H. B. 4481
(By Delegate Cowles)
[Introduced
February 12, 2010
; referred to the
Committee on the Judiciary then Finance.]
A BILL to amend the Code of West Virginia, 1931, as amended, be
adding thereto a new article, designated §49-10-1, §49-10-2,
§49-10-3, §49-10-4, §49-10-5, §49-10-6, §49-10-7 and §49-10-8,
all relating to creating the position of child advocate to
protect children; legislative findings; definitions; powers
and duties of a child advocate; discrimination and retaliation
for reporting; and Child Advocacy Committee.
Be it enacted by the Legislature of West Virginia:
That the Code of West Virginia, 1931, as amended, be amended
by adding thereto a new article, designated §49-10-1, §49-10-2,
§49-10-3, §49-10-4, §49-10-5, §49-10-6, §49-10-7 and §49-10-8, all
to read as follows:
ARTICLE 10. CHILD ADVOCATE FOR THE PROTECTION OF CHILDREN.
§49-10-1. Short title.
This article shall be known and may be cited as the "West Virginia Child Advocate for the Protection of Children Act."
§49-10-2. Legislative findings.
The mission of protection of the children of this state should
have the greatest legislative and executive priority. Recognizing
that the needs of children must be attended to in a timely manner
and that more aggressive action should be taken to protect children
from abuse and neglect, the Legislature creates the Office of the
Child Advocate for the Protection of Children to provide
independent oversight of persons, organizations, and agencies
responsible for providing services to or caring for children who
are victims of child abuse and neglect, or whose domestic situation
requires intervention by the state. The Office of the Child
Advocate for the Protection of Children will provide children with
an avenue through which to seek relief when their rights are
violated by state officials and agents entrusted with their
protection and care.
§49-10-3. Definitions.
As used in this article, the term:
(a) "Advocate" or "child advocate" means the Child Advocate
for the Protection of Children established under code.
(b) "Agency" shall have the same meaning and application as
Department or Department of Health and Human Resources.
(c) "Child" or "children" means an individual receiving
protective services from the division, for whom the division has an
open case file, or who has been, or whose siblings, parents, or other caretakers have been the subject of a report to the division
within the previous five years.
(d) "Department" means the Department of Human Resources.
(e) "Division" means the Division of Family and Children
Services of the Department of Human Resources.
§49-10-4. Office of the Child Advocate for the Protection of
Children
.
(a) There is created the Office of the Child Advocate for the
Protection of Children. The Governor, by executive order, shall
create a nominating committee which shall consider nominees for
the position of the advocate and shall make a recommendation to the
Governor. Such person shall have knowledge of the child welfare
system, the juvenile justice system, and the legal system and shall
be qualified by training and experience to perform the duties of
the office as set forth in this article.
(b) The advocate shall be appointed by the Governor from a
list of at least three names submitted by the nominating committee
for a term of three years and until his or her successor is
appointed and qualified and may be reappointed. The salary of the
advocate shall not be less than $60,000.00 per year, shall be fixed
by the Department of Administration, and shall come from funds
appropriated for the purposes of the advocate.
(c) The Office of the Child Advocate for the Protection of
Children shall be assigned to the Department of Administration for
administrative purposes only.
(d) The advocate may appoint such staff as may be deemed
necessary to effectively fulfill the purposes of this article,
within the limitations of the funds available for the purposes of
the advocate. The duties of the staff may include the duties and
powers of the advocate if performed under the direction of the
advocate. The advocate and his or her staff shall receive such
reimbursement for travel and other expenses as is normally allowed
to state employees, from funds appropriated for the purposes of the
advocate.
(e) The advocate shall have the authority to contract with
experts in fields including, but not limited to, medicine,
psychology, education, child development, juvenile justice, mental
health, and child welfare, as needed to support the work of the
advocate, utilizing funds appropriated for the purposes of the
advocate.
(f) Notwithstanding any other provision of state law, the
advocate shall act independently of any state official, department,
or agency in the performance of his or her duties.
§49-10-5. Duties of the child advocate.
The advocate shall perform the following duties:
(a) Identify, receive, investigate, and seek the resolution or
referral of complaints made by or on behalf of children concerning
any act, omission to act, practice, policy, or procedure of an
agency or any contractor or agent thereof that may adversely affect
the health, safety, or welfare of the children;
(b) Refer complaints involving abused children to appropriate
regulatory and law-enforcement agencies;
(c) Report the death of any child to the chairperson of the
child fatality review subcommittee of the county in which such
child resided at the time of death, unless the advocate has
knowledge that such death has been reported by the county medical
examiner or coroner, and to provide such subcommittee access to any
records of the advocate relating to such child;
(d) Provide periodic reports on the work of the Office of the
Child Advocate for the Protection of Children, including, but not
limited to, an annual written report for the Governor and the
Legislature and other persons, agencies, and organizations deemed
appropriate. Such reports shall include recommendations for changes
in policies and procedures to improve the health, safety, and
welfare of children and shall be made expeditiously in order to
timely influence public policy;
(e) Establish policies and procedures necessary for the Office
of the Child Advocate for the Protection of Children to accomplish
the purposes of this article including, without limitation,
providing the division with a form of notice of availability of
the Office of the Child Advocate for the Protection of Children.
