WEST virginia legislature
2016 regular session
Introduced
Senate Bill 99
By Senators Miller, Woelfel, Romano, Facemire, Beach, Snyder and Laird
[Introduced January 13,
2016;
Referred to the Committee on the Judiciary; and then to the Committee on
Finance.]
A BILL to amend and reenact §29-21-13a of the Code of West Virginia, 1931, as amended; and to amend and reenact §49-6-2 of said code, all relating to compensation and expenses for attorneys appointed by circuit courts in child abuse and neglect proceedings.
Be it enacted by the Legislature of West Virginia:
That §29-21-13a of the Code of West Virginia, 1931, as amended, be amended and reenacted; and that §49-6-2 of said code be amended and reenacted, all to read as follows:
Chapter 29. MISCELLANEOUS BOARDS AND OFFICERS.
ARTICLE 21. PUBLIC DEFENDER SERVICES.
§29-21-13a. Compensation and expenses for panel attorneys.
(a) All Panel
attorneys shall maintain detailed and accurate records of the time expended and
expenses incurred on behalf of eligible clients and upon completion of each
case, exclusive of appeal, shall submit to the appointing court a voucher for
services. Claims for fees and expense reimbursements shall be submitted to the
appointing court on forms approved by the executive director. The executive
director shall establish guidelines for the submission of vouchers and claims
for fees and expense reimbursements under this section. Claims submitted more
than ninety calendar days after the last date of service shall be are
rejected unless, for good cause, the appointing court authorizes, in writing,
an extension. Provided, That Claims where the last date of
service occurred prior to July 1, 2008, shall be are rejected
unless submitted prior to January 2, 2009.
The appointing court shall review the voucher to determine if the time and expense claims are reasonable, necessary and valid and shall forward the voucher to the agency with an order approving payment of the claimed amount or of a lesser sum the court considers appropriate.
(b) Notwithstanding any other provision of this section to the contrary, Public Defender Services may pay by direct bill, prior to the completion of the case, litigation expenses incurred by attorneys appointed under this article.
(c) Notwithstanding any
other provision of this section to the contrary, a panel attorney may be
compensated for services rendered and reimbursed for expenses incurred prior to
the completion of the case where: (1) More than six months have expired since
the commencement of the panel attorney's representation in the case; and (2) no
prior payment of attorney fees has been made to the panel attorney by Public
Defender Services during the case. The executive director in his or her
discretion, may authorize periodic payments where ongoing representation
extends beyond six months in duration. The amounts of any fees or
expenses paid to the panel attorney on an interim basis, when combined with any
amounts paid to the panel attorney at the conclusion of the case, shall may
not exceed the limitations on fees and expenses imposed by this section.
(d) In each case in which a panel attorney provides legal representation under this article, and in each appeal after conviction in circuit court, the panel attorney shall be compensated at the following rates for actual and necessary time expended for services performed and expenses incurred subsequent to the effective date of this article:
(1) For attorney's work
performed out of court, compensation shall be at the rate of $45 per hour
is $45 per hour except that those attorneys who are appointed to represent
parties in child abuse and neglect proceedings under article six, chapter
forty-nine of this code are compensated at the rate of $75 per hour for work
performed out of court or not attending multidisciplinary training, upon
certification of training required under section two, article six, chapter
forty-nine of this code. For paralegal's work performed out of court for
the attorney, compensation shall be at the rate of the paralegal's regular
compensation on an hourly basis or, if salaried, at the hourly rate of
compensation which would produce the paralegal's current salary but in no event
shall the compensation exceed $20 per hour. Out-of-court work includes, but is
not limited to, travel, interviews of clients or witnesses, preparation of
pleadings and prehearing or pretrial research.
(2) For attorney's work
performed in court, compensation shall be at the rate of is $65
per hour. No compensation for paralegal's work performed in court shall be
allowed. In-court work includes, but is not limited to, all time spent awaiting
hearing or trial before a judge, magistrate, special master or other judicial
officer. Attorneys who are appointed to represent parties in child abuse and
neglect proceedings under article six, chapter forty-nine of this code are
compensated at the rate of $95 per hour for work performed in court or
attending multidisciplinary training, upon certification of training required
under section two, article six, chapter forty-nine of this code.
(3) The maximum amount of compensation for out-of-court and in-court work under this subsection is, as follows:
(A) For proceedings of any kind involving felonies for which a penalty of life imprisonment may be imposed, the amount as the court may approve;
(B) For child abuse and neglect proceedings the maximum amount is $5,000 unless the court, for good cause shown, approves payment of a larger sum;
(C) For all other eligible proceedings, three thousand
dollars proceedings, the maximum amount is $3,000 unless the court,
for good cause shown, approves payment of a larger sum.
