HB4344 S FIN AM #1 3-9
Johnson 7909
The Committee on Finance moved to amend the bill by striking out everything after the enacting clause and inserting in lieu thereof the following:
§49-2-125. Commission to Study Residential Placement of Children; findings; requirements; reports; recommendations.
[REPEALED]
§49-2-809. Reporting procedures.
(a) Reports of child abuse and neglect pursuant to this article shall be made immediately to the department of child protective services by a method established by the department: Provided, That if the method for reporting is web-based, the Department of Health and Human Resources shall maintain a system for addressing emergency situations that require immediate attention and shall be followed by a written report within 48 hours if so requested by the receiving agency. The state department shall establish and maintain a 24-hour, seven-day-a-week telephone number to receive calls reporting suspected or known child abuse or neglect: Provided, however, That any report of child abuse and neglect by a Chapter 30 licensed health care professional mandatory reporter shall automatically be considered as accepted by centralized intake and a referral for investigation will be made to the county wherein the abuse and neglect occurred.
(b) A copy of any report of serious physical abuse, sexual abuse, or assault shall be forwarded by the department to the appropriate law-enforcement agency, the prosecuting attorney, or the coroner or medical examiner’s office. All reports under this article are confidential. Reports of known or suspected institutional child abuse or neglect shall be made and received as all other reports made pursuant to this article.
ARTICLE 4. COURT ACTIONS.
§49-4-405. Multidisciplinary treatment planning process involving child abuse and neglect; team membership; duties; reports; admissions.
(a) Within 30 days of the initiation of a judicial
proceeding pursuant to part six, of this article §49-4-601 of this
code, the Department of Health and Human Services shall convene a multidisciplinary treatment team to assess, plan, and
implement a comprehensive, individualized service plan for children who are
victims of abuse or neglect and their families. The
circuit court shall set aside one day each month to enable multidisciplinary
treatment teams to meet. The multidisciplinary team shall obtain
and utilize any assessments for the children or the adult respondents that it
deems necessary to assist in the development of that plan.
(b) In a case initiated pursuant to part six of this
article §49-4-601 of this code , the treatment team consists
of:
(1) The child or family’s case manager in the Department of Health and Human Resources;
(2) The adult respondent or respondents;
(3) The child’s parent or parents, guardians, any co-petitioners, custodial relatives of the child, foster or preadoptive parents;
(4) Any attorney representing an adult respondent or other member of the treatment team;
(5) The child’s counsel or the guardian ad litem;
(6) The prosecuting attorney or his or her designee;
(7) A member of a child advocacy center when the child has been processed through the child advocacy center program or programs or it is otherwise appropriate that a member of the child advocacy center participate;
(8) Any court-appointed special advocate assigned to a case;
(9) Any other person entitled to notice and the right to be heard;
(10) An appropriate school official; and
(11) The managed care case coordinator; and
(11)(12) Any other person or agency
representative who may assist in providing recommendations for the particular
needs of the child and family, including domestic violence service providers.
The child may participate in multidisciplinary treatment team meetings if the child’s participation is deemed appropriate by the multidisciplinary treatment team. Unless otherwise ordered by the court, a party whose parental rights have been terminated and his or her attorney may not be given notice of a multidisciplinary treatment team meeting and does not have the right to participate in any treatment team meeting.
(c) Prior to disposition in each case which a treatment planning team has been convened, the team shall advise the court as to the types of services the team has determined are needed and the type of placement, if any, which will best serve the needs of the child. If the team determines that an out-of-home placement will best serve the needs of the child, the team shall first consider placement with appropriate relatives then with foster care homes, facilities or programs located within the state. The team may only recommend placement in an out-of-state facility if it concludes, after considering the best interests and overall needs of the child, that there are no available and suitable in-state facilities which can satisfactorily meet the specific needs of the child.
