H. B. 2143
(By Delegate Gillespie)
[Introduced January 14, 1998; referred to the
Committee on the Judiciary.]
A BILL to amend and reenact section four, article six, chapter
forty-nine of the code of West Virginia, one thousand nine
hundred thirty-one, as amended, relating to preventing
removal of a child from a home without judicial
authorization; to require medical examinations on every
child who is removed from a home.
Be it enacted by the Legislature of West Virginia:
That section four, article six, chapter forty-nine of the
code of West Virginia, one thousand nine hundred thirty-one, as
amended, be amended and reenacted to read as follows:
ARTICLE 6. PROCEDURE IN CASES OF CHILD NEGLECT OR ABUSE.
§49-6-4. Medical and mental examinations.
(a) At any time during proceedings under this article the
court may, upon its own motion or upon motion of the child or other parties, order the child or other parties to be examined by
a physician, psychologist or psychiatrist, and may require
testimony from
such the expert, subject to cross-examination and
the rules of evidence:
Provided, That the court shall not
terminate parental or custodial rights of a party solely because
the party refuses to submit to the examination, nor shall the
court hold
such the party in contempt for refusing to submit to
an examination. The physician, psychologist or psychiatrist
shall be allowed to testify as to the conclusions reached from
hospital, medical, psychological or laboratory records provided
the same are produced at the hearing. The court by order shall
provide for the payment of all
such expert witnesses. If the
child, parent or custodian is indigent,
such witnesses shall be
compensated out of the treasury of the state, upon certificate of
the court wherein the case is pending. No evidence acquired as
a result of any
such examination of the parent or any other
person having custody of the child may be used against
such that
parent or person in any subsequent criminal proceedings.
against
such person
(b) If a person with authority to file a petition under the
provisions of this article
shall have has probable cause to
believe that evidence exists that a child has been abused or
neglected and that
such the evidence may be found by a medical examination, the person may apply to a circuit judge or juvenile
referee for an order to take
such the child into custody for
delivery to a physician or hospital for examination. The
application may be on forms prescribed by the supreme court of
appeals or prepared by the prosecuting attorney or the applicant,
and shall set forth facts from which it may be determined that
probable cause exists for such belief. Upon
such sworn testimony
or other evidence as the judge or referee deems sufficient, the
judge or referee may order any law enforcement officer to take
the child into custody and deliver the child to a physician or
hospital for examination. If a referee issues
such an order the
referee shall by telephonic communication have
such an order
orally confirmed by a circuit judge of the circuit or an
adjoining circuit who shall on the next judicial day enter an
order of confirmation. Any child welfare worker and the child's
parents, guardians or custodians may accompany the officer for
such the examination.
After the examination the officer may
return the child to the custody of his parent, guardian or
custodian, retain custody of the child or deliver custody to the
state department until the end of the next judicial day, at which
time the child shall be returned to the custody of his or her
parent, guardian or custodian unless a petition has been filed
and custody of the child has been transferred to the department under the provisions of section three of this article. After the
examination, the officer shall return the child immediately to
the custody of his or her parent, guardian or custodian, unless
the child protective service worker believes the child is in an
emergency situation and takes the child into custody pursuant to
section three-c of this article.
(c) If the child protective service worker believes the child
is in an emergency situation and removes the child from his or
her home without prior judicial authorization, immediately upon
receiving judicial authorization, the child shall receive a
medical examination. The examination shall be performed prior to
the child's placement in another home environment, a foster home
or other state institutional care. Any child welfare worker may
accompany the child to the medical examination. The child's
parents, guardians or legal custodians must be notified of the
time and location of the medical examination and may accompany
the child for the examination. The medical examination shall
include an examination for sexual abuse if allegations of sexual
abuse or misconduct are made. A copy of the medical examination
findings shall be forwarded immediately to the judicial officer
who ratified the emergency custody order. A copy of the medical
examination findings shall be included in the petition for
custody of the child.
(d) If the child protective services worker fails to obtain a
medical examination of a child as required in subsection (c) of
this section, a petition on behalf of that child presented to the
court by that worker shall be considered by the court as
premature and shall be dismissed.
NOTE: The purpose of this bill is to require that every child
removed from a home must have a medical examination prior to
placement in foster care or into another person's home or into an
institution.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that
would be added.