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Introduced Version Senate Bill 2012 History

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Key: Green = existing Code. Red = new code to be enacted

WEST virginia legislature

2022 second extraordinary session

Introduced

Senate Bill 2012

By Senators Baldwin, Caputo, Geffert, Lindsay, Romano, Stollings, and Woelfel

[Introduced April 25, 2022]

A BILL to repeal §49-2-125 of the Code of West Virginia, 1931, as amended; to amend and reenact §49-1-203 of said code; to amend and reenact §49-2-111a, §49-2-111c, and §49-2-809 of said code; to amend said code by adding thereto two new sections, designated §49-2-111d and §49-2-111e; to amend and reenact §49-4-405, §49-4-501, and §49-4-601 of said code; to amend and reenact §49-5-101 of said code; and to amend and reenact §49-9-101, §49-9-103, §49-9-105, §49-9-106, and §49-9-107 of said code, all relating to foster care; creating new definitions; deleting outdated language; requiring Bureau for Social Services to issue a request for proposal to incorporate into its PATH system a matching database, and to create a dashboard database; requiring study of centralized intake; requiring that any report by a physician mandatory reporter shall be automatically considered accepted by centralized intake and a referral for investigation made; requiring circuit courts to enable multidisciplinary treatment team to meet monthly; including managed care case coordinator in multidisciplinary treatment team; allowing department to hire counsel; requiring sheriff’s office to serve notice of hearing without additional compensation; permitting child agency or facility to disclose confidential information in certain circumstances; requiring foster care ombudsman to make recommendations in accordance with the Foster Child Bill of Rights and the Foster and Kinship Parent Bill of Rights; authorizing ombudsman to have access to kinship family; exempting foster care ombudsman from testifying about official duties; making ombudsman’s records confidential and not admissible in evidence; removing circumstance for authorizing disclosure of confidential matters; making investigation of complaint confidential except when imminent risk of harm reported to foster care ombudsman; and requiring ombudsman to maintain confidentiality with respect to all matters and exceptions.

Be it enacted by the Legislature of West Virginia:


ARTICLE 1. GENERAL PROVISIONS AND DEFINITIONS.

§49-1-203. Definitions related, but not limited to, licensing and approval of programs.

When used in this chapter, terms defined in this section have the meanings ascribed to them that relate to, but are not limited to, licensing and approval of programs. except in those instances where a different meaning is provided or the context in which the word used clearly indicates that a different meaning is intended

“Approval” means a finding by the Secretary of the Department of Health and Human Resources that a facility operated by the state has met the requirements of legislative rules promulgated for operation of that facility and that a certificate of approval or a certificate of operation has been issued.

“Certification of approval” or “certificate of operation” means a statement issued by the Secretary of the Department of Health and Human Resources that a facility meets all of the necessary requirements for operation.

“Certificate of license” means a statement issued by the Secretary of the Department of Health and Human Resources authorizing an individual, corporation, partnership, voluntary association, municipality, or county, or any agency thereof, to provide specified services for a limited period of time in accordance with the terms of the certificate.

“Certificate of registration” means a statement issued by the Secretary of the Department of Health and Human Resources to a family child care home, informal family child care home, or relative family child care home to provide specified services for a limited period in accordance with the terms of the certificate.

“Data dashboard” means a visual presentation of data, definitions, and other information that is web-based and available to the public to show current child welfare statistics, trends over time, and progress toward established performance goals.

“Foster families database” means a searchable database of all foster parents in the state currently accepting placement of children.

“License” means the grant of official permission to a facility to engage in an activity which would otherwise be prohibited.

“Registration” means the grant of official permission to a family child care home, informal family child care home, or a relative family child care home determined to be in compliance with the legislative rules promulgated pursuant to this chapter.

“Rule” means legislative rules promulgated by the Secretary of the Department of Health and Human Resources or a statement issued by the Secretary of the Department of Health and Human Resources of the standards to be applied in the various areas of child care.

“Variance” means a declaration that a rule may be accomplished in a manner different from the manner set forth in the rule.

“Waiver” means a declaration that a certain legislative rule is inapplicable in a particular circumstance.


ARTICLE 2. STATE RESPONSIBILITIES FOR CHILDREN.

§49-2-111a. Performance based contracting for child placing agencies.

