COMMITTEE SUBSTITUTE
FOR
Senate Bill No. 467
(By Senators Wagner, Dittmar, Love, Buckalew, Whitlow,
Schoonover, Wiedebusch, Helmick, Miller, Anderson, Scott, White,
Bowman, Bailey, Macnaughtan, Ross and Grubb)
____________
[Originating in the Committee on Government Organization;
reported February 27, 1996.]
____________
A BILL to repeal articles two-b, four and four-a, chapter forty-
nine of the code of West Virginia, one thousand nine hundred
thirty-one, as amended; to repeal section thirteen-c, article
five of said chapter; to amend chapter nine of said code by
adding thereto three new articles, designated articles nine,
nine-a and nine-b; to amend and reenact sections five, ten and
sixteen, article four, chapter forty-eight of said code; to
amend and reenact sections one and five, article one, chapter
forty-nine of said code; to further amend said chapter by
adding thereto a new article, designated article one-a; to amend and reenact sections five, sixteen and seventeen,
article two of said chapter; to amend and reenact sections
one, two and four, article two-c of said chapter; to amend and
reenact sections two, five and seven, article two-d of said
chapter; to amend and reenact section one, article three of
said chapter; to amend and reenact sections twelve, thirteen
and sixteen-a, article five of said chapter; to amend and
reenact sections six and six-a, article five-a of said
chapter; to amend and reenact sections four and seven, article
five-b of said chapter; to amend and reenact section three,
article five-c of said chapter; to amend and reenact sections
two and three, article five-d of said chapter; to amend and
reenact section five, article six of said chapter; to amend
and reenact sections two and nine, article six-a of said
chapter; to amend and reenact section three, article six-d of
said chapter; and to amend and reenact sections twenty-four,
twenty-six and twenty-nine, article seven of said chapter, all
relating to social services for children; division of human
services and office of commissioner of human services; powers,
duties and responsibilities; duties of commissioner for child
welfare; policy and purpose; transferring powers of child welfare licensing board to commissioner of human services;
definitions; licenses and approvals required; certificates of
registration required; exceptions to licensing and
registration requirements; commissioner to promulgate rules;
commissioner to review rules at least every five years;
penalty for operating certain facilities without a license;
injunctive relief where article or rules violated; terms and
conditions of licensure and certificate of registration;
provisional status; revocation and reinstatement; license and
registration not transferable; display; issuance of
provisional license or registration certificate; application;
expiration; license or registration restrictions; waiver and
variance to rules; criteria and procedures for same; license
or approval application procedures and forms; investigation
and inquiry before issuance; self certification of compliance
with certain standards; commissioner to make decision on
application within sixty days of receipt; supervision and
consultation required; training and education; cooperation by
director, bureau of public health and state fire marshal;
enforcement of article; on-site evaluations; exception;
applicants to consent to same; administrative inspections; investigation of complaints; notification to facility
director; written report of investigation; commissioner
authorized to enter unlicensed or unregistered facilities upon
probable cause to suspect violation of article; license
revocation or downgrade to provisional status; closure of
facilities; placement of children by commissioner in
appropriate facilities; closed facility not to operate pending
administrative or judicial review without court order;
administrative or judicial review; annual reports; contents of
same; annual compilation of directory; licensing reports and
recommendations to be available to the public; establishment
of pilot day care programs; education of the public;
integrated pest management program implemented; handicapped
children; legislative purpose; application of article; powers
of state bureau of public health; reporting birth of
handicapped child; assistance by other agencies; cost of
treatment; cooperation with private agencies; West Virginia
family support program; legislative findings; definitions;
family support services; program eligibility; program's
primary focus; program administration; department of health
and human services to be administering agency; regional and state family support councils; adoption; powers and authority
of state department of human services regarding same exercised
by state department of child welfare; child welfare; purposes
and definitions; state department of child welfare created;
duties of same relating to child protective services, foster
care and adoption services; construction of references;
department of child welfare commission established;
composition of commission; term of appointment; oath or
affirmation required; adoption of rules and election of
chairman; compensation and reimbursement of expenses;
meetings; vote by proxy; state department of child welfare
designated as exclusive state agency for investigation of
alleged child abuse or neglect, to provide mandated services,
to provide for and arrange for foster care, and to provide
adoption related services; secretary to provide necessary
administrative personnel; director of state department of
child welfare; same, appointment, qualifications, oath and
restriction on holding other office or engaging in political
activity; child welfare fund created; same, purpose, funding
and disbursements; powers and duties of the director; powers
and duties of the commission; cooperative agreements authorized; transfer of certain state employees to state
department of child welfare; designation of certain positions
as unnecessary; transfer of funds therefor; state
responsibilities for the protection and care of children;
same, supervision, records and reports; state responsibility
for child care; regional offices authorized; subsidized
adoptions; interstate adoption assistance compact; same,
legislative findings and purpose; same, state department of
child welfare authorized to enter into interstate agreements;
same, medical assistance; home-based family preservation act;
definitions; caseload limits for home-based preservation
services; service delivery; child welfare agencies; changing
references to state department of human services to state
department of child welfare for purposes of consent by agency
to adoption of child, etc.; juvenile proceedings; prosecutor
to represent interests of the state; disposition and appeal;
rules governing juvenile facilities; juvenile referee system;
assistance of director of child welfare department; director's
duties regarding state plan for predisposition detention of
juveniles; West Virginia juvenile offender rehabilitation act;
same, responsibilities of state department of child welfare; reporting requirements; cataloguing of services by state
department of child welfare; legislative commission on
juvenile law; same, appointment of members, terms; members to
include director of the state department of child welfare;
multidisciplinary teams; same, investigative teams,
establishment, procedures, coordination between agencies;
multidisciplinary treatment planning process; procedures in
cases of child abuse or neglect; disposition of neglected or
abused children; reports of children suspected to be abused or
neglected; persons mandated to report suspected cases of child
abuse or neglect; regional child protective services to be
established or designated by state department of child
welfare; West Virginia child protective services act; family
case plans for parents of abused or neglected children;
promulgation of legislative rules relating to child welfare;
duty of prosecuting attorney; and uniform court orders
regarding child custody to be developed and implemented by the
supreme court, in consultation with the department of child
welfare, no later than the first day of September, one
thousand nine hundred ninety-six.
Be it enacted by the Legislature of West Virginia:
That articles two-b, four and four-a, chapter forty-nine of
the code of West Virginia, one thousand nine hundred thirty-one, as
amended, be repealed; that section thirteen-c, article five of said
chapter be repealed; that chapter nine of said code be amended by
adding thereto three new articles, designated articles nine, nine-a
and nine-b; that sections five, ten and sixteen, article four,
chapter forty-eight of said code be amended and reenacted; that
sections one and five, article one, chapter forty-nine of said code
be amended and reenacted; that said chapter be further amended by
adding thereto a new article, designated article one-a; that
sections five, sixteen and seventeen, article two of said chapter
be amended and reenacted; that sections one, two and four, article
two-c of said chapter be amended and reenacted; that sections two,
five and seven, article two-d of said chapter be amended and
reenacted; that section one, article three of said chapter be
amended and reenacted; that sections twelve, thirteen and sixteen-
a, article five of said chapter be amended and reenacted; that
sections six and six-a, article five-a of said chapter be amended
and reenacted; that sections four and seven, article five-b of said
chapter be amended and reenacted; that sections three, article
five-c of said chapter be amended and reenacted; that sections two and three, article five-d of said chapter be amended and reenacted;
that section five, article six of said chapter be amended and
reenacted; that sections two and nine, article six-a of said
chapter be amended and reenacted; that section three, article six-d
of said chapter be amended and reenacted; and that sections twenty-
four, twenty-six and twenty-nine, article seven of said chapter be
amended and reenacted, all to read as follows:
CHAPTER 9. HUMAN SERVICES.
ARTICLE 9. DUTIES OF COMMISSIONER OF HUMAN SERVICES FOR CHILD
WELFARE.
§9-9-1. Policy and purpose; transfer of powers of child welfare
licensing board.
It is the policy of the state to assist a child and the
child's family as the basic unit of society through efforts to
strengthen and preserve the family unit. In the event of a
temporary or permanent absence of parents or the separation of a
child from the family unit for care or treatment purposes, it is
the policy of the state to assure that a child receives care and
nurturing as close as possible to society's expectations of a
family's care and nurturing of its child. The state has a duty to
assure that proper and appropriate care is given and maintained.
Through licensing, approving and registering child care
facilities and child welfare agencies, the state exercises its
benevolent police power to protect the user of a service from risks
against which he or she would have little or no competence for self
protection. Licensing, approval and registration processes must
therefore continually balance the child's rights and need for
protection with the interests, rights and responsibility of the
service providers.
In order to carry out the above policy, the Legislature enacts
this article to protect and prevent harm to children separated from
their families and to enhance their continued growth and well-being
while in care.
The purposes of this article are:
(i) To protect the health, safety and well-being of children
in substitute care by preventing improper and harmful care; (ii) to
establish statewide rules for regulating programs as defined in
this article; and (iii) to encourage and assist in the improvement
of child care programs. In order to carry out these purposes, the
powers of the child welfare licensing board created by chapter
nineteen, acts of the Legislature, one thousand nine hundred
forty-five, are hereby transferred to the commissioner of human services, along with the other powers granted by this article.
§9-9-2. Definitions.
As used in this article, unless the context otherwise
requires:
"Approval" means a finding by the commissioner that a facility
operated by the state has met the requirements set forth in the
rules promulgated pursuant to this article.
"Certificate of approval" means a statement of the
commissioner that a facility operated by the state has met the
requirements set forth in the rules promulgated pursuant to this
article.
"Certificate of license" means a statement issued by the
commissioner authorizing an individual, corporation, partnership,
voluntary association, municipality or county, or any agency
thereof, to provide specified services for a limited period of time
in accordance with the terms of the certificate.
"Certificate of registration" means a statement issued by the
commissioner to a family day care home upon receipt of a self-
certification statement of compliance with the rules promulgated
pursuant to the provisions of this article.
"Child" means any person under eighteen years of age.
"Child care" means responsibilities assumed and services
performed in relation to a child's physical, emotional,
psychological, social and personal needs and the consideration of
the child's rights and entitlements.
"Child placing agency" means a child welfare agency organized
for the purpose of placing children in private family homes for
foster care or for adoption. The function of a child placing
agency may include the investigation and certification of foster
family homes and foster family group homes as provided in this
chapter. The function of a child placing agency may also include
the supervision of children who are sixteen or seventeen years old
and living in unlicensed residences.
"Commissioner" means the commissioner of human services.
"Day care center" means a facility operated by a child welfare
agency for the care of seven or more children on a nonresidential
basis.
"Department" means the state department of human services.
"Facility" means a place or residence, including personnel,
structures, grounds and equipment used for the care of a child or
children on a residential or other basis for any number of hours a
day in any shelter or structure maintained for that purpose.
"Family day care" means nonresidential child care provided for
compensation in a home other than the child's own home. The
provider may care for four to six children, including children who
are living in the household, who are under six years of age. No
more than two of the total number of children may be under
twenty-four months of age.
"Foster family group home" means a private residence which is
used for the care on a residential basis of six, seven or eight
children who are unrelated by blood, marriage, or adoption to any
adult member of the household.
"Foster family home" means a private residence which is used
for the care on a residential basis of no more than five children
who are unrelated by blood, marriage, or adoption to any adult
member of the household.
"Group home" means any facility, public or private, which is
used to provide residential care for ten or fewer children.
"Group home facility" means any facility, public or private,
which is used to provide residential care for eleven or more
children.
"License" means the grant of official permission to a facility
to engage in an activity which would otherwise be prohibited.
"Registration" means the process by which a family day care
home self-certifies compliance with the rules promulgated pursuant
to this article.
"Residential child care" or "child care on a residential
basis" means child care which includes the provision of nighttime
shelter and the personal discipline and supervision of a child by
guardians, custodians or other persons or entities on a continuing
or temporary basis.
"Rule" means a statement issued by the commissioner of the
standard to be applied in the various areas of child care.
"Variance" means a declaration that a rule may be accomplished
in a manner different from the manner set forth in the rule.
"Waiver" means a declaration that a certain rule is
inapplicable in a particular circumstance.
