H. B. 2143


(By Delegate Gillespie)
[Introduced February 18, 1997; referred to the
Committee on the Judiciary.]




A BILL to amend and reenact section four, article six, chapter forty-nine of the code of West Virginia, one thousand nine hundred thirty-one, as amended, relating to preventing removal of a child from a home without judicial authorization; to require medical examinations on every child who is removed from a home.

Be it enacted by the Legislature of West Virginia:
That section four, article six, chapter forty-nine of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be amended and reenacted to read as follows:
ARTICLE 6. PROCEDURE IN CASES OF CHILD NEGLECT OR ABUSE.

§49-6-4. Medical and mental examinations.

(a) At any time during proceedings under this article the court may, upon its own motion or upon motion of the child or other parties, order the child or other parties to be examined by a physician, psychologist or psychiatrist, and may require testimony from such the expert, subject to cross-examination and the rules of evidence: Provided, That the court shall not terminate parental or custodial rights of a party solely because the party refuses to submit to the examination, nor shall the court hold such the party in contempt for refusing to submit to an examination. The physician, psychologist or psychiatrist shall be allowed to testify as to the conclusions reached from hospital, medical, psychological or laboratory records provided the same are produced at the hearing. The court by order shall provide for the payment of all such expert witnesses. If the child, parent or custodian is indigent, such witnesses shall be compensated out of the treasury of the state, upon certificate of the court wherein the case is pending. No evidence acquired as a result of any such examination of the parent or any other person having custody of the child may be used against such that parent or person in any subsequent criminal proceedings. against such person
(b) If a person with authority to file a petition under the provisions of this article shall have has probable cause to believe that evidence exists that a child has been abused or neglected and that such the evidence may be found by a medical examination, the person may apply to a circuit judge or juvenile referee for an order to take such the child into custody for delivery to a physician or hospital for examination. The application may be on forms prescribed by the supreme court of appeals or prepared by the prosecuting attorney or the applicant, and shall set forth facts from which it may be determined that probable cause exists for such belief. Upon such sworn testimony or other evidence as the judge or referee deems sufficient, the judge or referee may order any law enforcement officer to take the child into custody and deliver the child to a physician or hospital for examination. If a referee issues such an order the referee shall by telephonic communication have such an order orally confirmed by a circuit judge of the circuit or an adjoining circuit who shall on the next judicial day enter an order of confirmation. Any child welfare worker and the child's parents, guardians or custodians may accompany the officer for such the examination. After the examination the officer may return the child to the custody of his parent, guardian or custodian, retain custody of the child or deliver custody to the state department until the end of the next judicial day, at which time the child shall be returned to the custody of his or her parent, guardian or custodian unless a petition has been filed and custody of the child has been transferred to the department under the provisions of section three of this article. After the examination, the officer shall return the child immediately to the custody of his or her parent, guardian or custodian, unless the child protective service worker believes the child is in an emergency situation and takes the child into custody pursuant to section three-c of this article.
(c) If the child protective service worker believes the child is in an emergency situation and removes the child from his or her home without prior judicial authorization, immediately upon receiving judicial authorization, the child shall receive a medical examination. The examination shall be performed prior to the child's placement in another home environment, a foster home or other state institutional care. Any child welfare worker may accompany the child to the medical examination. The child's parents, guardians or legal custodians must be notified of the time and location of the medical examination and may accompany the child for the examination. The medical examination shall include an examination for sexual abuse if allegations of sexual abuse or misconduct are made. A copy of the medical examination findings shall be forwarded immediately to the judicial officer who ratified the emergency custody order. A copy of the medical examination findings shall be included in the petition for custody of the child.
(d) If the child protective services worker fails to obtain a medical examination of a child as required in subsection (c) of this section, a petition on behalf of that child presented to the court by that worker shall be considered by the court as premature and shall be dismissed.


NOTE: The purpose of this bill is to require that every child removed from a home must have a medical examination prior to placement in foster care or into another person's home or into an institution.

Strike-throughs indicate language that would be stricken from the present law, and underscoring indicates new language that would be added.