WEST virginia legislature
2019 regular session
House Bill 2010
By Delegates Kessinger, Ellington, Hill, Summers, Pack, Storch, Rowan, Sypolt, Harshbarger, Phillips and Capito
January 17, 2019; Referred
to the Committee on Senior, Children, and Family Issues then Health and Human Resources.]
A BILL to amend the Code of West Virginia, 1931, as amended, by adding thereto a new section, designated §9-5-27; to amend and reenact §49-1-206 of said code; to amend and reenact §49-2-10, §49-2-113, and §49-2-708 of said code; to amend said code by adding thereto a new section, designated §49-2-111A; and to amend and reenact §49-4-108, §49-4-406, §49-4-413, §49-4-604, §49-4-608, §49-4-711, §49-4-714 and §49-4-724 of said code, all relating to foster care.
Be it enacted by the Legislature of West Virginia:
Chapter 9. Human Services.
Article 5. Miscellaneous Provisions.
§9-5-27. Transitioning foster care into managed care.
(a) “Eligible services” means acute care, including medical, pharmacy, dental, and behavioral health services.
(b) The secretary shall transition to a capitated Medicaid program for a child classified as a foster child and a child placed in foster care under Title IV-E of the Social Security Act who is living in the state by July 1, 2019. The program shall be statewide, fully integrated, and risk based; shall integrate Medicaid-reimbursed eligible services; and shall align incentives to ensure the appropriate care is delivered in the most appropriate place and time.
(c) The secretary shall make payments for the eligible services, including home and community-based services, using a managed care model.
(d) The secretary shall submit, if necessary, applications to the United States Department of Health and Human Services for waivers of federal Medicaid requirements that would otherwise be violated in the implementation of the program, and shall consolidate any additional waivers where appropriate.
(e) If a selected managed care organization ceases to contract with the Department of Health and Human Services to provide Medicaid managed care services, it must provide all patient records, including medical records, to the next selected managed care organization to ensure the Eligible Medicaid Beneficiaries do not experience an interruption in care.
(f) In designing the program, the secretary shall ensure that the program:
(1) Reduces fragmentation and offers a seamless approach to meeting participants’ needs;
(2) Delivers needed supports and services in the most integrated, appropriate, and cost-effective way possible;
(3) Offers a continuum of acute care services, which includes an array of home and community-based options;
(4) Includes a comprehensive quality approach across the entire continuum of care services; and
(5) Consults stakeholders in the program development process.
(g) The department shall evaluate the transition to managed by July 1, 2022, and report its findings to the Legislative Oversight Commission on Health and Human Resources Accountability.
(h) The transition of foster care to managed care shall terminate on June 30, 2024, unless continued by the Secretary of the Department of Health and Human Resources.
Chapter 49. Child Welfare.
Article 1. General Provisions and Definitions.
§49-1-206. Definitions related, but not limited to, child advocacy, care, residential, and treatment 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, child advocacy, care, residential, and treatment 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.
“Child Advocacy Center (CAC)” means a community-based organization that is a member in good standing with the West Virginia Child Abuse Network, Inc., as set forth in §49-3-101 of this code.
means responsibilities assumed and services performed in relation to a child’s
physical, emotional, psychological, social, and personal needs and the
consideration of the child’s rights and entitlements, but does not include
secure detention or incarceration under the jurisdiction of the
Juvenile Services Division of Corrections and Rehabilitation
pursuant to §49-2-901 et seq. of this code. It includes the provision of
child care services or residential services.
“Child care center” means a facility maintained by the state or any county or municipality thereof, or any agency or facility maintained by an individual, firm, corporation, association, or organization, public or private for the care of 13 or more children for child care services in any setting, if the facility is open for more than 30 days per year per child.
“Child care services” means direct care and protection of children during a portion of a 24- hour day outside of the child’s own home which provides experiences to children that foster their healthy development and education.
“Child placing agency” means a child welfare agency organized for the purpose of placing children in private family homes for foster care or for adoption. The function of a child placing agency may include the investigation and certification of foster family homes and foster family group homes as provided in this chapter. The function of a child placing agency may also include the supervision of children who are 16 or 17 years old and living in unlicensed residences.
agency” means any agency or facility maintained by the state or any county or
municipality thereof, or any agency or facility maintained by an individual,
firm, corporation, association, or organization, public or private, to receive
children for care and maintenance or for placement in residential care
facilities, including, without limitation, private homes or any facility that
provides care for unmarried mothers and their children. A child welfare agency
does not include juvenile detention facilities or juvenile correctional
facilities operated by or under contract with the
Division of Juvenile
Services Division of Corrections and Rehabilitation, pursuant
to §49-2-901 et seq. of this code, nor any other facility operated by
that division for the secure housing or holding of juveniles committed to its
“Community based” means a facility, program, or service located near the child’s home or family and involving community participation in planning, operation, and evaluation and which may include, but is not limited to, medical, educational, vocational, social, and psychological guidance, training, special education, counseling, substance abuse, and any other treatment or rehabilitation services.
“Community-based juvenile probation sanctions” means any of a continuum of nonresidential accountability measures, programs, and sanctions in response to a technical violation of probation, as part of a system of community-based juvenile probation sanctions and incentives, that may include, but are not limited to:
(A) Electronic monitoring;
(B) Drug and alcohol screening, testing, or monitoring;
(C) Youth reporting centers;
(D) Reporting and supervision requirements;
(E) Community service; and
(F) Rehabilitative interventions such as family counseling, substance abuse treatment, restorative justice programs, and behavioral or mental health treatment.
“Community services” means nonresidential prevention or intervention services or programs that are intended to reduce delinquency and future court involvement.
“Evidence-based practices” means policies, procedures, programs, and practices demonstrated by research to reliably produce reductions in the likelihood of reoffending.
a place or residence, including personnel, structures, grounds, and equipment
used for the care of a child or children on a residential or other basis for
any number of hours a day in any shelter or structure maintained for that
purpose. Facility does not include any juvenile detention facility or juvenile
correctional facility operated by or under contract with the
Juvenile Services Division of Corrections and Rehabilitation for the
secure housing or holding of juveniles committed to its custody.
“Family child care facility” means any facility which is used to provide nonresidential child care services for compensation for seven to 12 children, including children who are living in the household, who are under six years of age. A facility may be in a provider’s residence or a separate building.
“Family child care home” means a facility which is used to provide nonresidential child care services for compensation in a provider’s residence. The provider may care for four to six children at one time, including children who are living in the household, who are under six years of age.
“Family resource network” means:
(A) A local community organization charged with service coordination, needs and resource assessment, planning, community mobilization, and evaluation, and which has met the following criteria:
(i) Agreeing to a single governing entity;
(ii) Agreeing to engage in activities to improve service systems for children and families within the community;
(iii) Addressing a geographic area of a county or two or more contiguous counties;
(iv) Having nonproviders, which include family representatives and other members who are not employees of publicly funded agencies, as the majority of the members of the governing body, and having family representatives as the majority of the nonproviders;
(v) Having representatives of local service agencies, including, but not limited to, the public health department, the behavioral health center, the local health and human resources agency, and the county school district, on the governing body; and
(vi) Accepting principles consistent with the cabinet’s mission as part of its philosophy.