§9-9-3. License, approval and registration requirements.
(a) Any person, corporation, or child welfare agency other
than a state agency, which operates a residential child care
facility, a child placing agency or a day care center shall have a
license.
(b) Any residential child care facility, day care center or
any child placing agency operated by the state shall obtain approval of its operations from the commissioner. Such facilities
and placing agencies shall maintain the same standards of care
applicable to licensed facilities, centers or placing agencies of
the same category.
(c) Every family day care home shall have a certificate of
registration. Family day care homes approved by the department of
human services for receipt of funding shall automatically receive
a certificate of registration.
(d) This section does not apply to:
(1) A kindergarten, preschool or school education program
which is operated by a public school or which is accredited by the
state department of education, or any other kindergarten, preschool
or school programs which operate with sessions not exceeding four
hours per day for any child;
(2) An individual or facility which offers occasional care of
children for brief periods while parents are shopping, engaging in
recreational activities, attending religious services or engaging
in other business or personal affairs;
(3) Summer recreation camps operated for children attending
sessions for periods not exceeding thirty days;
(4) Hospitals or other medical facilities which are primarily used for temporary residential care of children for treatment,
convalescence or testing; or
(5) Persons providing family day care solely for children
related to them.
§9-9-4. Rules.
The commissioner shall promulgate rules for the purpose of
carrying out the provisions of this article, to include the family
day care registration program, within one hundred eighty days of
the effective date hereof pursuant to the provisions of chapter
twenty-nine-a of this code: Provided, That any rule promulgated as
a result of the enactment of this section in the year one thousand
nine hundred eighty-one need not be repromulgated.
The commissioner shall review the rules promulgated pursuant
to the provisions of this article at least once every five years,
making revisions when necessary or convenient.
§9-9-5. Penalties; injunctions.
(a) Any individual or corporation which operates a child
welfare agency, residential child care facility or day care center
without a license when a license is required is guilty of a
misdemeanor, and, upon conviction thereof, shall be punished by
imprisonment in jail not exceeding one year, or a fine of not more than five hundred dollars, or both fined and imprisoned.
(b) Where a violation of this article or a rule or regulation
promulgated by the commissioner may result in serious harm to
children under care, the commissioner may seek injunctive relief
against any person, corporation, child welfare agency, child
placing agency, day care center, family day care home or
governmental official through proceedings instituted by the
attorney general, or the appropriate county prosecuting attorney,
in the circuit court of Kanawha County or in the circuit court of
any county where the children are residing or may be found.
§9-9-6. Conditions of licensure, approval and registration.
(a) A license or approval is effective for a period of two
years from the date of issuance, unless revoked or modified to
provisional status based on evidence of a failure to comply with
the provisions of this article or any rules and regulations
promulgated pursuant to this article. The license or approval
shall be reinstated upon application to the commissioner and a
determination of compliance.
A certificate of registration is effective for a period of two
years from the date of issuance, unless revoked based on evidence
of a failure to comply with the provisions of this article or any rules and regulations promulgated pursuant to this article. The
certificate of registration shall be reinstated upon application to
the commissioner, including a statement of assurance of continued
compliance with the rules and regulations promulgated pursuant to
this article.
The license, approval or registration issued under this
article is not transferable and applies only to the facility and
its location stated in the application. The license or approval
shall be publicly displayed, except family day care homes, foster
family homes, foster family group homes and group homes shall be
required to display licenses or registration certificates upon
request rather than by posting.
(b) A provisional license or approval may be issued as:
(i) An initial license or approval to a new facility which has
been unable to demonstrate full compliance because the facility is
not fully operational; or
(ii) A temporary license or approval to an established
licensed facility which is temporarily unable to conform to the
provisions of this article or the rules and regulations promulgated
hereunder.
A provisional license or approval shall expire six months from the date of issuance and may be reinstated no more than two times.
The issuance of a provisional license or approval shall be
contingent upon the submission to the commissioner of an acceptable
plan to overcome identified deficiencies within the period of the
provisional license or approval. Provisional certificates of
registration shall be issued to family day care homes.
(c) The commissioner, as a condition of issuing a license,
registration or approval, may:
(i) Limit the age, sex or type of problems of children allowed
admission to a particular facility;
(ii) Prohibit intake of any children; or
(iii) Reduce the number of children which the agency or
facility operated by the agency is licensed, approved or registered
to receive.
§9-9-7. Waivers and variances to rules.
Waivers or variances of rules may be granted by the
commissioner if the health, safety or well-being of a child would
not be endangered thereby. The commissioner shall promulgate by
rule criteria and procedures for the granting of waivers or
variances so that uniform practices may be maintained throughout
the state.
§9-9-8. Application for license or approval.
Any person or corporation, or any governmental agency
intending to act as a child welfare agency shall apply for a
license, approval or registration certificate to operate child care
facilities regulated by this article. Applications for license,
approval or registration shall be made separately for each child
care facility to be licensed, approved or registered.
The commissioner may prescribe forms and reasonable
application procedures.
(a) Before issuing a license or approval, the commissioner
shall investigate the facility, program and persons responsible for
the care of children. The investigation shall include, but not be
limited to, review of resource need, reputation, character and
purposes of applicants, a check of personnel criminal records, if
any, and personnel medical records, the financial records of
applicants, and consideration of the proposed plan for child care
from intake to discharge.
(b) Before a family day care home registration is granted, the
commissioner shall make inquiry as to the facility, program and
persons responsible for the care of children. The inquiry shall
include self-certification by the prospective family day care home of compliance with standards including, but not limited to:
(i) Physical and mental health of persons present in the home
while children are in care;
(ii) Criminal and child abuse or neglect history of persons
present in the home while children are in care;
(iii) Discipline;
(iv) Fire and environmental safety;
(v) Equipment and program for the children in care;
(vi) Health, sanitation and nutrition.
Further inquiry and investigation may be made as the
commissioner may direct.
The commissioner shall grant or deny on each application
within sixty days of its receipt and shall provide to unsuccessful
applicants written reasons for the decision.
§9-9-9. Supervision and consultation required.
The commissioner shall provide supervision to ascertain
compliance with the rules promulgated pursuant to this article
through regular monitoring, visits to facilities, documentation,
evaluation and reporting. The commissioner is responsible for
training and education, within fiscal limitations, specifically for
the improvement of care in family day care homes. The commissioner shall consult with applicants, the personnel of child welfare
agencies, and children under care to assure the highest quality
child care possible. The director of the bureau of public health
and the state fire marshal shall cooperate with the commissioner in
the administration of the provisions of this article by providing
such reports and assistance as may be requested by the
commissioner.
§9-9-10. Investigating authority.
The commissioner shall enforce the provisions of this article.
An on-site evaluation of every facility regulated pursuant to this
article, except registered family day care homes, shall be
conducted no less than once per year by announced or unannounced
visits. A random sample of not less than five percent of
registered family day care homes shall be monitored annually
through on-site evaluations. The commissioner shall have access to
the premises, personnel, children in care and records of the
facility, including, but not limited to, case records, corporate
and financial records and board minutes. Applicants for licenses,
approvals and certificates of registration shall consent to
reasonable on-site administrative inspections, made with or without
prior notice, as a condition of licensing, approval or registration. When a complaint is received by the commissioner
alleging violations of licensure, approval or registration
requirements, the commissioner shall investigate the allegations.
The commissioner may notify the facility's director before or after
a complaint is investigated and shall cause a written report of the
results of the investigation to be made.
The commissioner may enter any unlicensed, or unapproved child
care facility or personal residence for which there is probable
cause to believe that the facility or residence is operating in
violation of this article. Such entries shall be made with a
law-enforcement officer present. The commissioner may enter upon
the premises of any unregistered family day care facility after two
attempts by the commissioner to bring this facility into
compliance.
§9-9-11. Revocation; provisional licenses and approvals.
(a) The commissioner may revoke or make provisional the
license of any facility or child welfare agency regulated pursuant
to this article, except family day care homes, if a certificate
holder materially violates any provision of this article, or any
terms or conditions of the license or approval issued, or fails to
maintain established requirements of child care.
(b) The commissioner may revoke the certificate of
registration of any family day care home if a certificate holder
materially violates any provision of this article, or any terms or
conditions of the registration certificate issued, or fails to
maintain established requirements of child care.
§9-9-12. Closing of facilities by the commissioner; placement of
children.
When the commissioner finds that the operation of a child care
facility constitutes an immediate danger of serious harm to
children served by the facility, the commissioner shall issue an
order of closure terminating operation of the facility. When
necessary, the commissioner shall place or direct the placement of
the children in a residential child care facility which has been
closed into appropriate facilities. A facility closed by the
commissioner may not operate pending administrative or judicial
review without court order.
§9-9-13. Administrative and judicial review.
Any person, corporation, governmental official or child
welfare agency, aggrieved by a decision of the commissioner made
pursuant to the provisions of this article may contest the decision
upon making a request for a hearing by the commissioner within thirty days of receipt of notice of the decision. Administrative
and judicial review shall be made in accordance with the provisions
of article five, chapter twenty- nine-a of this code. Any
decision issued by the commissioner may be made effective from the
date of issuance. Immediate relief therefrom may be obtained upon
a showing of good cause made by verified petition to the circuit
court of Kanawha County or the circuit court of any county where
the affected facility or child welfare agency may be located. The
pendency of administrative or judicial review shall not prevent the
commissioner from obtaining injunctive relief pursuant to section
five of this article.
§9-9-14. Annual reports; directory; licensing reports and
recommendations.
The commissioner shall submit on or before the first day of
January of each year a report to the governor, and upon request to
members of the Legislature, concerning the regulation of child
welfare agencies, child placing agencies, day care centers, family
day care homes and child care facilities during the year. The
report shall include, but not be limited to, data on the number of
children and staff at each facility (except family day care homes),
applications received, types of licenses, approvals and registrations granted, denied, made provisional or revoked and any
injunctions obtained or facility closures ordered.
The commissioner also shall compile annually a directory of
licensed and approved child care providers including a brief
description of their program and facilities, the program's capacity
and a general profile of children served. A listing of family day
care homes shall also be compiled annually.
Licensing reports and recommendations for licensure which are
a part of the yearly review of each licensed facility shall be sent
to the facility director. Copies shall be available to the public
upon written request to the commissioner.
§9-9-15. Establishment of pilot day care programs.
The Legislature finds that state owned or leased facilities
are suitable for the provision of child day care and that such day
care centers are needed by public employees and other parents in
this state. Therefore, the department of human services, in
consultation with the department of finance and administration and
other appropriate agencies, shall plan and assist in implementing
day care services for public employees and other parents. Suitable
space for at least one pilot program shall be provided in
Morgantown, and two other pilot programs may be initiated during fiscal year one thousand nine hundred eighty-nine and continued
thereafter.
The department of human services shall consider such findings
as were made by the legislative interim committee on day care
centers and shall conduct such other statewide needs assessments as
may facilitate the provision of day care for public employees
statewide.
The day care centers shall meet all licensing requirements
prescribed by law and shall be under the supervision of the
department of human services through profit or nonprofit
independent operators in accordance with standards and requirements
established by federal law and rules promulgated by the
commissioner of human services.
The space provided for day care shall be available without
charge for rent, unless such rent shall be required pursuant to
bonding covenants. Any alterations necessary to meet state or
federal standards shall be provided for by and at the expense of
the operator of the day care center. Such space shall be made
available with the approval of the department of finance and
administration as to space under the control of the executive
branch, the board of regents as to space at state institutions of higher education, and by the appropriate official in the
legislative or judicial branch as to space under their control.
Operators of such day care centers shall charge reasonable
fees for child care, and parents using the day care shall pay such
fees set at a level that will cover all projected operating costs,
less any costs covered by the absence of rent or by donations or
fund-raising activities. Fees may be established pursuant to a
sliding fee schedule with fees based on the parents' household
income.
General liability insurance coverage shall be provided by the
operators of such day care centers, and such coverage may be
provided to nonprofit corporations by the board of risk and
insurance management pursuant to subsection (b), section five,
article twelve, chapter twenty-nine of this code.
Parents shall have the opportunity for involvement in the
implementation and operation of the day care centers and shall have
access to their children at any time.