(a) For purposes of this section:

(1) “Child” means:

(A) A person of less than 18 years of age; or

(B) A person 18 to 21 years of age who is eligible to receive the extended foster care services.

(2) “Child-placing agency” means an agency licensed by the department to place a child in a foster care home.

(3) “Department” means the Department of Health and Human Resources.

(4) “Evidence-based” means a program or practice that is cost-effective and includes at least two randomized or statistically controlled evaluations that have demonstrated improved outcomes for its intended population.

(5) “Performance-based contracting” means structuring all aspects of the service contract around the purpose of the work to be performed and the desired results with the contract requirements set forth in clear, specific, and objective terms with measurable outcomes and linking payment for services to contractor performance.

(6) “Promising practice” means a practice that presents, based upon preliminary information, potential for becoming a research-based or consensus-based practice.

(7) “Research-based” means a program or practice that has some research demonstrating effectiveness, but that does not yet meet the standard of evidence-based practices.

(b) No later than July 1, 2021 The department shall enter into performance-based contracts with child placing agencies.

(c) The department shall actively consult with other state agencies and other entities with expertise in performance-based contracting with child placing agencies to develop the requirements of the performance-based contract.

(d) The performance-based contract shall be developed and implemented in a manner that complies with applicable provisions of this code. Contracts for child placing agencies are exempt from §5A-3-1 of this code.

(e) The resulting contracts shall include, but are not limited to, the following:

(1) Adequate capacity to meet the anticipated service needs in the contracted service area of the child placing agency;

(2) The use of evidence-based, research-based, and promising practices, where appropriate, including fidelity and quality assurance provisions;

(3) Child placing agency data reporting, including data on performance and service outcomes, including, but not limited to:

(A) Safety outcomes;

(B) Permanency outcomes;

(C) Well-being outcomes;

(D) Incentives earned;

(E) Placement of older children;

(F) Placement of children with special needs; and

(G) Recruitment and retention of foster parents; and

(4) A hold harmless period to determine a baseline for evaluation.

(f) Performance-based payment methodologies must be used in child placing agency contracting. Performance measures should relate to successful engagement by a child or parent in services included in their case plan, and resulting improvement in identified problem behaviors and interactions. For the first year of implementation of performance-based contracting, the department may transfer financial risk for the provision of services to the child placing agency only to the limited extent necessary to implement a performance-based payment methodology, such as phased payment for services. However, the department may develop a shared savings methodology through which the child placing agency will receive a defined share of any savings that result from improved performance. If the department receives a Title IV-E waiver, the shared savings methodology must be consistent with the terms of the waiver. If a shared savings methodology is adopted, the child placing agency shall reinvest the savings in enhanced services to better meet the needs of the families and children they serve.

(g) The department shall actively monitor the child placing agency’s compliance with the terms of contracts executed under this section.

(h) The use of performance-based contracts under this section shall be done in a manner that does not adversely affect the state’s ability to continue to obtain federal funding for child welfare-related functions currently performed by the state and with consideration of options to further maximize federal funding opportunities and increase flexibility in the use of such funds, including use for preventive and in-home child welfare services.

(i) The department shall pay child placing agencies contracted to provide adoption services to foster families a minimum of $1,000 per child for each adoption finalized.

(j) The rate of payment to foster parents and child placing agencies shall be reviewed by the department, at a minimum of every two years, to determine whether the level of foster care payments facilitates or hinders the efficient placement of foster children with West Virginia families. The department shall remit payments to foster parents on the same week each month to facilitate foster parents’ ability to budget and appropriately expend payments for the benefit of the children in their custody.

(k) The department shall report the performance of the child placing agency to the Legislative Oversight Commission on Health and Human Resources Accountability by December 31, annually.

§49-2-111c. Priorities for use of funds.


(a) Subject to appropriations by the Legislature, the department is authorized and directed to:

(1) Enhance and increase efforts to provide services to prevent the removal of children from their homes;

(2) Identify relatives and fictive kin of children in need of placement outside of the home;

(3) Train kinship parents to become certified foster parents;

(4) Expand a tiered foster care system that provides higher payments for foster parents providing care to, and child placing agencies providing services to, foster children who have severe emotional, behavioral, or intellectual problems or disabilities, with particular emphasis upon removing children in congregate care and placing them with suitable foster parents; This program shall be operational no later than December 1, 2020 and

(5) Develop a pilot program to increase payment to uncertified kinship parents for the purpose of further helping families who have accepted kinship placements.

