year and shall be fined not
less than one hundred dollars nor more than two thousand dollars.
(d) A child whose parent, guardian or custodian has sold or
attempted to sell said the child in violation of the provisions
of this article may be deemed an abused child as defined by
section three, article one, chapter forty-nine of this code. The
court may place such a child in the custody of the department of health and human resources office of children's services or with
such other responsible person as the best interests of the child
dictate.
(e) This section does not prohibit the payment or receipt of
the following:
(1) Fees paid for reasonable and customary services provided
by the department of health and human resources office of
children's services or any licensed or duly authorized adoption
or child-placing agency.
(2) Reasonable and customary legal, medical, hospital or
other expenses incurred in connection with legal adoption
proceedings.
(3) Fees and expenses included in any agreement in which a
woman agrees to become a surrogate mother.
(4) Any fees or charges authorized by law or approved by a
court in a proceeding relating to the placement plan, prospective
placement or placement of a minor child for adoption.
CHAPTER 49. CHILD WELFARE.
ARTICLE 2. STATE RESPONSIBILITIES FOR THE PROTECTION AND CARE OF
CHILDREN.
§49-2-9. Unsupervised foster homes -- Generally.
Any family home, not under the supervision of the state
department of welfare office of children's services or of a child
welfare agency, in which one or more neglected children under the
care of the state department of welfare and under eighteen years of age, separated from parents or guardian and not related by
blood or marriage to the person maintaining the home, are
received, cared for and maintained for compensation, or
otherwise, shall be is considered an unsupervised foster home.
No person shall may conduct an unsupervised foster home without
a certificate from the state department office of children's
services.
§49-2-10. Same -- Certificate.
It shall be is the duty of the state department in
cooperation with the state department of health office of
children's services to establish reasonable minimum standards for
foster-home care to which all certified foster homes must shall
conform. No unsupervised foster home shall may be certified
until an investigation of the home and its standards of care has
been made by the state department office of children's services
or by a licensed child welfare agency serving as its
representative. Any such home that conforms to the established
standards of care and to the prescribed rules shall receive a
certificate from the state department office, which shall be in
force for one year from the date of issuance and which may be
renewed unless revoked because of wilful violation of the
provisions of this chapter. The certificate shall show the name
of the persons authorized to conduct the home, its exact location
and the number of children that may be received and cared for at
one time. No certified foster home shall may receive for care more children than are specified in the certificate.
§49-2-11. Same -- Visits; records.
The state department office of children's services or its
authorized agent shall visit every certified foster home as often
as is necessary to assure that proper care is given to the
children. Every certified foster home shall maintain a record of
the children received which shall include such facts in regard to
the children and their care, and shall be in such form and manner
as are prescribed by the state department office.
§49-2-12. Same -- Removal of child from undesirable foster
home.
If at any time the state department shall find office of
children's services finds a child in an unsupervised foster home
where the child is subject to undesirable influences or lacks
proper or wise care and management, it shall take necessary
action to remove the child and arrange for his or her care.
ARTICLE 6D. OFFICE OF CHILDREN'S SERVICES.
§49-6D-1. Office created.
There is hereby created the office of children's services.
Wherever in this code and elsewhere in law reference is made to
the department of health and human resources relating to child
protective services, foster care or adoption services, the
reference shall hereafter be construed to mean the office of
children's services.
§49-6D-2. Director; powers; duties.
The office of children's services is headed by a director
who is appointed by the governor, by and with the advice and
consent of the Senate, and who serves at the will and pleasure of
the governor. The director of the office has all the powers and
authority and shall perform all of the functions and services
previously vested in and performed by the secretary of the
department of health and human resources relating to child
protective services, foster care and adoption services.
Notwithstanding any other provision of this code to the contrary,
the director may employ and discharge within the office of
children's services such employees as are necessary to carry out
the functions of the director, which employees serve at the will
and pleasure of the director. The director shall formulate
comprehensive budgets for consideration by the governor. The
director shall promulgate rules in accordance with the provisions
of article three, chapter twenty-nine-a of this code, to
implement and make effective the powers, authority and duties
granted and imposed by the provisions of this article. The
director shall establish caseload limits for employees of the
office of children's services consistent with recommended or
established national standards.
§49-6D-3. Transfer of certain state employees.
Any employee of the department of health and human
resources, the functions of whom are transferred to the office of
children's services by the provisions of this article, whose employment is covered by the provisions of article six, chapter
twenty-nine of this code and the rules promulgated by the
division of personnel, and whose service is classified, shall
continue in his or her employment in all respects and in the same
classification, coverage and protection upon the transfer of the
functions from the department of health and human resources to
the office of children's services.
§49-6D-4. Purpose and intent.
