H. B. 2789
(By Delegates Fleischauer,
Staton, Webster,
Hrutkay, Fragale, Amores and Palumbo
)
[Introduced January 30, 2003
; referred to the
Committee on the Judiciary then Finance.]
A BILL to amend and reenact sections seven and twenty-one, article
five, chapter forty-nine of the code of West Virginia, one
thousand nine hundred thirty-one, as amended; to further amend
said article by adding thereto a new section, designated
section sixteen-b; to amend and reenact section three, article
five-d of said chapter; to further amend said article by
adding thereto a new section, designated section three-a; and
to amend and reenact sections twenty-nine and thirty, article
seven of said chapter, all relating to child welfare and
juvenile justice; requiring notice of certain proceedings to
the department of health and human resources and the division
of juvenile services; providing for greater involvement of
multidisciplinary teams; providing that quarterly judicial
reviews be continued while child remains in custody; providing
for when offenses are committed while in custody; providing
for recommended court orders; requiring that recommended service plans be considered; requiring written findings when
order deviates from treatment team's recommended plan;
affording notice and opportunity to object; requiring the
supreme court of appeals to develop uniform court orders in
consultation with the department of health and human resources
and the division of juvenile services; and providing that
foster care services do not constitute a behavioral health
care facility or behavioral health care service.
Be it enacted by the Legislature of West Virginia:
That sections seven and twenty-one, article five, chapter
forty-nine of the code of West Virginia, one thousand nine hundred
thirty-one, as amended, be amended and reenacted; that said article
be further amended by adding thereto a new section, designated
section sixteen-b; that section three, article five-d of said
chapter be amended and reenacted; that said article be further
amended by adding thereto a new section, designated section
three-a; and that sections twenty-nine and thirty, article seven of
said chapter be amended and reenacted, all to read as follows:
ARTICLE 5. JUVENILE PROCEEDINGS.
§49-5-7. Institution of proceedings by petition; notice to
juvenile and parents; subpoena.
(a) (1) A petition alleging that a juvenile is a status
offender or a juvenile delinquent may be filed by a person who has
knowledge of or information concerning the facts alleged. The petition shall be verified by the petitioner, shall set forth the
name and address of the juvenile's parents, guardians or
custodians, if known to the petitioner, and shall be filed in the
circuit court in the county where the alleged status offense or act
of delinquency occurred: Provided, That any proceeding under this
chapter may be removed, for good cause shown, in accordance with
the provisions of section one, article nine, chapter fifty-six of
this code. The petition shall contain specific allegations of the
conduct and facts upon which the petition is based, including the
approximate time and place of the alleged conduct; a statement of
the right to have counsel appointed and consult with counsel at
every stage of the proceedings; and the relief sought.
(2) Upon the filing of the petition, the court shall set a
time and place for a preliminary hearing as provided in section
nine of this article and may appoint counsel. A copy of the
petition and summons may be served upon the respondent juvenile by
first class mail or personal service of process. If a juvenile
does not appear in response to a summons served by mail, no further
proceeding may be held until the juvenile is served a copy of the
petition and summons by personal service of process. If a juvenile
fails to appear in response to a summons served in person upon him
or her, an order of arrest may be issued by the court for that
reason alone.
(b) The parents, guardians or custodians shall be named in the petition as respondents, and shall be served with notice of the
proceedings in the same manner as provided in subsection (a) of
this section for service upon the juvenile and required to appear
with the juvenile at the time and place set for the proceedings
unless such respondent cannot be found after diligent search. If
any such respondent cannot be found after diligent search, the
court may proceed without further requirement of notice: Provided,
That the court may order service by first class mail to the last
known address of such respondent. The respondent shall be afforded
fifteen days after the date of mailing to appear or answer.
(c) The court or referee may order the issuance of a subpoena
against the person having custody and control of the juvenile
ordering him or her to bring the juvenile before the court or
referee.
(d) When any case of a juvenile charged with the commission of
a crime is certified or transferred to the circuit court, the court
or referee shall forthwith cause the juvenile and his or her
parents, guardians or custodians to be served with a petition, as
provided in subsections (a) and (b) of this section. In the event
the juvenile is in custody, the petition shall be served upon the
juvenile within ninety-six hours of the time custody began, and if
the petition is not served within that time, the juvenile shall be
released forthwith.
(e) The clerk of the court shall promptly notify the local office of the department of health and human resources of all
proceedings under this article, which shall then be responsible for
convening and directing the multidisciplinary treatment planning
process in accordance with article five-d of this chapter.
§49-5-16b. Conviction for offense while in custody.
Notwithstanding any other provision of law to the contrary,
any person who is eighteen years old or older who is convicted of
an offense that he or she committed while in the custody of the
division of juvenile services and who is therefor sentenced to the
regional jail, shall not be returned to the custody of the division
upon the completion of his or her sentence.
§49-5-21. Quarterly judicial review of juvenile proceedings.
For cases under this article in which the provisions of
section three, article five-d of this chapter apply, the court
wherein the juvenile proceeding is pending shall conduct regular
judicial review of the case with the multidisciplinary treatment
team and a juvenile probation officer in attendance. Such judicial
review may be conducted as often as is considered necessary by the
court, but shall be conducted at least once every three calendar
months until the case is wholly resolved and finally dismissed from
the docket of the court so long as the child remains in the legal
or physical custody of the state.