(B) A family resource network may not provide direct services, which means to provide programs or services directly to children and families.
“Family support”, for the purposes of §49-2-601 et seq. of this code, means goods and services needed by families to care for their family members with developmental disabilities and to enjoy a quality of life comparable to other community members.
“Family support program” means a coordinated system of family support services administered by the Department of Health and Human Resources through contracts with behavioral health agencies throughout the state.
“Foster family home” means a private residence which is used for the care on a residential basis of no more than five children who are unrelated by blood, marriage, or adoption to any adult member of the household.
“Health care and treatment” means:
(A) Developmental screening;
(B) Mental health screening;
(C) Mental health treatment;
(D) Ordinary and necessary medical and dental examination and treatment;
(E) Preventive care including ordinary immunizations, tuberculin testing, and well-child care; and
(F) Nonemergency diagnosis and treatment. However, nonemergency diagnosis and treatment does not include an abortion.
“Home-based family preservation services” means services dispensed by the Department of Health and Human Resources or by another person, association, or group who has contracted with that division to dispense services when those services are intended to stabilize and maintain the natural or surrogate family in order to prevent the placement of children in substitute care. There are two types of home-based family preservation services and they are as follows:
(A) Intensive, short-term intervention of four to six weeks; and
(B) Home-based, longer-term after care following intensive intervention.
“Informal family child care” means a home that is used to provide nonresidential child care services for compensation for three or fewer children, including children who are living in the household who are under six years of age. Care is given in the provider’s own home to at least one child who is not related to the caregiver.
“Needs Assessment” means an evidence-informed assessment which identifies the needs a child or family has, which if left unaddressed, will likely increase the chance of reoccurring.
“Nonsecure facility” means any public or private residential facility not characterized by construction fixtures designed to physically restrict the movements and activities of individuals held in lawful custody in that facility and which provides its residents access to the surrounding community with supervision.
“Nonviolent misdemeanor offense” means a misdemeanor offense that does not include any of the following:
(A) An act resulting in bodily injury or death;
(B) The use of a weapon in the commission of the offense;
(C) A domestic abuse offense involving a significant or likely risk of harm to a family member or household member;
(D) A criminal sexual conduct offense; or
(E) Any offense for driving under the influence of alcohol or drugs.
“Out-of-home placement” means a post-adjudication placement in a foster family home, group home, nonsecure facility, emergency shelter, hospital, psychiatric residential treatment facility, staff secure facility, hardware secure facility, detention facility, or other residential placement other than placement in the home of a parent, custodian, or guardian.
“Out-of-school time” means a child care service which offers activities to children before and after school, on school holidays, when school is closed due to emergencies, and on school calendar days set aside for teacher activities.
“Placement” means any temporary or permanent placement of a child who is in the custody of the state in any foster home, group home, or other facility or residence.
“Pre-adjudicatory community supervision” means supervision provided to a youth prior to adjudication, for a period of supervision up to one year for an alleged status or delinquency offense.
“Regional family support council” means the council established by the regional family support agency to carry out the responsibilities specified in §49-2-601 et seq. of this code.
“Relative family child care” means a home that provides nonresidential child care services only to children related to the caregiver. The caregiver is a grandparent, great grandparent, aunt, uncle, great-aunt, great-uncle, or adult sibling of the child or children receiving care. Care is given in the provider’s home.
services” means child care which includes the provision of nighttime shelter
and the personal discipline and supervision of a child by guardians,
custodians, or other persons or entities on a continuing or temporary basis. It
may include care or treatment, or both, for transitioning adults. Residential
services does not include or apply to any juvenile detention facility or
juvenile correctional facility operated by the
Division of Juvenile Services
Division of Corrections and Rehabilitation, created pursuant to
this chapter, for the secure housing or holding of juveniles committed to its
“Risk and needs assessment” means a validated, standardized actuarial tool which identifies specific risk factors that increase the likelihood of reoffending and the factors that, when properly addressed, can reduce the likelihood of reoffending.
“Secure facility” means any public or private residential facility which includes construction fixtures designed to physically restrict the movements and activities of juveniles or other individuals held in lawful custody in such facility.
“Staff secure facility” means any public or private residential facility characterized by staff restrictions of the movements and activities of individuals held in lawful custody in such facility, and which limits its residents’ access to the surrounding community, but is not characterized by construction fixtures designed to physically restrict the movements and activities of residents.
“Standardized screener” means a brief, validated nondiagnostic inventory or questionnaire designed to identify juveniles in need of further assessment for medical, substance abuse, emotional, psychological, behavioral, or educational issues, or other conditions.
“State family support council” means the council established by the Department of Health and Human Resources pursuant to §49-2-601 et seq. of this code to carry out the responsibilities specified in §49-2-1 et seq. of this code.
“Time-limited reunification services” means individual, group, and family counseling, inpatient, residential, or outpatient substance abuse treatment services, mental health services, assistance to address domestic violence, services designed to provide temporary child care, and therapeutic services for families, including crisis nurseries and transportation to or from those services, provided during 15 of the most recent 22 months a child or juvenile has been in foster care, as determined by the earlier date of the first judicial finding that the child is subjected to abuse or neglect, or the date which is 60 days after the child or juvenile is removed from home.
“Technical violation” means an act that violates the terms or conditions of probation or a court order that does not constitute a new delinquent offense.
“Truancy diversion specialist” means a school-based probation officer or truancy social worker within a school or schools who, among other responsibilities, identifies truants and the causes of the truant behavior, and assists in developing a plan to reduce the truant behavior prior to court involvement.
ARTICLE 2. STATE RESPONSIBILITIES FOR CHILDREN.
§49-2-10. Same -- Certificate.
It shall be the
duty of the state department in cooperation with the state department of health
to establish reasonable minimum standards for foster-home care to which all
certified foster homes must conform. No unsupervised foster home shall be
certified until an investigation of the home and its standards of care has been
made by the state department or by a licensed child welfare agency serving as
its representative. Any such home that conforms to the established standards of
care and to the prescribed rules shall receive a certificate from the state
department, which shall be in force for
one year three years from
the date of issuance and which may be renewed unless revoked because of willful
violation of the provisions of this chapter. The certificate shall show the
name of the persons authorized to conduct the home, its exact location and the
number of children that may be received and cared for at one time. No certified
foster home shall receive for care more children than are specified in the
§49-2-111A. Perform based contracting for child placing agencies.
(a) For purposes of this section:
(1) “Child” means:
(A) A person less than 18 years of age; or
(B) A person age 18 to 21 years 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 procurement of services 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 December 1, 2020, the department shall enter into performance-based contracts with child placing agencies.
(c) In conducting the procurement, the department shall actively consult with other state agencies and other entities with expertise in performance-based contracting with child placing agencies.