(d) The multidisciplinary treatment team shall submit written reports to the court as required by the rules governing this type of proceeding or by the court, and shall meet as often as deemed necessary but at least every three months until the case is dismissed from the docket of the court. The multidisciplinary treatment team shall be available for status conferences and hearings as required by the court.
(e) If a respondent or co-petitioner admits the underlying allegations of child abuse or neglect, or both abuse and neglect, in the multidisciplinary treatment planning process, his or her statements may not be used in any subsequent criminal proceeding against him or her, except for perjury or false swearing.
§49-4-601. Petition to court when child believed neglected or abused; venue; notice; right to counsel; continuing legal education; findings; proceedings; procedure.
(a) Petitioner and venue. — If the department or a reputable person believes that a child is neglected or abused, the department or the person may present a petition setting forth the facts to the circuit court in the county in which the child resides, or if the petition is being brought by the department, in the county in which the custodial respondent or other named party abuser resides, or in which the abuse or neglect occurred, or to the judge of the court in vacation. Under no circumstance may a party file a petition in more than one county based on the same set of facts.
(b) Contents of Petition. — The petition shall be verified by the oath of some credible person having knowledge of the facts. The petition shall allege specific conduct including time and place, how the conduct comes within the statutory definition of neglect or abuse with references to the statute, any supportive services provided by the department to remedy the alleged circumstances, and the relief sought. Each petition shall name as a party each parent, guardian, custodian, other person standing in loco parentis of or to the child allegedly neglected or abused and state with specificity whether each parent, guardian, custodian, or person standing in loco parentis is alleged to have abused or neglected the child.
(c) Court action upon filing of petition. — Upon
filing of the petition, the court shall set a time and place for a hearing and
shall appoint counsel for the child. When there is an order for temporary
custody pursuant to this article, the preliminary hearing shall be held within ten
10 days of the order continuing or transferring custody, unless a
continuance for a reasonable time is granted to a date certain, for good cause
shown.
(d) Department action upon filing of the petition. — At the time of the institution of any proceeding under this article, the department shall provide supportive services in an effort to remedy circumstances detrimental to a child.
(e) Notice of hearing. —
(1) The petition and notice of the hearing shall be served by the sheriff’s office, without additional compensation, upon both parents and any other guardian, custodian, or person standing in loco parentis, giving to the persons at least five days' actual notice of a preliminary hearing and at least ten days' notice of any other hearing.
(2) Notice shall be given to the department, any foster or pre-adoptive parent, and any relative providing care for the child.
(3) In cases where personal service within West Virginia cannot be obtained after due diligence upon any parent or other custodian, a copy of the petition and notice of the hearing shall be mailed to the person by certified mail, addressee only, return receipt requested, to the last known address of the person. If the person signs the certificate, service is complete and the certificate shall be filed as proof of the service with the clerk of the circuit court.
(4) If service cannot be obtained by personal service or
by certified mail, notice shall be by publication as a Class II legal
advertisement in compliance with article three, chapter fifty-nine
§59-3-1 et seq. of this code.
(5) A notice of hearing shall specify the time and place of the hearings, the right to counsel of the child, parents, and other guardians, custodians, and other persons standing in loco parentis with the child and the fact that the proceedings can result in the permanent termination of the parental rights.
(6) Failure to object to defects in the petition and notice may not be construed as a waiver.
(f) Right to counsel. —
(1) In any proceeding under this article, the child shall have counsel to represent his or her interests at all stages of the proceedings.
(2) The court’s initial order shall appoint counsel for the child, and for any parent, guardian, custodian, or other person standing in loco parentis with the child if such person is without retained counsel.
(3) The court shall, at the initial hearing in the matter, determine whether persons other than the child for whom counsel has been appointed:
(A) Have retained counsel; and
(B) Are financially able to retain counsel.
(4) A parent, guardian, custodian, or other person standing in loco parentis with the child who is alleged to have neglected or abused the child and who has not retained counsel and is financially unable to retain counsel beyond the initial hearing, shall be afforded appointed counsel at every stage of the proceedings.
