ENROLLED
H. B. 2680
(By Delegates Givens, Staton, Kominar, Mahan, Underwood, Riggs,
and Smirl)
[Passed April 12, 1997; in effect July 1, 1997.]
AN ACT to repeal section sixteen-b, article five, chapter forty- nine of the code of West Virginia, one thousand nine hundred
thirty-one, as amended; to amend and reenact section one,
article one of said chapter; to amend and reenact section
sixteen, article two of said chapter; to amend and reenact
sections thirteen and sixteen-a, article five of said
chapter; to further amend said article by adding thereto a
new section, designated section thirteen-e; to amend and
reenact sections six and six-a, article five-a of said
chapter; to amend and reenact sections two and four, article
five-b of said chapter; to amend and reenact article five-c
of said chapter; to further amend said chapter by adding
thereto a new article, designated article five-e; to amend
and reenact section eight, article six of said chapter; to
amend article seven of said chapter by adding thereto three
new sections, designated sections thirty, thirty-one and
thirty-two; and to further amend said chapter by adding
thereto a new article, designated article ten, all relating
to reforming and reorganizing the system of child welfare throughout the state; setting forth purposes and defining
certain terms; transferring certain functions to the
division of juvenile services within the department of
military affairs and public safety; providing for
disposition in juvenile proceedings; establishing a
comprehensive plan for juveniles; requiring juvenile
facility rules; authorizing assignment of personnel by
division of juvenile services; providing for state plan
predispositional detention of juveniles; stating purpose and
intent of juvenile offender rehabilitation act; setting
forth the responsibilities of the department of health and
human resources and the division of juvenile services with
regard to juveniles; providing for the creation of oversight
committees; prescribing the powers and duties of committees;
providing for the appointment of members, time and place of
meetings, assistance of other agencies, and reimbursement
for expenses; creating the division of juvenile services
within the department of military affairs and public safety;
prescribing duties and responsibilities of the division of
juvenile services; transferring fiscal responsibility for
the Kanawha home for children to the division of juvenile
services; providing for a study to establish a facility for
housing juveniles who have been transferred to adult
criminal jurisdiction; requiring legislative rules for
specialized training for juvenile corrections officers and
detention center employees; establishing a procedure for
summary review of certain facilities or services, in lieu of certificate of need review; establishing a special account
in the state treasury known as the child assessment and in- state placement fund, providing for a juvenile justice
database; creating a child placement alternatives
corporation; giving management and control of corporation to
board of directors; prescribing the powers of the
corporation; providing for a structured risk assessment and
classification for children placed in out-of-state
facilities; and requiring statistical and analytical
reports.
Be it enacted by the Legislature of West Virginia:
That section sixteen-b, article five, chapter forty-nine of
the code of West Virginia, one thousand nine hundred thirty-one,
as amended, be repealed; that section one, article one of said
chapter be amended and reenacted; that section sixteen, article
two of said chapter be amended and reenacted; that sections
thirteen and sixteen-a, article five of said chapter be amended
and reenacted; that said article be further amended by adding
thereto a new section, designated section thirteen-e; that
sections six and six-a, article five-a of said chapter be amended
and reenacted; that sections two and four, article five-b of said
chapter be amended and reenacted; that article five-c of said
chapter be amended and reenacted; that said chapter be further
amended by adding thereto a new article, designated article five- e; that section eight, article six of said chapter be amended and reenacted; that article seven of said chapter be amended by
adding thereto three new sections, designated sections thirty,
thirty-one and thirty-two; and that said chapter be further
amended by adding thereto a new article, designated article ten,
all to read as follows:
CHAPTER 49. CHILD WELFARE.
ARTICLE 1. PURPOSES; DEFINITIONS.
§49-1-1. Purpose.
(a) The purpose of this chapter is to provide a system of child welfare
for the children of this state that has goals to:
(1) Assure each child care and guidance;
(2) Serve the mental and physical welfare of the child;
(3) Preserve and strengthen the child's family ties;
(4) Recognize the fundamental rights of children and
parents;
(5) Adopt procedures and establish programs that are family- focused rather than focused on specific family members, except
where the best interests of the child or the safety of the
community are at risk;
(6) Involve the child and his or her family or caregiver in
the planning and delivery of programs and services;
(7) Provide services that are community-based, in the least
restrictive settings that are consonant with the needs and
potentials of the child and his or her family;
(8) Provide for early identification of the problems of children and their families, and respond appropriately with
measures and services to prevent abuse and neglect or
delinquency;
(9) Provide a system for the rehabilitation or detention of
juvenile delinquents; and
(10) Protect the welfare of the general public.
In pursuit of these goals it is the intention of the
Legislature to provide for removing the child from the custody of
parents only when the child's welfare or the safety and
protection of the public cannot be adequately safeguarded without
removal; and, when the child has to be removed from his or her
family, to secure for the child custody, care and discipline
consistent with the child's best interests and other goals herein
set out.
(b) The child welfare service of the state shall be
administered by the state department of health and human
resources and the division of juvenile services of the department
of military affairs and public safety.
