Senate Bill No. 76
(By Senator Hunter)
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[Introduced January 9, 2008; referred to the Committee on Health
and Human Resources; and then to the Committee on Finance.]
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A BILL to amend the Code of West Virginia, 1931, as amended, by
adding thereto a new article, designated §49-6F-1, §49-6F-2,
§49-6F-3, §49-6F-4, §49-6F-5, §49-6F-6, §49-6F-7 and §49-6F-8,
all relating to creating the Office of Family and Foster Child
Protection Ombudsman; powers and duties of the Office of
Family and Foster Child Protection Ombudsman; qualifications,
term of office and salary of the ombudsman; authorizing the
ombudsman to hire staff; providing the ombudsman and staff of
the Office of Family and Foster Child Protection Ombudsman to
investigate and monitor the Department of Health and Human
Resources' Division of Child Protective Services; access to
Child Protective Services' records and information;
communication with children involved in Child Protective
Services' investigations and in foster care; confidentiality
of information; immunity from liability; sunset provision; and defining terms.
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 article, designated §49-6F-1, §49-6F-2,
§49-6F-3, §49-6F-4, §49-6F-5, §49-6F-6, §49-6F-7 and §49-6F-8
, all
to read as follows:
ARTICLE 6F. OFFICE OF FAMILY AND CHILD PROTECTION OMBUDSMAN.
§49-6F-1. Purpose.
The Legislature is committed to providing for the well-being
of children and families of the State of West Virginia. Securing
a future for some of our most vulnerable
citizens, those involved
in abuse and neglect proceedings and those in foster care has
proven to be daunting and ongoing effort for the Legislature. To
continue to safeguard these children and families, the Legislature
hereby creates the Office of Family and Foster Child Protection
Ombudsman. The Ombudsman shall be charged with coordinating
efforts on behalf of children and families involved in abuse and
neglect matters and in foster care; to work with advocacy groups;
to advocate and promote systematic reforms; and, to recommend
changes in law, policy, rule or procedure necessary to enhance the
protection of foster children and families and children involved in
abuse and neglect matters.
§49-6F-2. Definitions.
In this article:
(1) "Child or children" means a person or persons yet to
attain the age of eighteen years.
(2) "Child abuse and neglect" means child abuse and neglect as
those terms are defined in section three, article one of this
chapter.
(3) "Child Fatality Review Team" means the group of
individuals established by section five, article five-d of this
chapter.
(4) "Child Protective Services" means the state agency within
the Department of Health and Human Resources charged with the
responsibility for review, investigation and placement of children
involved in child abuse and neglect matters established in article
six-a, chapter forty-nine of this code.
(5) "Court or judiciary" means either the family court, as
established by article two-a, chapter fifty-one of this code, or
circuit court, as established by article two, chapter fifty-one of
this code, of the county with jurisdiction of the abuse or neglect
case.
(6) "Department or state" means the State Department of Health
and Human Resources.
(7) "Foster child"
means a child who is in the custody of the
state and placed in any temporary or permanent placement in any
foster home, group home or other facility or residence.
(8) "Multidisciplinary Team" means multidisciplinary team as defined by section three, article one of this chapter.
(9) "Ombudsman" means the position created pursuant to section
three of this article.
(10) "Secretary" means the Secretary of the Department of
Health and Human Resources.
§49-6F-3. Office of Family and Foster Child Protection Ombudsman
created to monitor child protective services and
foster care; office to be independent.
(a) There is hereby created the Office of Family and Foster
Child Protection Ombudsman to promote public awareness and
understanding of child protective services and foster care, to
monitor and ensure compliance with administrative acts, relevant
statutes, legislative rules, and internal policies pertaining to
child protective services and foster care and the investigations,
placement, supervision and treatment of children in child abuse and
neglect cases.
(b) The Ombudsman shall report directly to the Governor.
(c) The Office of the Family and Foster Child Protection
Ombudsman and the staff of the Ombudsman's office shall be
independent of the Department of Health and Human Resources.
Neither the secretary nor any employee of the department may
prevent, inhibit or prohibit the Ombudsman from initiating,
carrying out or completing any investigation, review or other
activity within the Ombudsman's statutory duties and deemed necessary by the Ombudsman.
