Senate Bill No. 171
(By Senator Boley)
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[Introduced February 14, 2005; referred to the Committee
on the Judiciary.]
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A BILL to amend the Code of West Virginia, 1931, as amended, by
adding thereto a new section, designated §49-2B-18, relating
to a foster parents' bill of rights.
Be it enacted by the Legislature of West Virginia:
That the Code of West Virginia, 1931, as amended, be amended
by adding thereto a new section, designated §49-2B-18, to read as
follows:
ARTICLE 2B. DUTIES OF COMMISSIONER OF HUMAN SERVICES FOR CHILD
WELFARE.
§49-2B-18. The "Foster Parents' Bill of Rights Act."
The Department of Health and Human Resources shall ensure that
each foster parent shall have all of the following rights:
The Department and private contractors shall treat the foster
parent(s) with dignity, respect, trust and consideration as a primary provider of foster care and a member of the professional
team caring for foster children;
The Department and private contractors shall provide the
foster parent(s) with a clear explanation and understanding of the
role of the Department and private contractors or private
contractors and the role of the members of the child?s birth family
in a child?s foster care;
The foster parent(s) shall make decisions about the daily
living concerns of the child, and shall be permitted to continue
the practice of their own family values and routines while
respecting the child?s cultural heritage. All discipline shall be
consistent with state laws and regulations. The Division of Family
Services shall allow foster parents to help plan visitation between
the child and the child's biological family and recognizing that
visitation with family members is an important right, foster
parents shall be flexible and cooperative in regard to family
visits;
The foster parent(s) shall be provided training and support
for the purpose of improving skills in providing daily care and
meeting the special needs of the child in foster care and they have
the right to training, consultation, and assistance in evaluating,
identifying, and accessing services to meet their needs related to
their role as foster care providers;
Prior to the placement of a child in foster care, the Department and private contractors shall inform the foster
parent(s) of issues relative to the child that may jeopardize the
health and safety of the foster family including history of making
allegations against former foster parents or issues which may alter
the manner in which foster care should be administered;
Foster parent(s) shall have the right to communicate with
other foster parents in order to share information regarding the
foster child. In particular, receive any information concerning
the number of times a foster child has been moved and the reasons
why, and the names and telephone numbers of the previous foster
parents;
The Department and private contractors shall provide a means
by which the foster parent(s) can contact the Department and
private contractors twenty-four hours a day, seven days a week for
the purpose of receiving Departmental assistance and/or assistance
from the private contractor;
The Department and private contractors shall provide the
foster parent(s) timely, adequate financial reimbursement for the
quality and knowledgeable care of a child in foster care, as
specified in the plan:
Provided, That such reimbursement shall not
be counted as family income except for purposes of establishing due
process rights. Additionally, if this is a child?s first foster
home placement or the child lacks adequate clothing, initial
clothing vouchers in the amount of three hundred dollars per child shall be provided to the foster parent(s). The foster parent(s)
will then submit receipts proving purchase of clothing to the
Department and private contractors or private agency.
The Department and private contractors shall provide clear,
written explanation of the plan concerning the placement of a child
in the foster parent?s home. For emergency placements where time
does not allow prior preparation of such explanation, the
Department and private contractors shall provide such explanation
as it becomes available. This explanation shall include, but is
not limited to, all information regarding the child?s contact with
such child?s birth family and cultural heritage, if so outlined;
Prior to placement, the Department and private contractors
shall allow the foster parent(s) to review written information
concerning the child, meet with the child, and allow the foster
parent(s) to assist in determining if such child would be a proper
placement for the prospective foster family. Foster parents have
the right to information concerning behavioral problems, health
history, educational status, cultural and family background, and
other issues relative to the child which are known to the
Department at the time the child is placed in foster care prior to
the child?s placement with a foster parent or parents. On an
ongoing basis, the foster parents shall receive additional or
necessary information that is relative to the care of the child.
For emergency placements where time does not allow prior review of such information, the Department and private contractors shall
provide information as it becomes available;
At the time of placement of a child in a foster home, and no
later than at the time the foster care placement contract is
signed, the foster parent shall be informed, in writing, through a
succinct checklist form, of all information that is available to
the Department regarding the child?s:
(a) Pending petitions, or adjudications of delinquency when
the conduct constituting the delinquent act, if committed by an
adult, would constitute first degree murder, second degree murder,
rape, aggravated rape, aggravated robbery, especially aggravated
robbery, kidnaping, aggravated kidnaping or especially aggravated
kidnaping;
(b) Behavioral issues which may affect the care and
supervision of the child;
(c) History of physical or sexual abuse;
(d) Special medical or psychological needs of the child; and
(e) Current infectious diseases.