The state department of health and human resources is
designated as the agency to cooperate with the United States
department of health and human services and United States
department of justice in extending and improving child welfare
services, to comply with regulations thereof, and to receive and
expend federal funds for these services. The division of juvenile
services of the department of military affairs and public safety
is designated as the agency to cooperate with the United States
department of health and human services and United States
department of justice in operating, maintaining and improving
juvenile correction facilities and centers for the
predispositional detention of children, to comply with
regulations thereof, and to receive and expend federal funds for
these services
ARTICLE 2. STATE RESPONSIBILITIES FOR THE PROTECTION AND CARE
OF CHILDREN.
§49-2-16. State responsibility for child care.
The division of juvenile services of the department of
military affairs and public safety is hereby authorized and
empowered to operate and maintain centers for juveniles needing
detention pending disposition by a court having juvenile
jurisdiction or temporary care following such court action.
The state department of health and human resources is hereby
authorized and empowered to provide care, support and protective
services for children who are handicapped by dependency, neglect,
single parent status, mental or physical disability, or who for
other reasons are in need of public service. Such department is
also hereby authorized and empowered in its discretion to accept
children for care from their parent or parents, guardian,
custodian or relatives and to accept the custody of children
committed to its care by courts. The department of human
services or any county office of such department is also hereby authorized and empowered in its discretion to accept temporary
custody of children for care from any law-enforcement officer in
an emergency situation.
Within ninety days of the date of the signatures to a
voluntary placement agreement, after receipt of physical custody,
the state department of health and human resources shall file
with the court a petition for review of the placement, stating
the child's situation and the circumstance that gives rise to the
voluntary placement. If the department intends to extend the
voluntary placement agreement, the department shall file with the
court a copy of the child's case plan. The court shall appoint
an attorney for the child, who shall also receive a copy of the
case plan. The court shall schedule a hearing and shall give
notice of the time and place and right to be present at such
hearing to: The child's attorney; the child, if twelve years of
age or older; the child's parents or guardians; the child's
foster parents; and any other such persons as the court may in
its discretion direct. The child's presence at such hearing may
be waived by the child's attorney at the request of the child or
if the child would suffer emotional harm. At the conclusion of
the proceedings, but no later than ninety days after the date of
the signatures to the voluntary placement agreement, the court
shall enter an order determining whether or not continuation of
the voluntary placement is in the best interests of the child; specifying under what conditions the child's placement shall
continue; and specifying whether or not the department has made
reasonable efforts to reunify the family and/or provide a plan
for the permanent placement of the child.
ARTICLE 5. JUVENILE PROCEEDINGS.
§49-5-13. Disposition; appeal.
(a) In aid of disposition, the juvenile probation officer
assigned to the court shall, upon request of the court, make an
investigation of the environment of the child and the alternative
dispositions possible. The court, upon its own motion, or upon
request of counsel, may order a psychological examination of the
child. The report of such examination and other investigative
and social reports shall not be made available to the court until
after the adjudicatory hearing. Unless waived, copies of the
report shall be provided to counsel for the petitioner and
counsel for the child no later than seventy-two hours prior to
the dispositional hearing.
(b) Following the adjudication, the court shall conduct the
dispositional proceeding, giving all parties an opportunity to be
heard. In 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 child
and the welfare of the public:
(1) Dismiss the petition;
(2) Refer the child and the child's parent or custodian to a community agency for needed assistance and dismiss the
petition;
(3) Upon a finding that the child is in need of
extra-parental supervision: (A) Place the child under the
supervision of a probation officer of the court or of the court
of the county where the child has his or her usual place of abode
or other person while leaving the child in custody of his or her
parent or custodian; and (B) prescribe a program of treatment or
therapy or limit the child'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 section twenty-five, article seven, chapter twenty 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 child, that a child is not willing
to reside in the custody of his parent or custodian, or that a
parent or custodian cannot provide the necessary supervision and
care of the child, the court may place the child in temporary
foster care or temporarily commit the child to the department of
health and human resources or a child welfare agency. The court
order shall state that continuation in the home is contrary to
the best interest of the child and why; and whether or not the
state department made a reasonable effort to prevent the
placement or that the emergency situation made such efforts
unreasonable or impossible. Whenever the court transfers custody of a youth to the department of human services, an appropriate
order of financial support by the parents or guardians shall be
entered in accordance with section five, article seven of this
chapter and guidelines promulgated by the supreme court of
appeals;
(5) Upon a finding that the best interests of the child or
the welfare of the public require it, and upon an adjudication of
delinquency pursuant to subdivision (1), section four, article
one of this chapter, the court may commit the child to an
industrial home, correctional institution for children, or other
appropriate facility for the treatment, instruction and
rehabilitation of juveniles: Provided, That the court maintains
discretion to consider alternative sentencing arrangements.