(d) The procurement process shall be developed and implemented in a manner that complies with applicable provisions of this code.
(e) The procurement and 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) Fiscal solvency of the child placing agency;
(3) The use of evidence-based, research-based, and promising practices, where appropriate, including fidelity and quality assurance provisions;
(4) 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; and
(D) Incentives earned; and
(5) A hold harmless period to determine a baseline for evaluation.
(f) As part of the procurement process under this section, the department shall issue the request for proposals no later than December 31, 2019. The department shall notify the apparently successful bidders no later than June 30, 2020.
(g) 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.
(h) The department shall actively monitor the child placing agency’s compliance with the terms of contracts executed under this section.
(i) 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.
(j) 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.
§49-2-113. Residential child-care centers; licensure, certification, approval and registration; requirements.
(a) Any person, corporation or child welfare agency, other than a state agency, which operates a residential child-care center shall obtain a license from the department.
(b) Any residential child-care facility, day-care center or any child-placing agency operated by the state shall obtain approval of its operations from the secretary.
(c) Any family day-care facility which operates in this state, including family day-care facilities approved by the department for receipt of funding, shall obtain a statement of certification from the department.
(d) Every family day-care home which operates in this state, including family day-care homes approved by the department for receipt of funding, shall obtain a certificate of registration from the department. The facilities and placing agencies shall maintain the same standards of care applicable to licensed facilities, centers or placing agencies of the same category.
(e) This section does not apply to:
(1) A kindergarten, preschool or school education program which is operated by a public school or which is accredited by the state Department of Education or any other kindergarten, preschool or school programs which operate with sessions not exceeding four hours per day for any child;
(2) An individual or facility which offers occasional care of children for brief periods while parents are shopping, engaging in recreational activities, attending religious services or engaging in other business or personal affairs;
(3) Summer recreation camps operated for children attending sessions for periods not exceeding 30 days;
(4) Hospitals or other medical facilities which are primarily used for temporary residential care of children for treatment, convalescence or testing;
(5) Persons providing family day care solely for children related to them;
(6) Any juvenile
detention facility or juvenile correctional facility operated by or under
contract with the
Division of Juvenile Services Division of
Corrections and Rehabilitation for the secure housing or holding of
juveniles committed to its custody;
(7) Any out-of-school time program that has been awarded a grant by the West Virginia Department of Education to provide out-of-school time programs to kindergarten through 12th grade students when the program is monitored by the West Virginia Department of Education; or
(8) Any out-of-school time program serving children six years of age or older and meets all of the following requirements, or is an out-of-school time program that is affiliated and in good standing with a national congressionally chartered organization or is operated by a county parks and recreation commission, boards and municipalities and meets all of the following requirements:
(A) The program is located in a facility that meets all fire and health codes;
(B) The program performs state and federal background checks on all volunteers and staff;
(C) The programs’ primary source of funding is not from fees for service except for programs operated by county parks and recreation commissions, boards and municipalities; and
(D) The program has a formalized monitoring system in place.
(f) The secretary is authorized to issue an emergency rule relating to conducting a survey of existing facilities in this state in which children reside on a temporary basis in order to ascertain whether they should be subject to licensing under this article or applicable licensing provisions relating to behavioral health treatment providers.
(g) Any informal family child-care home or relative family child-care home may voluntarily register and obtain a certificate of registration from the department.
(h) All facilities or programs that provide out-of-school time care shall register with the department upon commencement of operations and on an annual basis thereafter. The department shall obtain information, such as the name of the facility or program, the description of the services provided and any other information relevant to the determination by the department as to whether the facility or program meets the criteria for exemption under this section.
(i) Any child-care service that is licensed or receives a certificate of registration shall have a written plan for evacuation in the event of fire, natural disaster or other threatening situation that may pose a health or safety hazard to the children in the child-care service.
(1) The plan shall include, but not be limited to:
(A) A designated relocation site and evacuation;
(B) Procedures for notifying parents of the relocation and ensuring family reunification;
(C) Procedures to address the needs of individual children including children with special needs;
(D) Instructions relating to the training of staff or the reassignment of staff duties, as appropriate;
(E) Coordination with local emergency management officials; and
(F) A program to ensure that appropriate staff are familiar with the components of the plan.
(2) A child-care service shall update the evacuation plan by December 31 of each year. If a child-care service fails to update the plan, no action shall be taken against the child-care services license or registration until notice is provided and the child-care service is given 30 days after the receipt of notice to provide an updated plan.
(3) A child-care service shall retain an updated copy of the plan for evacuation and shall provide notice of the plan and notification that a copy of the plan will be provided upon request to any parent, custodian or guardian of each child at the time of the child’s enrollment in the child-care service and when the plan is updated.
(4) All child-care centers and family child-care facilities shall provide the plan and each updated copy of the plan to the Director of the Office of Emergency Services in the county where the center or facility is located.
(j) Any residential child-care center who has entered into a contract with the department shall accept any child who meets the residential child-care center’s program criteria. Any residential child-care center who has entered into a contract with the department may not discharge any child in its program without the consent of the department.
§49-2-708. Rule-making authority.
(a) The Secretary of the Department of Health and
Human Resources is authorized to propose rules for legislative approval necessary
to implement this article
for legislative approval in accordance with §29A-3-1
et seq. of this code.
(b) The rules:
(1) Shall create a three year certification period for a foster home, unless a substantial change occurs and a home safety assessment is performed at least annually. The department has sole authority to determine if a substantial change has occurred;
(2) Shall require that the criminal background check to be conducted at the time of the recertification;
(3) May not prevent the placement or cause the removal of a foster child for cosmetic damage to a residence;
(4) Shall permit the use of dedicated sleeping spaces as appropriate for the child’s needs, age, and similar to other household members; and
(5) Shall review and update the legislative rules while considering normalcy and the reasonable and prudent parent standard.
(c) Notwithstanding the time frames in §29A-3-1 et seq., the department shall revise the foster care legislative rules and may submit for review and approval to the Rule-making and Review Committee by October 31, 2019.
ARTICLE 4. COURT ACTIONS.
§49-4-108. Payment of services.
(a) At any time during any proceedings brought
pursuant to this
article chapter, the court may upon its own
motion, or upon a motion of any party, order the Department of Health and Human
Resources to pay the Medicaid rates for professional services rendered by
a psychologist, psychiatrist, physician, therapist or other health care
professional to a child or other party to the proceedings. Professional
services include, but are not limited to, treatment, therapy, counseling,
evaluation, report preparation, consultation and preparation of expert
testimony. The Department of Health and Human Resources shall set the fee
schedule for the services in accordance with the Medicaid rate, if any, or the
customary rate and adjust the schedule as appropriate. Every psychologist,
psychiatrist, physician, therapist or other A health care
professional shall be paid by the Department of Health and Human Resources upon
completion of services and submission of a final report or other information
and documentation as required by the policies and procedures implemented
by the Department of Health and Human Resources.