(5) Under no circumstances may the same attorney represent both the child and another party. The same attorney may not represent more than one parent or custodian: Provided, That one attorney may represent both parents or custodians where both parents or custodians consent to this representation after the attorney fully discloses to the client the possible conflict and where the attorney advises the court that he or she is able to represent each client without impairing his or her professional judgment; if more than one child from a family is involved in the proceeding, one attorney may represent all the children.
(6) A parent who is a co-petitioner is entitled to his or her own attorney.
(7) The court may allow to each attorney appointed pursuant to this section a fee in the same amount which appointed counsel can receive in felony cases.
(8) The court shall, sua sponte or upon motion, appoint counsel to any unrepresented party if, at any stage of the proceedings, the court determines doing so is necessary to satisfy the requirements of fundamental fairness.
(g) Continuing education for counsel. — Any attorney representing a party under this article 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, any 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. Where no attorney has completed the training required by this subsection, the court shall appoint a competent attorney with demonstrated knowledge of child welfare law to represent the parent or child. Any attorney appointed pursuant to this section shall perform all duties required of an attorney licensed to practice law in the State of West Virginia.
(h) Right to be heard. — In any proceeding pursuant to 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. Foster parents, pre-adoptive parents, and relative caregivers shall also have a meaningful opportunity to be heard.
(i) Findings of the court. — Where relevant, the court shall consider the efforts of the department to remedy the alleged circumstances. At the conclusion of the adjudicatory hearing, the court shall make a determination based upon the evidence and shall make findings of fact and conclusions of law as to whether the child is abused or neglected and whether the respondent is abusing, neglecting, or, if applicable, 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 evidence.
(j) Priority of proceedings. — Any petition filed
and any proceeding held under this article shall, to the extent practicable, be
given priority over any other civil action before the court, except proceedings
under section three hundred nine, article twenty-seven, chapter
forty-eight §48-27-309 of this code and actions in which trial is in
progress. Any petition filed under this article shall be docketed immediately
upon filing. Any hearing to be held at the end of an improvement period and any
other hearing to be held during any proceedings under this article shall be
held as nearly as practicable on successive days and, with respect to 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 the improvement period and shall be held
within thirty 30 days of the termination of the improvement
period.
(k) Procedural safeguards. — The petition may 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. Following the court's determination, it shall ask the parents or custodians whether or not an appeal is desired and the response transcribed. A negative response may not be construed as a waiver. The evidence shall be transcribed and made available to the parties or their counsel as soon as practicable, if the transcript 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 the transcript.
ARTICLE 9. FOSTER CARE OMBUDSMAN PROGRAM.
§49-9-101. The Foster Care Ombudsman.
(a) There is continued within the Office of the Inspector General the position of the West Virginia Foster Care Ombudsman. The Office of the Inspector General shall employ a Foster Care Ombudsman to affect the purposes of this article.
(b) In addition to the duties provided in §9-5-27 of this code, the duties of the Foster Care Ombudsman include, but are not limited to, the following:
(1) Establishing a statewide procedure to receive, investigate, and resolve complaints filed on behalf of a child who is subject to a reported allegation of abuse and neglect, or a foster child, foster parent, or kinship parent, or, on the Foster Care Ombudsman’s own initiative, on behalf of a foster child, relating to action, inaction, or decisions of the state agency, child-placing agency, or residential care facility which may adversely affect the foster child, foster parent, or kinship parent;
(2) Review periodically and make appropriate recommendations for the policies and procedures established by any state agency providing services to foster children, foster parents, kinship parents, including, but not limited to, the system of providing foster care and treatment;
(3) Pursuant to an investigation, provide assistance to a foster child, foster parent, or kinship parent who the Foster Care Ombudsman determines is in need of assistance, including, but not limited to, collaborating with an agency, provider, or others on behalf of the best interests of the foster child;
(4) Recommend action when appropriate, including, but not limited to, undertaking legislative advocacy and making proposals for systemic reform and formal legal action, in order to secure and ensure the legal, civil, and special rights of foster children who reside in this state;
(5) Conduct programs of public education when necessary and appropriate;
(6) Have input into the creation of, and thereafter make
recommendations consistent with, the foster children, foster parents, and
kinship parents bill of rights The Foster Child Bill of Rights in
§49-2-126 of this code and The Foster and Kinship Parent Bill of Rights in
§49-2-127 of this code;
(7) Take appropriate steps to advise the public of the services of the Foster Care Ombudsman, the purpose of the ombudsman, and procedures to contact the office; and
(8) Make inquiries and obtain assistance and information from other state governmental agencies or persons as the Foster Care Ombudsman requires for the discharge of his or her duties.