Commitments shall not exceed the maximum term for which an adult
could have been sentenced for the same offense. The order shall
state that continuation in the home is contrary to the best
interests of the child and why; and whether or not the state
department made a reasonable effort to prevent the placement or
that the emergency situation made such efforts unreasonable or
impossible;
(6) Upon an adjudication of delinquency pursuant to
subdivision (3) or (4), section four, article one of this
chapter, and upon a finding that the child is so totally
unmanageable, ungovernable and antisocial that the child is
amenable to no treatment or restraint short of incarceration, commit the child to a rehabilitative facility devoted exclusively
to the custody and rehabilitation of children adjudicated
delinquent pursuant to said subdivision. Commitments shall not
exceed the maximum period of one year with discretion as to
discharge to rest with the director of the institution, who may
release the child 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 child and why; and
whether or not the state department made a reasonable effort to
prevent the placement or that the emergency situation made such
efforts unreasonable or impossible; or
(7) After a hearing conducted under the procedures set out
in subsections (c) and (d), section four, article five, chapter
twenty-seven of this code, commit the child to a mental health
facility in accordance with the child's treatment plan; the
director may release a child and return him to the court for
further disposition. The order shall state that continuation in
the home is contrary to the best interests of the child and why;
and whether or not the state department made a reasonable effort
to prevent the placement or that the emergency situation made
such efforts unreasonable or impossible.
(c) The disposition of the child shall not be affected by the
fact that the child demanded a trial by jury or made a plea of
denial. Any dispositional order is subject to appeal to the
supreme court of appeals.
(d) Following disposition, it shall be inquired of the
respondent whether or not appeal is desired and the response
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 child 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.
(e) Notwithstanding any other provision of this code to the
contrary, if a child 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 such person as an adult.
§49-5-13e. Comprehensive plan for juveniles.
The division of juvenile services within the department of
military affairs and public safety shall develop a comprehensive
plan to establish a unified state system for social and
rehabilitative programming and treatment of juveniles in
predispositional detention centers and in juvenile correction
facilities and a comprehensive plan for regional juvenile
detention facilities and programs. These plans are to be
submitted to the West Virginia Legislature no later than the
first day of January, one thousand nine hundred ninety-eight.
The comprehensive plan for regional detention programs and
facilities shall be based on a needs assessment of juvenile
detention services and may locate all newly constructed detention facilities on or near a regional jail facility, with common
facilities and administration as permitted by federal law.
§49-5-16a. Rules governing juvenile facilities.
The director of the division of juvenile services within the
department of military affairs and public safety shall prescribe
written rules subject to the provisions of chapter twenty-nine-a
of this code, outlining policies and procedures governing the
operation of those correctional, detention, predispositional
detention centers and other facilities wherein juveniles may be
housed. Said policies and procedures shall include, but shall
not be limited to, standards of cleanliness, temperature and
lighting; availability of medical and dental care; provision of
food, furnishings, clothing and toilet articles; supervision;
procedures for enforcing rules of conduct consistent with due
process of law, and visitation privileges. On and after the
first day of January, one thousand nine hundred seventy-nine, a
child in custody or detention shall have, at a minimum, the
following rights, and the policies prescribed shall ensure that:
(1) A child shall not be punished by physical force,
deprivation of nutritious meals, deprivation of family visits or
solitary confinement;
(2) A child shall have the opportunity to participate in
physical exercise each day;
(3) Except for sleeping hours a child in a state facility
shall not be locked alone in a room unless such child is out of control;
(4) A child shall be provided his own clothing or
individualized clothing which is clean, supplied by the facility,
and daily access to showers;
(5) A child shall have constant access to writing materials
and may send mail without limitation, censorship or prior
reading, and may receive mail without prior reading, except that
mail may be opened in the child's presence, without being read,
to inspect for contraband;
(6) A child may make and receive regular local phone calls
without charge and long distance calls to his family without
charge at least once a week, and receive visitors daily and on a
regular basis;
(7) A child shall have immediate access to medical care as
needed;
(8) A child in a juvenile detention facility or state
institution shall be provided access to education including
teaching, educational materials and books;
(9) A child shall have reasonable access to an attorney upon
request; and
(10) A child shall be afforded a grievance procedure,
including an appeal mechanism.
Upon admission to a jail, detention facility or institution,
a child shall be furnished with a copy of the rights provided him
by virtue of this section and as further prescribed by rules promulgated pursuant to this section.
ARTICLE 5A. JUVENILE REFEREE SYSTEM.
§49-5A-6. Assistance of division of juvenile services of the
department of military affairs and public safety.
The division of juvenile services of the department of
military affairs and public safety is authorized to assign the
necessary personnel and provide adequate space for the support
and operation of any facility operated by the division of
juvenile services of the department of military affairs and
public safety providing for the detention of children as provided
in this article, subject to and not inconsistent with the
appropriation and availability of funds.
§49-5A-6a. State plan for predispositional detention centers for
juveniles.
(a) The division of juvenile services of the department of
military affairs and public safety shall develop a comprehensive
plan to maintain and improve a unified state system of regional
predispositional detention centers for juveniles. The plan shall
consider recommendations from the division of corrections, the
governor's committee on crime, delinquency and correction,, the
state board of education, detention center personnel, juvenile
probation officers and judicial and law-enforcement officials
from throughout the state.
The principal purpose of the plan shall be, through statements of policy and program goals, to provide for the
effective and efficient use of regional juvenile detention
facilities.
(b) The plan shall identify operational problems of secure
detention centers, including, but not limited to, overcrowding,
security and violence within centers, difficulties in moving
juveniles through the centers within required time periods,
health needs, educational needs, transportation problems, staff
turnover and morale and other perceived problem areas. The plan
shall further provide recommendations directed to alleviate the
problems.
