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WEST virginia legislature
2023 regular session
Committee Substitute
for
Senate Bill 470
By Senators Azinger, Maynard, and Karnes
[Originating in the Committee on the Judiciary; reported on February 25, 2023]
A BILL to amend and reenact the Code of West Virginia, 1931, as amended, by adding thereto a new section, designated §48-22-803; and to amend and reenact §49-4-604 and §49-4-607 of said code, all relating to adoption; and specifically making the medical records of an adopted child’s biological parents available to the child, the child’s guardian, or the child’s lineal descendants for medical purposes; authorizing adult adoptees to access to certain records, including adoption records and medical history; requiring biological parents to provide certain health information; allowing biological parents to designate a contact preference and allowing them to provide certain information; allowing biological parents to request name redaction; providing for a name redacting process; directing the Department of Health and Human Resources to administer records, require additional information, and charge a reasonable fee; providing a procedure for the collection and dissemination of information; providing for the tracking of information and reporting to the Legislative Oversight Commission on Health and Human Resources Accountability; requiring biological parents whose parental rights are terminated to provide identifying information to the Department of Health and Human Services; requiring biological parents whose parental rights are terminated to provide authorization to the Department of Health and Human Services to access their medical records upon a showing of legitimate medical need and provide those records to an adopted child, their lineal descendants, or legal guardian; requiring biological parents whose parental rights are terminated to provide authorization to the Department of Health and Human Services to provide to the Department of Health and Human Services a DNA or other biological sample upon a showing of legitimate medical need and authorizing the department to transfer that sample to an adopted child, their lineal descendants, legal guardian, or medical professional providing treatment; requiring the department to obtain agreement regarding medical records and the collection of biological samples as a condition of voluntary relinquishment of parental rights; and authorizing the Department of Health and Human Resources to promulgate legislative rules related to these provisions.
Be it enacted by the Legislature of West Virginia:
(a) For purposes of this section, the following words have the ascribed meanings:
(1) “Adult adoptee” means an adoptee who is at least 18 years of age and who has graduated from high school, completed a Test Assessing Secondary Completion program, or has legally withdrawn from secondary schooling;
(2) “Adoption file” means a file maintained by the Department of Health and Human Resources that may contain an original birth certificate and adoption decree of an adoptee;
(3) “Biological parent” means an individual whose genetic material was transmitted to a child via natural conception or any assisted-reproductive process or procedure;
(4) “Department of Health and Human Resources” means the Department of Health and Human Resources or any successor agency or agencies;
(5) “Lineal descendant” means a person who by reason of blood or adoption is in the direct line of descent of a person;
(6) “Medical history” means a comprehensive report on the birth parents and any parents of the biological parent, that shall include, but not be limited to, the following: medical history, health status, cause and age at death, height, weight, major diseases, allergies, ear or eye defects, major conditions, major health problems that may be congenital, familial, or genetic;
(7) “Requestor” means a person who requests an adoption file under this section and is:
(A) The adult adoptee as set forth in this section; or
(B) A lineal descendent of a deceased adult adoptee as set forth in this section to whom the adoption file pertains;
(b) Notwithstanding any other provision of law, beginning 90 days from the effective date of this section, a requestor may apply to the Department of Health and Human Resources for a noncertified copy of an adult adoptee’s original birth certificate. Subject to this section, the Department of Health and Human Resources shall issue a noncertified copy of an adult adoptee’s original birth certificate within 45 days of receipt of an application, if the application complies with the requirements of subsection (g) of this section.