The Department shall inform the foster parent(s) on the
maintenance of a permanent record for each child containing all
relevant information as to the medical, educational and social
history of the child. The Department shall make a reasonable
effort to ensure that a permanent record is maintained and travels
with the child if the child is moved between foster care placements. The permanent record shall include, but is not limited
to: The child?s medical history; the child?s family background and
social history; the child?s therapeutic and psychiatric history;
the child?s educational history; and the names and addresses of any
of the child?s service providers.
Upon written request by the foster parents detailing a
reasonable need for such information including protecting
themselves from allegations of child abuse or neglect (which in
this case the foster parents still have this right even if the
child has been removed), the Department shall provide the foster
parents with written authorization to contact and obtain
information from any of the child?s past or present care providers
or service providers, including, but not limited to, the child?s
previous foster parents, doctors, psychiatrists, psychologists or
educators. Confidential information received by the foster parents
shall be maintained as such by the foster parents, except as
necessary to promote or protect the health and welfare of the
child.
The Department and private contractors shall permit the foster
parent(s) to refuse placement within their home, or to request,
upon reasonable notice to the Department and private contractors,
the removal of a child from their home for good reason, without
threat of reprisal, unless otherwise stipulated by contract or
policy. When requesting removal of a child from their home, foster parents shall give reasonable advance notice, consistent with
division policy, to the child?s caseworker, except in emergency
situations;
The Department and private contractors shall inform the foster
parent(s) of scheduled meetings and staffing concerning the foster
child and the foster parent shall be permitted to actively
participate in the case planning and decision-making process
regarding the child in foster care. This shall include, but is not
limited to: Multidisciplinary team meetings, individual service
planning meetings, foster care reviews, and individual educational
planning meetings;
The Department and private contractors shall inform a foster
parent(s) of decisions made by the courts or the child welfare
agency concerning the child;
The Department and private contractors shall solicit the input
of a foster parent(s) concerning the plan of services for the
child; this input shall be considered in the Department and private
contractor?s ongoing development of the plan;
The Department and private contractors shall permit, through
written consent, the foster parent(s) to communicate with
professionals who work with the foster child, including any
therapists, physicians and teachers that work directly with the
child and to make appointments for the child. Foster parent(s)
shall have the right to assist the Department in identifying the types of resources and services that would meet the needs of
children currently in their care and of their families, advocate
for the same and seek out and obtain such services;
The Department and private contractors shall provide all
information regarding the child and the child?s family background
and health history, in a timely manner to the foster parent(s).
The foster parent(s) shall receive additional or necessary
information, that is relevant to the care of the child, on an
ongoing basis:
Provided, That confidential information received by
the foster parents shall be maintained as such by the foster
parents, except as necessary to promote or protect the health and
welfare of the child;
The Department and private contractors shall provide timely,
written notification of changes in the case plan or written notice
ten days prior to the termination of the placement and the reasons
for the changes or termination of placement to the foster
parent(s), except in the instances of imminent danger requiring
immediate response for child protective services;
The right to notice and an opportunity to be heard, including
timely information concerning all court hearings, shall be provided
to foster parent(s). This notification may include, but is not
limited to, notice of the date and time of the court hearing, the
name of the guardian ad litem, name of the court appointed special
advocate, if any, name of the judge or hearing officer hearing the case, the location of the hearing, and the court docket number of
the case. Such notification shall be made upon the Department and
private contractor?s receiving of this information, or at the same
time that notification is issued to birth parents. The foster
parent(s) shall be permitted to attend all such hearings and be
permitted input and be encouraged to write and submit court reports
concerning the child?s well being to all involved parties before
each hearing. Foster parents must receive notice at least
forty-eight hours before a hearing. No hearing may go forward
unless foster parents have been served with notice.
If a foster parent is denied the opportunity to be heard, he
or she may file a legal action against the court or public agency
to enforce his or her right to be heard.
A court may grant any foster parent standing as a party if the
court finds it is in the best interest of the child to do so.