(b) During fiscal year 2021, the department shall expend at least $16,900,000 for the purposes of implementing the priorities and objectives listed in this section.

(c) On or before July 1, 2022 and on or before July 1 of every year, thereafter the secretary of the department shall present a report to the Joint Standing Committee on Government and Finance regarding the expenditures made pursuant to subsection (b) of this section and the department’s progress in meeting the priorities and objectives listed in subsection (a) of this section: Provided, That the secretary shall provide the information described in this subsection and updates to previous reports at any time, upon request of the Joint Standing Committee on Government and Finance.

(d) When the Bureau of Social Services’ case management system, known as the “PATH system” is operational, the bureau shall implement a foster families database.

(e) The bureau shall create a public data dashboard by October 1, 2022, which shall be updated monthly to include, but not be limited to, the following data: 

(1) System level data performance indicators;

(A) Total state staffing, by county;

(B) Total state staffing vacancy rate, by county;

(C) Total children in Department of Health and Human Resources custody, by type of allegation;

(D) Total children in Department of Health and Human Resources supervision, by type of allegation; and

(E) Total number children in-state versus out-of-state placements.

(2) Intake hotline performance indicators;

(A) Total number of calls reported, by type of allegation;

(B) Total number of calls reported, by type of mandated reporter, by allegation; and

(C) Total calls by type of non-mandated reporter, by allegation, by relationship to the child.

(3) Field investigation performance indicators;

(A) Total number of field investigations;

(B) Total caseload per child protective service worker;

(C) Total number of screened in imminent danger cases (24 hour cases); and

(D) Total number of screened in non-imminent danger cases (14 day) cases;

(4) Open case performance indicators;

(A) Total number of contacts by caseworker per month per child; and

(B) The number of multi-disciplinary team (MDT) meetings occurring per county. The MDT shall meet the standards as defined in §49-1-207 of this code; and

(C) Recurrence of maltreatment by child in care, by placement type.

(5) Out-of-home to placement to permanency performance indicators.

(A) Total number of children in care, by type of placement;

(B) Length of stay in placement, by type of placement; 

(C) Re-entry to care;

(D) Total miles from home of the placement; and

(E) The number of placements while a child is in custody. 

§49-2-111d. Study of centralized intake.


The department shall conduct a study of centralized intake and report its findings to the Legislative Oversight Commission on Health and Human Resources Accountability. By January 1, 2023, the department shall contract with a third-party independent expert to evaluate the centralized intake process by evaluating:

(1) Centralized intake process;

(2) Best practice standards; and

(3) Review of standards for accepting referrals.


§49-2-111e. Establishing a Critical Needs Position Fund and Authorized Expenditures.

(a) The Legislature finds that the Department of Health and Human Resources has extreme difficulty in recruiting and retaining child protective service workers and other essential personnel who assist in the investigation and protection of the children of this state.

(b) The Legislature further finds that vacancies in critical needs positions within the Department of Health and Human Resources severely impairs its ability to perform its vital functions and responsibilities and further burdens existing critical personnel.

(c) Definitions.

(1) “Critical needs position” means a job, position, or classification designated by the Secretary of the Department of Health and Human Resources as vitally important due to its importance, vacancy or retention rate, or any other reason which impairs the ability of the department to perform its duties and responsibilities.

(2) “Secretary” means the Secretary of the Department of Health and Human Resources.

(d) The Critical Needs Position Fund is hereby created in the State Treasury.  The fund shall be administered by the secretary and shall consist of all moneys made available for the purposes of this article from any source, including, but not limited to, all gifts, grants, bequests or transfers from any source, any moneys that may be appropriated to the fund by the Legislature, and all interest or other return earned from investment of the fund.  Expenditures from the fund shall be for the purposes set forth in subsection (e) of this section and are not authorized from collections but are to be made only in accordance with appropriation by the Legislature and in accordance with the provisions of §12-3-1 et seq. of this code and upon the fulfillment of the provisions set forth in §11B-2-1 et seq. of this code: Provided, That for the fiscal year ending June 30, 2023, expenditures are authorized from collections rather than pursuant to an explicit appropriation by the Legislature.  Any balance, including accrued interest and other returns, remaining in the fund at the end of each fiscal year shall not revert to the General Revenue Fund but shall remain in the fund and be expended as provided by this section.