§49-6F-4. Appointment; qualifications; term of office.
(a) The Office of Family and Foster Child Protection Ombudsman
is under the direct supervision of the Ombudsman. The Ombudsman is
the executive and administrative head of the office and shall be
appointed by the Governor with the advice and consent of the
Senate. The Ombudsman shall be an attorney admitted to practice
law in West Virginia and shall be qualified by training and
experience to direct the operations of the Office of Family and
Foster Child Protection Ombudsman.
(b) The Ombudsman:
(1) Shall serve on a full-time basis and may not be engaged in
any other profession or occupation;
(2) May not hold political office in the government of the
state either by election or appointment while serving as Ombudsman;
(3) Shall be a citizen of the United States and shall become
a citizen of the state within ninety days of appointment;
(4) Is entitled to receive an annual salary as provided by the
Governor; and
(5) Is ineligible for civil service coverage as provided in
section four, article six, chapter twenty-nine of this code.
(c) The Ombudsman shall hold office for a term of three years
and shall continue to hold office until reappointed or until a
successor is appointed. The Governor may remove the Ombudsman only for neglect of duty, misconduct, or inability to perform duties.
Any vacancy shall be filled by similar appointment for the
remainder of the unexpired term.
§49-6F-5. Powers and duties of foster child and Child Protection
Ombudsman; hiring of staff.
(a) The powers and duties of the Ombudsman include, but are
not limited to:
(1) Review, monitoring and investigation of the performance of
child protective services rendered by the department in child abuse
and neglect matters;
(2) Inspection and review of the operations, policies and
procedures of foster homes, group homes, residential treatment
facilities, shelters for the care of foster children and the care
of abused or neglected children, or any other public or private
residential setting in which a child has been placed by the
department;
(3) Intervention in pending litigation involving abused or
neglected children in order to insure Circuit or Family Court
Judges and prosecuting attorneys comply with legal requirements
related to abused or neglected children, and to appeal judicial
acts or orders to the West Virginia Supreme Court of Appeals in the
event the acts or orders appear not to be in compliance with
applicable legal requirements;
(4) Reporting to the Joint Committee on Government and Finance annually no later than the thirty-first day of December of each
calendar year, concerning the state of the department and the state
of the judiciary relative to each entity's specific duties in
placement foster children and child abuse and neglect matters;
(5) Acting as a neutral and nonadversarial arbiter in disputes
between citizens and the Department's Division of Child Protective
Services;
(6) Making recommendations to the Legislature and the Governor
for legislative or administrative changes designed to improve the
department's performance in responding to foster care problems and
child abuse and neglect cases as well as the prosecuting attorney
and judiciary's role in the protection of children from child abuse
and child neglect and children in foster care;
(7) Reviewing, evaluating, reporting on and making
recommendations concerning the procedures established by the
department in providing services to children who are at risk of
abuse or neglect, child in department custody, or any child who
receives child protective services;
(8) Remaining knowledgeable and informed regarding current
law, changes in the law and trends in the law vis a vis foster
care, child abuse and child neglect and to answer queries from the
public regarding same;
(9) Remaining knowledgeable and informed concerning the
department's administrative practices, procedures and policies as they relate to the protection of children;
(10) Filing legal actions, including, but not limited to,
actions in mandamus, prohibition, or declaratory judgment actions,
that seek to require governmental officials to perform necessary
activities to adequately serve and protect children or to prohibit
those officials from engaging in actions that are counterproductive
to the protection and welfare of children;
(11) Dissemination of information to the public on the
objectives of the office, the services the office provides and the
methods by which the office may be contacted, including, but not
limited to, a toll-free telephone number to receive and respond to
calls from citizens and a web page describing the services
available through the office;
(12) Aiding the Governor and the Legislature in proposing
methods of achieving increased coordination and collaboration among
state agencies and entities, including the judiciary, to ensure
maximum effectiveness and efficiency in the provision of services
to children;
(13) Providing necessary training and technical assistance to
Child Protective Services, prosecuting attorneys and the judiciary
on issues relevant to the performance of their respective duties
with regard to child abuse and child neglect
and foster care; and
(14) Doing all necessary activities intended to improve the
Department's Child Protective Services Division and the department's foster care program.