(c) An application under this section shall be in a form provided by the Department of Health and Human Resources and shall include the following information:
(2) The requestor’s address;
(3) The requestor’s age and date of birth;
(4) The adult adoptee’s date of birth;
(4) The adult adoptee’s gender at birth;
(5) Satisfactory proof of identification of the requestor, as determined by the Department of Health and Human Resources;
(6) A notarized signature;
(7) The requestor’s telephone number;
(8) If the requestor is a lineal descent, then the requestor shall provide a birth certificate or other verifiable documentation evidencing the requestor’s relationship to the adoptee; and
(9) Any other information required by the Department of Health and Human Resources necessary to verify the identity of the requestor, locate the relevant records, or provide the adoptee’s noncertified copy of original birth record to the adoptee.
(d) The Department of Health and Human Resources shall develop and make available on its website an application for noncertified copy of an adult adoptee’s birth certificate, a contact preference form, a medical history form, and a name redaction request form. The Department of Health and Human Resources shall make hard copy forms available to the public. The contact preference form shall provide biological parent with options, in substantially the following form, from which the biological parent shall select one:
(1) I would like to be contacted. I have completed the contact preference form, an updated medical history form, and consent to filing them with the Department of Health and Human Resources;
(2) I would prefer to be contacted only through an intermediary. I have completed the contact preference form, an updated medical history form, and consent to filing them with the Department of Health and Human Resources; or
(3) Do not contact me. I understand that I may change this preference by filling out another contact preference form. I have completed the contact preference form. I have an updated medical history form and consent to filing a redacted form with the Department of Health and Human Resources.
(e) A biological parent may request that the biological parent’s name be redacted from a noncertified copy of original birth record issued to an adoptee in accordance with the following:
(1) The Department of Health and Human Resources shall create a biological parent’s name redaction request form. The form shall include all of the following:
(A) Information about the procedures and requirements for a biological parent to do either of the following:
(i) Have the form placed in the adoption file of the adoptee who is the biological child of the biological parent so that the biological parent’s name is redacted from the noncertified copy of original birth record issued to the adoptee; or
(ii) Have the form removed from the adoption file of the adoptee if the biological parent later decides to permit their name to be included on the noncertified copy of original birth record;
(B) Provisions necessary for the Department of Health and Human Resources to be able to identify the adoption file of the adoptee to whom the form pertains; and
(C) A place for the biological parent to attest that they are the biological parent of the adoptee to whom the form pertains;
(2) The Department of Health and Human Resources shall make a biological parent’s name redaction request form available upon request no later than October 1, 2023. The Department of Health and Human Resources shall accept a name redaction request form if:
(A) The form has been notarized;
(B) The biological parent provides two items of identification of the biological parent;
(C) If a medical history for the biological parent was not previously prepared, or the medical history was prepared but needs to be updated, the biological parent does the following, as appropriate:
(i) Completes a medical history form; and
(ii) Updates the biological parent’s medical history information; and
(D) The Department of Health and Human Resources is satisfied that the form has been substantially completed upon the biological parent’s request, this form shall be redacted.
(f) The Department of Health and Human Resources shall file an accepted name redaction request form in the adoption file of the adoptee to whom the form pertains.
(g) A biological parent may request at any time that the Department of Health and Human Resources remove the name redaction request form from the adoption file of the adoptee to whom the form pertains. The Department of Health and Human Resources shall remove the form if the biological parent provides the department all of the following:
(1) Two items of identification of the biological parent;
(2) Information the Department of Health and Human Resources needs to be able to identify the adoption file of the adoptee to whom the form pertains; and
(3) A notarized attestation that the biological parent is the biological parent of the adoptee to whom the form pertains.
(h) A name redaction request form removed from an adoption file shall be destroyed.
(i) The Department of Health and Human Resources name redaction request forms shall include all of the following information:
(1) The purpose of the form;
(2) The procedures to be followed and requirements to be met for the Department of Health and Human Resources to accept the form;
(3) The date when biological parents may begin to file the form with the Department of Health and Human Resources;
(4) The procedures to be followed and requirements to be met for having the form removed from an adoption file; and
(5) Any other information the Department of Health and Human Resources considers necessary, including that failure to file a name redaction request may result in the disclosure of the biological parent’s identifying information.