Such notice shall be posted prominently, by the division, in
division offices and in facilities receiving public moneys for the
care and placement of children and shall include information
describing the Office of the Child Advocate for the Protection of Children and procedures for contacting that office; and
(f) Convene quarterly meetings with organizations, agencies,
and individuals who work in the area of child protection to seek
opportunities to collaborate and improve the status of children in
West Virginia.
§49-10-6. Powers of the child advocate.
The advocate shall have the following rights and powers:
(a) To communicate privately, by mail or orally, with any
child and with each child's parent or guardian;
(b) To have access to all records and files of the division
concerning or relating to a child, and to have access, including
the right to inspect, copy, and subpoena records held by clerks of
the various courts, law-enforcement agencies, service providers,
including medical and mental health, and institutions, public or
private, with whom a particular child has been either voluntarily
or otherwise placed for care or from whom the child has received
treatment within the state. To the extent any such information
provides the names and addresses of individuals who are the subject
of any confidential proceeding or statutory confidentiality
provisions, such names and addresses or related information which
has the effect of identifying such individuals shall not be
released to the public without the consent of such individuals;
(c) To enter and inspect any and all institutions, facilities,
and residences, public and private, where a child has been placed
by a court or the division and is currently residing. Upon entering such a place, the advocate shall notify the administrator
or, in the absence of the administrator, the person in charge of
the facility, before speaking to any children. After notifying the
administrator or the person in charge of the facility, the advocate
may communicate privately and confidentially with children in the
facility, individually or in groups, or the advocate may inspect
the physical plant. To the extent possible, entry and
investigation provided by this code section shall be conducted in
a manner which will not significantly disrupt the provision of
services to children;
(d) To apply to the Governor to bring legal action in the
nature of a writ of mandamus or application for injunction pursuant
to West Virginia Code to require an agency to take or refrain from
taking any action required or prohibited by law involving the
protection of children;
(e) To apply for and accept grants, gifts, and bequests of
funds from other states, federal and interstate agencies,
independent authorities, private firms, individuals, and
foundations for the purpose of carrying out the lawful
responsibilities of the Office of the Child Advocate for the
Protection of Children;
(f) When less formal means of resolution do not achieve
appropriate results, to pursue remedies provided by this article on
behalf of children for the purpose of effectively carrying out the
provisions of this article; and
(g) To engage in programs of public education and legislative
advocacy concerning the needs of children requiring the
intervention, protection, and supervision of courts and state and
county agencies.
§49-10-7. Unlawful discrimination and retaliation.
No person shall discriminate or retaliate in any manner
against any child, parent or guardian of a child, employee of a
facility, agency, institution or other type of provider, or any
other person because of the making of a complaint or providing of
information in good faith to the advocate, or willfully interfere
with the advocate in the performance of his or her official duties.
Any person violating this subsection of this code section shall be
guilty of a misdemeanor.
§49-10-8. Child Advocate Advisory Committee.
(a) There is established a Child Advocate Advisory Committee.
The advisory committee shall consist of:
(1) One representative of a not-for-profit children's agency
appointed by the Governor;
(2) One representative of a for profit children's agency
appointed by the President of the Senate;
(3) One pediatrician appointed by the Speaker of the House of
Delegates;
(4) One social worker with experience and knowledge of child
protective services who is not employed by the state appointed by
the Governor;
(5) One psychologist appointed by the President of the Senate;
(6) One attorney appointed by the Speaker of the House of
Delegates from the Children and the Courts Committee of the State
Bar of West Virginia; and
(7) One judge appointed by the Chief Justice of the West
Virginia Supreme Court of Appeals.
Each member of the advisory committee shall serve a two-year
term until the appointment and qualification of such member's
successor.
Appointments to fill vacancies in such offices shall be filled
in the same manner as the original appointment.
(b) The advisory committee shall meet a minimum of three times
a year with the advocate and his or her staff to review and assess
the following:
(1) Patterns of treatment and service for children;
(2) Policy implications; and
(3) Necessary systemic improvements.
The advisory committee shall also provide for an annual
evaluation of the effectiveness of the Office of the Child Advocate
for the Protection of Children.
NOTE: The purpose of this bill is add language to West
Virginia Code to provide a child advocate for the protection of
children.
This article is new; therefore, it has been completely underscored.