(b) At any time during any proceeding brought pursuant to this chapter, the court may upon its own motion, or upon a motion of any party, order the Department of Health and Human Resources to pay for socially necessary services rendered by an entity who has agreed to comply with §9-2-6(21) of this code. The Department of Health and Human Resources shall set the reimbursement rates for the socially necessary services.
§49-4-406. Multidisciplinary treatment process for status offenders or delinquents; requirements; custody; procedure; reports; cooperation; inadmissibility of certain statements.
(a) When a juvenile is adjudicated as a status offender
pursuant to §49-4-711 of this code, the Department of Health and Human
Resources shall promptly convene a multidisciplinary treatment team and conduct
an assessment, utilizing a standard uniform comprehensive assessment instrument
or protocol, including a
risk and needs assessment, to determine the
juvenile's mental and physical condition, maturity and education level, home
and family environment, rehabilitative needs and recommended service plan,
which shall be provided in writing to the court and team members. Upon
completion of the assessment, the treatment team shall prepare and implement a
comprehensive, individualized service plan for the juvenile.
(b) When a juvenile is adjudicated as a delinquent or has
been granted a pre-adjudicatory community supervision period pursuant to
§49-4-708 of this code, the court, either upon its own motion or motion of a
party, may require the Department of Health and Human Resources to convene a
multidisciplinary treatment team and conduct an assessment, utilizing a
standard uniform comprehensive assessment instrument or protocol, including a
and needs assessment, to determine the juvenile's mental and physical
condition, maturity and education level, home and family environment, rehabilitative
needs and recommended service plan, which shall be provided in writing to the
court and team members. A referral to the Department of Health and Human
Resources to convene a multidisciplinary treatment team and to conduct such an
assessment shall be made when the court is considering placing the juvenile in
the department's custody or placing the juvenile out-of-home at the
department's expense pursuant to §49-4-714 of this code. In any delinquency
proceeding in which the court requires the Department of Health and Human
Resources to convene a multidisciplinary treatment team, the probation officer
shall notify the department at least 15 working days before the court
proceeding in order to allow the department sufficient time to convene and
develop an individualized service plan for the juvenile.
(c) When a juvenile has been adjudicated and committed to
the custody of the Director of the
Division of Juvenile Services Division
of Corrections and Rehabilitation, including those cases in which the
juvenile has been committed for examination and diagnosis, or the court
considers commitment for examination and diagnosis, the Division of
Juvenile Services Division of Corrections and Rehabilitation shall
promptly convene a multidisciplinary treatment team and conduct an assessment,
utilizing a standard uniform comprehensive assessment instrument or protocol,
including a risk and needs assessment, to determine the juvenile's
mental and physical condition, maturity and education level, home and family
environment, rehabilitative needs and recommended service plan. Upon completion
of the assessment, the treatment team shall prepare and implement a
comprehensive, individualized service plan for the juvenile, which shall be
provided in writing to the court and team members. In cases where the juvenile
is committed as a post-sentence disposition to the custody of the Division
of Juvenile Services Division of Corrections and Rehabilitation, the
plan shall be reviewed quarterly by the multidisciplinary treatment team. Where
a juvenile has been detained in a facility operated by the Division of
Juvenile Services Division of Corrections and Rehabilitation without
an active service plan for more than 60 days, the director of the facility may
call a multidisciplinary team meeting to review the case and discuss the status
of the service plan.
(d)(1) The rules of juvenile procedure shall govern the procedure for obtaining any assessment of a juvenile, preparing an individualized service plan and submitting the plan and any assessment to the court.
(2) In juvenile proceedings conducted pursuant to §49-4-701 et seq. of this code, the following representatives shall serve as members and attend each meeting of the multidisciplinary treatment team, so long as they receive notice at least seven days prior to the meeting:
(A) The juvenile;
(B) The juvenile's case manager in the Department of
Health and Human Resources or the
Division of Juvenile Services Division
of Corrections and Rehabilitation;
(C) The juvenile's parent, guardian or custodian;
(D) The juvenile's attorney;
(E) Any attorney representing a member of the multidisciplinary treatment team;
(F) The prosecuting attorney or his or her designee;
(G) The county school superintendent or the superintendent's designee;
(H) A treatment or service provider with training and clinical experience coordinating behavioral or mental health treatment; and
(I) Any other person or agency representative who may
assist in providing recommendations for the particular needs of the juvenile
and family, including domestic violence service providers. In delinquency
proceedings, the probation officer shall be a member of a multidisciplinary
treatment team. When appropriate, the juvenile case manager in the Department
of Health and Human Resources and the
Division of Juvenile Services Division
of Corrections and Rehabilitation shall cooperate in conducting
multidisciplinary treatment team meetings when it is in the juvenile's best
(3) Prior to disposition, in each case in 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 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 at 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. The multidisciplinary treatment team shall also determine and advise the court as to the individual treatment and rehabilitation plan recommended for the child for either out-of-home placement or community supervision. The plan may focus on reducing the likelihood of reoffending, requirements for the child to take responsibility for his or her actions, completion of evidence-based services or programs or any other relevant goal for the child. The plan may also include opportunities to incorporate the family, custodian or guardian into the treatment and rehabilitation process.
(4) The multidisciplinary treatment team shall submit written reports to the court as required by applicable law or by the court, shall meet with the court at least every three months, as long as the juvenile remains in the legal or physical custody of the state, and shall be available for status conferences and hearings as required by the court. The multidisciplinary treatment team shall monitor progress of the plan identified in subdivision (3) of this subsection and review progress of the plan at the regular meetings held at least every three months pursuant to this section, or at shorter intervals, as ordered by the court, and shall report to the court on the progress of the plan or if additional modification is necessary.
(5) In any case in which a juvenile has been placed out of his or her home except for a temporary placement in a shelter or detention center, the multidisciplinary treatment team shall cooperate with the state agency in whose custody the juvenile is placed to develop an after-care plan. The rules of juvenile procedure and §49-4-409 of this code govern the development of an after-care plan for a juvenile, the submission of the plan to the court and any objection to the after-care plan.
(6) If a juvenile respondent admits the underlying allegations of the case initiated pursuant to §49-4-701 through §49-4-725 of this code, in the multidisciplinary treatment planning process, his or her statements may not be used in any juvenile or criminal proceedings against the juvenile, except for perjury or false swearing
§49-4-413. Individualized case planning.
(a) For any juvenile ordered to probation supervision
pursuant to §49-4-714 of this code, the probation officer assigned to the
juvenile shall develop and implement an individualized case plan in
consultation with the juvenile's parents, guardian or custodian, and other
appropriate parties, and based upon the results of a
risk and needs
assessment conducted within the last six months 90 days prior to
the disposition to probation. The probation officer shall work with the
juvenile and his or her family, guardian or custodian to implement the case
plan following disposition. At a minimum, the case plan shall:
(1) Identify the actions to be taken by the juvenile and, if appropriate, the juvenile's parents, guardian or custodian to ensure future lawful conduct and compliance with the court's disposition order; and
(2) Identify the services to be offered and provided to the juvenile and, if appropriate, the juvenile's parents, guardian or custodian and may include services to address: Mental health and substance abuse issues; education; individual, group and family counseling services; community restoration; or other relevant concerns identified by the probation officer.