(e) Actual and necessary
expenses incurred in providing legal representation for proceedings of any kind
involving felonies for which a penalty of life imprisonment may be imposed
including, but not limited to, expenses for travel, transcripts, salaried or
contracted investigative services and expert witnesses, shall be are
reimbursed in an amount as the court may approve. For all other eligible
proceedings, actual and necessary expenses incurred in providing legal
representation including, but not limited to, expenses for travel, transcripts,
salaried or contracted investigative services and expert witnesses, shall be
are reimbursed to a maximum of $1,500 unless the court, for good cause
shown, approves reimbursement of a larger sum.
Expense vouchers shall
specifically set forth the nature, amount and purpose of expenses incurred and shall
provide receipts, invoices or other documentation required by the executive
director and the State Auditor:
(1) (A) Reimbursement of expenses for production of transcripts of proceedings reported by a court reporter is limited to the cost per original page and per copy page as set forth in section four, article seven, chapter fifty-one of this code.
(B) (i) There shall be
is no reimbursement of expenses for or production of a transcript of a
preliminary hearing before a magistrate or juvenile referee or of a magistrate
court trial where such the hearing or trial has also been
recorded electronically in accordance with the provisions of section eight,
article five, chapter fifty of this code or court rule.
(ii) Reimbursement of the
expense of an appearance fee for a court reporter who reports a proceeding
other than one described in subparagraph (i) of this paragraph, is limited to
$25. Where a transcript of a proceeding is produced, there shall be is
no reimbursement for the expense of any appearance fee.
(iii) Except for the
appearance fees provided in this paragraph, there shall be is no
reimbursement for hourly court reporters' fees or fees for other time expended
by the court reporter, either at the proceeding or traveling to or from the
proceeding.
(C) Reimbursement of the cost of transcription of tapes electronically recorded during preliminary hearings or magistrate court trials is limited to $1 per page.
(2) Reimbursement for any
travel expense incurred in an eligible a proceeding is limited to
the rates for the reimbursement of travel expenses established by rules
promulgated by the Governor pursuant to the provisions of section eleven,
article eight, chapter twelve of this code and administered by the Secretary of
the Department of Administration pursuant to the provisions of section
forty-eight, article three, chapter five-a of this code.
(3) Reimbursement for investigative services is limited to a rate of $30 per hour for work performed by an investigator.
(f) For purposes of
compensation under this section, an appeal from magistrate court to circuit
court, an appeal from a final order of the circuit court or a proceeding
seeking an extraordinary remedy made to the Supreme Court of Appeals shall
be is considered a separate case.
(g) Vouchers submitted under this section shall specifically set forth the nature of the service rendered, the stage of proceeding or type of hearing involved, the date and place the service was rendered and the amount of time expended in each instance. All time claimed on the vouchers shall be itemized to the nearest tenth of an hour. If the charge against the eligible client for which services were rendered is one of several charges involving multiple warrants or indictments, the voucher shall indicate the fact and sufficiently identify the several charges so as to enable the court to avoid a duplication of compensation for services rendered. The executive director shall refuse to requisition payment for any voucher which is not in conformity with the record keeping, compensation or other provisions of this article or the voucher guidelines established issued pursuant to subsection (a) of this section and in such circumstance shall return the voucher to the court or to the service provider for further review or correction.
(h) Vouchers submitted under this section after July 1, 2008, shall be reimbursed within ninety days of receipt. Reimbursements after ninety days shall bear interest from the ninety-first day at the legal rate in effect for the calendar year in which payment is due.
(i) Vouchers submitted for fees and expenses involving child abuse and neglect cases shall be processed for payment before processing vouchers submitted for all other cases.
CHAPTER 49. CHILD WELFARE
ARTICLE 6. PROCEDURE IN CASES OF CHILD NEGLECT OR ABUSE.
§49-6-2. Petition to court when child believed neglected or abused -- Right to counsel; improvement period; hearing; priority of proceeding; transcript.