The department of human services, in consultation with those
branches and departments of government wherein day care facilities
are located, shall report to the Legislature prior to the first day
of January, one thousand nine hundred eighty-nine, its findings relevant to the costs of operation of the pilot program or
programs, the benefits to employees and other parents of such day
care centers, the problems incident to the operation of the
centers, and other matters relevant to the operation of such
centers together with recommendations for future operation of such
centers at other state owned or leased facilities.
§9-9-16. Education of the public.
The commissioner shall provide ongoing education of the public
in regard to the requirements of this article through the use of
mass media and other methods as are deemed appropriate.
§9-9-17. Implementation of the integrated pest management program.
By the fifteenth day of August, one thousand nine hundred
ninety-five, the commissioner shall implement the integrated pest
management program promulgated under rules by the department of
agriculture under authority of section four, article sixteen-a,
chapter nineteen of this code.
ARTICLE 9A. HANDICAPPED CHILDREN.
§9-9A-1. Purpose.
The purpose of this article is to provide for the continuation
and development of services for handicapped children. The state
bureau of public health within the department of health and human resources shall formulate and apply administrative policies
concerning the care and treatment of physically handicapped
children and shall cooperate with other agencies responsible for
such care and treatment.
In the development of administrative policies, the state
bureau shall cooperate with the United States department of health
and human services and shall comply with the regulations that
agency prescribes under the authority of the "Social Security Act",
and is hereby authorized to receive and expend federal funds for
these services.
§9-9A-2. Children to whom article applies.
It is the intention of this article that services for
handicapped children shall be extended only to those children for
whom adequate care, treatment and rehabilitation are not available
from other than public sources.
§9-9A-3. Powers of state bureau.
In the care and treatment of handicapped children the state
bureau of public health shall, so far as funds are available for
the purpose:
(1) Locate handicapped children requiring medical, surgical,
or other corrective treatment and provide competent diagnosis to determine the treatment required.
(2) Supply to handicapped children treatment, including
hospitalization and aftercare leading to correction and
rehabilitation.
(3) Guide and supervise handicapped children to assure
adequate care and treatment.
§9-9A-4. Report of birth of handicapped child.
Within thirty days after the birth of a child with a
congenital deformity, the physician, midwife, or other person
attending the birth shall report to the state bureau of public
health, on forms prescribed by them, the birth of such child.
The report shall be solely for the use of the state department
of health and human resources and shall not be open for public
inspection.
§9-9A-5. Assistance by other agencies.
So far as practicable, the services and facilities of the
state departments of health, education, vocational rehabilitation
and corrections or their successors shall be available to the state
bureau of public health for the purposes of this article.
§9-9A-6. Cost of treatment.
All payments from any corporation, association, program or fund providing insurance coverage or other payment for medicine,
medical, surgical and hospital treatment, crutches, artificial
limbs and such other and additional approved mechanical appliances
and devices as may be reasonably required for a handicapped child,
shall be applied toward the total cost of treatment.
§9-9A-7. Cooperation with private agencies.
The state department shall cooperate with private agencies and
organizations engaged in rendering similar services to crippled
children.
ARTICLE 9B. WEST VIRGINIA FAMILY SUPPORT PROGRAM.
§9-9B-1. Findings.
(a) The West Virginia Legislature finds that families are the
greatest resource available to individuals with developmental
disabilities, and they must be supported in their role as primary
caregivers. It further finds that supporting families in their
effort to care for their family members at home is more efficient,
cost effective and humane than placing the developmentally disabled
person in an institutional setting.
(b) The Legislature accepts the following as basic principles
for providing services to support families of people with
developmental disabilities:
(1) The quality of life of children with developmental
disabilities, their families and communities is enhanced by caring
for the children within their own homes. Children with
disabilities benefit by growing up in their own families, families
benefit by staying together and communities benefit from the
inclusion of people with diverse abilities.
(2) Adults with developmental disabilities should be afforded
the opportunity to make decisions for themselves, live in typical
homes and communities and exercise their full rights as citizens.
Developmentally disabled adults should have the option of living
separately from their families but when this is not the case,
families of disabled adults should be provided the support services
they need.
(3) Services and support for families should be individualized
and flexible, should focus on the entire family and should promote
the inclusion of people with developmental disabilities in all
aspects of school and community life.
(4) Families are the best experts about what they need. The
service system can best assist families by supporting families as
decision makers as opposed to making decisions for them.
(c) The Legislature finds that there are at least ten thousand West Virginians with developmental disabilities who live with and
are supported by their families, and that the state's policy is to
prevent the institutionalization of people with developmental
disabilities.
(d) To maximize the number of families supported by this
program, each family will contribute to the cost of goods and
services based on their ability to pay, taking into account their
needs and resources.
(e) Therefore, it is the intent of the Legislature to
initiate, within the resources available, a program of services to
support families who are caring for family members with
developmental disabilities in their homes.
§9-9B-2. Definitions.
(a) "Family or primary caregiver" means the person or persons
with whom the developmentally disabled person resides and who is
primarily responsible for the physical care, education, health and
nurturing of the disabled person. The term does not include
hospitals, sanitariums, nursing homes, personal care homes or any
other such institution.
(b) "Legal guardian" means the person who is appointed legal
guardian of a developmentally disabled person and who is responsible for the physical and financial aspects of caring for
such person, regardless of whether the disabled person resides with
his or her legal guardian or another family member.
(c) "Family support" means goods and services needed by
families to care for their family members with developmental
disabilities and to enjoy a quality of life comparable to other
community members.
(d) "Family support program" means a coordinated system of
family support services administered by the department of health
and human resources through initial contracts with agencies within
four of the state's behavioral health regions.
(e) "Developmental disability" means a severe, chronic
disability of a person which:
(1) Is attributable to a mental or physical impairment or a
combination of mental and physical impairments;
(2) Is manifested before the person attains age twenty-two;
(3) Results in substantial functional limitations in three or
more of the following areas of major life activity: (A) Self-care;
(B) receptive and expressive language; (C) learning; (D) mobility;
(E) self-direction; (F) capacity for independent living; and (G)
economic self-sufficiency; and
(4) Reflects the person's need for services and supports which
are of lifelong or extended duration and are individually planned
and coordinated.
The term "developmental disability", when applied to infants
and young children, means individuals from birth to age five,
inclusive, who have substantial developmental delays or specific
congenital or acquired conditions with a high probability of
resulting in developmental disabilities if services are not
provided.
(f) "Regional family support council" means the council
established by the regional family support agency under the
provisions of section six of this article to carry out the
responsibilities specified in this article.
(g) "State family support council" means the council
established by the department of health and human resources under
section six of this article to carry out the responsibilities
specified in this article.
§9-9B-3. Family support services.
(a) The regional family support agency, designated under
section five of this article, shall direct and be responsible for
the individual assessment of each developmentally disabled person which it has designated and shall prepare a service plan with such
developmentally disabled person's family. The needs and
preferences of the family will be the basis for determining what
goods and services will be made available within the resources
available.
(b) The family support program may provide funds to families
to purchase goods and services included in the family service plan.
Such goods and services related to the care of the developmentally
disabled person may include, but are not limited to:
(1) Respite care;
(2) Personal and attendant care;
(3) Child care;
(4) Architectural and vehicular modifications;
(5) Health-related costs not otherwise covered;
(6) Equipment and supplies;
(7) Specialized nutrition and clothing;
(8) Homemaker services;
(9) Transportation;
(10) Utility costs;
(11) Integrated community activities; and
(12) Training and technical assistance.
(c) As part of the family support program, the regional family
support agency, designated under section five of this article,
shall provide case management for each family to provide
information, service coordination and other assistance as needed by
the family.
(d) The family support program shall assist families of
developmentally disabled adults in planning and obtaining community
living arrangements, employment services and other resources needed
to achieve, to the greatest extent possible, independence,
productivity and integration of the developmentally disabled adult
into the community.
(e) The family support program shall conduct outreach to
identify families in need of assistance and shall maintain a
waiting list of individuals and families in the event that there
are insufficient resources to provide services to all those who
request them.
(f) The family support program may provide for differential
fees for services under the program or for appropriate cost
participation by the recipient families consistent with the goals
of the program and the overall financial condition of the family.
(g) Funds, goods or services provided to eligible families by the family support program under this article shall not be
considered as income to those families for any purpose under this
code or under the rules and regulations of any agency of state
government.
§9-9B-4. Eligibility; primary focus.
(a) To be eligible for the family support program, a family
must have at least one family member who has a developmental
disability, as defined in this article, living with the family.
(b) The primary focus of the family support program is
supporting: (1) Developmentally disabled children, school age and
younger, within their families; (2) adults with developmental
disabilities who choose to live with their families; and (3) adults
with developmental disabilities for whom other community living
arrangements are not available and who are living with their
families.
§9-9B-5. Program administration.
(a) The administering agency for the family support program is
the department of health and human resources.
(b) The department of health and human resources shall
initially implement the family support program through contracts
with an agency within four of the state's behavioral health regions, with the four regions to be determined by the department
of health and human resources in consultation with the state family
support council. These regional family support agencies of the
family support program will be responsible for implementing the
provisions of this article and subsequent policies for the families
of persons with developmental disabilities residing within their
respective regions. Each regional family support agency must serve
at least twenty-five families from each fifty thousand dollars
allocated. The total appropriation from general revenue funds for
this program shall not exceed two hundred thousand dollars for the
fiscal year beginning the first day of July, one thousand nine
hundred ninety-one.
(c) The department of health and human resources, in
conjunction with the state family support council, shall adopt
policies and procedures regarding:
(1) Development of annual budgets;
(2) Program specifications;
(3) Criteria for awarding contracts for operation of regional
family support programs and the role of regional family support
councils;
(4) Annual evaluation of services provided by each regional family support agency, including consumer satisfaction;
(5) Coordination of the family support program and the use of
its funds, throughout the state and within each region, with other
publicly funded programs, including medicaid;
(6) Performance of family needs assessments and development of
family service plans;
(7) Methodology for allocating resources to families within
the funds available; and
(8) Resolution of grievances filed by families pertaining to
actions of the family support program.
(d) The department of health and human resources shall submit
a report to the governor and the Legislature on the family support
program, by the fifteenth day of January, one thousand nine hundred
ninety-two, and by the fifteenth day of September every year
thereafter, so long as the program is funded.
§9-9B-6. Regional and state family support councils.
(a) Each regional family support agency shall establish a
regional family support council comprised of at least seven
members, of whom at least a majority shall be persons with
developmental disabilities or their parents or primary caregivers.
Each regional family support council shall meet at least quarterly to advise the regional family support agency on matters related to
local implementation of the family support program and to
communicate information and recommendations regarding the family
support program to the state family support council.
(b) The secretary of the department of health and human
resources shall appoint a state family support council comprised of
at least twenty-two members, of whom at least a majority shall be
persons with developmental disabilities or their parents or primary
caregivers. A representative elected by each regional council
shall serve on the state council. The state council shall also
include a representative from each of the following agencies: The
state developmental disabilities planning council, the state
protection and advocacy agency, the university affiliated center
for developmental disabilities, the office of special education,
the association of community mental health/mental retardation
programs and the early intervention interagency coordinating
council.
(c) The state council shall meet at least quarterly. The
state council will participate in the development of program
policies and procedures, annual contracts and perform such other
duties as are necessary for statewide implementation of the family support program.
(d) Members of the state and regional councils who are a
member of the family or the primary caregiver of a developmentally
disabled person shall be reimbursed for travel and lodging expenses
incurred in attending official meetings of their councils. Child
care expenses related to the developmentally disabled person shall
also be reimbursed. Members of regional councils who are eligible
for expense reimbursement shall be reimbursed by their respective
regional family support agencies.
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 child welfare 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 state department of child welfare, 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 state department of child welfare 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 state department of
child welfare 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 1. PURPOSES; DEFINITIONS.
§49-1-1. Purpose.
(a) The purpose of this chapter is to provide a comprehensive
system of child welfare throughout the state which will assure to
each child such care and guidance, preferably in his or her home,
and will serve the spiritual, emotional, mental and physical
welfare of the child; preserve and strengthen the child's family
ties whenever possible with recognition of the fundamental rights
of parenthood and with recognition of the state's responsibility to
assist the family in providing necessary education and training and
to reduce the rate of juvenile delinquency and to provide a system
for the rehabilitation or detention of juvenile delinquents and the
protection of the welfare of the general public. In pursuit of
these goals it is the intention of the Legislature to provide for
removing the child from the custody of parents only when the
child's welfare or the safety and protection of the public cannot
be adequately safeguarded without removal; and, when the child has
to be removed from his or her family, to secure for the child custody, care and discipline consistent with the child's best
interests and other goals herein set out.