(b) For any juvenile disposed to an out-of-home placement
with the department, the department shall ensure that the residential service
provider develops and implements an individualized case plan based upon the
recommendations of the multidisciplinary team pursuant to §49-4-406 of this
code and the results of a
risk and needs assessment. At a minimum, the
case plan shall include:
(1) Specific treatment goals and the actions to be taken by the juvenile in order to demonstrate satisfactory attainment of each goal;
(2) The services to be offered and provided by the residential service providers; and
(3) A detailed plan designed to assure appropriate reintegration of the juvenile to his or her family, guardian, school and community following the satisfactory completion of the case plan treatment goals, including a protocol and timeline for engaging the parents, guardians or custodians prior to the release of the juvenile.
(c) For any juvenile committed to the
Juvenile Services Division of Corrections and Rehabilitation, the Division
of Juvenile Services Division of Corrections and Rehabilitation
shall develop and implement an individualized case plan based upon the
recommendations made to the court by the multidisciplinary team pursuant to section
four hundred six, article four of this chapter §49-4-406(c) of this code
and the results of a risk and needs assessment. At a minimum, the case plan
(1) Specific correctional goals and the actions to be taken by the juvenile to demonstrate satisfactory attainment of each goal;
(2) The services to be offered and provided by the
of Juvenile Services Division of Corrections and Rehabilitation and
any contracted service providers; and
(3) A detailed plan designed to assure appropriate reintegration of the juvenile to his or her family, guardian, school and community following the satisfactory completion of the case plan treatment goals, including a protocol and timeline for engaging the parents, guardians or custodians prior to the release of the juvenile.
§49-4-604. Disposition of neglected or abused children; case plans; dispositions; factors to be considered; reunification; orders; alternative dispositions.
(a) Child and family case plans. — Following a determination pursuant to §49-4-602 of this code wherein the court finds a child to be abused or neglected, the department shall file with the court a copy of the child's case plan, including the permanency plan for the child. The term “case plan” means a written document that includes, where applicable, the requirements of the family case plan as provided in §49-4-408 of this code and that also includes, at a minimum, the following:
(1) A description of the type of home or institution in which the child is to be placed, including a discussion of the appropriateness of the placement and how the agency which is responsible for the child plans to assure that the child receives proper care and that services are provided to the parents, child, and foster parents in order to improve the conditions that made the child unsafe in the care of his or her parent(s), including any reasonable accommodations in accordance with the Americans with Disabilities Act of 1990, 42 U. S. C. §12101, et seq., to parents with disabilities in order to allow them meaningful access to reunification and family preservation services;
(2) A plan to facilitate the return of the child to his or her own home or the concurrent permanent placement of the child; and address the needs of the child while in relative or foster care, including a discussion of the appropriateness of the services that have been provided to the child.
The term “permanency plan” refers to that part of the case plan which is designed to achieve a permanent home for the child in the least restrictive setting available. The plan must document efforts to ensure that the child is returned home within approximate time lines for reunification as set out in the plan. Reasonable efforts to place a child for adoption or with a legal guardian should be made at the same time, or concurrent with, reasonable efforts to prevent removal or to make it possible for a child to return to the care of his or her parent(s) safely. If reunification is not the permanency plan for the child, the plan must state why reunification is not appropriate and detail the alternative, concurrent permanent placement plans for the child to include approximate time lines for when the placement is expected to become a permanent placement. This case plan shall serve as the family case plan for parents of abused or neglected children. Copies of the child's case plan shall be sent to the child's attorney and parent, guardian or custodian or their counsel at least five days prior to the dispositional hearing. The court shall forthwith proceed to disposition giving both the petitioner and respondents an opportunity to be heard.
(b) Disposition decisions. — The court shall give precedence to dispositions in the following sequence:
(1) Dismiss the petition;
(2) Refer the child, the abusing parent, the battered parent or other family members to a community agency for needed assistance and dismiss the petition;
(3) Return the child to his or her own home under supervision of the department;
(4) Order terms of supervision calculated to assist the child and any abusing parent or battered parent or parents or custodian which prescribe the manner of supervision and care of the child and which are within the ability of any parent or parents or custodian to perform;
(5) Upon a finding that the abusing parent or battered parent or parents are presently unwilling or unable to provide adequately for the child's needs, commit the child temporarily to the care, custody, and control of the state department, a licensed private child welfare agency, or a suitable person who may be appointed guardian by the court. The court order shall state:
(A) That continuation in the home is contrary to the best interests of the child and why;
(B) Whether or not the department has made reasonable efforts, with the child's health and safety being the paramount concern, to preserve the family, or some portion thereof, and to prevent or eliminate the need for removing the child from the child's home and to make it possible for the child to safely return home;
(C) Whether the department has made reasonable accommodations in accordance with the Americans with Disabilities Act of 1990, 42 U. S. C. §12101, et seq., to parents with disabilities in order to allow them meaningful access to reunification and family preservation services;
(D) What efforts were made or that the emergency situation made those efforts unreasonable or impossible; and
(E) The specific circumstances of the situation which made those efforts unreasonable if services were not offered by the department. The court order shall also determine under what circumstances the child's commitment to the department are to continue. Considerations pertinent to the determination include whether the child should:
(i) Be considered for legal guardianship;
(ii) Be considered for permanent placement with a fit and willing relative; or
(iii) Be placed in another planned permanent living arrangement, but only in cases where the child has attained 16 years of age and the department has documented to the circuit court a compelling reason for determining that it would not be in the best interests of the child to follow one of the options set forth in subparagraphs (i) or (ii) of this paragraph. The court may order services to meet the special needs of the child. Whenever the court transfers custody of a youth to the department, an appropriate order of financial support by the parents or guardians shall be entered in accordance with §49-4-801 through §49-4-803 of this code;
(6) Upon a finding that there is no reasonable likelihood that the conditions of neglect or abuse can be substantially corrected in the near future and, when necessary for the welfare of the child, terminate the parental, custodial and guardianship rights and responsibilities of the abusing parent and commit the child to the permanent sole custody of the nonabusing parent, if there be one, or, if not, to either the permanent guardianship of the department or a licensed child welfare agency. The court may award sole custody of the child to a nonabusing battered parent. If the court shall so find, then in fixing its dispositional order the court shall consider the following factors:
(A) The child's need for continuity of care and caretakers;
(B) The amount of time required for the child to be integrated into a stable and permanent home environment; and
(C) Other factors as the court considers necessary and proper. Notwithstanding any other provision of this article, the court shall give consideration to the wishes of a child 14 years of age or older or otherwise of an age of discretion as determined by the court regarding the permanent termination of parental rights. No adoption of a child shall take place until all proceedings for termination of parental rights under this article and appeals thereof are final. In determining whether or not parental rights should be terminated, the court shall consider the efforts made by the department to provide remedial and reunification services to the parent. The court order shall state:
(i) That continuation in the home is not in the best interest of the child and why;
(ii) Why reunification is not in the best interests of the child;
(iii) Whether or not the department made reasonable efforts, with the child's health and safety being the paramount concern, to preserve the family, or some portion thereof, and to prevent the placement or to eliminate the need for removing the child from the child's home and to make it possible for the child to safely return home, or that the emergency situation made those efforts unreasonable or impossible; and
(iv) Whether or not the department made reasonable efforts to preserve and reunify the family, or some portion thereof, including a description of what efforts were made or that those efforts were unreasonable due to specific circumstances.
