Senate Bill No. 291
(By Senators Jones, Plymale, Burdette, Mr. President,
Chernenko, Anderson, Bailey, Humphreys, Dittmar, Blatnik,
Walker, Tomblin, Wehrle, Miller, Minard, Dalton, Wagner, Whitlow,
Wooton, Manchin, Grubb, Holliday, Yoder, Craigo, Boley, Lucht,
Schoonover, Ross, Withers, Helmick and Sharpe)
____________
[Introduced February 8, 1994; referred to the Committee
on the Judiciary.]
____________
A BILL to amend chapter forty-nine of the code of West Virginia,
one thousand nine hundred thirty-one, as amended, by adding
thereto a new article, designated article five-e; to amend
article six of said chapter by adding thereto a new section,
designated section one-a; to amend and reenact section nine,
article six-a of said chapter; to further amend said article
by adding thereto a new section, designated section eleven;
to amend and reenact sections one and twenty-four, article
seven of said chapter; to amend and reenact section three,
article eleven-a, chapter sixty-one of said code; and to
amend and reenact sections seven and seven-a, article
twelve, chapter sixty-two of said code, all relating to the
appointment of a special advocate to assist minors involved
in criminal proceedings before a court; defining court
appointed special advocate; setting forth duties of the
special advocate; providing for rules promulgated by the
supreme court of appeals; setting caseload standards for
child protective service workers by the year one thousand
nine hundred ninety-six; prohibiting restrictions on
investigations and available services; required face-to-face
interviews of certain abused minors; referrals from circuit
courts and family law masters; promulgation of rules and
protocol for law enforcement in child abuse cases; protocol
for multidisciplinary teams; release of confidential
information to a court appointed special advocate; minimum
penalty for willful violations; promulgation of legislative
rules; allowing statement of certain therapists in
presentence reports; and providing for presentence diagnosis
and treatment of certain offenders.
Be it enacted by the Legislature of West Virginia:
That chapter forty-nine of the code of West Virginia, one
thousand nine hundred thirty-one, as amended, be amended by
adding thereto a new article, designated article five-e; that
article six of said chapter be amended by adding thereto a new
section, designated section one-a; that section nine, article
six-a of said chapter be amended and reenacted; that said article
be further amended by adding thereto a new section, designated
section eleven; that sections one and twenty-four, article seven
of said chapter be amended and reenacted; that section three,article eleven-a, chapter sixty-one of said code be amended and
reenacted; and that sections seven and seven-a, article twelve,
chapter sixty-two of said code be amended and reenacted, all to
read as follows:
CHAPTER 49. CHILD WELFARE.
ARTICLE 5E. COURT APPOINTED SPECIAL ADVOCATE.
§49-5E-1. Definitions.
"Court appointed special advocate" means a qualified person,
duly certified and appointed by a circuit court to participate in
a court appointed special advocate program approved by the court
who advocates for a child in an abuse and neglect proceeding or
in a juvenile delinquency hearing, or who assists a minor child
in criminal proceeding where a child is a victim or witness.
§49-5E-2. Court appointed special advocate; duties; limitations;
liability.
The court may appoint a court appointed special advocate to
advocate for a child in any abuse and neglect proceeding or in a
juvenile delinquency hearing or to assist a minor child in
criminal proceeding where a child is a victim or witness.
§49-5E-3. Procedural rules.
Court appointed special advocate programs shall be governed
by rules promulgated by the supreme court of appeals.
ARTICLE 6. PROCEDURE IN CASES OF CHILD NEGLECT OR ABUSE.
§49-6-1a. Minimum staffing complement for child protective
services.
(a) Notwithstanding any provision of this code to thecontrary, the staffing complement of the department of health and
human resources shall be increased by the secretary of health and
human resources to assure that a child protective service worker
does not have responsibility for more than thirty pending cases
and not more than thirteen child protective services
investigations each month:
Provided,
That on and after the first
day of July, one thousand nine hundred ninety-six, the staffing
complement of the department of health and human resources shall
be increased by the secretary thereof to assure that a child
protection service worker does not have responsibility for more
than ten pending cases and not more than thirteen child
protective services investigations each month:
Provided,
however,
That on the first day of February of each year after the
effective date of this section, the secretary shall report in
writing to the speaker of the House of Delegates and the
president of the Senate the efforts and progress made by the
secretary to increase the staffing complement by the first day of
July, one thousand nine hundred ninety-six, as mandated by this
subsection. Direct child protective service worker positions,
necessary to assure this staffing complement, are exempt from
hiring restrictions and personnel ceilings.
(b) Nothing in this section shall prevent any employee of
the department of health and human resources from providing
services in emergency situations as designated by the governor.
ARTICLE 6A. REPORTS OF CHILDREN SUSPECTED TO BE ABUSED OR
NEGLECTED.
