Senate Bill No. 467

(By Senators Wagner, Dittmar, Love, Buckalew, Whitlow, Schoonover, Wiedebusch, Helmick, Miller, Anderson, Scott, White, Bowman, Bailey, Macnaughtan, Ross and Grubb)

____________

[Introduced February 19, 1996; referred to the Committee on Government Organization; and then to the Committee on Finance.]
____________


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.