(c) The plan shall include, but not be limited to,
statements of policies and goals in the following areas:
(1) Licensing of secure detention centers;
(2) Criteria for placing juveniles in detention;
(3) Alternatives to secure detention;
(4) Allocation of fiscal resources to the costs of secure
detention facilities;
(5) Information and referral services; and
(6) Educational regulations developed and approved by the
West Virginia board of education.
(d) The legislature shall designate a committee or task
force thereof, to act in a continuing capacity as an oversight
committee, and shall assist the director of the division of
juvenile services within the department of military affairs and public safety in the periodic review and update of the state plan
for the predispositional detention centers for juveniles.
ARTICLE 5B. WEST VIRGINIA JUVENILE OFFENDER REHABILITATION ACT.
§49-5B-2. Purpose and intent.
It is the purpose and intent of the Legislature to provide
for the creation of all reasonable means and methods that can be
established by a humane and enlightened state, solicitous of the
welfare of its children, for the prevention of delinquency and
for the care and rehabilitation of delinquent children. It is
further the intent of the Legislature that this state, through
the department of health and human resources and the division of
juvenile services of the department of military affairs and
public safety, establish, maintain, and continuously refine and
develop, a balanced and comprehensive state program for children
who are potentially delinquent or are delinquent.
§49-5B-4. Responsibilities of the department of health and human
resources and division of juvenile services of the
department of military affairs and public safety.
(a) The department of health and human resources and the
division of juvenile services of the department of military
affairs and public safety are empowered to establish, and shall
establish, subject to the limits of funds available or otherwise
appropriated therefor, programs and services designed to prevent
juvenile delinquency, to divert juveniles from the juvenile justice system, to provide community-based alternatives to
juvenile detention and correctional facilities and to encourage
a diversity of alternatives within the juvenile justice system.
The development, maintenance and expansion of programs and
services may include, but not be limited to, the following:
(1) Community-based programs and services for the prevention
and treatment of juvenile delinquency through the development of
foster-care and shelter-care homes, group homes, halfway houses,
homemaker and home health services, twenty-four hour intake
screening, volunteer and crisis home programs, day treatment and
any other designated community-based diagnostic, treatment or
rehabilitative service;
(2) Community-based programs and services to work with
parents and other family members to maintain and strengthen the
family unit so that the juvenile may be retained in his home;
(3) Youth service bureaus and other community-based programs
to divert youth from the juvenile court or to support, counsel,
or provide work and recreational opportunities for delinquents
and other youth to help prevent delinquency;
(4) Projects designed to develop and implement programs
stressing advocacy activities aimed at improving services for and
protecting rights of youth impacted by the juvenile justice
system;
(5) Educational programs or supportive services designed to
keep delinquents, and to encourage other youth to remain, in elementary and secondary schools or in alternative learning
situations;
(6) Expanded use of professional and paraprofessional
personnel and volunteers to work effectively with youth;
(7) Youth initiated programs and outreach programs designed
to assist youth who otherwise would not be reached by traditional
youth assistance programs;
(8) A statewide program designed to reduce the number of
commitments of juveniles to any form of juvenile facility as a
percentage of the state juvenile population, to increase the use
of nonsecure community-based facilities as a percentage of total
commitments to juvenile facilities and to discourage the use of
secure incarceration and detention.
(b) The department of health and human resources shall
establish, within the funds available, an individualized program
of rehabilitation for each accused juvenile offender referred to
the department after being allowed an improvement period by the
juvenile court, and for each adjudicated juvenile offender who,
after adjudication, is referred to the department for
investigation or treatment or whose custody is vested in the
department. Such individualized program of rehabilitation shall
take into account the programs and services to be provided by
other public or private agencies or personnel which are available
in the community to deal with the circumstances of the particular
child. Such individualized program of rehabilitation shall be furnished to the juvenile court and shall be available to counsel
for the child; it may be modified from time to time at the
direction of the department or by order of the juvenile court.
The department may develop an individualized program of
rehabilitation for any child referred for noncustodial counseling
under section five, article three of this chapter, for any child
receiving counsel and advice under section three-a, article five
of this chapter, or for any other child upon the request of a
public or private agency.
(c) The department of health and human resources and the
division of juvenile services of the department of military
affairs and public safety are authorized to enter into
cooperative arrangements and agreements with private agencies or
with agencies of the state and its political subdivisions to
effectuate the purpose of this article.
ARTICLE 5C. COMMITTEES ON JUVENILE LAW.
§49-5C-1. Creation of committees.
The Legislature shall create such committees and forums as
may be necessary to oversee matters related to juvenile law,
placement, housing, detention and correctional facilities. The
Legislature shall delegate or contract such responsibilities and
duties to other governmental bodies as needed.
§49-5C-2. Powers and duties.