(j) The Department of Health and Human Resources may promulgate legislative rules necessary to carry out the purposes of this section, in accordance with the provisions of §29A-3-1 et seq. of this code.
(k) The Department of Health and Human Resources may charge a fee for issuing a noncertified copy of the original birth certificate. The fee charged shall not exceed the fee for a certified copy of an original birth certificate.
(l) An officer or employee of the Department of Health and Human Resources who, in conformity with the provisions of this section, releases any information contained in an adoption file or provides a copy of an adoption file or any other record covered by this section to a requestor who has provided the identifying verification documentation required by this section, is not criminally or civilly liable for injury, death, loss, or any other harm allegedly arising from the release of that information or copy.
(m) The Department of Health and Human Resources shall track the number of requests for noncertified copies of original birth certificates received, the Department of Health and Human Resources’ response time to those requests, and the number of full-time equivalents and/or part-time equivalents assigned to work fulfilling requests for these records. The department shall track this information beginning July 1, 2023, until April 30, 2026, and provide a report to the Legislative Oversight Commission on Health and Human Resources Accountability regarding this information no later than July 1, 2026.
(n) Nothing in this section shall be construed to permit disclosure of an adoptee’s birth record to the birth parents of an adoptee.
(a) Child and family case plans. — Following a determination pursuant to §49‑4‑602 of this code wherein the court finds a child to be abused or neglected, the department shall file with the court a copy of the child’s case plan, including the permanency plan for the child. The term “case plan” means a written document that includes, where applicable, the requirements of the family case plan as provided in §49‑4‑408 of this code and that also includes, at a minimum, the following:
(1) A description of the type of home or institution in which the child is to be placed, including a discussion of the appropriateness of the placement and how the agency which is responsible for the child plans to assure that the child receives proper care and that services are provided to the parents, child, and foster or kinship parents in order to improve the conditions that made the child unsafe in the care of his or her parent(s), including any reasonable accommodations in accordance with the Americans with Disabilities Act of 1990, 42 U. S. C. §12101 et seq., to parents with disabilities in order to allow them meaningful access to reunification and family preservation services;
(2) A plan to facilitate the return of the child to his or her own home or the concurrent permanent placement of the child; and address the needs of the child while in kinship or foster care, including a discussion of the appropriateness of the services that have been provided to the child.
The term “permanency plan” refers to that part of the case plan which is designed to achieve a permanent home for the child in the least restrictive setting available. The plan must document efforts to ensure that the child is returned home within approximate time lines for reunification as set out in the plan. Reasonable efforts to place a child for adoption or with a legal guardian should be made at the same time, or concurrent with, reasonable efforts to prevent removal or to make it possible for a child to return to the care of his or her parent(s) safely. If reunification is not the permanency plan for the child, the plan must state why reunification is not appropriate and detail the alternative, concurrent permanent placement plans for the child to include approximate time lines for when the placement is expected to become a permanent placement. This case plan shall serve as the family case plan for parents of abused or neglected children. Copies of the child’s case plan shall be sent to the child’s attorney and parent, guardian or custodian or their counsel at least five days prior to the dispositional hearing. The court shall forthwith proceed to disposition giving both the petitioner and respondents an opportunity to be heard.
(b) Requirements for a Guardian ad litem. —
A guardian ad litem appointed pursuant to §49‑4‑601(f)(1) of this code, shall, in the performance of his or her duties, adhere to the requirements of the Rules of Procedure for Child Abuse and Neglect Proceedings and the Rules of Professional Conduct and such other rules as the West Virginia Supreme Court of Appeals may promulgate, and any appendices thereto, and must meet all educational requirements for the guardian ad litem. A guardian ad litem may not be paid for his or her services without meeting the certification and educational requirements of the court. The West Virginia Supreme Court of Appeals is requested to provide guidance to the judges of the circuit courts regarding supervision of said guardians ad litem. The West Virginia Supreme Court of Appeals is requested to review the Rules of Procedure for Child Abuse and Neglect Proceedings and the Rules of Professional Conduct specific to guardians ad litem.