(7) For purposes of the court's consideration of the disposition custody of a child pursuant to this subsection, the department is not required to make reasonable efforts to preserve the family if the court determines:
(A) The parent has subjected the child, another child of the parent or any other child residing in the same household or under the temporary or permanent custody of the parent to aggravated circumstances which include, but are not limited to, abandonment, torture, chronic abuse, and sexual abuse;
(B) The parent has:
(i) Committed murder of the child's other parent, guardian or custodian, another child of the parent, or any other child residing in the same household or under the temporary or permanent custody of the parent;
(ii) Committed voluntary manslaughter of the child's other parent, guardian or custodian, another child of the parent, or any other child residing in the same household or under the temporary or permanent custody of the parent;
(iii) Attempted or conspired to commit murder or voluntary manslaughter, or been an accessory before or after the fact to either crime;
(iv) Committed a malicious assault that results in serious bodily injury to the child, the child's other parent, guardian or custodian, to another child of the parent, or any other child residing in the same household or under the temporary or permanent custody of the parent; or
(v) Committed sexual assault or sexual abuse of the child, the child's other parent, guardian or custodian, another child of the parent, or any other child residing in the same household or under the temporary or permanent custody of the parent.
(C) The parental rights of the parent to another child have been terminated involuntarily;
(D) A parent has been required by state or federal law to register with a sex offender registry, and the court has determined in consideration of the nature and circumstances surrounding the prior charges against that parent, that the child's interests would not be promoted by a preservation of the family.
(c) As used in this section, “no reasonable likelihood that conditions of neglect or abuse can be substantially corrected” means that, based upon the evidence before the court, the abusing adult or adults have demonstrated an inadequate capacity to solve the problems of abuse or neglect on their own or with help. Those conditions exist in the following circumstances, which are not exclusive:
(1) The abusing parent or parents have habitually abused or are addicted to alcohol, controlled substances or drugs, to the extent that proper parenting skills have been seriously impaired and the person or persons have not responded to or followed through the recommended and appropriate treatment which could have improved the capacity for adequate parental functioning;
(2) The abusing parent or parents have willfully refused or are presently unwilling to cooperate in the development of a reasonable family case plan designed to lead to the child's return to their care, custody and control;
(3) The abusing parent or parents have not responded to or followed through with a reasonable family case plan or other rehabilitative efforts of social, medical, mental health, or other rehabilitative agencies designed to reduce or prevent the abuse or neglect of the child, as evidenced by the continuation or insubstantial diminution of conditions which threatened the health, welfare, or life of the child;
(4) The abusing parent or parents have abandoned the child;
(5) The abusing parent or parents have repeatedly or seriously injured the child physically or emotionally, or have sexually abused or sexually exploited the child, and the degree of family stress and the potential for further abuse and neglect are so great as to preclude the use of resources to mitigate or resolve family problems, or assist the abusing parent or parents in fulfilling their responsibilities to the child; and
(6) The battered parent's parenting skills have been seriously impaired and the person has willfully refused or is presently unwilling or unable to cooperate in the development of a reasonable treatment plan, or has not adequately responded to or followed through with the recommended and appropriate treatment plan.
(d) The court may, as an alternative disposition, allow the parents or custodians an improvement period not to exceed six months. During this period the court shall require the parent to rectify the conditions upon which the determination was based. The court may order the child to be placed with the parents, or any person found to be a fit and proper person, for the temporary care of the child during the period. At the end of the period, the court shall hold a hearing to determine whether the conditions have been adequately improved and at the conclusion of the hearing shall make a further dispositional order in accordance with this section.
(e) The court may not terminate the parental right of a parent on the sole basis that the parent is participating in a medically-assisted treatment program for substance use disorder.
§49-4-608. Permanency hearing; frequency; transitional planning; out-of-state placements; findings; notice; permanent placement review.
(a) Permanency hearing when reasonable efforts are not required. -- If the court finds, pursuant to this article, that the department is not required to make reasonable efforts to preserve the family, then, notwithstanding any other provision, a permanency hearing must be held within 30 days following the entry of the court order so finding, and a permanent placement review hearing must be conducted at least once every 90 days thereafter until a permanent placement is achieved.
(b) Permanency hearing every 12 months until permanency is achieved. -- If, 12 months after receipt by the department or its authorized agent of physical care, custody, and control of a child either by a court-ordered placement or by a voluntary agreement, the department has not placed a child in an adoptive home; placed the child with a natural parent, placed the child in legal guardianship, or permanently placed the child with a fit and willing relative, the court shall hold a permanency hearing. The department shall file a progress report with the court detailing the efforts that have been made to place the child in a permanent home and copies of the child's case plan, including the permanency plan as defined in §49-1-201 and §49-4-604 of this code. Copies of the report shall be sent to the parties and all persons entitled to notice and the right to be heard. The court shall schedule a hearing, giving notice and the right to be present to the child's attorney; the child; the child's parents; the child's guardians; the child's foster parents; any preadoptive parent, or any relative providing care for the child; any person entitled to notice and the right to be heard; and other persons as the court may, in its discretion, direct. The child's presence may be waived by the child's attorney at the request of the child or if the child is younger than 12 years and would suffer emotional harm. The purpose of the hearing is to review the child's case, to determine whether and under what conditions the child's commitment to the department shall continue, to determine what efforts are necessary to provide the child with a permanent home, and to determine if the department has made reasonable efforts to finalize the permanency plan. The court shall conduct another permanency hearing within 12 months thereafter for each child who remains in the care, custody, and control of the department until the child is placed in an adoptive home, returned to his or her parents, placed in legal guardianship, or permanently placed with a fit and willing relative.
(c) Transitional planning for older children. -- In the case of a child who has attained 16 years of age, the court shall determine the services needed to assist the child to make the transition from foster care to independent living. The child’s case plan should specify services aimed at transitioning the child into adulthood. When a child turns 17, or as soon as a child aged 17 comes into a case, the department must immediately provide the child with assistance and support in developing a transition plan that is personalized at the direction of the child. The plan must include specific options on housing, health insurance, education, local opportunities for mentors, continuing support services, work force support, and employment services, and the plan should be as detailed as the child may elect. In addition to these requirements, when a child with special needs turns 17, or as soon as a child aged 17 with special needs comes into a case, he or she is entitled to the appointment of a department adult services worker to the multidisciplinary treatment team, and coordination between the multidisciplinary treatment team and other transition planning teams, such as special education individualized education planning (IEP) teams.