The powers and duties of the committees shall include, but
not be limited to, the following:
(a) Studying the status and effectiveness of the laws
relating to juvenile proceedings, the juvenile referee system,
and the West Virginia juvenile offender rehabilitation act, and
making recommendations as to any changes needed in the system and
the ways and means to effect such changes;
(b) Making further and more specific recommendations within
the scope of the study as to the detention of juvenile offenders,
considering both short and long term detention;
(c) Considering existing juvenile detention facilities and
making recommendations, with particular attention to financing,
as to the need for updating present facilities and/or creating
new facilities and the location of each;
(d) Filing a report to each regular session of the
legislature which will include drafts of legislation necessary to
effectuate any recommendations;
(e) Maintaining reference materials concerning juvenile
offenders including, without limitation, information as to laws
and systems in other states;
(f) Visiting, inspecting, and interviewing residents of
juvenile institutions, detention facilities, and places wherein
West Virginia juveniles may be held involuntarily and making
public reports of such reviews;
(g) Overseeing the maintenance and improvement of the system
of predispositional detention of juveniles.
§49-5C-3. Appointment of members.
The committees may include qualified members of the general
public as well as members of the Senate and the House of
Delegates. An effort shall be made to include representatives of
more than one political party on each committee.
§49-5C-4. Time and place of meetings.
The committees shall hold meetings at such times and places
as they may designate.
§49-5C-5. Assistance of other agencies.
The committees may request information from any state
officer or agency in order to assist in carrying out the terms
of this article, and such officer or agency is authorized and
directed to promptly furnish any data requested.
§49-5C-6. Expenses; reimbursement.
The members of the committees and their assistants shall be
reimbursed for all expenses actually and necessarily incurred in
the performance of their duties hereunder by the joint committee
on government and finance from the joint expenses fund.
ARTICLE 5E. DIVISION OF JUVENILE SERVICES
§49-5E-1. Policy.
It is the policy of the state to provide a continuum of care
for its children who have been charged with an offense which
would be a crime if committed by an adult and taken into custody.
It is further the policy of the state to ensure the safe and
efficient custody of a detained child through the entire juvenile
justice process, and that this can best be accomplished by the state by and through a single division within the department of
military affairs and public safety.
§49-5E-2. Division created; transfer of functions; employment of
comprehensive strategy.
There is hereby created the division of juvenile services
within the department of military affairs and public safety. The
director shall be appointed by the governor with the advice and
consent of the Senate, and shall be responsible for the control
and supervision of each of its offices. The director may appoint
deputy directors and assign them duties as may be necessary for
the efficient management and operation of the division.
The division of juvenile services shall consist of two
subdivisions:
(1) The office of juvenile detention, which shall assume
responsibility for operating and maintaining centers for the
predispositional detention of juveniles, including juveniles who
have been transferred to adult criminal jurisdiction under
section ten, article five of this chapter and juveniles who are
awaiting transfer to a juvenile corrections facility; and
(2) The office of juvenile corrections, which shall assume
responsibility for operating and maintaining juvenile corrections
facilities.
§49-5E-3. Transfer of functions; duties and powers; employment of
comprehensive strategy.
The division of juvenile services shall assume the following duties performed by the department of health and human resources
as to juveniles in detention facilities or juvenile corrections
facilities:
(1) Cooperating with the United States department of justice
in operating, maintaining and improving juvenile correction
facilities and predispositional detention centers, complying with
regulations thereof, and receiving and expending federal funds
for the services, as set forth in section one, article one of
this chapter;
(2) Providing care for children needing detention pending
disposition by a court having juvenile jurisdiction or temporary
care following such court action, as set forth in section
sixteen, article two of this chapter;
(3) Assigning the necessary personnel and providing adequate
space for the support and operation of any facility providing for
the detention of children committed to the care of the division
of juvenile services, as set forth in section six, article five-a
of this chapter;
(4) Proposing rules which outline policies and procedures
governing the operation of correctional, detention and other
facilities in its division wherein juveniles may be housed, as
set forth in section sixteen-a, article five of this chapter;
(5) Assigning the necessary personnel and providing adequate
space for the support and operation of its facilities, as set
forth in section six, article five-a of this chapter;
(6) Developing a comprehensive plan to maintain and improve
a unified state system of predispositional detention centers for
juveniles, as set forth in section six-a, article five-a of this
chapter;
(7) Working in cooperation with the department of health and
human resources in establishing, maintaining, and continuously
refining and developing a balanced and comprehensive state
program for children who are delinquent, as set forth in section
two, article six-b of this chapter;
(8) In cooperation with the department of health and human
resources, establishing programs and services, within available
funds, designed to prevent juvenile delinquency, to divert
juveniles from the juvenile justice system, to provide community- based alternatives to juvenile detention and correctional
facilities and to encourage a diversity of alternatives within
the juvenile justice system, as set forth in section four,
article five-b of this chapter.
Working in collaboration with the department of health and
human resources, the division of juvenile services shall employ
a comprehensive strategy for the social and rehabilitative
programming and treatment of juveniles consistent with the
principles adopted by the office of juvenile justice and
delinquency prevention of the office of justice programs of the
United States department of justice.
§49-5E-4. Transfer of fiscal responsibility of Kanawha home for children.
(a) "Kanawha home for children" means the county home for
the detention of juvenile delinquents or children charged with
delinquency as established by the county commission of Kanawha
County pursuant to the provisions of a local bill, House Bill No.
141, enacted by the Legislature on the fourteenth day of
February, one thousand nine hundred fifty-five, as set forth in
the Acts of the West Virginia Legislature, Regular Session, 1955,
ch. 185.