(e) Moneys of the Critical Needs Position Fund may only be expended to provide salary adjustments to critical needs positions.  This adjustment is separate from and in addition to any other salary adjustment approved during the 2022 regular session of the Legislature relative to the 2023 budget.  In the event any provision of this section conflicts with any rule, policy, or provision of this code, the provisions of this section control.  Due to the limits of funding, the results of the salary adjustments shall not be subject to the provisions of §6C-2-1 et seq. of this code. It is the specific intent of the Legislature that no private cause of action, either express or implied, shall arise pursuant to the provisions or implementation of this section.

(f) Notwithstanding any provision or rule to the contrary, the secretary may designate any job, classification, or position as a critical needs position due to its importance, vacancy or retention rate, or any other reason which impairs the ability of the department to perform its duties and responsibilities and provide these critical needs positions a uniform salary supplement not to exceed 10 percent of the classification and compensation set forth by the West Virginia Division of Personnel.

(g) The secretary may propose rules for legislative approval in accordance with the provisions of §29A-3-1 et seq. of this code and may promulgate emergency rules pursuant to the provisions of §29A-3-15 of this code to implement the provisions of this section.

(h) Any salary adjustments provided by this section are not exempt from the provisions of this code prohibiting nepotism, favoritism, discrimination, or unethical practices related to the employment process.

(i) The secretary shall provide an annual report to the Legislature including, but not limited to, how these funds have been expended, positions which have been designated a critical needs position, and any change in recruitment or retention of these critical needs positions.


§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.


§49-4-501. 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 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) Nothing in this code may be construed to limit the authority of a prosecuting attorney to file an abuse or neglect petition, including the duties and responsibilities owed to its client the Department of Health and Human Resources, in his or her fulfillment of the provisions of this article.

(c) Whenever, pursuant to this chapter, a prosecuting attorney acts as counsel for the Department of Health and Human Resources, 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, either the prosecuting attorney or the department’s representative party may 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. If a resolution is not met, the department may request, for good cause shown, leave of court the to hire outside counsel. The court shall grant or deny the request in an expedited manner.

(d) Notwithstanding the provisions of this article, the department may hire counsel to represent its interests in court proceedings under §49-4-701 et seq. of this code.


§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 5. RECORD KEEPING AND DATABASE.


§49-5-101. Confidentiality of records; nonrelease of records; exceptions; penalties.


(a) Except as otherwise provided in this chapter or by order of the court, all records and information concerning a child or juvenile which are maintained by the Division of Juvenile Services, the Department of Health and Human Resources, a child agency or facility, court or law-enforcement agency are confidential and shall not be released or disclosed to anyone, including any federal or state agency.

(b) Notwithstanding the provisions of subsection (a) of this section or any other provision of this code to the contrary, records concerning a child or juvenile, except adoption records and records disclosing the identity of a person making a complaint of child abuse or neglect, may be made available:

(1) Where otherwise authorized by this chapter;

(2) To:

(A) The child;

(B) A parent whose parental rights have not been terminated; or

(C) The attorney of the child or parent;

(3) With the written consent of the child or of someone authorized to act on the child’s behalf; or

(4) Pursuant to an order of a court of record. However, the court shall review the record or records for relevancy and materiality to the issues in the proceeding and safety, and may issue an order to limit the examination and use of the records or any part thereof.

(c) In addition to those persons or entities to whom information may be disclosed under subsection (b) of this section, information related to child abuse or neglect proceedings, except information relating to the identity of the person reporting or making a complaint of child abuse or neglect, shall be made available, upon request, to:

(1) Federal, state, or local government entities, or any agent of those entities, including law-enforcement agencies and prosecuting attorneys, having a need for that information in order to carry out its responsibilities under law to protect children from abuse and neglect;

(2) The child fatality review team;

(3) Child abuse citizen review panels;

(4) Multidisciplinary investigative and treatment teams; or

(5) A grand jury, circuit court, or family court, upon a finding that information in the records is necessary for the determination of an issue before the grand jury, circuit court, or family court.