(a) In pursuit of the purposes of this chapter to provide a
comprehensive system of child welfare throughout the state which
will: (1) Assure to each child such care and guidance, preferably
in the child's home, as will serve the spiritual, emotional,
mental and physical welfare of the child; and (2) preserve and
strengthen the family ties wherever possible, while recognizing
both the fundamental rights of parenthood and the state's
responsibility to assist the family in providing the necessary
training and education of all children, the Legislature enacts
this article to provide for the protection of the children of
this state from abuse and neglect and to provide direction to
responsible state officers. This article is enacted in pursuit
of the purpose of this chapter and the heretofore expressed
intention of the Legislature to provide for the removal of a
child from the custody of the child's parents only when the
child's welfare cannot be otherwise adequately safeguarded, and
is enacted to secure to a child removed from the family a degree of custody, care and control consistent with the child's best
interests and the other goals of this chapter, as expressed in
section one, article one of this chapter.
(b) In light of this purpose, the Legislature intends to
provide for:
(1) The acceptance by the office of children's services of
referrals or reports of abuse or neglect, both judicial and extra
judicial, voluntary or involuntary, and the offering of
opportunities by the office whereby parents, guardians or
custodians and their children may avail themselves of public and
private resources offering programs and services which are
primarily preventive and nonpunitive and geared toward a
rehabilitation of the home and a treatment of the underlying
factors which cause or tend to cause abuse and neglect;
(2) The vigorous and fair assessment and investigation of
alleged cases of child abuse or neglect to the end that no child
subjected to abuse or neglect may be left without assistance
consistent in all respects with the purposes and goals of this
chapter and article;
(3) The thorough and professional diagnosis of cases to
determine whether child abuse or neglect exists, whether court
action is appropriate, or whether a high risk or danger to
children requires emergency services or the initiation of an
immediate response;
(4) An assessment of the family, family members and family problems in each case, to identify strengths as well as areas for
improvement, and to determine how best to augment the protective
services functions of the office of children's services with
community resources available to and needed by the family, to the
end that a plan can be implemented whereby every abused or
neglected child in the state will be provided an environment for
his or her custody, care and control which offers as normal a
family life as practicable, free of abuse or neglect, preferably
in the child's own home;
(5) In cases where removal of a child is required, but a
termination of parental rights is not ordered, the opportunity
for the family to visit and maintain family ties in the family
home or in home-like and other conducive surroundings, avoiding,
wherever possible, the austere surroundings of a public or
private agency with limited time and lack of privacy;
(6) The fulfillment of the state's responsibility to assist
the family in a manner consonant with the purposes of this
article, even in cases requiring temporary removal of the child,
without fear by the citizens that the state's exercise of that
responsibility will be unfairly used as a means of terminating
family ties;
(7) The prompt and effective termination of parental rights
in cases where there is an abject failure of the parents or
custodians to reasonably utilize fair, professionally developed
and communicated opportunities to end the abuse or neglect.
§49-6D-5. Family case plans for parents of abused or neglected
children.
(a) Within the limits of funds available, the office of
children's services shall develop a family case plan for every
family wherein a person has been referred to the office after
being allowed an improvement period under the provisions of
subsection (b), section two, or subsection (c), section five,
article six of this chapter, and for each family referred to the
office for supervision and treatment following a determination by
a court that a parent, guardian or custodian in the family has
abused or neglected a child. The office of children's services
may also prepare a family case plan for any person who
voluntarily seeks child abuse and neglect services from the
office, or who is referred to the office by another public agency
or private organization. The family case plan is to clearly set
forth an organized, realistic method of identifying family
problems and the logical steps to be used in resolving or
lessening those problems. Every family case plan prepared by the
office shall contain the following:
(1) A listing of specific, measurable, realistic goals to be
achieved;
(2) An arrangement of goals into an order of priority;
(3) A listing of the problems that will be addressed by each
goal;
(4) A specific description of how the assigned caseworker or caseworkers and the abusing parent, guardian or custodian will
achieve each goal;
(5) A description of the office of children's services and
community resources to be used in implementing the proposed
actions and services;
(6) A list of the services which will be provided;
(7) Time targets for the achievement of goals or portions of
goals;
(8) An assignment of tasks to the abusing or neglecting
parent, guardian or custodian, to the caseworker or caseworkers,
and to other participants in the planning process; and
(9) A designation of when and how often tasks will be
performed.