In conducting the judicial review required by this section,
the court shall address the extent of progress in the case, treatment and service needs, permanent placement planning for the
juvenile, any uncontested issues and any other matters that the
court considers pertinent. An order reflecting the matters
considered, any uncontested rulings and the scheduling of an
evidentiary hearing on any contested issue shall be issued by the
court within ten judicial days of the judicial review.
ARTICLE 5D. MULTIDISCIPLINARY TEAMS.
§49-5D-3. Multidisciplinary treatment planning process.
(a) (1) 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 department with advice and assistance from the
prosecutor's advisory council as set forth in section four, article
four, chapter seven of this code.
(2) Treatment teams shall assess, plan and implement a
comprehensive, individualized service plan for children who are
victims of abuse or neglect and their families when a judicial
proceeding has been initiated involving the child or children and
for juveniles and their families involved in status offense or
delinquency proceedings when, in a status offense proceeding, the
court refers the juvenile for services pursuant to sections eleven
and eleven-a, article five of this chapter, and when, in a
delinquency proceeding, the court is considering placing the juvenile in the department's custody and/or placing the juvenile
out-of-home at the department's expense, pursuant to section
thirteen of said article. In any such status offense or
delinquency case, the juvenile probation officer shall notify the
local office of the department of health and human resources and
the division of juvenile services no less than five days before the
court proceeding in order to allow the multidisciplinary treatment
team to convene, assess, and develop a comprehensive individualized
service plan for the child: Provided, That such notice is not
required in cases where the child is already in state custody or
there exist exigent circumstances which justify taking the child
immediately into custody without a judicial proceeding.
(3) Prior to disposition, in each case in which a treatment
planning team is convened, the team shall advise the court as to
the types of services needed and as to the type of placement, if
any, which will best serve the needs of the child.
(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 his or her
participation is otherwise appropriate, as determined by the team,
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. In delinquency or status
offenses cases, the juvenile shall be present for all
multidisciplinary treatment team meetings, unless good cause is
shown for his or her absence. For purposes of delinquency
proceedings, the juvenile probation officer shall be a member of
the treatment team.
(c) The treatment team shall coordinate their its 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.
§49-5D-3a.Dispositional orders.
In ordering the disposition of any child for which a
multidisciplinary treatment team has recommended an individualized
service plan pursuant to section three of this article, the court
shall specify the types of services that are to be provided to the
child. If the court orders that the child be removed from the
home, the child shall be remanded to the custody of the
commissioner of the bureau for children and families within the
department of health and human resources, or to the director of the
division of juvenile services, for appropriate placement.
ARTICLE 7. GENERAL PROVISIONS.
§49-7-29. General provisions relating to court orders regarding
custody; promulgation of rules.
In order to ensure that full due process is accorded to
children involved in the child welfare and juvenile justice systems
of the state and to maximize the use of available federal funding
and minimize the need for state funding for out-of-home placements
for such children, the supreme court of appeals shall, in
consultation with the department of health and human resources and
the division of juvenile services, develop and cause to be
implemented, as soon as practicable but no later than the first day
of September, one thousand nine hundred ninety-nine July, two
thousand three, forms for court orders which are consistent with
the provision of chapter forty-nine of this code, including provisions for authorizing disclosure and transfer of juvenile
records between agencies while requiring maintenance of
confidentiality, 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
use in the magistrate and circuit courts of the state.
§49-7-30. Certificate of need not required.
(a) A certificate of need, as provided for in article two-d,
chapter sixteen of this code, is not required by an entity
proposing behavioral health care facilities or behavioral health
care services for children who are placed out of their home, or who
are at imminent risk of being placed out of their home, if a
summary review is performed in accordance with the provisions of
this section.
(b) A summary review of proposed health care facilities or
health care services for children who are placed out of their home,
or who are at imminent risk of being placed out of their home, is
initiated when the proposal is recommended to the health care cost
review authority by the secretary of the department of health and
human resources, and the secretary has made the following findings:
(1) That the proposed facility or service is consistent with
the state health plan;
(2) That the proposed facility or service is consistent with
the department's programmatic and fiscal plan for behavioral health services for children with mental health and addiction disorders;
(3) That the proposed facility or service contributes to
providing services that are child and family driven, with priority
given to keeping children in their own homes;
(4) That the proposed facility or service will contribute to
reducing the number of child placements in out-of-state facilities
by making placements available in in-state facilities;
(5) That the proposed facility or service contributes to
reducing the number of child placements in in-state or out-of-state
facilities by returning children to their families, placing them in
foster care programs, or making available school-based and
out-patient services; and
(6) If applicable, that the proposed services will be
community-based, locally accessible, and provided in an appropriate
setting consistent with the unique needs and potential of each
child and his or her family.
(c) The secretary's findings required by subsection (b) of
this section shall be filed with the secretary's recommendation and
appropriate documentation. If the secretary's findings are
supported by the accompanying documentation, the proposal shall not
require a certificate of need.
(d) Any entity that does not qualify for summary review shall
be subject to certificate of need review.
(e) Notwithstanding any other provision of law to the
contrary, the provision of regular or therapeutic foster care services does not constitute a behavioral health care facility or
a behavioral health care service that would subject it to the
summary review procedure established in this section or to the
certificate of need requirements provided in article two-d, chapter
sixteen of this code.
NOTE: The purpose of this bill is to strengthen the
multidisciplinary treatment team process used for children involved
in the court system.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.
§49-5-16b and §49-5D-3a are new; therefore, strike-throughs
and underscoring have been omitted.
This bill is recommended for passage in the 2003 Regular
Session by the Legislative Task Force on Juvenile Foster Care,
Detention and Placement.