The Department and private contractors shall provide, upon
request by the foster parent(s), information regarding the child?s
progress after a child leaves foster care. Information provided
pursuant to this subsection shall only be provided from information
already in possession of the Department and private contractors at
the time of the request;
The Department and private contractors shall provide the
foster parent(s) the training for obtaining support and information
concerning a better understanding of the rights and responsibilities of the foster parent(s);
The Department and private contractors shall consider the
foster parent(s) as the possible first choice permanent parents for
the child, who, after being in the foster parent?s home for any
length of time and no relative has stepped forward, becomes free
for adoption or permanent foster care. Foster parents shall inform
the child?s caseworker, the GAL, the CASA (if one has been
appointed) and the court of their interest if a child reenters the
system. If a foster child becomes free for adoption and the foster
parents desire to adopt the child, they shall inform the caseworker
in a timely manner. If they do not choose to pursue adoption,
foster parents shall make every effort to support and encourage the
child?s placement in a permanent home;
The Department and private contractors shall consider the
former foster family as a placement option when a foster child who
was formerly placed with the foster parent(s) is to be reentered
into foster care: It will be the foster family?s option to request
removal of short term foster children in order to make room for
former foster children with whom a bond has already been
established. The Department shall give the previous foster parents
the right to continue foster care of a child who comes back into
foster care unless the Department can document a justified reason
why the previous foster parents should not resume care of the
child. The previous foster parents shall be considered an interested party;
The Division of Family Services shall establish reasonably
accessible respite care for children in foster care for short
periods of time, jointly determined by foster parents and the
child?s caseworker;
The Department and private contractors shall permit the foster
parent(s) a period of respite, free from placement of foster
children in the family?s home with follow-up contacts by the agency
occurring a minimum of every two months. The foster parent(s)
shall provide reasonable notice, to be determined in the
promulgation of rules, to the Department and private contractors
for respite;
Foster parents have the right to be free of coercion,
discrimination, and reprisal in serving foster children, including
the right to voice grievances about treatment furnished or not
furnished to the foster child;
Child abuse/neglect investigations involving the foster
parent(s) shall be investigated pursuant to the Department and
private contractor?s child protective services policy and
procedures except that the Department shall notify the foster
parents of any charges brought against the foster parents within
fourteen days of the commencement of the Department?s
investigation. A child protective services case manager from
another county shall be assigned investigative responsibility. Removal of a foster child will be conducted pursuant to West
Virginia code and Departmental policy and procedures. The
Department and private contractors shall permit an advocate that is
educated concerning the procedures relevant to investigations of
alleged abuse and neglect by the Department and private contractors
and the rights of the accused foster parent(s) to accompany and
assist foster parent(s) who are under investigation. Such advocate
shall be permitted to be present at all portions of investigations
where the accused foster parent(s) are present; and all
communication received by such advocate therein shall be strictly
confidential. The foster parents? advocate will be permitted to
represent the foster parents? interests in any actions taken
against the foster care license or which affects such foster
parents ability to care for children in need of care placed in such
foster parents homes. Foster parents shall have timely access to
the child placement agency?s appeals process, and shall be free
from acts of retaliation when exercising the right to appeal. The
investigation shall be concluded within thirty days and if the
allegations are unsubstantiated the foster children shall be placed
back into the home.
Foster parents have the right to be provided a fair, timely,
and impartial investigation of complaints concerning the foster
parent?s licensure, to be provided the opportunity to have a person
of the foster parent?s choosing present during the investigation, to have the right to face their accuser, to have the right to
subpoena for any administrative hearings and to be provided due
process during the investigation; the right to be provided the
opportunity to request and receive mediation or an administrative
review of decisions that affect licensing parameters, or both
mediation and an administrative review; and the right to have
decisions concerning a licensing corrective action plan
specifically explained and tied to the licensing standards
violated.
Upon request, the Department and private contractors shall
provide within forty-eight hours the foster parent(s) copies of all
information relative to their family and services contained in the
personal foster home record and records of any prior and ongoing
investigations of abuse; and
The Department and private contractors shall advise the foster
parent(s) of mediation efforts and their right to a fair hearing
and/or grievance hearing and immediately supply three copies of a
fair hearing request form and three copies of the grievance
application form and the address of the hearing review board. The
foster parent(s) may file for mediation efforts, fair hearings or
a grievance in response to any violations of the preceding tenets
and the blank forms shall be automatically supplied for them to do
so. At this time, foster parent(s) shall automatically be given a
copy of the policy and procedure manuals for child abuse and neglect and for foster care.
After exhausting all administrative remedies, the foster
parents, who believe that such foster parents? license was revoked
or a foster child was removed by the Department without just cause,
may petition the court in which the foster child in need of care
case was adjudicated to review the Department?s decision. The
court shall have the discretion to review the Department?s decision
and reinstate the foster parents? license and mandate reinstatement
of the placement of the child in the foster parents? home, or both,
if the court finds that such placement is in the child?s best
interest.
Except as otherwise provided, in order to protect the privacy
of children who are the subject of a child in need of care record
or report, all records and reports concerning children in need of
care, including the juvenile intake and assessment report, received
by the Department of Social and Rehabilitation Services, a
Law-Enforcement Agency or any juvenile intake and assessment worker
shall be kept confidential except: (1) To those persons or entities
with a need for information that is directly related to achieving
the purposes of this code, or (2) upon an order of a court of
competent jurisdiction pursuant to a determination by the court
that disclosure of the reports and records is in the best interests
of the child or are necessary for the proceedings before the court,
or both, and are otherwise admissible in evidence. Such access shall be limited to in-camera inspection, unless the court
otherwise issues an order specifying the terms of disclosure.