(b) In cases where the family has been referred to the
office of children's services by a court under the provisions of
this chapter, and further action before the court is pending, the
family case plan described in subsection (a) of this section
shall be furnished to the court within thirty days after the
entry of the order referring the case to the office, and shall be
available to counsel for the parent, guardian, or custodian and
counsel for the child or children. The office shall encourage
participation in the development of the family case plan by the
parent, guardian or custodian, and, if the child is above the age
of twelve years and the child's participation is otherwise
appropriate, by the child. It is the duty of counsel for the participants to participate in the development of the family case
plan. The family case plan may be modified from time to time by
the office to allow for flexibility in goal development, and in
each such case the modifications shall be submitted to the court
in writing. The court shall examine the proposed family case
plan or any modification thereof, and upon a finding by the court
that the plan or modified plan can be easily communicated,
explained and discussed so as to make the participants
accountable and able to understand the reasons for any success or
failure under the plan, the court shall inform the participants
of the probable action of the court if goals are met or not met.
(c) (1) In addition to the family case plan provided for
under the provisions of subsection (b) of this section, the
office of children's services shall prepare, as an appendix to
the family case plan, an expanded "worker's case plan." As
utilized by the office under the provisions of this section, the
worker's case plan shall consist of the following:
(A) All of the information contained in the family case plan
described in subsection (c) of this section;
(B) A prognosis for each of the goals projected in the
family case plan, assessing the capacity of the parent, guardian
or custodian to achieve the goal and whether available treatment
services are likely to have the desired outcome;
(C) A listing of the criteria to be used to assess the
degree to which each goal is attained;
(D) A description of when and how the office will decide
when and how well each goal has been attained;
(E) If possible, a listing of alternative methods and
specific services which the caseworker or caseworkers may
consider using if the original plan does not work; and
(F) A listing of criteria to be used in determining when the
family case plan should be terminated.
(2) Because the nature of the information contained in the
worker's case plan described in subdivision (1) of this
subsection may, in some cases, be construed to be negative with
respect to the probability of change, or may be viewed as a
caseworker's attempt to impose personal values into the
situation, or may raise barriers of hostility and resistance
between the caseworker and the family members, the worker's case
plan may not be made available to the court or to persons outside
of the office of children's services, but shall be used by the
office for the purpose of confirming the effectiveness of the
family case plan or for determining that changes in the family
case plan need to be made.
(d) In furtherance of the provisions of this article, the
director of the office of children's services shall, within the
limits of available funds, establish programs and services for
the following purposes:
(1) For the development and establishment of training
programs for professional and paraprofessional personnel in the fields of medicine, law, education, social work and other
relevant fields who are engaged in, or intend to work in, the
field of the prevention, identification and treatment of child
abuse and neglect; and training programs for children, and for
persons responsible for the welfare of children, in methods of
protecting children from child abuse and neglect;
(2) For the establishment and maintenance of centers,
serving defined geographic areas, staffed by multidisciplinary
teams and community teams of personnel trained in the prevention,
identification, and treatment of child abuse and neglect cases,
to provide a broad range of services related to child abuse and
neglect, including direct support and supervision of satellite
centers and attention homes, as well as providing advice and
consultation to individuals, agencies and organizations which
request such services;
(3) For furnishing services of multidisciplinary teams and
community teams, trained in the prevention, identification and
treatment of child abuse and neglect cases, on a consulting basis
to small communities where such services are not available;
(4) For other innovative programs and projects that show
promise of successfully identifying, preventing or remedying the
causes of child abuse and neglect, including, but not limited to,
programs and services designed to improve and maintain parenting
skills, programs and projects for parent self-help, and for
prevention and treatment of drug-related child abuse and neglect; and
(5) Assisting public agencies or nonprofit private
organizations or combinations thereof in making applications for
grants from, or in entering into contracts with, the secretary of
the federal department of health and human services for
demonstration programs and projects designed to identify, prevent
and treat child abuse and neglect.
(e) Agencies, organizations and programs funded to carry out
the purposes of this section shall be structured so as to comply
with any applicable federal law, any regulation of the federal
department of health and human services or the secretary thereof,
and any final comprehensive plan of the federal advisory board on
child abuse and neglect. In funding organizations, the office
shall, to the extent feasible, ensure that parental organizations
combating child abuse and neglect receive preferential treatment.
§49-6D-6. Special fund created; payments into fund;
disbursements.
For the operation of the office of children's services,
there is hereby created in the state treasury a special revolving
fund to be known and designated as the "children's services
fund." This fund shall consist of appropriations made by the
Legislature and funds received from the federal government or any
agency or department thereof, which federal funds the office is
hereby authorized to receive. Disbursements from the fund shall
be made by the director in the execution of the powers and authority granted in this article.
NOTE: The purpose of this bill is to create the office of
children's services and transfer to it all the responsibilities
for foster care, adoption and child protective services formally
under the department of health and human resources.
Article six-d, chapter forty-nine has been completely
rewritten; therefore, strike-throughs and underscoring have been
omitted.
Strike-throughs indicate language that would be stricken
from the present law, and underscoring indicates new language
that would be added.