(b) After the effective date of this section, the division
of juvenile services shall assume all fiscal responsibility for
operating, maintaining, administering and managing the Kanawha
home for children.
§49-5E-5. Adult transfer facility; rules for specialized
training for juvenile corrections officers and
detention center employees.
(a) On or before the first day of December, one thousand
nine hundred ninety-seven, the division of juvenile services
shall conduct a study of the appropriateness and cost of
renovating the Ohio County jail or other facilities to house
juveniles who have been transferred to adult criminal
jurisdiction and/or who are awaiting post-sentencing transfer to
a correctional facility.
(b) The division of juvenile services shall propose
legislative rules to be promulgated by the Legislature according to the provisions of chapter twenty-nine-a of this code, to
require juvenile corrections officers and detention center
employees to complete specialized training and certification.
The training programs shall meet the standards of those offered
or endorsed by the office of juvenile justice and delinquency
prevention of the office of justice programs of the United States
department of justice.
ARTICLE 6. PROCEDURE IN CASES OF CHILD NEGLECT OR ABUSE.
§49-6-8. Foster care review; annual reports to the court.
(a) If, twelve months after receipt (by the state department
or its authorized agent) of physical custody of a child either by
a court ordered placement or by a voluntary agreement, the state
department has not placed a child in permanent foster care or an
adoptive home or placed the child with a natural parent, the
state department shall file with the court a petition for review
of the case. The department shall also file with the court a
report 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 section five, article
six of this chapter. Copies of the report shall be sent to the
child's attorney and be made available to the child's parent(s)
or guardian. "Permanent foster care" shall mean a written
arrangement with an adult or adults following a six-month trial
period whereby the state department places the care, custody and
control of a child until the child's emancipation with such adult or adults. The court shall schedule a hearing in chambers,
giving notice and the right to be present to: The child's
attorney; the child, if twelve years of age or older; the child's
parents; the child's guardians; the child's foster parents; and
such 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 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, and to determine
what efforts are necessary to provide the child with a permanent
home. At the conclusion of the hearing the court shall in
accordance with the best interests of the child enter an
appropriate order of disposition. The court order shall state:
(1) Whether or not the department made reasonable effort to
prevent out-of-home placement or that the specific situation made
such effort unreasonable; (2) the permanency plan for the child;
and (3) services required to meet the child's needs. The court
shall possess continuing jurisdiction over cases reviewed under
this section for so long as a child remains in temporary foster
care, or, when a child is returned to his or her natural parents
subject to conditions imposed by the court, for so long as the
conditions are effective.
(b) The state department shall file a supplementary petition
for review with the court within twelve months and every twelve months thereafter for every child that remains in the physical or
legal custody of the state department until the child is placed
in an adoptive home or permanent foster care or returned to his
or her parents.
(c) The state department shall annually report to the court
the current status of the placements of children in permanent
care and custody of the state department who have not been
adopted.
(d) The state department shall file a report with the court
in any case where any child in the temporary or permanent custody
of the state receives more than three placements in one year no
later than thirty days after the third placement. This report
shall be provided to all parties and their counsel. Upon motion
by any party, the court shall review these placements and
determine what efforts are necessary to provide the child with a
stable foster or temporary home: Provided, That no report shall
be provided to any parent or parent's attorney whose parental
rights have been terminated pursuant to this article.
(e) The state department shall notify, in writing, the
court, the child, if over the age of twelve, the child's
attorney, the parents and the parents' attorney forty-eight hours
prior to the move if this is a planned move, or within forty- eight hours of the next business day after the move if this is an
emergency move, except where such notification would endanger the
child or the foster family. This notice shall not be required in any case where the child is in imminent danger in the child's
current placement. The location of the child need not be
disclosed, but the purpose of the move should be. This
requirement is not waived by placement of the child in a home or
other residence maintained by a private provider. No notice
shall be provided pursuant to this provision to any parent or
parent's attorney whose parental rights have been terminated
pursuant to this article.
(f) 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 such petition upon a showing that there is
a change in circumstance or needs of the child that warrants
court review.
ARTICLE 7. GENERAL PROVISIONS.
§49-7-30. Certificate of need not required.
(a) A certificate of need, as provided for in article two-d,
chapter sixteen of this code, is not required by an entity
proposing behavioral health care facilities or behavioral health
care services for children who are placed out of their home, or
who are at imminent risk of being placed out of their home, if a
summary review is performed in accordance with the provisions of
this section.
(b) A summary review of proposed health care facilities or
health care services for children who are placed out of their
home, or who are at imminent risk of being placed out of their home, is initiated when the proposal is recommended to the health
care cost review authority by the secretary of the department of
health and human resources, and the secretary has made the
following findings:
(1) That the proposed facility or service is consistent with
the state health plan;
(2) That the proposed facility or service is consistent
with the department's programmatic and fiscal plan for behavioral
health services for children with mental health and addiction
disorders;
(3) That the proposed facility or service contributes to
providing services that are child and family driven, with
priority given to keeping children in their own homes;
(4) That the proposed facility or service will contribute to
reducing the number of child placements in out-of-state
facilities by making placements available in in-state facilities;
(5) That the proposed facility or service contributes to
reducing the number of child placements in in-state or out-of- state facilities by returning children to their families, placing
them in foster care programs, or making available school-based
and out-patient services; and
(6) If applicable, that the proposed services will be
community-based, locally accessible, and provided in an
appropriate setting consistent with the unique needs and
potential of each child and his or her family.