All foster parents shall be given a list of other foster
parents in the State and their contact information.
For purposes of this section, "foster parent" means a resource
family providing care of children in state custody. This includes
both licensed and unlicensed homes, formal and informal foster care
arrangements with relatives, both Departmental and privately
contracted foster parents and prospective adoptive parents.
Foster parent rights shall not supercede parental rights or
the rights of relatives. The best interest of the child shall be
the paramount concern.
Foster parents will be notified, permitted to attend and have
input, any staffings held concerning their foster home or foster
children.
All persons wishing to be foster parents shall have the right
to be a foster parent unless the criminal records checks reveals
that a court of competent jurisdiction has ever convicted the
prospective foster or adoptive parent of a felony involving the
following:
Child abuse or neglect;
Spousal abuse;
A Crime against a child or children (including child
pornography); or
A crime involving violence, including rape, sexual assault or
homicide, but not other physical assault or battery, 45 C.F.R
statue 1356.30(b).
Additionally, a home may not be approved if a court of
competent jurisdiction convicted the prospective foster or adoptive
parent in the last five years of a felony involving:
Physical assault;
Battery; or
A drug-related offense 45 C.F.R. statue 1356.30 (e) The
criminal records check provision also does not apply to relative
homes that are not licensed or approved in accordance with state
standards because children in such homes are not eligible for Title
IV-E funding. In other words, the criminal records check provision
is strictly a Title IV-E funding requirement 65 FR 4067.
In promulgation of rules pursuant to subsection (a), the
Department and private contractors shall provide forty-five days'
written notification of public hearings, to the President of the
West Virginia Foster/Adoptive Parent Association and the
president?s designee.
In order for foster parents to have a stronger voice in the
system and to be able to draw on each others? experiences and
provide a way to reach out to other foster parents, the Department
shall provide the President of the West Virginia Foster/Adoptive
Parent Association with a list of all state foster parents including those on hold or appealing a decision for closure.
GRIEVANCE PROCEDURES.
Complaints and Mediation --
Any foster parent who determines that the Department and
private contractors is in violation of the foster parents? bill of
rights or otherwise has a complaint should first discuss their
concerns with the case manager assigned to the foster home and
attempt to work out an agreement. This step may involve showing
the foster parent the written policy and procedures relative to
approval of a foster home or ongoing casework activities. The case
manager must respond to the foster parent?s complaint within three
working days.
If the case manager and the foster parent cannot reach an
understanding, then the foster parent shall notify the director of
foster care and request assistance from the director of foster care
in mediating the conflict between the case manager and the foster
parent. The director of foster care must respond to the foster
parent?s complaint and request for assistance within five working
days.
Grievances --
If the case manager and the homefinder cannot make corrections
or adjustments, the foster parent shall be given a pre-hearing
conference. A scheduled meeting between all parties must take
place within seven working days of the receipt of the foster parent complaint. The results of this meeting shall be documented in
writing within two working days of the meeting; responsibility for
the documentation is with the foster care case manager. The
director of foster care must then make a recommendation in writing
for corrective action (or no action). Copies of the director's
decision must be forwarded to all participants within two working
days.
Two copies of the grievance form application, one copy of the
grievance process and the address of the hearing review board must
be given to each foster parent each time a new child is accepted
into their home and again when a child is removed from their home.
Additionally, these forms and information must be given to each
person during their initial foster parent training and then again
yearly at a specified training.
Appeals --
Within ten working days of the grievance hearing, the foster
parents may elect to file an appeal with the hearing review board
and private contractors of children?s services. Upon receipt of an
appeal, the board reviews all the information, and either accepts
the recommendation of the hearing officer, or, at their discretion,
may schedule an additional interview with the foster parent(s), CPS
staff, or other relevant parties. Copies of the review board?s
approval or modification of the hearing officers' recommendation
must be forwarded to all participants.
All unsubstantiated, unfounded, or false allegations shall be
expunged from the case files, both computer and written, after
eighteen months to protect the civil rights of the people from the
possibility of these charges being abused and used against them in
the future. This shall be done automatically and voluntarily by
the state agency or private agency without further action on the
part of the person(s) against whom the allegations were made.
For the sake of the children who have already lost their
biological family, the whole process for foster parents from the
beginning of the investigation until the completion of the hearings
and appeal, shall not take more than ninety days if the child or
children have been removed from the home.
This article shall immediately be applied to all open cases
and any case for which the final order was made within the past
twelve months.
NOTE: The purpose of this bill is to create a bill of rights
for foster parents.
This section is new; therefore, strike-throughs and
underscoring have been omitted.
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