(b) The child welfare service of the state shall be
administered by the state department of child welfare.
The state department of child welfare is designated as the
agency to cooperate with the United States department of health and
human services and United States department of justice in extending
and improving child welfare services, to comply with regulations
thereof, and to receive and expend federal funds for these
services.
§49-1-5. Definitions of other terms.
As used in this chapter:
(1) "State department" and "department" means the state
department of child welfare;
(2) "State department of welfare" means state department of
child welfare;
(2) (3) "State board" means the state advisory board;
(3) (4) "Commissioner" means the commissioner director of the
state department of child welfare;
(5) "Department of health and human resources" means the
division of human services located within the department;
(6) "Director" means the director of the state department of
child welfare.
(4) (7) "Child welfare agency" means any agency or facility
maintained by the state or any county or municipality thereof, or
any agency or facility maintained by an individual, firm,
corporation, association or organization, public or private, to
receive children for care and maintenance or for placement in
residential care facilities, including without limitation, private
homes, or any facility that provides care for unmarried mothers and
their children;
(5) (8) "Custodian" means a person who has or shares actual
physical possession or care and custody of a child, regardless of
whether such person has been granted custody of the child by any
contract, agreement or legal proceedings;
(6) (9) "Referee" means a juvenile referee appointed pursuant
to section one, article five-a of this chapter, except that in any
county which does not have a juvenile referee the judge or judges
of the circuit court may designate one or more magistrates of the
county to perform the functions and duties which may be performed
by a referee under this chapter;
(7) (10) "Court" means the circuit court of the county with jurisdiction of the case or the judge thereof in vacation unless
otherwise specifically provided; and
(8) (11) "Guardian" means a person who has care and custody of
a child as a result of any contract, agreement or legal proceeding.
; and
(12) "Secretary" means the secretary of the department of
health and human resources.
ARTICLE 1A. STATE DEPARTMENT OF CHILD WELFARE.
§49-1A-1. Department created; duties.
(a) There is hereby created the state department of child
welfare within the department of health and human resources.
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 state department
of child welfare.
(b) Consistent with the provisions of this chapter and chapter
forty-eight of this code, the state department of child welfare
shall:
(1) Receive all reports of allegations of child abuse or
neglect;
(2) Conduct an investigation of all such reports;
(3) Provide such services or take such action as is necessary
for the protection or welfare of the children who are the subject
of such reports;
(4) Take custody of children when they are ordered into the
custody of the state department or when they are voluntarily placed
in the custody of the department;
(5) Place children received in custody and monitor such
children so long as they remain in the custody of the state
department;
(6) Arrange for the adoption of children available for
adoption; and
(7) Perform such other duties necessary to implement the
provisions of this chapter.
§49-1A-2. Establishment of department of child welfare commission.
(a) Effective the first day of July, one thousand nine hundred
ninety-six, there is hereby established the state department of
child welfare commission.
(1) The commission shall consist of five members. One member
shall be a present or former justice of the West Virginia supreme
court of appeals or a present or former circuit court judge who shall be appointed by the governor from a list of candidates
supplied by the West Virginia judicial association. One member
shall be a past or present child protective services worker with
five or more years of experience as a child protective services
worker who shall be appointed by the governor. One member shall be
a past or present prosecuting attorney or assistant prosecuting
attorney with experience in the area of child abuse and neglect
prosecutions who shall be appointed by the governor from a list of
candidates supplied by the West Virginia prosecuting attorneys
institute. One member shall be a licensed physician appointed by
the governor from a list of candidates supplied by the West
Virginia medical association. One member shall be an attorney with
experience in representing children in abuse or neglect proceedings
who shall be appointed by the governor from a list supplied by the
West Virginia state bar.
(2) Any member appointed to the commission by the governor
shall serve on the commission for a period of five years, with each
term ending on the same day of the same month of the year as did
the term which it succeeds. When a vacancy occurs as a result of
death, resignation or removal in the membership of the commission,
it shall be filled by appointment within thirty days of the vacancy for the unexpired portion of the term in the same manner as the
original appointment.
(3) Each member of the commission shall take and subscribe to
the oath or affirmation required pursuant to section five, article
IV of the constitution of West Virginia. Any member appointed to
the commission by the governor may be removed by the governor for
substantial neglect of duty or gross misconduct in office after
written notice and opportunity for reply.
(4) The commission shall meet within thirty days of the
initial appointments to the commission at a time and place to be
determined by the governor, who shall designate a member to preside
at that meeting until a chairperson is elected. At its first
meeting, the commission shall elect a chairperson. Within ninety
days after its first meeting, the commission shall adopt rules for
its procedures.
(5) Members of the commission appointed to the commission by
the governor shall receive one hundred dollars for each day
actually devoted to the business of the commission and, in addition
thereto, shall be reimbursed for expenses actually and necessarily
incurred in the performance of their official duties as such
members.
(6) Meetings of the commission shall be upon the call of the
chairperson and shall be conducted by the personal attendance of
the commission members and no meeting may be conducted by
telephonic or other electronic conferencing, nor shall any member
be allowed to vote by proxy: Provided, That telephone conferencing
and voting may be held for the purpose of approving or rejecting
any proposed administrative, legislative or emergency rule or for
voting on issues involving the administrative functions of the
commission. Meetings held by telephone conferencing shall require
notice to members in the same manner as meetings to be personally
attended. Members may not be compensated for meetings other than
those personally attended.
(b) The state department of child welfare shall be the single
state agency within the state that is designated to investigate
allegations of child abuse or neglect, to provide the services
mandated by the provisions of this chapter to children and families
of abused, neglected, or delinquent children, to provide for and
arrange for foster care for children placed in the custody of the
state or state department and to provide services associated with
adoption as set forth in this chapter and chapter forty-eight of
this code.
(c) The secretary of the department of health and human
resources shall provide persons necessary for the administrative
duties of the commission.
§49-1A-3. Director; appointment; qualifications; oath of office;
director not to hold other office or engage in political
activity.
(a) There shall be a director of the state department of child
welfare who shall be appointed by the governor from a list of
persons provided by the commission and he or she shall serve as the
will and pleasure of the commission. The salary of the director
shall be fifty thousand dollars and be paid with funds from the
child welfare fund. The director shall be allowed and paid
necessary expenses incident to the performance of his or her
official duties.
(b) The director shall be a person with experience in child
protective services and administration.
(c) Before entering upon the duties of his or her office, the
director shall take and subscribe to the oath of office prescribed
by section five, article IV of the constitution of West Virginia
and shall execute a corporate surety bond in the sum of fifteen
thousand dollars for the faithful performance of his or her duties. The bond shall be in the form prescribed by the attorney general
and approved by the governor and both the certificate of the oath
and the bond shall be filed with the secretary of state. Premiums
upon the bond shall be paid out of the funds of the department of
child welfare.
(d) The director may not be a candidate for, or hold, any
other public office or public employment under the federal
government, or the government of this state or any of its political
subdivisions, or be a member or officer of any political party
committee, or serve as an election official, or engage in any
political activity, other than to vote, in behalf of, or in
opposition to, any candidate, or political party in an election.
Any violation by the director of the provisions of this paragraph
shall be cause for removal from office.
§49-1A-4. Creation of child welfare fund; purpose;
funding; disbursements.
(a) There is hereby created in the state treasury a separate
special revenue account, which shall be an interest bearing
account, to be known as the "child welfare fund". The special
revenue account shall consist of all fees charged and collected by
the state department of child welfare for its services, all incentive payments made by the federal government for child welfare
activities, all amounts appropriated by the Legislature for
activities of the state department of child welfare, and all
interest or other earnings from moneys in the fund. All agencies
or entities receiving federal matching funds for services of the
state department of child welfare shall enter into an agreement
with the director whereby all federal matching funds paid to and
received by that agency or entity for the activities by the state
department of child welfare shall be paid into the fund. Said
agreement shall provide for advance payments into the fund by such
agencies, from available federal funds, pursuant to Titles IV-A and
IV-E of the Social Security Act, Title XX, of the United States
Code, and any other federal funding received by any agency of the
state for services to be performed by the state department of child
welfare and in accordance with federal regulations.
(b) The secretary of the department of health and human
resources shall transfer to the special revenue account created by
this section all moneys held in special or service accounts
designated for adoption, child protection services, emergency
shelters for children and foster care expenditures.
(c) Moneys in the special revenue account shall be appropriated to the department of child welfare and used
exclusively, in accordance with appropriations by the Legislature,
to pay costs, fees and expenses incurred, or to be incurred for the
following purposes: including, but not limited to, the duties
assigned in section seven to the commission.
(d) Any balance remaining in the special revenue account at
the end of any state fiscal year shall not revert to the general
revenue fund but shall remain in the special revenue account and
shall be used solely in a manner consistent with this section:
Provided, That over the three succeeding fiscal years after the
effective date of this section, any appropriation made to the
special revenue account from general revenue shall be repaid to the
general revenue fund from moneys available in the special revenue
account.
(e) Disbursements from the special revenue account shall be
authorized by the director.
§49-1A-5. Powers and duties of the director; commission.
(a) The director shall:
(1) Exercise all powers vested in him and perform all duties
required by this article;
(2) Exercise such other powers as may be consistent with this article which are appropriate in the discharge of his duties;
(3) Employ such persons and purchase such equipment, within
the appropriations that are made to the state department of child
welfare fund, as are necessary to insure that provisions of this
article, and any rule or regulation promulgated pursuant to this
article, are fully implemented;
(4) Provide assistance to the commission, upon receipt of a
request for such assistance, in the execution of any duty assigned
to such commission;
(5) Enter into cooperative agreements as set forth in section
nine of this article; and
(6) Perform any further duty set forth in this chapter, in any
emergency or legislative rule promulgated pursuant to this chapter
and pursuant to chapter twenty-nine-a of this code, and in any
provision incorporated in any child welfare manual adopted by the
commission.
(b) The commission shall:
(1) Monitor the welfare of children in this state and shall
from direct the state department of child welfare and coordinate
with other agencies of the state of West Virginia regarding the
investigation of child abuse and neglect, provision of services to abused and neglected children, and the adoption of children in the
custody of the state.
(2) Promulgate all emergency and legislative rules pursuant to
chapter twenty-nine-a of this code as are necessary to perform
duties required by the provisions of this chapter. At such time
any rule or policy promulgated under prior enactments of this
article shall be superseded by the rule promulgated by the
commission;
(3) Promulgate legislative rules pursuant to chapter twenty-
nine-a of this code relating to the structure of the state
department of child welfare including, but not limited to, the
location of offices for such agency throughout the state. Until
such time as this rule is promulgated, the regions for the
organization of offices throughout the state shall be the same
organization as is currently employed by the child support
enforcement division pursuant to section ten, article two, chapter
forty-eight-a of this code. This rule shall constitute an
emergency rule within the meaning of section fifteen, article
three, chapter twenty-nine-a of this code;
(4) Promulgate legislative rules pursuant to chapter twenty-
nine-a of this code to implement the process set forth in the provisions of section three, article five-d of this chapter;
(5) Adopt standards for staffing, recordkeeping, reporting,
intergovernmental cooperation, training, physical structures and
time frames for case processing pursuant to the provisions of this
chapter;
(6) Consider any state plan created by the director prior to
its submission;
(7) Inspect, or cause the inspection, of cases managed by the
state department of child welfare on a periodic basis;
(8) Develop a written comprehensive manual containing all
procedures for the state department of child welfare;
(9) Promulgate such further legislative rules pursuant to
chapter twenty-nine-a of this code which may aid the state
department of child welfare in investigating child abuse and
neglect, providing services to abused and neglected children,
providing foster care services and adoption of children in the
custody of the state. In addition to the specific designation of
such rules that constitute emergency rules within the meaning of
section fifteen, article three, chapter twenty-nine-a of this code,
the commission may promulgate other rules as emergency rules when
such rule is necessary to insure that the state is awarded federal funds for the actions described in the rule or when the
promulgation of such rule is necessary to prevent substantial harm
to the public interest by insuring that children are not subjected
to abuse or neglect in their homes and insuring that they are
promptly placed in permanent homes.