(d) Out-of-state placements. --
any case in which the court decides to order the child placed in an
out-of-state facility or program it shall set forth in the order directing the
placement the reasons why the child was not placed in an in-state
facility or program A court may not order a
child to be placed in an out-of-state facility unless the child is diagnosed
with a health issue that no in-state facility or program serves. If the
child is to be placed with a relative or other responsible person out of state,
the court shall use judicial leadership to help expedite the process under the
Interstate Compact for the Placement of Children provided in §49-7-101 and
§49-7-102 and the Uniform Child Custody Jurisdiction and Enforcement Act
provided in §48-20-101 et seq. of this code.
(e) Findings in order. -- At the conclusion of the hearing the court shall, in accordance with the best interests of the child, enter an order containing all the appropriate findings. The court order shall state:
(1) Whether or not the department made reasonable efforts to preserve the family and to prevent out-of-home placement or that the specific situation made the effort unreasonable;
(2) Whether or not the department made reasonable efforts to finalize the permanency plan and concurrent plan for the child;
(3) The appropriateness of the child’s current placement, including its distance from the child's home and whether or not it is the least restrictive one (most family-like one) available;
(4) The appropriateness of the current educational setting and the proximity to the school in which the child is enrolled at the time of placement;
(5) Services required to meet the child's needs and achieve permanency; and
(6) In addition, in the case of any child for whom another planned permanent living arrangement is the permanency plan, the court shall: (A) Inquire of the child about the desired permanency outcome for the child; (B) make a judicial determination explaining why, as of the date of the hearing, another planned permanent living arrangement is the best permanency plan for the child; and, (C) provide in the court order compelling reasons why it continues to not be in the best interest of the child to (i) return home, (ii) be placed for adoption, (iii) be placed with a legal guardian, or (iv) be placed with a fit and willing relative.
(f) The department shall annually report to the court the current status of the placements of children in the care, custody and control of the state department who have not been adopted.
(g) The department shall file a report with the court in any case where any child in the custody of the state receives more than three placements in one year no later than 30 days after the third placement. This report shall be provided to all parties and persons entitled to notice and the right to be heard. Upon motion by any party, the court shall review these placements and determine what efforts are necessary to provide the child with a permanent home. No report may be provided to any parent or parent's attorney whose parental rights have been terminated pursuant to this article.
(h) The department shall give actual notice, in writing, to the court, the child, the child's attorney, the parents and the parents' attorney at least 48 hours prior to the move if this is a planned move, or within 48 hours of the next business day after the move if the child is in imminent danger in the child’s current placement, except where the notification would endanger the child or the foster family. A multidisciplinary treatment team shall convene as soon as practicable after notice to explore placement options. This requirement is not waived by placement of the child in a home or other residence maintained by a private provider. No notice may be provided pursuant to this provision to any parent or parent's attorney whose parental rights have been terminated pursuant to this article.
(i) Nothing in this article precludes any party from petitioning the court for review of the child's case at any time. The court shall grant the petition upon a showing that there is a change in circumstance or needs of the child that warrants court review.
(j) Any foster parent, preadoptive parent or relative providing care for the child shall be given notice of and the right to be heard at the permanency hearing provided in this section.
§49-4-711. Adjudication for alleged status offenders and delinquents; mandatory initial disposition of status offenders.
At the outset of an adjudicatory hearing, the court shall inquire of the juvenile whether he or she wishes to admit or deny the allegations in the petition. The juvenile may elect to stand silent, in which event the court shall enter a general denial of all allegations in the petition.
(1) If the respondent juvenile admits the allegations of the petition, the court shall consider the admission to be proof of the allegations if the court finds: (1) The respondent fully understands all of his or her rights under this article; (2) the respondent voluntarily, intelligently and knowingly admits all facts requisite for an adjudication; and (3) the respondent in his or her admission has not set forth facts which constitute a defense to the allegations.
(2) If the respondent juvenile denies the allegations, the court shall dispose of all pretrial motions and the court or jury shall proceed to hear evidence.
(3) If the allegations in a petition alleging that the
juvenile is delinquent are admitted or are sustained by proof beyond a
reasonable doubt, the court shall schedule the matter for disposition pursuant
to §49-4-704 of this code. The court shall receive and consider the results of
risk and needs assessment, as defined in §49-1-206 of this code,
prior to or at the disposition. pursuant to section seven hundred
twenty-four, article four of this chapter
(4) If the allegations in a petition alleging that the
juvenile is a status offender are admitted or sustained by clear and convincing
evidence, the court shall consider the results of the
risk and needs
assessment, as defined in §49-1-206 of this code, prior to or at the
disposition pursuant to section seven hundred twenty-four, article
four of this chapter and refer the juvenile to the Department of Health and
Human Resources for services, pursuant to §49-4-712 of this code, and order the
department to report back to the court with regard to the juvenile's progress
at least every 90 days or until the court, upon motion or sua sponte, orders
further disposition under §49-4-712 of this code or dismisses the case from its
docket: Provided, That in a judicial circuit operating a truancy
program, a circuit judge may, in lieu of referring truant juveniles to the
department, order that the juveniles be supervised by his or her probation
office: Provided, however, That a circuit judge may also refer a truant
juvenile to a truancy diversion specialist.
(5) If the allegations in a petition are not sustained by evidence as provided in §49-4-711(c) and §49-4-711(d) of this code, the petition shall be dismissed and the juvenile shall be discharged if he or she is in custody.
(6) Findings of fact and conclusions of law addressed to all allegations in the petition shall be stated on the record or reduced to writing and filed with the record or incorporated into the order of the court. The record shall include the treatment and rehabilitation plan the court has adopted after recommendation by the multidisciplinary team as provided for in §49-4-406 of this code.
§49-4-714. Disposition of juvenile delinquents; appeal.
(a) In aid of disposition of juvenile delinquents, the juvenile probation officer assigned to the juvenile shall, upon request of the court, make an investigation of the environment of the juvenile and the alternative dispositions possible. The court, upon its own motion, or upon request of counsel, may order the use of a standardized screener, as defined in §49-1-206 of this code or, if additional information is necessary, a psychological examination of the juvenile. The report of an examination and other investigative and social reports shall not be relied upon the court in making a determination of adjudication. Unless waived, copies of the report shall be provided to counsel for the petitioner and counsel for the juvenile no later than 72 hours prior to the dispositional hearing.