§49-6A-9. Establishment of child protective services; general
duties and powers; cooperation of other state agencies.
(a) The state department shall establish or designate in
every county a local child protective service services office to
perform the duties and functions set forth in this article.
(b) Except in cases involving institutional abuse or cases
in which police investigation also appears appropriate, The local
child protective service shall be the sole public agency
responsible for investigating or arranging for investigation and
cooridinating the investigation investigate all reports of child
abuse or neglect:
Provided,
That under no circumstances shall
investigating personnel be relatives of the accused, the child or
the families involved. In accordance with the local plan for
child protective services, it shall provide protective services
to prevent further abuse or neglect of children and provide for
or arrange for and coordinate and monitor the provision of those
services necessary to ensure the safety of children. The local
child protective service shall be organized to maximize the
continuity of responsibility, care and service of individual
workers for individual children and families:
Provided, however,
That under no circumstances may the secretary or his or her
designee promulgate rules or establish any policy which restricts
the scope or types of alleged abuse or neglect of minor children
which are to be investigated or the provision of appropriate and
available services.
Each local child protective service shall:
(1) Receive or arrange for the receipt of all reports of
children known or suspected to be abused or neglected on a
twenty-four hour, seven-day-a-week basis and cross-file all such
reports under the names of the children, the family, any person
substantiated as being an abuser or neglecter by investigation of
the department of human services, with use of such cross-filing
of such person's name limited to the internal use of the
department;
(2) Provide or arrange for emergency children's services to
be available at all times;
(3) Within twenty-four hours of Upon notification of
suspected child abuse or neglect, commence or cause to be
commenced a thorough investigation of the report and the child's
environment;
(4) Respond immediately within twenty-four hours to all
allegations of serious harm resulting from child abuse or neglect
or allegations of significant risk of maltreatment. As a part of
this response, within seventy-two hours, there will be: A face-
to-face interview with the child or children; an evaluation of
the safety of the child or children; and the development of a
protection plan which will, as necessary, involve law-enforcement
officers or the court; and
(5) In addition to any other requirements imposed by this
section, when any matter regarding child custody is pending, the
circuit court or family law master may refer allegations of child
abuse and neglect to the local child protective service forinvestigation of any allegations of child abuse or neglect as
defined by this chapter and to make a written report of the
investigation to the referring circuit court or family law
master.
(c) In those cases in which the local child protective
service determines that the best interests of the child require
court action, the local child protective service shall initiate
the appropriate legal proceeding.
(d) The local child protective service shall be responsible
for providing, directing or coordinating the appropriate and
timely delivery of services to any child suspected or known to be
abused or neglected, including services to the child's family and
those responsible for the child's care. and
(e) To carry out the purposes of this article, all
departments, boards, bureaus and other agencies of the state or
any of its political subdivisions and all agencies providing
services under the local child protective service plan shall,
upon request, provide to the local child protective service such
assistance and information as will enable it to fulfill its
responsibilities.
§49-6A-11. Committee on crime, delinquency and correction;
promulgation of rules on child abuse.
(a) The governor's committee on crime, delinquency and
correction in conjunction with the children's justice task force
of the governor's cabinet on children and family shall develop
and promulgate rules for state, county and municipal law-enforcement officers and law-enforcement agencies and prosecuting
attorneys regarding the duties of law-enforcement officers, law-
enforcement agencies and prosecuting attorneys with respect to
child abuse. The notice of the public hearing on the rules shall
be published before the first day of July, one thousand nine
hundred ninety-four. Prior to the publication of the proposed
rules, the governor's committee on crime, delinquency and
correction shall convene a meeting or meetings of an advisory
committee to assist in the development of the rules. The
advisory committee shall include, but not be limited to,
representatives of the department of health and human resources,
the attorney general, the association of prosecuting attorneys or
the prosecutors' advisory council, the court appointed special
advocate program, an attorney who frequently represents children
in abuse and neglect proceedings and two persons who have been
directly affected by a perpetrator of child abuse. Such rules
shall be promulgated in accordance with the provisions of chapter
twenty-nine-a of this code. In addition, the committee may
prepare and issue a model protocol for local multidisciplinary
teams regarding investigation and prosecution of child abuse,
including specific protocols for child sexual abuse; review and
approve protocols prepared by local multidisciplinary teams; seek
funding to support special projects relating to the operation of
local multidisciplinary teams; and make recommendations to the
governor and the Legislature for changes in state programs,
legislation, regulations, policies, budgets and treatment andservice standards which will facilitate effective intervention of
child abuse cases, the investigation and prosecution of
perpetrators of child abuse, and which will improve the
opportunity for victims of child abuse to receive treatment.
ARTICLE 7. GENERAL PROVISIONS.
§49-7-1. Confidentiality of records.