(c) The secretary's findings required by subsection (b) of
this section shall be filed with the secretary's recommendation
and appropriate documentation. If the secretary's findings are
supported by the accompanying documentation, the proposal shall
not require a certificate of need.
(d) Any entity that does not qualify for summary review
shall be subject to certificate of need review.
§49-7-31. Special account.
(a) There is hereby established a special account in the
department of health and human resources in the state treasury to
be known as the "Child Assessment and In-state Placement Fund."
Any funds provided for the purposes of this article by line-item
appropriation of the Legislature in any fiscal year shall be
deposited in the special account and used to carry out the
purposes of this article. Balances remaining in the special
account at the end of the fiscal year shall not expire or revert
to the general revenue: Provided, That balances remaining in the
account may be redesignated for other purposes by appropriation
of the Legislature. The secretary of the department of health
and human resources may order the transfer of moneys in the
special account to other accounts within the department of health
and human resources, to the limited extent that children who are
the subject of this article are financially and medically
eligible for other programs or services of the division of health
and human resources, including programs funded, in whole or in part, by federal funds.
(b) Any moneys saved by the department of health and human
resources by virtue of returning children from out-of-state
placements after implementing the structured risk assessment and
classification system provided for in section four, article nine
of this chapter shall be deposited in the child assessment and
in-state placement fund and used solely for the purpose of
developing and implementing programs that will reduce the numbers
of children in long-term placements outside of their homes.
§49-7-32. Juvenile justice database.
The criminal justice and highway safety division of the
department of military affairs and public safety is responsible
for collecting, compiling and disseminating information in the
juvenile justice database heretofore maintained by the facilities
review panel of the juvenile justice committee. Accordingly, and
notwithstanding any other provision of this code to the contrary,
the division shall be granted access to confidential juvenile
records for the limited purpose of continuing maintenance of the
juvenile justice database: Provided, That the divisions shall
keep such records confidential and not publish any information
that would identify any individual juvenile.
ARTICLE 10. CHILD PLACEMENT ALTERNATIVES.
§49-10-1. Creation of child placement alternatives
corporation; composition; board of directors; appointment, term, etc., of private members;
chairman and vice chairman; quorum.
(a) There is created as a governmental instrumentality of
the state of West Virginia, a public body corporate to be known
as the West Virginia child placement alternatives corporation.
(b) The child placement alternatives corporation is created
and established to serve a public corporate purpose and to act
for the public benefit and as a governmental instrumentality of
the state of West Virginia, to act on behalf of the state and its
people in serving the needs of children who are placed out of
their homes or who are at risk of out-of-home placement, as well
as serving families, providers and policymakers.
(c) The child placement alternatives corporation shall be
governed by a board of directors, consisting of nine members,
three of whom shall be the secretary of the department of health
and human resources, the director of the division of juvenile
services within the department of military affairs and public
safety, and the chairman of the department of behavioral medicine
and psychiatry of the Robert C. Byrd health sciences center at
West Virginia university, or their designated representatives as
public directors, and six citizen members chosen from the general
public residing in the state, no more than two of whom shall be
from each congressional district, and not more than three of whom
shall be from any political party.
(d) Upon organization of the child placement alternatives corporation, the governor shall appoint, by and with the advice
and consent of the Senate, the six private directors to take
office and to exercise all powers thereof immediately, with three
appointed for terms of two years, and with three appointed for
terms of four years, respectively, as the governor shall
designate; at the expiration of the initial terms and for all
succeeding terms, the governor shall appoint a successor to the
office of private director for a term of four years in each case.
(e) In cases of any vacancy in the office of a private
director, such vacancy shall be filled by appointment by the
governor for the unexpired term.
(f) The governor may remove any private director whom he may
appoint in case of incompetency, neglect of duty, gross
immorality, or malfeasance in office; and he may declare his or
her office vacant and may appoint a person for such vacancy as
provided in other cases of vacancy.
(g) The chairman of the board of directors shall be
designated by the governor from among the directors.
(h) Five members of the board of directors shall constitute
a quorum. No vacancy in the membership of the board shall impair
the right of a quorum to exercise all the rights and perform all
the duties of the board of directors.
(i) No action shall be taken by the board of directors
except upon the affirmative vote of a majority of the directors
present and voting.
(j) The directors, including the chairman, vice chairman and
the treasurer of the board of directors, and the secretary of the
board of directors, shall receive no compensation for their
services but shall be entitled to their reasonable and necessary
expenses actually incurred in discharging their duties under this
article.
§49-10-2. Management and control of child placement alternatives
corporation vested in board; officers.
(a) The management and control of the child placement
alternatives corporation shall be vested solely in the board of
directors in accordance with the provisions of this article.
(b) The chairman shall be the chief executive officer of the
corporation, and, in his absence, the vice chairman shall act as
chief executive officer.
(c) The board of directors may appoint a chief
administrative officer and may fix his title, duties and
compensation.