(c) Disposition decisions. — The court shall give precedence to dispositions in the following sequence:
(1) Dismiss the petition;
(2) Refer the child, the abusing parent, the battered parent or other family members to a community agency for needed assistance and dismiss the petition;
(3) Return the child to his or her own home under supervision of the department;
(4) Order terms of supervision calculated to assist the child and any abusing parent or battered parent or parents or custodian which prescribe the manner of supervision and care of the child and which are within the ability of any parent or parents or custodian to perform;
(5) Upon a finding that the abusing parent or battered parent or parents are presently unwilling or unable to provide adequately for the child’s needs, commit the child temporarily to the care, custody, and control of the department, a licensed private child welfare agency, or a suitable person who may be appointed guardian by the court. The court order shall state:
(A) That continuation in the home is contrary to the best interests of the child and why;
(B) Whether or not the department has made reasonable efforts, with the child’s health and safety being the paramount concern, to preserve the family, or some portion thereof, and to prevent or eliminate the need for removing the child from the child’s home and to make it possible for the child to safely return home;
(C) Whether the department has made reasonable accommodations in accordance with the Americans with Disabilities Act of 1990, 42 U. S. C. § 12101 et seq., to parents with disabilities in order to allow them meaningful access to reunification and family preservation services;
(D) What efforts were made or that the emergency situation made those efforts unreasonable or impossible; and
(E) The specific circumstances of the situation which made those efforts unreasonable if services were not offered by the department. The court order shall also determine under what circumstances the child’s commitment to the department are to continue. Considerations pertinent to the determination include whether the child should:
(i) Be considered for legal guardianship;
(ii) Be considered for permanent placement with a fit and willing relative; or
(iii) Be placed in another planned permanent living arrangement, but only in cases where the child has attained 16 years of age and the department has documented to the circuit court a compelling reason for determining that it would not be in the best interests of the child to follow one of the options set forth in subparagraphs (i) or (ii) of this paragraph. The court may order services to meet the special needs of the child. Whenever the court transfers custody of a youth to the department, an appropriate order of financial support by the parents or guardians shall be entered in accordance with §49‑4‑801 through §49‑4‑803 of this code;
(6) Upon a finding that there is no reasonable likelihood that the conditions of neglect or abuse can be substantially corrected in the near future and, when necessary for the welfare of the child, terminate the parental, custodial and guardianship rights and responsibilities of the abusing parent and commit the child to the permanent sole custody of the nonabusing parent, if there be one, or, if not, to either the permanent guardianship of the department or a licensed child welfare agency. The court may award sole custody of the child to a nonabusing battered parent. If the court shall so find, then in fixing its dispositional order the court shall consider the following factors:
(A) The child’s need for continuity of care and caretakers;
(B) The amount of time required for the child to be integrated into a stable and permanent home environment; and
(C) Other factors as the court considers necessary and proper. Notwithstanding any other provision of this article, the court shall give consideration to the wishes of a child 14 years of age or older or otherwise of an age of discretion as determined by the court regarding the permanent termination of parental rights. No adoption of a child shall take place until all proceedings for termination of parental rights under this article and appeals thereof are final. In determining whether or not parental rights should be terminated, the court shall consider the efforts made by the department to provide remedial and reunification services to the parent. The court order shall state:
(i) That continuation in the home is not in the best interest of the child and why;
(ii) Why reunification is not in the best interests of the child;