(b) Following the adjudication, the court shall receive
and consider the results of a
risk and needs assessment, conducted
pursuant to section seven hundred twenty-four, article four of this
chapter as defined in §49-1-206 of this code, and shall conduct the
disposition, giving all parties an opportunity to be heard. The disposition may
include reasonable and relevant orders to the parents, custodians or guardians
of the juvenile as is necessary and proper to effectuate the disposition. At
disposition the court shall not be limited to the relief sought in the petition
and shall, in electing from the following alternatives, consider the best
interests of the juvenile and the welfare of the public:
(1) Dismiss the petition;
(2) Refer the juvenile and the juvenile's parent or custodian to a community agency for needed assistance and dismiss the petition;
(3) Upon a finding that the juvenile is in need of extra-parental supervision: (A) Place the juvenile under the supervision of a probation officer of the court or of the court of the county where the juvenile has his or her usual place of abode or other person while leaving the juvenile in custody of his or her parent or custodian; and (B) prescribe a program of treatment or therapy or limit the juvenile's activities under terms which are reasonable and within the child's ability to perform, including participation in the litter control program established pursuant to §22-15A-3 of this code or other appropriate programs of community service;
(4) Upon a finding that a parent or custodian is not willing or able to take custody of the juvenile, that a juvenile is not willing to reside in the custody of his or her parent or custodian or that a parent or custodian cannot provide the necessary supervision and care of the juvenile, the court may place the juvenile in temporary foster care or temporarily commit the juvenile to the department or a child welfare agency. The court order shall state that continuation in the home is contrary to the best interest of the juvenile and why; and whether or not the department made a reasonable effort to prevent the placement or that the emergency situation made those efforts unreasonable or impossible. Whenever the court transfers custody of a youth to the department, an appropriate order of financial support by the parents or guardians shall be entered in accordance with §49-4-801 through §49-4-803 et seq. of this code and guidelines promulgated by the Supreme Court of Appeals;
(5) (A) Upon a finding that the best interests of the
juvenile or the welfare of the public require it, and upon an adjudication of
delinquency, the court may commit the juvenile to the custody of the
of the Division of Juvenile Services Commissioner of the Division of
Corrections and Rehabilitation for placement in a juvenile services
facility for the treatment, instruction and rehabilitation of juveniles. The
court maintains discretion to consider alternative sentencing arrangements.
(B) Notwithstanding any provision of this code to the
contrary, in the event that the court determines that it is in the juvenile's
best interests or required by the public welfare to place the juvenile in the
custody of the
Division of Juvenile Services Division of Corrections
and Rehabilitation, the court shall provide the Division of Juvenile
Services Division of Corrections and Rehabilitation with access to
all relevant court orders and records involving the underlying offense or
offenses for which the juvenile was adjudicated delinquent, including sentencing
and presentencing reports and evaluations, and provide the division with access
to school records, psychological reports and evaluations, risk and needs
assessment results, medical reports and evaluations or any other such records
as may be in the court's possession as would enable the Division of Juvenile
Services Division of Corrections and Rehabilitation to better assess
and determine the appropriate counseling, education and placement needs for the
(C) Commitments may not exceed the maximum term for which an adult could have been sentenced for the same offense and any such maximum allowable term of confinement to be served in a juvenile correctional facility shall take into account any time served by the juvenile in a detention center pending adjudication, disposition or transfer. The order shall state that continuation in the home is contrary to the best interests of the juvenile and why; and whether or not the state department made a reasonable effort to prevent the placement or that the emergency situation made those efforts unreasonable or impossible; or
(6) After a hearing conducted under the procedures set out in §27-5-4(c) and §27-5-4(d) of this code, commit the juvenile to a mental health facility in accordance with the juvenile's treatment plan; the director of the mental health facility may release a juvenile and return him or her to the court for further disposition. The order shall state that continuation in the home is contrary to the best interests of the juvenile and why; and whether or not the state department made a reasonable effort to prevent the placement or that the emergency situation made those efforts unreasonable or impossible.
The court shall make all reasonable efforts to place the
juvenile in the least restrictive alternative appropriate to the needs of the
juvenile and the community: Provided, That a juvenile adjudicated
delinquent for a nonviolent misdemeanor offense may not be placed in an
out-of-home placement within the
Division of Juvenile Services Division
of Corrections and Rehabilitation or the department if that juvenile has no
prior adjudications as either a status offender or as a delinquent, or no prior
dispositions to a pre-adjudicatory improvement period or probation for the
current matter, excluding placements made for abuse or neglect: Provided,
however, That if the court finds by clear and convincing evidence that
there is a significant and likely risk of harm, as determined by a risk and
needs assessment, to the juvenile, a family member or the public and that
continued placement in the home is contrary to the best interest of the
juvenile, such juvenile may be ordered to an out-of-home placement: Provided
further, That the department has made all reasonable efforts to prevent
removal of the juvenile from his or her home, or that reasonable efforts are
not required due to an emergent situation.
(c) In any case in which the court decides to order the juvenile placed in an out-of-state facility or program, it shall set forth in the order directing the placement the reasons the juvenile was not placed in an in-state facility or program.
(d) The disposition of the juvenile shall not be affected by the fact that the juvenile demanded a trial by jury or made a plea of not guilty. Any disposition is subject to appeal to the Supreme Court of Appeals.
(e) Following disposition, the court shall inquire whether the juvenile wishes to appeal and the response shall be transcribed; a negative response shall not be construed as a waiver. The evidence shall be transcribed as soon as practicable and made available to the juvenile or his or her counsel, if the same is requested for purposes of further proceedings. A judge may grant a stay of execution pending further proceedings.
(f) Following a disposition under §49-4-714(b)(4), §49-4-714(b)(5), or §49-4-714(b)(6) of this code, the court shall include in the findings of fact the treatment and rehabilitation plan the court has adopted upon recommendation of the multidisciplinary team under §49-4-406 of this code.
(g) Notwithstanding any other provision of this code to the contrary, if a juvenile charged with delinquency under this chapter is transferred to adult jurisdiction and there tried and convicted, the court may make its disposition in accordance with this section in lieu of sentencing the person as an adult.
risk and needs assessment
(a) The Supreme Court of Appeals is requested to adopt a
risk and needs assessment to be used for
juvenile dispositions adjudicated
delinquents, detained and delivered to, or committed to the custody of the Commissioner
of Corrections and Rehabilitation. A validation study of the risk and needs
assessment may be conducted at least every three years to ensure that the risk
and needs assessment is predictive of the risk of reoffending.
(b) Each juvenile adjudicated for a
delinquency offense and committed or detained with the Division of
Corrections and Rehabilitation in accordance with this chapter §49-4-714(b)(5)(A)
of this code shall undergo a risk and needs assessment prior to disposition
to identify specific factors that predict a juvenile's likelihood of
reoffending and, when appropriately addressed, may reduce the likelihood of
reoffending. The risk and needs assessment may be conducted by a probation
officer, other court official or the state department division
worker trained to conduct the risk and needs assessment.
(c) Each multidisciplinary team convened pursuant to
four hundred six, article four of this chapter §49-4-406(c) of this code
shall receive and consider the results of the risk and needs assessment of the
(d) The results of the risk and needs assessment shall be provided to the court prior to disposition or at the time of the dispositional hearing.
NOTE: The purpose of this bill is to make modifications to West Virginia’s foster care system.
Strike-throughs indicate language that would be stricken from a heading or the present law and underscoring indicates new language that would be added.