(b) The Ombudsman may appoint an adequate number of staff to
perform the duties of the office. The total compensation of the
staff shall be within the limits of the amounts appropriated by the
Legislature for personal services of the office. All staff shall
serve at the will and pleasure of the Ombudsman.
§49-6F-6. Access to information; communication with children;
confidentiality.
(a) The Ombudsman shall have access to:
(1) All written reports of child abuse and neglect matters
including the names of all children involved in investigation,
treatment or placement by Child Protective Services or in foster
care;
(2) All records of local Multidisciplinary Teams created
pursuant to the provisions of section two, article five-d of this
chapter;
(3) All current and archived records maintained by Child
Protective Services;
(4) All court documents, including, but not limited to,
pleadings, petitions, orders, and discovery information;
(5) All on-line case management information;
(6) All records of Child Fatality Review Teams created
pursuant to section five of article five-d of this chapter; and
(7) All state institutions serving children, and state licensed facilities or residences including all foster care homes
and facilities for the purposes of carrying out this article.
(b) The Ombudsman may communicate privately, by mail or
orally, with any child who is the subject of a Child Protective
Services investigation, treatment of placement or in foster care;
(c) All records of the Ombudsman pertaining to the care and
treatment of a child shall remain confidential and are subject to
the same confidentiality requirements as set forth in article
seven, section one of this chapter. These records are not subject
to any method of legal compulsion without a showing of good cause
by the circuit or family court. Information contained in those
records may not be disclosed publicly in any manner that would
disclose identifying information about complainants or witnesses.
§49-6F-7. Admissibility of evidence; testimony regarding official
duties; exceptions.
(a) Neither the Ombudsman nor the staff of the Office of
Family and Foster Child Protection Ombudsman may be compelled in
any judicial or administrative proceeding to testify or produce
evidence regarding the exercise of the official duties of the
Ombudsman or of the Ombudsman's staff. All related memoranda, work
product, notes, and case files of the Ombudsman's Office are
confidential, are not subject to discovery, judicial or
administrative subpoena, or other method of legal compulsion, and
are not admissible as evidence in a judicial or administrative proceeding.
(b) The privilege described in subsection (a) of this section
does not apply when:
(1) The Ombudsman or the Ombudsman's staff has direct
knowledge of an alleged crime and the testimony, evidence, or
discovery sought is relevant to that allegation;
(2) The Ombudsman or the Ombudsman's staff has received a
threat of, or becomes aware of a risk of, imminent serious harm to
any person, and the testimony, evidence, or discovery sought is
relevant to that threat or risk; or
(3) The Ombudsman has been asked to provide general
information regarding the general operation of, or the general
processes employed at, the Ombudsman's office.
§49-6F-8. Immunity from liability for good faith performance of
duties.
(a) An employee of the Office of the Family and Foster Child
Protection Ombudsman is not liable for good faith performance under
this article.
(b) No discriminatory, disciplinary, retaliatory action may be
taken against an employee of the department, an employee of a
contracting agency of the department, a foster parent, or a
recipient of service from Child Protective Services for any
communication made, or information given or disclosed, to aid the
Office of the Family and Foster Child Protection Ombudsman in carrying out its responsibilities, unless the communication or
information is made, given or disclosed maliciously or not in good
faith.
(c) All communications by the Ombudsman or employees of the
Office of the Family and Foster Child Protection Ombudsman, if
reasonably related to the requirements of this section and done in
good faith are privileged. This privilege shall serve as a defense
in any action brought in libel or slander.
NOTE: The purpose of this bill is to create the Office of
Family and Foster Child Protection Ombudsman. The bill,
additionally, authorizes the Ombudsman to hire staff; requires the
Ombudsman to investigate and monitor the Department of Health and
Human Resources, Division of Child Protective Services; sets forth
powers and duties of the Ombudsman; defines terms; sets forth
qualification for the position and terms and provides for access to
information and sets forth the confidentiality requirements for
that information.
This article is new; therefore, strike-throughs and
underscoring have been omitted.
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