(a) In any proceeding under
the provisions of this article, the child, his or her or parents and his or her
legally established custodian or other persons standing in loco parentis to him
or her shall have has the right to be represented by counsel at
every stage of the proceedings and shall be informed by the court of their
right to be so represented and that if they cannot pay for the services
of counsel, that counsel will be appointed. Counsel of the child shall
be appointed in the initial order. If the order gives physical custody of the
child to the state, the initial order shall appoint counsel for the parents or,
if the parents are separated or divorced, the parents or parent or other person
or persons standing in loco parentis who had physical custody of the child for
the majority of the time in the period immediately preceding the petition. Provided,
That such representation shall only continue This representation
continues after the first appearance if the parent or other persons
standing in loco parentis cannot pay for the services of counsel. Counsel for
other parties shall only be appointed upon request for appointment of
counsel be appointed upon request. If the requesting parties have
not retained counsel and cannot pay for the services of counsel, the court
shall, by order entered of record, appoint an attorney or attorneys to
represent the other party or parties and so inform the parties. Under no
circumstances may the same attorney represent both the child and the other
party or parties nor shall the same attorney represent both parents or
custodians. However, One attorney may represent both parents or
custodians where both parents or guardians consent to this representation after
the attorney fully discloses to the client the possible conflict and where
the attorney assures the court that she or he is able to represent each client
without impairing her or his professional judgment. however If more than
one child from a family is involved in the proceeding, one attorney may
represent all the children. A parent who has been judicially determined to be
battered shall be is entitled to his or her own attorney. The
court may allow to each attorney so appointed a fee in the same amount which
appointed counsel can receive in felony cases. Effective July 1, 2012, any
an attorney appointed pursuant to this section shall receive a minimum
of eight hours of continuing legal education training per reporting period on
child abuse and neglect procedure and practice. In addition to this
requirement, after July 1, 2013, any an attorney appointed to
represent a child must first complete training on representation of children
that is approved by the administrative office of the Supreme Court of Appeals.
The Supreme Court of Appeals shall develop procedures for approval and
certification of training required under this section by July 1, 2012. Provided,
however, That Where no attorney who has completed this training
is available for such appointment, the court shall appoint a competent
attorney with demonstrated knowledge of child welfare law to represent the
parent or child. Any An attorney appointed pursuant to this
section shall perform all duties required as an attorney licensed to practice
law in the State of West Virginia.
(b) In any proceeding
brought pursuant to the provisions of this article, the court may grant any
a respondent an improvement period in accord with the provisions of this
article. During such the improvement period, the court may
require temporary custody with a responsible person which who has
been found to be a fit and proper person for the temporary custody of the child
or children or the state department or other agency during the improvement
period. An order granting such an improvement period shall
require requires the department to prepare and submit to the court a
family case plan in accordance with the provisions of section three, article
six-d of this chapter.
(c) In any proceeding
pursuant to the provisions of this article, the party or parties having
custodial or other parental rights or responsibilities to the child shall be
afforded a meaningful opportunity to be heard including the opportunity to
testify and to present and cross-examine witnesses. The petition shall not be
taken as confessed. A transcript or recording shall be made of all proceedings
unless waived by all parties to the proceeding. The rules of evidence shall
apply. Where relevant, the court shall consider the efforts of the state
department to remedy the alleged circumstances. At the conclusion of the
hearing, the court shall make a determination based upon the evidence and shall
make findings of fact and conclusions of law as to whether such child is abused
or neglected and, if applicable, whether the parent, guardian, or custodian is
a battered parent, all of which shall be incorporated into the order of the
court. The findings must be based upon conditions existing at the time of the
filing of the petition and proven by clear and convincing proof.
(d) Any A
petition filed and any a proceeding held under the provisions of
this article shall, to the extent practicable, be given priority over any other
civil action before the court, except proceedings under article two-a, chapter
forty-eight of this code and actions in which trial is in progress. Any
A petition filed under the provisions of this article shall be docketed
immediately upon filing. Any A hearing to be held at the end of
an improvement period and any other hearing to be held during any proceedings
under the provisions of this article, shall be held as nearly as practicable on
successive days and, with respect to said the hearing to be
held at the end of an improvement period, shall be held as close in time as
possible after the end of said the improvement period and shall
be held within sixty days of the termination of such the
improvement period.
(e) Following the court's
determination, it shall be inquired of the parents or custodians whether or
not an appeal is desired and the response transcribed. A negative
response shall not be construed as is not a waiver. The evidence
shall be transcribed and made available to the parties or their counsel as soon
as practicable if the same is required for purposes of further
proceedings. If an indigent person intends to pursue further proceedings, the
court reporter shall furnish a transcript of the hearing without cost to the
indigent person if an affidavit is filed stating that he or she cannot pay
therefor.
NOTE: The purpose of this bill is to increase the hourly rate for attorneys who are appointed in child abuse and neglect matters from $45.00 to $75.00 an hour out of court and from $65.00 to $95.00 an hour in court.
Strike-throughs indicate language that would be stricken from a heading or the present law and underscoring indicates new language that would be added.