(iii) Whether or not the department made reasonable efforts, with the child’s health and safety being the paramount concern, to preserve the family, or some portion thereof, and to prevent the placement or to eliminate the need for removing the child from the child’s home and to make it possible for the child to safely return home, or that the emergency situation made those efforts unreasonable or impossible; and
(iv) Whether or not the department made reasonable efforts to preserve and reunify the family, or some portion thereof, including a description of what efforts were made or that those efforts were unreasonable due to specific circumstances;
(v) Language ordering the Department of Health and Human Resources or a successor agency or agencies to collect and archive the legal name, date of birth, and Social Security Number of a biological parent or parents whose parental rights have been terminated by the disposition, and language authorizing the release of that information pursuant to the provisions of §48-22-803 of this code;
(vi) Language authorizing the Department of Health and Human Resources or successor agency or agencies, upon request of a child who has obtained the age of majority or a minor child’s legal guardian, and upon a showing of legitimate medical need on the part of the child or one of the child’s lineal descendants, to request, access, or otherwise obtain the medical records of a biological parent whose parental rights have been terminated by the disposition, and further authorizing the Department to provide those records to a child who has obtained the age of majority, a minor child’s legal guardian, one of the child’s lineal descendants, or a licensed medical provider providing treatment to the child or one of the child’s lineal descendants; and
(vii) Language requiring a biological parent whose parental rights have been terminated by the disposition to, upon a request by a child who has obtained the age of majority, a minor child’s legal guardian, or one of the child’s lineal descendants, and upon a showing of legitimate medical need, provide a genetic, DNA, or other appropriate biological sample, such as but not limited to a buccal swab or blood draw, to the Department of Health and Human Resources or successor agency and further authorizing the Department to transfer that sample to the child who has obtained the age of majority, a minor child’s legal guardian, one of the child’s lineal descendants, or a licensed medical provider providing treatment to the child or one of the child’s lineal descendants.
(7) For purposes of the court’s consideration of the disposition custody of a child pursuant to this subsection, the department is not required to make reasonable efforts to preserve the family if the court determines:
(A) The parent has subjected the child, another child of the parent or any other child residing in the same household or under the temporary or permanent custody of the parent to aggravated circumstances which include, but are not limited to, abandonment, torture, chronic abuse, and sexual abuse;
(B) The parent has:
(i) Committed murder of the child’s other parent, guardian or custodian, another child of the parent, or any other child residing in the same household or under the temporary or permanent custody of the parent;
(ii) Committed voluntary manslaughter of the child’s other parent, guardian, or custodian, another child of the parent, or any other child residing in the same household or under the temporary or permanent custody of the parent;
(iii) Attempted or conspired to commit murder or voluntary manslaughter, or been an accessory before or after the fact to either crime;
(iv) Committed a malicious assault that results in serious bodily injury to the child, the child’s other parent, guardian, or custodian, to another child of the parent, or any other child residing in the same household or under the temporary or permanent custody of the parent;
(v) Attempted or conspired to commit malicious assault, as outlined in subparagraph (iv), or been an accessory before or after the fact to the same;
(vi) Committed sexual assault or sexual abuse of the child, the child’s other parent, guardian, or custodian, another child of the parent, or any other child residing in the same household or under the temporary or permanent custody of the parent; or
(vii) Attempted or conspired to commit sexual assault or sexual abuse, as outlined in subparagraph (vi), or been an accessory before or after the fact to the same.
(C) The parental rights of the parent to another child have been terminated involuntarily;
(D) A parent has been required by state or federal law to register with a sex offender registry, and the court has determined in consideration of the nature and circumstances surrounding the prior charges against that parent, that the child’s interests would not be promoted by a preservation of the family.