(d) The board of directors of the corporation shall annually
elect from its membership a treasurer, and shall annually elect
a secretary, who need not be a member of the board, to keep a
record of the proceedings of the corporation.
(e) The treasurer of the corporation shall be custodian of
all funds of the child placement alternatives corporation, and
shall be bonded in such amount as the other members of the board
of directors may designate.
§49-10-3. Corporate powers.
The child placement alternatives corporation is hereby
granted, has and may exercise all powers necessary or appropriate
to carry out and effectuate its corporate purposes, including,
but not limited to, the following:
(1) To act as an information broker or gatekeeper serving
children, families, providers and policymakers, functioning as
the single entity responsible for recommending appropriate
placements for children out of their homes and alternatives to
such placements;
(2) To provide one or more diagnostic and evaluation centers
to accept referrals and conduct evaluations, including
psychiatric, psychological, educational, pediatric and adaptive
functioning, as a complement to existing community-based programs
and services;
(3) To identify the services and availability of services,
as gatekeeper, for level assignment and placement;
(4) To assist the juvenile justice system, mental health
providers and social service agencies in the identification of
facilities and services appropriate to the needs of individual
children, providing access to placement information through one
telephone call and a twenty-four hour response time;
(5) To accept appropriations, gifts, grants, bequests and
devises and to utilize or dispose of the same to carry out its
corporate purposes;
(6) To make and execute contracts, releases, compromises,
compositions and other instruments necessary or convenient for
the exercise of its powers, or to carry out its corporate
purposes;
(7) To collect reasonable fees and charges in connection
with providing services as prescribed by this article, and in
connection with providing professional, consultative and project
assistance services;
(8) To sue and be sued;
(9) To have a seal and alter the same at will;
(10) To make, and from time to time, amend and repeal bylaws
and rules not inconsistent with the provisions of this article;
(11) To appoint such officers, employees and consultants as
it deems advisable and to fix their compensation and prescribe
their duties;
(12) To acquire, hold and dispose of real and personal
property for its corporate purposes;
(13) To enter into agreements or other transactions with any
federal or state agency, any person and any domestic or foreign
partnership, corporation, association or organization; and
(14) To make and publish such rules as are necessary to
effectuate its corporate purposes.
§49-10-4. Out-of-state placements; needs assessment; screenings;
referral for assessment, placement and services;
limitations.
(a) On or before first day of October, one thousand nine
hundred ninety-seven, the corporation shall develop and implement
a structured risk assessment and classification system for West
Virginia children currently placed in out-of-state facilities.
The risk assessment system shall be designed to identify:
(1) Those children who require long-term placement in a
facility with special features not available within this state;
(2) Those children who require long-term placement in a
facility that is or may become available within this state;
(3) Those children who require short-term care in a facility
of not more than three months followed by movement to a less
restrictive setting;
(4) Those children who could be placed directly in a
community-based setting with appropriate support and services.
(b) The corporation shall cause an initial screening, based
on the risk assessment and classification system, to
preliminarily identify those children who require long-term
placement in a facility with special features not available
within this state and those children for whom appropriate in- state placements may be found. After the initial screening, the
corporation may conduct further screenings under this subsection
at intervals established by the corporation.
(c) The corporation shall develop and implement a plan for:
(1) Reviewing and assessing the needs of those children for whom
appropriate in-state placements may be found; and (2) developing and implementing specific in-state alternatives for placement of
each child, including recommended support services. Based on the
initial screening, any or all of the children for whom
appropriate in-state placements may be found may be provided with
further review and assessment, appropriate in-state placement,
and services under. The corporation shall consider:
(1) Services through community-based programs to assist in
the prevention of the need for more costly residential care;
(2) The resources and programming available through family
resource networks and multidisciplinary teams;
(3) The recommendations of legislative and executive
committees, commissions and task forces established to study
issues affecting juvenile placement;
(4) The comprehensive strategy and assessment and
classification models endorsed by the office of juvenile justice
and delinquency prevention of the United States department of
justice; and
(5) Individual concerns to be addressed by service and care
providers.
(d) The corporation may issue requests for proposals to
implement the provisions of this section, and may solicit
alternate proposals to meet a defined need. The corporation may
further accept bids from any person, firm, agency or corporation,
and may enter into contracts or agreements with public or private
agencies, licensed health care providers, or other qualified persons for the following functions or combinations of the
following functions, according to standards established by the
corporation:
(1) Conducting needs assessments for children currently in
out-of-state facilities for whom appropriate in-state
alternatives may be found and, if the corporation determines that
evaluation of family resources and needs is necessary, the
child's family;
(2) Recommending a service plan that best meets the
individual needs of the child and may include support services
for his or her family;
(3) Obtaining appropriate care, treatment or placement and
appropriate community-based service.
§49-10-5. Statistical and analytical reports.
Beginning with the last quarter of the calendar year one
thousand nine hundred ninety-seven, the corporation, in
cooperation with the secretary of health and human resources,
shall prepare a quarterly statistical and analytical report
regarding the numbers of children returned to the state since the
inception of the program and during the quarter, and the
effectiveness of the program established in this article. Copies
of the quarterly statistical and analytical reports shall be
furnished to the governor and to the joint committee on
government and finance.