HB2263 S JUDICIARY AM #1

Lovell 7908

            The Committee on the Judiciary moved to amend the bill by striking out everything after the enacting section and inserting in lieu thereof the following:

ARTICLE 4. CHILDREN WITH SPECIAL HEALTH CARE NEEDS.

§49-4-501. Prosecuting attorney representation of the Department of Health and Human Resources; conflict resolution.

            (a) The prosecuting attorney shall render to the Department of Health and Human Resources, without additional compensation, the legal services as the department may require. This section shall not be construed to does not prohibit the department from developing plans for cooperation with courts, prosecuting attorneys, and other law-enforcement officials in a manner as to permit the state and its citizens to obtain maximum fiscal benefits under federal laws, rules and regulations.

            (b) The relationship between a prosecuting attorney and the Department of Health and Human Resources created by this section shall not be construed to limit the authority of a prosecuting attorney to file or decline to file an abuse or neglect petition or to take a position inconsistent with that of an individual representation of the department in the prosecuting attorney’s capacity as chief law-enforcement officer of the county with a duty independent of the attorney client relationship with the department to protect the interests of children in such cases.

            (c) Whenever, pursuant to this article, a prosecuting attorney acts as counsel for the Department of Health and Human Resources in a child abuse or child neglect matter, and a dispute arises between the prosecuting attorney and the department's representative because an action proposed by the other is believed to place the child at imminent risk of abuse or serious neglect or is believed not to be in the child’s best interests, either the prosecuting attorney or and the department's representative may shall contact the secretary of the department and the executive director of the West Virginia Prosecuting Attorneys Institute for prompt mediation and resolution. The secretary may designate either his or her general counsel or the director of social services to act as his or her designee and the executive director may designate an objective prosecuting attorney as his or her designee.

            (d) Should the mediation required by the provisions of subsection (c) of this section fail to resolve the dispute, the prosecuting attorney may seek to withdraw from the matter or the department may seek the prosecuting attorney’s withdrawal and request that the court enter an order substituting counsel through the Prosecuting Attorney’s Institute. If the Prosecuting Attorney’s Institute is unable to provide substitute counsel, the department may utilize the services of an assistant attorney general. Where the dispute involves whether or not a petition should be filed and the prosecuting attorney opposes filing such petition and mediation results in the petition being filed or the department files the petition without the services of the prosecuting attorney, the department may seek substitution of counsel as set forth in this subsection or may elect to have the prosecuting attorney who opposed the filing of the petition represent its interests.

            (e) Nothing in this section shall be construed to limit the ability of a prosecuting attorney who has withdrawn from a matter pursuant to this section, with the approval of the presiding court, from being reinstated as counsel at any point in the proceeding or remaining in the case to advise the court of the state’s positions on matters arising in the case.

            (f) Nothing in this section shall be deemed to prohibit a prosecuting attorney and the department from entering into an agreement regarding the handling of child abuse and neglect matters in a particular county or through a state-wide agreement.

            (g) The attorney-client relationship established by this section exists between the prosecuting attorney and the Department of Health and Human Services, not individual representatives of the department.

§49-4-502. Prosecuting attorney to cooperate with persons other than the department in child abuse and neglect matters; duties.

            It is the duty of every prosecuting attorney to fully and promptly cooperate with persons seeking to apply for relief, including copetitioners with the department, under this article in all cases of suspected child abuse and neglect; to promptly prepare applications and petitions for relief requested by those persons, to investigate reported cases of suspected child abuse and neglect for possible criminal activity; and to report at least annually to the grand jury regarding the discharge of his or her duties with respect thereto.

Adopted

Rejected