(d) As used in this section, “No reasonable likelihood that conditions of neglect or abuse can be substantially corrected” means that, based upon the evidence before the court, the abusing adult or adults have demonstrated an inadequate capacity to solve the problems of abuse or neglect on their own or with help. Those conditions exist in the following circumstances, which are not exclusive:
(1) The abusing parent or parents have habitually abused or are addicted to alcohol, controlled substances or drugs, to the extent that proper parenting skills have been seriously impaired and the person or persons have not responded to or followed through the recommended and appropriate treatment which could have improved the capacity for adequate parental functioning;
(2) The abusing parent or parents have willfully refused or are presently unwilling to cooperate in the development of a reasonable family case plan designed to lead to the child’s return to their care, custody and control;
(3) The abusing parent or parents have not responded to or followed through with a reasonable family case plan or other rehabilitative efforts of social, medical, mental health, or other rehabilitative agencies designed to reduce or prevent the abuse or neglect of the child, as evidenced by the continuation or insubstantial diminution of conditions which threatened the health, welfare, or life of the child;
(4) The abusing parent or parents have abandoned the child;
(5) The abusing parent or parents have repeatedly or seriously injured the child physically or emotionally, or have sexually abused or sexually exploited the child, and the degree of family stress and the potential for further abuse and neglect are so great as to preclude the use of resources to mitigate or resolve family problems, or assist the abusing parent or parents in fulfilling their responsibilities to the child; and
(6) The battered parent’s parenting skills have been seriously impaired and the person has willfully refused or is presently unwilling or unable to cooperate in the development of a reasonable treatment plan, or has not adequately responded to or followed through with the recommended and appropriate treatment plan.
(e) The court may, as an alternative disposition, allow the parents or custodians an improvement period not to exceed six months. During this period the court shall require the parent to rectify the conditions upon which the determination was based. The court may order the child to be placed with the parents, or any person found to be a fit and proper person, for the temporary care of the child during the period. At the end of the period, the court shall hold a hearing to determine whether the conditions have been adequately improved and at the conclusion of the hearing shall make a further dispositional order in accordance with this section.
(f) The court may not terminate the parental rights of a parent on the sole basis that the parent is participating in a medication‑assisted treatment program, as regulated in §16‑5Y‑1 et seq. of this code, for substance use disorder, as long as the parent is successfully fulfilling his or her treatment obligations in the medication‑assisted treatment program.
(a) An agreement of a natural parent in termination of parental rights is valid if made by a duly acknowledged writing, and entered into under circumstances free from duress and fraud. Where during the pendency of an abuse and neglect proceeding, a parent offers voluntarily to relinquish of his or her parental rights, and the relinquishment is accepted by the circuit court, the relinquishment may, without further evidence, be used as the basis of an order of adjudication of abuse and neglect by that parent of his or her children;
(b) The Department of Health and Human Resources or successor agency shall, in the event of a voluntary relinquishment that results in the termination of parental rights, collect and archive the legal name, date of birth, and Social Security Number of the natural parents whose parental rights are being terminated;
(c) The Department of Health and Human Resources or successor agency shall, in the event of a voluntary relinquishment that results in the termination of parental rights, obtain authorization of a natural parent whose rights have been terminated to request, access, or otherwise obtain the parent’s medical records upon request and a showing of legitimate medical necessity, and further authorization to share that that information a child who has obtained the age of majority, the minor child’s legal guardian, one of the child’s lineal descendants, or a licensed medical provider providing treatment to the child or one of the child’s lineal descendants;
(d) The Department of Health and Human Resources or successor agency shall, in the event of a voluntary relinquishment that results in the termination of parental rights, obtain agreement from the natural parent whose rights have been terminated that the parent shall, upon request and upon a showing of legitimate medical need, provide a genetic, DNA, or other appropriate biological sample, such as but not limited to a buccal swab or blood draw, to the Department of Health and Human Resources or a successor agency and, further, obtain authorization from the natural parent whose rights have been terminated permitting the transfer of that sample to the child who has obtained the age of majority, a minor child’s legal guardian, one of the child’s lineal descendants, or a licensed medical provider providing treatment to the child or one of the child’s lineal descendants.
(e) A natural parent who refuses to provide the information and authorization outlined in subsections (b), (c), and (d) of this section shall not be permitted to voluntarily relinquish his or her parental rights.
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