§49-9-103. Access to foster care children.
(a) The Foster Care Ombudsman shall,
with proper identification, have access to a foster family or kinship family
home, a state agency, a child-placing agency, or a residential care facility
for the purposes of investigations of a complaint. The Foster Care Ombudsman
may enter a foster family home, a state agency, a child-placing agency, or a
residential care facility at a time appropriate to the complaint. The visit
may be announced in advance or be made unannounced as appropriate to the
complaint under investigation. Upon entry, the Foster Care Ombudsman shall
promptly and personally advise the person in charge of his or her presence. If
entry is refused by the person in charge, the Foster Care Ombudsman may apply
to the magistrate court of the county in which a foster family home, a
state agency, a child-placing agency, or a residential care facility is
located for a warrant authorizing entry, and the court shall issue an
appropriate warrant if it finds good cause therefor.
(b) For activities other than
those specifically related to the investigation of a complaint, the Foster Care
Ombudsman, upon proper identification, shall have access to a foster family
home, a state agency, a child-placing agency, or a residential
care facility between the hours of 8:00 a.m. and 8:00 p.m. in order to:
(1) Provide information on the Foster Care Ombudsman Program to a foster child, foster parents, or kinship parents;
(2) Inform a foster child, a
foster parent, or a kinship parent of his or her rights and
entitlements, and his or her corresponding obligations, under applicable
federal and state laws; and
(3) Direct the foster child, the foster parents, or the kinship parents to appropriate legal resources;
(c) Access to a foster family
home, a state agency, a child-placing agency, or a residential
care facility under this section shall be deemed to include the right to
private communication with the foster child, the foster parents, or the
kinship parents.
(d) A Foster Care Ombudsman who
has access to a foster family home, a state agency, a
child-placing agency, or a residential care facility under this section shall
not enter the living area of a foster child, foster parent, or kinship parent
without identifying himself or herself to the foster child, foster parent, or
kinship parent. After identifying himself or herself, an ombudsman shall be
permitted to enter the living area of a foster child, foster parent, or kinship
parent unless that foster child, foster parent, or kinship parent
communicates on that particular occasion the foster child, foster parents’, or
kinship parents’ desire to prevent the ombudsman from entering. A foster
child, foster parent, or kinship parent has the right to terminate, at any time,
any visit by the Foster Care Ombudsman.
(e) Access to a foster family
home, a state agency, a child-placing agency, or a residential
care facility pursuant to this section includes the right to tour the facility
unescorted.
§49-9-105. Subpoena powers.
(a) The Foster Care Ombudsman may, in the course of any investigation:
(1) Apply to the circuit court of the appropriate county or the Circuit Court of Kanawha County for the issuance of a subpoena to compel at a specific time and place, by subpoena, the appearance, before a person authorized to administer oaths, the sworn testimony of any person whom the Foster Care Ombudsman reasonably believes may be able to give information relating to a matter under investigation; or
(2) Apply to the circuit court of the appropriate county or the Circuit Court of Kanawha County for the issuance of a subpoena duces tecum to compel any person to produce at a specific time and place, before a person authorized to administer oaths, any documents, books, records, papers, objects, or other evidence which the Foster Care Ombudsman reasonably believes may relate to a matter under investigation.