(10) Promulgate an emergency legislative rule pursuant to
chapter twenty-nine-a of this code that restricts the amount of
time that any employee of the state department may devote to
administrative tasks. Such rule shall require that no child
protective services worker or foster care worker expend more than
twenty percent of his or her time on administrative activities.
Further, such rule shall include restrictions on the amount of
forms which are required in any case.
(11) Have the authority to seek donations or contributions of
supplies or equipment for the use by employees in the state
department.
(12) Declare an emergency situation when notified by the
director that any supervisor has contacting the director pursuant
to the provisions of this chapter to indicate that any case has not
been assigned due to mandatory caseload standards set forth in
section one-a, article six of this chapter.
(c) The secretary of the department of health and human
resources shall:
(1) Forward all moneys received by that department from
federal funds for child protective services, foster care and
adoption services to the special revenue account provided for in
section four of this article;
(2) Provide any information upon request by the commission,
director or any worker employed by the state department necessary
for the proper performance of the duties of the department;
(3) Provide all administrative staff and materials necessary
for the proper functioning of the commission; and
(4) Upon a written request of the commission, reassign persons
to provide administrative support and to perform other tasks to
allow the department to perform the services required by this
chapter when the commission declares an emergency situation due to
excessive caseloads or a backlog in uninvestigated complaints of
child abuse or neglect.
§49-1A-6. Cooperative agreements.
(a) The director may enter into cooperative agreements with a
person or private or public agency or agencies to provide all
service other than investigation of child abuse or neglect allegations, mandated by state or federal law to be provided by the
state department of child welfare or its predecessor. These
agreements may provide for the entire range of services.
(b) Any cooperative agreement made pursuant to this section
shall, at a minimum:
(1) Provide for the employment of personnel necessary to
perform the services;
(2) Provide that any federal collection incentive that is
payable shall be payable to the fund established pursuant to
section four of this article;
(3) Delegate responsibility that is consistent with the rules
promulgated pursuant to this article;
(4) Include any and all provisions required by state or
federal law and specifically include terms regarding cancellation
and renewal of the contract;
(5) Provide for the assessment of any penalty for the failure
to fully or timely provide services included in the agreement; and
(6) Establish reasonable administrative and fiscal
requirements for providing and continuing services.
(c) Prior to entering into such agreement, the director shall
provide all proposals to the members of the commission who may review and comment on those proposals.
(d) The director shall enter into such agreement only when the
director finds that based upon the information provided to the
director and upon the comments made by members of the commission,
that the provider of services is capable of carrying about the
responsibilities of the agreement.
(e) All cooperative agreements entered into pursuant to this
section shall meet all requirements for such agreements as detailed
in article three, chapter five-a of this code.
§49-1A-7. Transfer of certain state employees; declaration of
unnecessary positions; transfer of funds.
(a) Any employee of the department of health and human
resources, whose functions are transferred to the state department
of child welfare 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 as case aides,
protective service trainees, protective service workers social
service workers I, II and III and social service supervisors, or
the equivalent of such positions assigned to child protective
services, foster care and adoption services, 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 state department of
child welfare.
(b) Any employment position within the department of health
and human resources the existence of which is not mandated by
federal law, a provision of this code or is not that of an adult or
child protective service worker or trainee or case aid, social
service worker, social service supervisor or the equivalent of such
position assigned to adult or child protective services, foster
care or adoption services, which, as of the twenty-first day of
February, one thousand nine hundred ninety-six, has been unfilled
for six months or longer is hereby determined to be unnecessary and
the secretary of the department of health and human resources shall
transfer all moneys appropriated for such positions to the
department of child welfare for the employment of persons to
perform the duties mandated by this chapter.
ARTICLE 2. STATE RESPONSIBILITIES FOR THE PROTECTION AND CARE OF
CHILDREN.
§49-2-5. Same -- Supervision, records and reports.
In order to improve standards of child care for children in the custody of the state, the state department shall cooperate with
the governing boards of child welfare agencies, assist the staffs
of such agencies through advice on progressive methods and
procedures of child care and improvement of the service rendered,
and assist in the development of community plans of child care.
The state department of health, or its duly authorized agent, may
visit any child welfare agency to advise the agency on matters
affecting the health of children and to inspect the sanitation of
the buildings used for their care. Each child welfare agency shall
keep such records regarding each child under its control and care
as the state department may prescribe, and shall report to the
department, whenever requested, such facts as may be required with
reference to such children, upon blanks furnished by the
department. All records regarding children and all facts learned
about children and their parents or relatives shall be regarded as
confidential and shall be properly safeguarded by the agency and
the state department.
§49-2-16. State responsibility for child care.
The state department is hereby authorized and empowered to
provide care, support and protective services for children who are
handicapped by dependency, neglect, single parent status, mental or physical disability, or who for other reasons are in need of public
service. Such department is also hereby authorized and empowered
in its discretion to accept children for care from their parent or
parents, guardian, custodian or relatives and to accept the custody
of children committed to its care by courts exercising juvenile
jurisdiction. The state department of human services or any
county regional office of such department is also hereby authorized
and empowered in its discretion to accept temporary custody of
children for care from any law-enforcement officer in an emergency
situation.
The state department of human services shall provide care in
special boarding homes for children needing detention pending
disposition by a court having juvenile jurisdiction or temporary
care following such court action.
Within ninety days of the date of the signatures to a
voluntary placement agreement, after receipt of physical custody,
the state department shall file with the court a petition for
review of the placement, stating the child's situation and the
circumstance that gives rise to the voluntary placement. If the
department intends to extend the voluntary placement agreement, the
department shall file with the court a copy of the child's case plan. The court shall appoint an attorney for the child, who shall
also receive a copy of the case plan. The court shall schedule a
hearing and shall give notice of the time and place and right to be
present at such hearing to: The child's attorney; the child, if
twelve years of age or older; the child's parents or guardians; the
child's foster parents; and any other such persons as the court may
in its discretion direct. The child's presence at such hearing may
be waived by the child's attorney at the request of the child or if
the child would suffer emotional harm. At the conclusion of the
proceedings, but no later than ninety days after the date of the
signatures to the voluntary placement agreement, the court shall
enter an order determining whether or not continuation of the
voluntary placement is in the best interests of the child;
specifying under what conditions the child's placement shall
continue; and specifying whether or not the department has made
reasonable efforts to reunify the family and/or provide a plan for
the permanent placement of the child.
§49-2-17. Subsidized adoption.
From funds appropriated to the state department of welfare,
the commissioner director shall establish a system of assistance
for facilitating the adoption of children who are dependents of the state department or a child welfare agency licensed to place
children for adoption, legally free for adoption and in special
circumstances either because they:
(a) Have established emotional ties with prospective adoptive
parents while in their care; or
(b) Are not likely to be adopted by reason of one or more of
the following conditions:
(1) They have a physical or mental disability;
(2) They are emotionally disturbed; or
(3) They are older children; or
(4) They are a part of a sibling group; or
(5) They are a member of a racial or ethnic minority; or
(6) They have any combination of these conditions.
The department shall provide assistance in the form of
subsidies or other services to parents who are found and approved
for adoption of a child certified as eligible for subsidy by the
department, but before the final decree of adoption is entered,
there must be a written agreement between the family entering into
the subsidized adoption and the department. Adoption subsidies in
individual cases may commence with the adoption placement, and will
vary with the needs of the child as well as the availability of other resources to meet the child's needs. The subsidy may be for
special services only, or for money payments, and either for a
limited period, or for a long term, or for any combination of the
foregoing. The specific financial terms of the subsidy shall be
included in the agreement between the department and the adopting
parents. The amount of the time- limited or long-term subsidy may
in no case exceed that which would be allowable from time to time
for such child under foster family care, or, in the case of a
special service, the reasonable fee for the service rendered.
Whenever significant emotional ties have been established
between a child and his foster parents, and the foster parents seek
to adopt the child, the child shall be certified as eligible for a
subsidy conditioned upon his adoption under applicable adoption
procedures by the foster parents.
In all other cases, after reasonable efforts have been made
without the use of subsidy and no appropriate adoptive family has
been found for the child, the department shall certify the child as
eligible for a subsidy in the event of adoption.
If the child is the dependent of a voluntary licensed child-
placing agency, that agency shall present to the department
evidence of significant emotional ties between the child and his foster parents or evidence of inability to place the child for
adoption. In no event shall the value of the services and
assistance provided by the department under an agreement pursuant
to this section exceed the value of assistance available to foster
families in similar circumstances. All records regarding
subsidized adoptions shall be held in confidence, however, records
regarding the payment of public funds for subsidized adoptions
shall be available for public inspection provided they do not
directly or indirectly identify any child or persons receiving
funds for such child.
ARTICLE 2C. INTERSTATE ADOPTION ASSISTANCE COMPACT.
§49-2C-1. Interstate adoption assistance compact -- Findings and
purpose.
(a) The Legislature finds that:
(1) Finding adoptive families for children, for whom state
assistance is desirable pursuant to section seventeen, article two
of this chapter and assuring the protection of the interests of the
children affected during the entire assistance period, require
special measures when the adoptive parents move to other states or
are residents of another state; and
(2) Provision of medical and other necessary services for children, with state assistance, encounters special difficulties
when the provision of services takes place in other states.
(b) The purposes of sections one through four of this article
are to:
(1) Authorize the state department of human services to enter
into interstate agreements with agencies of other states for the
protection of children on behalf of whom adoption assistance is
being provided by the state department of human services.
(2) Provide procedures for interstate children's adoption
assistance payments, including medical payments.
§49-2C-2. Interstate adoption assistance compacts authorized;
definitions.
(a) The state department of human services is authorized to
develop, participate in the development of, negotiate and enter
into one or more interstate compacts on behalf of this state with
other states to implement one or more of the purposes set forth in
sections one through four of this article. When so entered into,
and for so long as it shall remain in force, such a compact shall
have the force and effect of law.
(b) For the purposes of sections one through four of this
article, the term "state" means a state of the United States, the District of Columbia, the Commonwealth of Puerto Rico, the Virgin
Islands, Guam, the Commonwealth of the Northern Mariana Islands, or
a Territory or Possession of or administered by the United States.
(c) For the purposes of sections one through four of this
article, the term "adoption assistance state" means the state that
is signatory to an adoption assistance agreement in a particular
case.
(d) For the purposes of sections one through four of this
article, the term "residence state" means the state of which the
child is a resident by virtue of the residence of the adoptive
parents.
§49-2C-4. Same -- Medical assistance.
(a) A child with special needs resident in this state who is
the subject of an adoption assistance agreement with another state
shall be entitled to receive a medical assistance identification
from this state upon the filing in the state department of human
services of a certified copy of the adoption assistance agreement
obtained from the adoption assistance state. In accordance with
regulations of the state department of human services the adoptive
parents shall be required at least annually to show that the
agreement is still in force or has been renewed.
(b) The state department of human services shall consider the
holder of a medical assistance identification pursuant to this
section as any other holder of a medical assistance identification
under the laws of this state and shall process and make payment on
claims on account of such holder in the same manner and pursuant to
the same conditions and procedures as for other recipients of
medical assistance.
(c) The state department of human services shall provide
coverage and benefits for a child who is in another state and who
is covered by an adoption assistance agreement made by the state
department of human services for the coverage or benefits, if any,
not provided by the residence state. To this end, the adoptive
parents acting for the child may submit evidence of payment for
services or benefit amounts not payable in the residence state and
shall be reimbursed therefor. However, there shall be no
reimbursement for services or benefit amounts covered under any
insurance or other third party medical contract or arrangement held
by the child or the adoptive parents. The state department of human
services shall make regulations implementing this section. The
additional coverages and benefit amounts provided pursuant to this
section shall be for services to the cost of which there is no federal contribution, or which, if federally aided, are not
provided by the residence state. Among other things, such
regulations shall include procedures to be followed in obtaining
prior approvals for services in those instances where required for
the assistance.