(d) In the event of a child fatality or near fatality due to child abuse and neglect, information relating to a fatality or near fatality shall be made public by the Department of Health and Human Resources and to the entities described in subsection (c) of this section, all under the circumstances described in that subsection. However, information released by the Department of Health and Human Resources pursuant to this subsection may not include the identity of a person reporting or making a complaint of child abuse or neglect. For purposes of this subsection, “near fatality” means any medical condition of the child which is certified by the attending physician to be life threatening.

(e) Except in juvenile proceedings which are transferred to criminal proceedings, law-enforcement records and files concerning a child or juvenile shall be kept separate from the records and files of adults and not included within the court files. Law-enforcement records and files concerning a child or juvenile shall only be open to inspection pursuant to section one hundred three §49-5-103 of this article code.

(f) Any person who willfully violates this section is guilty of a misdemeanor and, upon conviction, shall be fined not more than $1,000, or confined in jail for not more than six months, or both fined and confined. A person convicted of violating this section is also liable for damages in the amount of $300 or actual damages, whichever is greater.

(g) Notwithstanding the provisions of this section, or any other provision of this code to the contrary, the name and identity of any juvenile adjudicated or convicted of a violent or felonious crime shall be made available to the public;

(h)(1) Notwithstanding the provisions of this section or any other provision of this code to the contrary, the Division of Juvenile Services may provide access to and the confidential use of a treatment plan, court records or other records of a juvenile to an agency in another state which:

(A) Performs the same functions in that state that are performed by the Division of Juvenile Services in this state;

(B) Has a reciprocal agreement with this state; and

(C) Has legal custody of the juvenile.

(2) A record which is shared under this subsection may only provide information which is relevant to the supervision, care, custody, and treatment of the juvenile.

(3) The Division of Juvenile Services is authorized to enter into reciprocal agreements with other states and to propose rules for legislative approval in accordance with article three, chapter twenty-nine-a §29A-3-1 of this code to implement this subsection.

(4) Other than the authorization explicitly given in this subsection, this subsection may not be construed to enlarge or restrict access to juvenile records as provided elsewhere in this code.

(i) The records subject to disclosure pursuant to subsection (b) of this section shall not include a recorded/videotaped interview, as defined in subdivision (6), section two, article six-b, chapter sixty-two §62-6B-2 of this code, the disclosure of which is exclusively subject to the provisions of section six of said article.

(j) A child agency or facility may disclose otherwise confidential information to other child agencies or facilities when making referrals or providing services on behalf of the child.  This information shall be maintained in the same manner as provided in this code.


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)  The Foster Care Ombudsman shall maintain confidentiality with respect to all matters including the identities of complainants, witnesses, or others from whom information is acquired, except insofar as disclosures may be necessary to enable the Foster Care Ombudsman to carry out duties of the office or to support recommendations.

(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.

 

NOTE: The purpose of this bill is to modify the foster care system. The bill creates new definitions and deletes outdated language. The bill requires the bureau of social services to issue a request for proposal to incorporate into its PATH system a matching database, and to create a dashboard database. The bill requires a study of centralized intake. The bill requires that any report by a physician mandatory reporter shall be automatically considered accepted by centralized intake and a referral for investigation made. The bill requires circuit courts to enable multidisciplinary treatment team to meet monthly. The bill includes managed care case coordinator in multidisciplinary treatment team. The bill allows the department to hire counsel. The bill requires the sheriff’s office to serve notice of hearing without additional compensation. The bill permits a child agency or facility to disclose confidential information in certain circumstances. The bill requires the foster care ombudsman to make recommendations in accordance with the Foster Child Bill of Rights and the Foster and Kinship Parent Bill of Rights. The bill authorizes the ombudsman to have access to kinship family. The bill exempts the foster care ombudsman from testifying about official duties. The bill makes the ombudsman’s records confidential and not admissible in evidence. The bill removes circumstance for authorizing disclosure of confidential matters. The bill makes an investigation of a complaint confidential except when imminent risk of harm reported to foster care ombudsman. Finally, the bill requires the ombudsman to maintain confidentiality with respect to all matters and exceptions.

Strike-throughs indicate language that would be stricken from a heading or the present law and underscoring indicates new language that would be added.

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