(b) A subpoena or subpoena duces tecum applied for by the Foster Care Ombudsman may not be issued until a circuit court judge in term or vacation thereof has personally reviewed the application and accompanying affidavits and approved, by a signed order entered by the judge, the issuance of the subpoena or subpoena duces tecum. Subpoenas or subpoenas duces tecum applied for pursuant to this section may be issued on an ex parte basis following review and approval of the application by the judge in term or vacation thereof.
(c) The Attorney General shall, upon request, provide legal counsel and services to the Foster Care Ombudsman in all administrative proceedings and in all proceedings in any circuit court and the West Virginia Supreme Court of Appeals.
(d) The Foster Care Ombudsman or his or her staff shall not be compelled to testify or produce evidence in any judicial or administrative proceeding with respect to any matter involving the exercise of his or her official duties. All related memoranda, work product, notes, or case files of the Foster Care Ombudsman Office are confidential and are not subject to discovery, subpoena, or other means of legal compulsion, and are not admissible in evidence in a judicial or administrative proceeding. However, the Foster Care Ombudsman may provide testimony related to quarterly or annual reports submitted to the Legislative Oversight Commission on Health and Human Resources Accountability provided for in §9-5-27 and §49-9-102 of this code.
§49-9-106. Cooperation among the government departments or agencies.
(a) The Foster Care Ombudsman shall have access to the records of any state government agency reasonably necessary to any investigation. The Foster Care Ombudsman shall be notified of and be allowed to observe any survey conducted by a government agency affecting the health, safety, welfare, or rights of the foster child, the foster parents, or the kinship parents.
(b) The Foster Care Ombudsman shall develop procedures to refer any complaint to any appropriate state government department, agency, or office.
(c) When abuse, neglect, or
exploitation of a foster child is suspected, the Foster Care Ombudsman shall
make a referral to the Bureau for Children and Families Social
Services, Office of Health Facility Licensure and Certification, or both.
(d) Any state government department, agency, or office that responds to a complaint referred to it by the Foster Care Ombudsman Program shall make available to the Foster Care Ombudsman copies of inspection reports and plans of correction, and notices of any citations and sanctions levied against the foster family home, the child-placing agency, or the residential care facility identified in the complaint.
§49-9-107. Confidentiality of investigations.
(a) Information relating to any investigation of a complaint that contains the identity of the complainant or foster child, foster parent, or kinship parent shall remain confidential except:
(1) Where disclosure is
authorized in writing by the complainant foster child,
foster parent, kinship parent, or the guardian Where
imminent risk of serious harm is communicated directly to the Foster Care
Ombudsman or his or her staff;
(2) Where disclosure is
necessary to the Bureau for Children and Families Social Services
in order for such office to determine the appropriateness of initiating an
investigation regarding potential abuse, neglect, or emergency circumstances;
or
(3) Where disclosure is necessary to the Office of Health Facility Licensure and Certification in order for such office to determine the appropriateness of initiating an investigation to determine facility compliance with applicable rules of licensure, certification, or both.
(b) (c)
Notwithstanding any other section within this article, all information,
records, and reports received by or developed by the Foster Care Ombudsman
Program which relate to a foster child, foster parent, or kinship parent,
including written material identifying a foster child, foster parent, or
kinship parent, are confidential pursuant to §49-5-101 et seq. of this
code, and are not subject to the provisions of §29B-1-1 et seq. of this
code, and may not be disclosed or released by the Foster Care Ombudsman
Program, except under the circumstances enumerated in this section.
(c) (d) Nothing in
this section prohibits the preparation and submission by the Foster Care
Ombudsman of statistical data and reports, as required to implement the
provisions of this article or any applicable federal law, exclusive of any
material that identifies any foster child, foster parent, kinship parent, or
complainant.
(d) (e) The
Inspector General shall have access to the records and files of the Foster Care
Ombudsman Program to verify its effectiveness and quality where the identity of
any complainant or foster child, foster parent, or kinship parent is not
disclosed.
Adopted
Rejected