(d) Any person who submits a claim for payment or
reimbursement for services or benefits pursuant to this section or
the making of any statement in connection therewith, which claim of
statement the maker knows or should know to be false, misleading or
fraudulent is guilty of a felony, and, upon conviction thereof,
shall be fined not more than ten thousand dollars, or imprisoned in
the penitentiary not more than two years, or both fined and
imprisoned.
(e) The provisions of this section shall apply only to medical
assistance for children under adoption assistance agreements from
states that have entered into a compact with this state under which
the other state provides medical assistance to children with
special needs under adoption assistance agreements made by this
state. All other children entitled to medical assistance pursuant
to adoption assistance agreements entered into by this state shall
be eligible to receive it in accordance with the laws and procedures applicable thereto.
ARTICLE 2D. HOME-BASED FAMILY PRESERVATION ACT.
§49-2D-2. Definitions.
As used in this article, the following terms have the meanings
indicated:
(a) "Dysfunctional family" means a parent or parents or an
adult or adults and a child or children living together and
functioning in an impaired or abnormal manner so as to cause
substantial physical or emotional danger, injury or harm to one or
more children thereof regardless of whether such children are
natural offspring, adopted children, step children or unrelated
children to such parents.
(b) "Home-based family preservation services" means services
dispensed by the state department of human services or by another
person, association or group who has contracted with the state
department of human services to dispense such services when such
services are intended to stabilize and maintain the natural or
surrogate family in order to prevent the placement of children in
substitute care. There are two types of home-based family
preservation services and they are as follows:
(1) Intensive, short term intervention of four to six weeks; and
(2) Home-based, longer term after care following intensive
intervention.
§49-2D-5. Caseload limits for home-based preservation services.
For purposes of this article, no contractor employee of the
state department of human services may exceed three families during
any period of time when such contractor employee is engaged in
providing intensive, short term home-based family preservation
intervention. In addition, no caseload may exceed six families
during any period of time when home-based aftercare is provided
pursuant to this article.
When providing either type of home-based family preservation
services to any family, the state department of human services or
contractor shall provide trained personnel who shall be available
during nonworking hours to assist families on an emergency basis.
§49-2D-7. Service delivery through service contracts;
accountability.
Services required by this article which are not practically
deliverable directly from the state department of human services
may be subcontracted to professionally qualified private
individuals, associations, agencies, corporations, partnerships or groups. The service provider shall be required to submit monthly
activity reports as to any services rendered to the state
department of human services. Such activity reports shall include
project evaluation in relation to individual families being served
as well as statistical data concerning families that are referred
for services which are not served due to unavailability of
resources. Costs of program evaluation are an allowable cost
consideration in any service contract negotiated in accordance with
this article. The department shall conduct a thorough
investigation of the contractors utilized by the department
pursuant to this article. The department shall further include the
results of this investigation in its report to the Legislature
required by section nine of this article.
ARTICLE 3. CHILD WELFARE AGENCIES.
§49-3-1. Consent by agency or department to adoption of child;
statement of relinquishment by parent; petition to terminate
parental rights.
(a) Whenever a child welfare agency licensed to place children
for adoption or the state department of human services shall have
been given the permanent care, custody and guardianship of any
child and the rights of the mother and the rights of the legal, determined putative or unknown father of such child shall have been
terminated by order of a court of competent jurisdiction or by a
legally executed relinquishment of parental rights, the child
welfare agency or state department of human services may consent to
the adoption of such child pursuant to the provisions of article
four, chapter forty-eight of this code, regulating adoption
proceedings. The mother and the legal or determined father of a
child, or the mother if the father is putative or unknown, may
relinquish the child to a child welfare agency licensed to place
children for adoption, or to the state department of human
services, by a written statement acknowledged as deeds are required
to be acknowledged by law: Provided, That if either of the parents
of such child is under eighteen years of age, such relinquishment
shall not be valid unless and until the same shall have been
approved in writing by a judge of a court having jurisdiction of
adoption proceedings in the county in which such parent may reside
or in which such relinquishment is made.
(b)(1) Whenever the mother has executed a relinquishment
pursuant to this section, and the legal, determined, putative or
unknown father, as those terms are defined pursuant to the
provisions of section one, article four, chapter forty-eight of this code, has not executed a relinquishment, the child welfare
agency or state department of human services may, by verified
petition, seek to have said father's rights terminated based upon
the grounds of abandonment or neglect of said child.
(2) Unless waived by a writing acknowledged as in the case of
deeds or by other proper means, notice of the petition shall be
served on any person entitled to parental rights of a child prior
to its adoption who has not signed a relinquishment of custody of
such child.
(3) In addition, notice shall be given to any putative or
unknown father who has asserted or exercised parental rights and
duties to and with such child and who has not consented or
relinquished any parental rights and such rights have not otherwise
been terminated, or who has not had reasonable opportunity before
or after the birth of the child to assert or exercise such rights:
Provided, That if such child is more than six months old at the
time such notice would be required and such father has not asserted
or exercised his parental rights and he knew the whereabouts of the
child, then such father shall be presumed to have had reasonable
opportunity to assert or exercise such rights.
(c) Upon the filing of the verified petition seeking to have the father's rights terminated, the court shall set a hearing on
said petition. A copy of the petition and notice of the date, time
and place of the hearing on said petition shall be personally
served on him at least twenty days prior to the date set for the
hearing.
Such notice shall inform the person that his parental rights,
if any, may be terminated in the proceeding and that such person
may appear and defend any such rights within twenty days of such
service. In the case of any such person who is a nonresident or
whose whereabouts are unknown, service shall be achieved (1) by
personal service, (2) by registered or certified mail, return
receipt requested, postage prepaid, to the person's last-known
address, with instructions to forward, or (3) by publication. If
personal service is not acquired, then if the person giving notice
shall have any knowledge of the whereabouts of the person to be
served, including a last-known address, service by mail shall be
first attempted as herein provided. Any such service achieved by
mail shall be complete upon mailing and shall be sufficient service
without the need for notice by publication. In the event that no
return receipt is received giving adequate evidence of receipt of
the notice by the addressee or of receipt of the notice at the address to which the notice was mailed or forwarded, or if the
whereabouts of the person are unknown, then the person required to
give notice shall file with the court an affidavit setting forth
the circumstances of any attempt to serve the notice by mail, and
the diligent efforts to ascertain the whereabouts of the person to
be served. If the court determines that the whereabouts of the
person to be served cannot be ascertained and that due diligence
has been exercised to ascertain such person's whereabouts, then the
court shall order service of such notice by publication as a Class
II publication in compliance with the provisions of article three,
chapter fifty-nine of the code, and the publication area shall be
the county where such proceedings are had, and in the county where
the person to be served was last known to reside. In the case of
a person under disability, service shall be made on the person and
his personal representative, or if there be none, on a guardian ad
litem.
In the case of service by publication or mail or service in a
personal representative or a guardian ad litem, the person shall be
allowed thirty days from the date of the first publication or
mailing of such service on a personal representative or guardian ad
litem in which to appear and defend such parental rights.
(d) A petition under this section may be instituted in the
county where the child resides or where the child is living.
(e) If the court finds that the person certified to parental
rights is guilty of the allegations set forth in the petition, the
court shall enter an order terminating his parental rights and
shall award the full care, custody and control of said child to the
petitioner.
ARTICLE 5. JUVENILE PROCEEDINGS.
§49-5-12. Prosecuting attorney to represent petitioner.
The prosecuting attorney shall represent the petitioner
interests of the state of West Virginia in all juvenile proceedings
before the court, referee or magistrate having juvenile
jurisdiction.
§49-5-13. Disposition; appeal.
(a) In aid of disposition, the juvenile probation officer
assigned to the court shall, upon request of the court, make an
investigation of the environment of the child and the alternative
dispositions possible. The court, upon its own motion, or upon
request of counsel, may order a psychological examination of the
child. The report of such examination and other investigative and
social reports shall not be made available to the court until after the adjudicatory hearing. Unless waived, copies of the report
shall be provided to counsel for the petitioner and counsel for the
child no later than seventy-two hours prior to the dispositional
hearing.
(b) Following the adjudication, the court shall conduct the
dispositional proceeding, giving all parties an opportunity to be
heard. In disposition the court shall not be limited to the relief
sought in the petition and shall, in electing from the following
alternatives, consider the best interests of the child and the
welfare of the public:
(1) Dismiss the petition;
(2) Refer the child and the child's parent or custodian to a
community agency for needed assistance and dismiss the petition;
(3) Upon a finding that the child is in need of extra-parental
supervision: (A) Place the child under the supervision of a
probation officer of the court or of the court of the county where
the child has his or her usual place of abode or other person while
leaving the child in custody of his or her parent or custodian; and
(B) prescribe a program of treatment or therapy or limit the
child's activities under terms which are reasonable and within the
child's ability to perform, including participation in the litter control program established pursuant to section twenty-five,
article seven, chapter twenty of this code, or other appropriate
programs of community service;
(4) Upon a finding that a parent or custodian is not willing
or able to take custody of the child, that a child is not willing
to reside in the custody of his parent or custodian, or that a
parent or custodian cannot provide the necessary supervision and
care of the child, the court may place the child in temporary
foster care or temporarily commit the child to the state department
or a child welfare agency. The court order shall state that
continuation in the home is contrary to the best interest of the
child and why; and whether or not the state department made a
reasonable effort to prevent the placement or that the emergency
situation made such efforts unreasonable or impossible. Whenever
the court transfers custody of a youth to the state department of
human services, an appropriate order of financial support by the
parents or guardians shall be entered in accordance with section
five, article seven of this chapter and guidelines promulgated by
the supreme court of appeals;
(5) Upon a finding that the best interests of the child or the
welfare of the public require it, and upon an adjudication of delinquency pursuant to subdivision (1), section four, article one
of this chapter, the court may commit the child to an industrial
home, correctional institution for children, or other appropriate
facility for the treatment, instruction and rehabilitation of
juveniles: Provided, That the court maintains discretion to
consider alternative sentencing arrangements. Commitments shall
not exceed the maximum term for which an adult could have been
sentenced for the same offense. The order shall state that
continuation in the home is contrary to the best interests of the
child and why; and whether or not the state department made a
reasonable effort to prevent the placement or that the emergency
situation made such efforts unreasonable or impossible;
(6) Upon an adjudication of delinquency pursuant to
subdivision (3) or (4), section four, article one of this chapter,
and upon a finding that the child is so totally unmanageable,
ungovernable and antisocial that the child is amenable to no
treatment or restraint short of incarceration, commit the child to
a rehabilitative facility devoted exclusively to the custody and
rehabilitation of children adjudicated delinquent pursuant to said
subdivision. Commitments shall not exceed the maximum period of
one year with discretion as to discharge to rest with the director of the institution, who may release the child and return him or her
to the court for further disposition. The order shall state that
continuation in the home is contrary to the best interests of the
child and why; and whether or not the state department made a
reasonable effort to prevent the placement or that the emergency
situation made such efforts unreasonable or impossible; or
(7) After a hearing conducted under the procedures set out in
subsections (c) and (d), section four, article five, chapter
twenty-seven of this code, commit the child to a mental health
facility in accordance with the child's treatment plan; the
director may release a child and return him to the court for
further disposition. The order shall state that continuation in
the home is contrary to the best interests of the child and why;
and whether or not the state department made a reasonable effort to
prevent the placement or that the emergency situation made such
efforts unreasonable or impossible.
(c) The disposition of the child shall not be affected by the
fact that the child demanded a trial by jury or made a plea of
denial. Any dispositional order is subject to appeal to the
supreme court of appeals.
(d) Following disposition, it shall be inquired of the respondent whether or not appeal is desired and the response
transcribed; a negative response shall not be construed as a
waiver. The evidence shall be transcribed as soon as practicable
and made available to the child or his or her counsel, if the same
is requested for purposes of further proceedings. A judge may
grant a stay of execution pending further proceedings.
(e) Notwithstanding any other provision of this code to the
contrary, if a child charged with delinquency under this chapter is
transferred to adult jurisdiction and there tried and convicted,
the court may make its disposition in accordance with this section
in lieu of sentencing such person as an adult.
§49-5-16a. Rules and regulations governing juvenile facilities.
The commissioner of corrections and the commissioner director
of the state department of child welfare shall each prescribe
written rules and regulations subject to the provisions of chapter
twenty-nine-a of this code, outlining policies and procedures
governing the operation of those correctional, detention and other
facilities in their respective departments wherein juveniles may be
housed. Said policies and procedures shall include, but shall not
be limited to, standards of cleanliness, temperature and lighting;
availability of medical and dental care; provision of food, furnishings, clothing and toilet articles; supervision; procedures
for enforcing rules of conduct consistent with due process of law,
and visitation privileges. On and after January one, one thousand
nine hundred seventy-nine, a child in custody or detention shall
have, at a minimum, the following rights, and the policies
prescribed shall ensure that:
(1) A child shall not be punished by physical force,
deprivation of nutritious meals, deprivation of family visits or
solitary confinement;
(2) A child shall have the opportunity to participate in
physical exercise each day;
(3) Except for sleeping hours a child in a state facility
shall not be locked alone in a room unless such child is out of
control;
(4) A child shall be provided his own clothing or
individualized clothing which is clean, supplied by the facility,
and daily access to showers;
(5) A child shall have constant access to writing materials
and may send mail without limitation, censorship or prior reading,
and may receive mail without prior reading, except that mail may be
opened in the child's presence, without being read, to inspect for contraband;
(6) A child may make and receive regular local phone calls
without charge and long distance calls to his family without charge
at least once a week, and receive visitors daily and on a regular
basis;
(7) A child shall have immediate access to medical care as
needed;
(8) A child in a juvenile detention facility or state
institution shall be provided access to education including
teaching, educational materials and books;
(9) A child shall have reasonable access to an attorney upon
request; and
(10) A child shall be afforded a grievance procedure,
including an appeal mechanism.
Upon admission to a jail, detention facility or institution,
a child shall be furnished with a copy of the rights provided him
by virtue of this section and as further prescribed by rules
promulgated pursuant to this section.
ARTICLE 5A. JUVENILE REFEREE SYSTEM.
§49-5A-6. Assistance of department of welfare.
With the approval of the commissioner director of child welfare the state department of child welfare is authorized to
assign the necessary personnel and provide adequate space for the
support and operation of any facility not a jail providing for the
detention of children as provided in this article, subject to and
not inconsistent with the appropriation and availability of funds.
§49-5A-6a. State plan for predisposition detention of juveniles.
(a) The secretary director of the state department of health
and human resources and the legislative commission on juvenile law
shall develop a comprehensive plan to maintain and improve a
unified state system of predispositional detention for juveniles.
The secretary director and the commission plan shall consider
recommendations from the division of corrections, the governor's
committee on crime, delinquency and correction, the juvenile
justice committee, the state board of education, detention center
personnel, juvenile probation officers of the state department of
health and human resources and judicial and law-enforcement
officials from throughout the state.
The principal purpose of the plan shall be, through statements
of policy and program goals, to provide for the effective and
efficient use of juvenile detention facilities licensed or operated
by local units of government and the state, including those operated regionally by the state department of health and human
resources.
(b) The plan shall identify operational problems of secure
detention centers, including, but not limited to, overcrowding,
security and violence within centers, difficulties in moving
juveniles through the centers within required time periods, health
needs, educational needs, transportation problems, staff turnover
and morale and other perceived problem areas. The plan shall
further provide recommendations directed to alleviate the problems.
(c) The plan shall include, but not be limited to, statements
of policies and goals in the following areas:
(1) Licensing of secure detention centers;
(2) Criteria for placing juveniles in detention;
(3) Alternatives to secure detention;
(4) Allocation of fiscal resources to the costs of secure
detention facilities;
(5) Information and referral services; and
(6) Educational regulations developed and approved by the West
Virginia board of education.
(d) The legislative commission on juvenile law, or a
designated subcommittee or task force thereof, shall act in a continuing capacity as an oversight committee, and shall assist the
secretary director of the state department of health and human
resources in the periodic review and update of the state plan for
the predisposition detention of juveniles.
ARTICLE 5B. WEST VIRGINIA JUVENILE OFFENDER REHABILITATION ACT.
§49-5B-4. Responsibilities of the state department of health and
human resources.
(a) The state department of health and human resources of
child welfare is empowered to establish, and shall establish,
subject to the limits of funds available or otherwise appropriated
therefor, programs and services designed to prevent juvenile
delinquency, to divert juveniles from the juvenile justice system,
to provide community-based alternatives to juvenile detention and
correctional facilities and to encourage a diversity of
alternatives within the juvenile justice system. The development,
maintenance and expansion of programs and services may include, but
not be limited to, the following:
(1) Community-based programs and services for the prevention
and treatment of juvenile delinquency through the development of
foster-care and shelter-care homes, group homes, halfway houses,
homemaker and home health services, twenty-four hour intake screening, volunteer and crisis home programs, day treatment and
any other designated community-based diagnostic, treatment or
rehabilitative service;
(2) Community-based programs and services to work with parents
and other family members to maintain and strengthen the family unit
so that the juvenile may be retained in his home;
(3) Youth service bureaus and other community-based programs
to divert youth from the juvenile court or to support, counsel, or
provide work and recreational opportunities for delinquents and
other youth to help prevent delinquency;
(4) Projects designed to develop and implement programs
stressing advocacy activities aimed at improving services for and
protecting rights of youth impacted by the juvenile justice system;
(5) Educational programs or supportive services designed to
keep delinquents, and to encourage other youth to remain, in
elementary and secondary schools or in alternative learning
situations;
(6) Expanded use of professional and paraprofessional
personnel and volunteers to work effectively with youth;
(7) Youth initiated programs and outreach programs designed to
assist youth who otherwise would not be reached by traditional youth assistance programs;
(8) A statewide program designed to reduce the number of
commitments of juveniles to any form of juvenile facility as a
percentage of the state juvenile population, to increase the use of
nonsecure community-based facilities as a percentage of total
commitments to juvenile facilities and to discourage the use of
secure incarceration and detention.
(b) The state department of health and human resources shall
establish, within the funds available, an individualized program of
rehabilitation for each accused juvenile offender referred to the
department after being allowed an improvement period by the
juvenile court, and for each adjudicated juvenile offender who,
after adjudication, is referred to the department for investigation
or treatment or whose custody is vested in the department. Such
individualized program of rehabilitation shall take into account
the programs and services to be provided by other public or private
agencies or personnel which are available in the community to deal
with the circumstances of the particular child. Such
individualized program of rehabilitation shall be furnished to the
juvenile court and shall be available to counsel for the child; it
may be modified from time to time at the direction of the department or by order of the juvenile court. The department may
develop an individualized program of rehabilitation for any child
referred for noncustodial counseling under section five, article
three of this chapter, for any child receiving counsel and advice
under section three-a, article five of this chapter, or for any
other child upon the request of a public or private agency.
(c) The state department of health and human resources is
authorized to enter into cooperative arrangements and agreements
with private agencies or with agencies of the state and its
political subdivisions to effectuate the purpose of this article.
§49-5B-7. Reporting requirements; cataloguing of services.
(a) The state department of health and human resources shall
from time to time, but not less often than annually, review its
programs and services and submit a report to the governor, the
Legislature and the supreme court of appeals, analyzing and
evaluating the effectiveness of the programs and services being
carried out by the department. Such report shall include, but not
be limited to, an analysis and evaluation of programs and services
continued, established and discontinued during the period covered
by the report, and shall further describe programs and services
which should be implemented to further the purposes of this article. Such report shall also include, but not be limited to,
relevant information concerning the number of children comprising
the population of any rehabilitative facility during the period
covered by the report, the length of residence, the nature of the
problems of each child, the child's response to programs and
services and such other information as will enable a user of the
report to ascertain the effectiveness of the facility as a
rehabilitative facility.
(b) The state department of health and human resources shall
prepare a descriptive catalogue of its juvenile programs and
services available in local communities throughout this state and
shall distribute copies of the same to every juvenile court in the
state and, at the direction of the juvenile court, such catalogue
shall be distributed to attorneys practicing before such court.
Such catalogue shall also be made available to members of the
general public upon request. The catalogue shall contain
sufficient information as to particular programs and services so as
to enable a user of the catalogue to make inquiries and referrals.
The catalogue shall be constructed so as to meaningfully identify
and describe programs and services. The requirements of this
section are not satisfied by a simple listing of specific agencies or the individuals in charge of programs at a given time. The
catalogue shall be updated and republished or supplemented from
time to time as may be required to maintain its usefulness as a
resource manual.
ARTICLE 5C. LEGISLATIVE COMMISSION ON JUVENILE LAW.
§49-5C-3. Appointment of members; terms.
The commission shall consist of:
(1) Three members of the Senate to be appointed by the
president of the Senate and three members of the House of Delegates
to be appointed by the speaker of the House of Delegates:
Provided, That at least one person appointed from each house shall
be an attorney licensed to practice law in this state. No more
than two of the three members appointed by the president of the
Senate and the speaker of the House of Delegates, respectively,
shall be members of the same political party.
(2) A representative of the department of education designated
by the state superintendent of schools.
(3) The commissioner of corrections and two administrators of
the department of health and human resources designated by the
secretary of that department who shall serve as ex officio members
the director of the state department of child welfare.
(4) Two persons trained and employed as school guidance
counselors, one to be appointed by the president of the Senate and
one to be appointed by the speaker of the House of Delegates.
(5) One citizen member to represent the interests of the
general public, to be appointed jointly by the president of the
Senate and by the speaker of the House of Delegates.
The first appointed members of the commission shall serve for
a term expiring on the thirtieth day of June in the year of the
next succeeding regular session of the Legislature. At the
commencement of such next succeeding regular session and at the
commencement of regular sessions every two years thereafter,
members of the commission shall be appointed for two-year terms
beginning the first day of July in the year of each such regular
session. Vacancies on the commission shall be filled for unexpired
terms in the same manner as appointments to the commission.
ARTICLE 5D. MULTIDISCIPLINARY TEAMS.
§49-5D-2. Multidisciplinary investigative teams; establishment;
procedures; coordination between agencies.
(a) The prosecuting attorney shall establish a
multidisciplinary investigative team in each county. The
multidisciplinary team shall be headed and directed by the prosecuting attorney and shall include as permanent members the
prosecuting attorney or his or her designee, a local child
protective services caseworker from the state department of health
and human resources and a local law-enforcement officer employed
by a law-enforcement agency in the county. The state department
of health and human resources and any local law-enforcement agency
or agencies selected by the prosecuting attorney shall appoint
their representatives to the team by submitting a written
designation of the team to the prosecuting attorney of each county
within thirty days of the prosecutor's request that the appointment
be made. Within fifteen days of the appointment, the prosecuting
attorney shall notify the chief judge of each circuit within which
the county is situated of the names of the representatives so
appointed. Any other person or any other appointee of an agency
who may contribute to the team's efforts to assist a minor child as
may be determined by the permanent members of the team may also be
appointed as a member of the team by the prosecutor with
notification to the chief judge.
(b) Any permanent member of the multidisciplinary
investigative team shall refer all cases of accidental death of any
child reported to their agency and all cases when a child dies while in the custody of the state for investigation and review by
the team. The multidisciplinary investigative team shall meet at
regular intervals at least once every calendar month.
(c) The investigative team shall be responsible for
coordinating or cooperating in the initial and ongoing
investigation of all civil and criminal allegations pertinent to
cases involving child sexual assault, child sexual abuse, child
abuse and neglect, and shall make a recommendation to the county
prosecuting attorney as to the initiation or commencement of a
civil petition and/or criminal prosecution.
(d) State, county and local agencies shall provide the
multidisciplinary investigative team with any information requested
in writing by the team as allowable by law or upon receipt of a
certified copy of the circuit court's order directing said agencies
to release information in its possession relating to the child.
The team shall assure that all information received and developed
in connection with the provisions of this article remains
confidential. For purposes of this section, the term
"confidential" shall be construed in accordance with the provisions
of section one, article seven of this chapter.
§49-5D-3. Multidisciplinary treatment planning process.
(a) On or before the first day of January, one thousand nine
hundred ninety-five, a multidisciplinary treatment planning process
shall be established within each county of the state, either
separately or in conjunction with a contiguous county by the
secretary of the state department of health and human resources,
with advice and assistance from the prosecutor's advisory council
as set forth in section four, article four, chapter seven of this
code.
Treatment teams shall assess, plan and implement a
comprehensive, individualized service plan for children who are
victims of abuse, neglect, sexual assault or sexual abuse,
multineed children and their families and for children and their
families involved in delinquency proceedings.
(b) Each treatment team shall be convened and directed by the
child's or family's case manager. The treatment team shall consist
of the child's custodial parent(s) or guardian(s), other immediate
family members, the attorney(s) representing the parent(s) of the
child if assigned by a judge of the circuit court, the child, if
the child is over the age of twelve, and if the child's
participation is otherwise appropriate, the child, if under the age
of twelve when the team determines that the child's participation is appropriate, the guardian ad litem, the prosecuting attorney or
his or her designee, and any other agency, person or professional
who may contribute to the team's efforts to assist the child and
family.
(c) The treatment team shall coordinate their activities and
membership with local family resource networks, and coordinate with
other local and regional child and family service planning
committees to assure the efficient planning and delivery of child
and family services on a local and regional level.
(d) State, county and local agencies shall provide the
multidisciplinary treatment teams with any information requested in
writing by the team as allowable by law or upon receipt of a
certified copy of the circuit court's order directing said agencies
to release information in its possession relating to the child.
The team shall assure that all information received and developed
in connection with the provisions of this article remain
confidential. For purposes of this section, the term
"confidential" shall be construed in accordance with the provisions
of section one, article seven of this chapter.
ARTICLE 6. PROCEDURE IN CASES OF CHILD NEGLECT OR ABUSE.
§49-6-5. Disposition of neglected or abused children.
(a) Following a determination pursuant to section two of this
article wherein the court finds a child to be abused or neglected,
the department shall file with the court a copy of the child's case
plan, including the permanency plan for the child. The term case
plan means a written document that includes, where applicable, the
requirements of the family case plan as provided for in section
three, article six-d of this chapter and that also includes at
least the following: A description of the type of home or
institution in which the child is to be placed, including a
discussion of the appropriateness of the placement and how the
agency which is responsible for the child plans to assure that the
child receives proper care and that services are provided to the
parents, child and foster parents in order to improve the
conditions in the parent(s) home, facilitate return of the child to
his or her own home or the permanent placement of the child, and
address the needs of the child while in foster care, including a
discussion of the appropriateness of the services that have been
provided to the child. The term permanency plan refers to that
part of the case plan which is designed to achieve a permanent home
for the child in the least restrictive setting available. The plan
must document efforts to ensure that the child is returned home within approximate time lines for reunification as set out in the
plan. If reunification is not the permanency plan for the child,
the plan must state why reunification is not appropriate and detail
the alternative placement for the child to include approximate time
lines for when such placement is expected to become a permanent
placement. This case plan shall serve as the family case plan for
parents of abused or neglected children. Copies of the child's
case plan shall be sent to the child's attorney and parent,
guardian or custodian at least five days prior to the dispositional
hearing. The court shall forthwith proceed to disposition giving
both the petitioner and respondents an opportunity to be heard.
The court shall give precedence to dispositions in the following
sequence:
(1) Dismiss the petition;
(2) Refer the child, the abusing parent, or other family
members to a community agency for needed assistance and dismiss the
petition;
(3) Return the child to his or her own home under supervision
of the state department;
(4) Order terms of supervision calculated to assist the child
and any abusing parent or parents or custodian which prescribe the manner of supervision and care of the child and which are within
the ability of any parent or parents or custodian to perform;
(5) Upon a finding that the abusing parent or parents are
presently unwilling or unable to provide adequately for the child's
needs, commit the child temporarily to the custody of the state
department, a licensed private child welfare agency or a suitable
person who may be appointed guardian by the court. The court order
shall state: (1) That continuation in the home is contrary to the
best interests of the child and why; (2) whether or not the state
department made a reasonable effort to prevent the placement to
include a statement of what efforts were made or that the emergency
situation made such efforts unreasonable or impossible; and (3) the
specific circumstances of the situation which makes such efforts
unreasonable if services were not offered by the department. The
court order shall also determine under what circumstances the
child's commitment to the department shall continue.
Considerations pertinent to the determination include whether the
child should (1) be continued in foster care for a specified
period, (2) should be considered for adoption, (3) because of a
child's special needs or circumstances, be continued in foster care
on a permanent or long-term basis, or (4) be continued in foster care until reunification is achieved. The court may order services
to meet the special needs of the child. Whenever the court
transfers custody of a youth to the state department of human
services, an appropriate order of financial support by the parents
or guardians shall be entered in accordance with section five,
article seven of this chapter; or
(6) Upon a finding that there is no reasonable likelihood that
the conditions of neglect or abuse can be substantially corrected
in the near future, and when necessary for the welfare of the
child, terminate the parental or custodial rights and/or
responsibilities of the abusing parent and commit the child to the
permanent sole custody of the nonabusing parent, if there be one,
or, if not, to either the permanent guardianship of the state
department or a licensed child welfare agency. If the court shall
so find, then in fixing its dispositional order, the court shall
consider the following factors: (1) The child's need for
continuity of care and caretakers; (2) the amount of time required
for the child to be integrated into a stable and permanent home
environment; and (3) other factors as the court considers necessary
and proper. Notwithstanding any other provision of this article,
the permanent parental rights shall not be terminated if a child fourteen years of age or older or otherwise of an age of discretion
as determined by the court, objects to such termination. No
adoption of a child shall take place until all proceedings for
termination of parental rights under this article and appeals
thereof are final. In determining whether or not parental rights
should be terminated, the court shall consider the efforts made by
the department to provide remedial and reunification services to
the parent. The court order shall state: (1) That continuation in
the home is not in the best interest of the child and why; (2) why
reunification is not in the best interests of the child; (3)
whether or not the state department made a reasonable effort to
prevent the placement or that the emergency situation made such
efforts unreasonable or impossible; and (4) whether or not the
state department made a reasonable effort to reunify the family
including a description of what efforts were made or that such
efforts were unreasonable due to specific circumstances.
(b) As used in this section, "no reasonable likelihood that
conditions of neglect or abuse can be substantially corrected"
shall mean that, based upon the evidence before the court, the
abusing adult or adults have demonstrated an inadequate capacity to
solve the problems of abuse or neglect, on their own or with help. Such conditions shall be deemed to exist in the following
circumstances, which shall not be exclusive:
(1) The abusing parent or parents have habitually abused or
are addicted to alcohol, controlled substances or drugs, to the
extent that proper parenting skills have been seriously impaired
and such abusing parent or parents have not responded to or
followed through the recommended and appropriate treatment which
could have improved the capacity for adequate parental functioning;
(2) The abusing parent or parents have willfully refused or
are presently unwilling to cooperate in the development of a
reasonable family case plan designed to lead to the child's return
to their care, custody and control;
(3) The abusing parent or parents have not responded to or
followed through with a reasonable family case plan or other
rehabilitative efforts of social, medical, mental health or other
rehabilitative agencies designed to reduce or prevent the abuse or
neglect of the child, as evidenced by the continuation or
insubstantial diminution of conditions which threatened the health,
welfare or life of the child;
(4) The abusing parent or parents have abandoned the child;
(5) The abusing parent or parents have repeatedly or seriously injured the child physically or emotionally, or have sexually
abused or sexually exploited the child, and the degree of family
stress and the potential for further abuse and neglect are so great
as to preclude the use of resources to mitigate or resolve family
problems or assist the abusing parent or parents in fulfilling
their responsibilities to the child; or
(6) The abusing parent or parents have incurred emotional
illness, mental illness or mental deficiency of such duration or
nature as to render such parent or parents incapable of exercising
proper parenting skills or sufficiently improving the adequacy of
such skills.
(c) The court may as an alternative disposition allow to the
parents or custodians an improvement period not to exceed twelve
months. During this period the parental rights shall not be
permanently terminated and the court shall require the parent to
rectify the conditions upon which the determination was based. No
more than one such post-dispositional improvement period may be
granted. The court may order the child to be placed with the
parents, a relative, the state department or other appropriate
placement during the period. At the end of the period the court
shall hold a hearing to determine whether the conditions have been adequately improved, and at the conclusion of such hearing, shall
make a further dispositional order in accordance with this section.
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, 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 child welfare: 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.
§49-6A-9. Establishment of child protective services; general
duties and powers; cooperation of other state agencies.
(a) The state department of child welfare shall establish or
designate in every county a local regional child protective
services office offices to perform the duties and functions set
forth in this article.
(b) The local child protective service office shall
investigate all reports of child abuse or neglect: Provided, That
under no circumstances shall investigating personnel be relatives
of the accused, the child or the families involved. In accordance
with the local regional 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 regional child protective service
office 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 commission or director 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 provision of
appropriate and available services.
Each local regional child protective service office 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 state 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. As a part of this response,
within fourteen days, there shall be: A face-to-face interview
with the child or children, and the development of a protection
plan, if necessary, for the safety or health of the child, which
plan may involve law-enforcement officers or the court judicial
system;
(4) Respond immediately to all allegations of imminent danger
to the physical well-being of the child or of serious physical
abuse. As a part of this response, within seventy-two hours, there
shall be: A face-to-face interview with the child or children; and
the development of a protection plan which may involve
law-enforcement officers or the court; and
(5) In addition to any other requirements imposed by this
section, when any matter regarding child custody is pending, the
circuit court or family law master may shall refer allegations of
child abuse and neglect to the local child protective service for
investigation of the allegations as defined by this chapter and
require the local child protective service office to submit a
written report of the investigation to the referring circuit court
or family law master within the time frames set forth by the
circuit court or family law master.
(c) In those cases in which the local child protective service
office determines that the best interests of the child require
court judicial action, the local child protective service shall
initiate the appropriate legal proceeding.
(d) The local child protective service office 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 effectuate 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 a child protective service plan shall, upon
request, provide to the local child protective service such
assistance and information as will enable it to fulfill its
responsibilities.
ARTICLE 6D. WEST VIRGINIA CHILD PROTECTIVE SERVICES ACT.
§49-6D-3. Family case plans for parents of abused or neglected
children.
(a) Within the limits of funds available, the state department
of human services shall develop a family case plan for every family
wherein a person has been referred to the department 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 department for
supervision and treatment following a determination by a court that
a parent, guardian or custodian in such family has abused or
neglected a child. The department may also prepare a family case
plan for any person who voluntarily seeks child abuse and neglect
services from the department, or who is referred to the department
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 department 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 departmental 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 department 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 department, and shall be available to counsel for
the parent, guardian, or custodian and counsel for the child or
children. The department 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 shall be 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 department 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 department
shall prepare, as an appendix to the family case plan, an expanded
"worker's case plan." As utilized by the department 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 department 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 shall not be made available to the
court or to persons outside of the department, but shall be used by
the department 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
commissioner director of the state department of human 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 department
shall, to the extent feasible, ensure that parental organizations
combating child abuse and neglect receive preferential treatment.
ARTICLE 7. GENERAL PROVISIONS.
§49-7-24. Rules and regulations under chapter.
The secretary director of the state department of health and
human resources shall propose for promulgation child welfare shall
promulgate legislative rules in accordance with the provisions of chapter twenty-nine-a of this code to implement the provisions of
this chapter.
§49-7-26. Duty of prosecuting attorney.
The prosecuting attorney shall render to the state department
of child welfare, without additional compensation, such legal
services as the department may require may be required by this
chapter. This section shall not be construed to prohibit the
department from developing plans for cooperation with courts,
prosecuting attorneys, and other law-enforcement officials in such
a manner as to permit the state and its citizens to obtain maximum
fiscal benefits under federal laws, rules and regulations.
§49-7-29. General provisions to read uniform court orders
regarding custody; promulgation of rules.
The supreme court shall, in consultation with the state
department of health and human resources of child welfare, develop
and cause to be implemented, as soon as practicable but no later
than the first day of September, one thousand nine hundred ninety-
two ninety-six, forms for court orders which are consistent with
the provision of chapter forty-nine of this code as well as the
provisions of Title l42 U.S.C. Section 620, et seq., and Title 42
U.S.C. Section 670, et seq., relating to the promulgation of uniform court orders for placement of minor children and the
regulations promulgated thereunder, for the use in the magistrate
and circuit courts of the state.
NOTE: Articles 9, 9A and 9B, chapter 9 and article 1A, chapter
49 are new; therefore strike throughs and underlining have been
omitted.