All records of the state department, the court and its
officials, law-enforcement agencies and other agencies or
facilities concerning a child as defined in this chapter shall be
kept confidential and shall not be released: Provided, That such
records, except adoption records, juvenile court records and
records disclosing the identity of a complainant of child abuse
or neglect, shall be made available: (1) Where authorized by
this chapter; (2) to the child, parent or the attorney of the
child or parent, whether or not in connection with judicial
proceedings; (3) with the written consent of the child or of
someone authorized to act in the child's behalf; or (4) to a
court appointed special advocate; or (5) pursuant to subpoena or
order of a court of record: Provided, however, That a subpoena
for such records may be quashed if the court determines that
disclosure is not for a bona fide purpose and compromises the
confidentiality intended by this section. The official court file
pertaining to the person who is the subject of a neglect or abuse
proceeding shall be open for inspection only to the child, the
child's parent or custodian, their counsel, any court appointed
special advocate and other parties to the proceedings before thecourt. No record or information shall be transmitted to any
federal or state agency except as specifically provided herein.
Except in juvenile proceedings which are transferred to
criminal proceedings, law-enforcement records and files
concerning a child shall be kept separate from the records and
files of adults and not included within the court files. Law-
enforcement records and files concerning a child shall be open to
inspection pursuant to the provisions of section seventeen,
article five of this chapter.
Any person who willfully violates this section shall be
guilty of a misdemeanor, and, upon conviction thereof, shall be
fined not less than one hundred dollars nor more than one
thousand dollars, or confined in jail not more than six months,
or both such fine and imprisonment, and shall be liable for
damages in the amount of three hundred dollars or actual damages,
whichever is greater.
§49-7-24. Rules and regulations under chapter.
The state commissioner shall prepare and promulgate rules
and regulations necessary to give effect to the The secretary of
the department of health and human resources shall propose for
promulgation legislative rules in accordance with the provisions
of chapter twenty-nine-a of this code to implement the provisions
of this chapter.
CHAPTER 61. CRIMES AND THEIR PUNISHMENT.
ARTICLE 11A. VICTIM PROTECTION ACT OF 1984.
§61-11A-3. Victim impact statement; when required; contents;
use; right of defendant to review and present evidence.
(a) In every case in which a presentence report is ordered
by the court, such presentence report shall contain a victim
impact statement unless the court orders otherwise, if the
defendant, in committing a felony or misdemeanor, caused
physical, psychological or economic injury or death of the
victim.
(b) The victim impact statement shall be prepared by the
probation officer and shall include the identity of the victim,
an itemization of any economic loss suffered by the victim as a
result of the offense, a description of the nature and extent of
any physical or psychological injury suffered by the victim as a
result of the offense, the details of any change in the victim's
personal welfare, lifestyle or family relationships as a result
of the offense, whether there has been any request for
psychological or medical services initiated by the victim or the
victim's family as a result of the offense and such other
information related to the impact of the offense upon the victim
as may be required by the court.
(c) If the court does not order a presentence investigation
and report, the prosecuting attorney may request that the
probation officer prepare a victim impact statement. The victim
impact statement shall be considered by the court as a factor in
determining the appropriate sentence. Additionally, the
statement may be utilized for the determination of claims by
victims of crimes pursuant to the provisions of article two-a,chapter fourteen of this code.
(d) In cases that involve child victims of offenses defined
in section twelve, article eight of this chapter or article
eight-b or eight-d of this chapter, any victim impact statement
in a presentence report may include a statement from a therapist,
psychologist or physician who is providing treatment to the child
as to the recommendations regarding the effect that possible
disposition may have on the child.
(d) (e) A victim impact statement prepared in accordance
with the provisions of this section, other than for claims by
victims of crimes pursuant to the provisions of article two-a,
chapter fourteen of this code, shall be made available to the
defendant, and his counsel if he is so represented, at least ten
days prior to the date set for pronouncement of his sentence. The
court shall, upon motion by or on behalf of the defendant, grant
the defendant a hearing, whereby he may introduce testimony or
other information related to any alleged factual inaccuracies in
the statement.
CHAPTER 62. CRIMINAL PROCEDURE.
ARTICLE 12. PROBATION AND PAROLE.
§62-12-7. Preliminary investigation; report on prospective
probationers.
When directed by the court, the probation officer shall make
a careful investigation of, and a written report with
recommendations concerning, any prospective probationer. Insofar
as practicable this report shall include information concerningthe offender's court and criminal record, occupation, family
background, education, habits and associations, mental and
physical condition, the names, relationship, ages and condition
of those dependent upon him for support and such other facts as
may aid the court in determining the propriety and conditions of
his release on probation. No person convicted of a felony or of
any offense described in article eight-b or eight-d, chapter
sixty-one of this code against a minor child shall may be
released on probation until this report shall have been presented
to and considered by the court. The court may in its discretion
request such a report concerning any person convicted of a
misdemeanor. The presentence report of any person convicted of
an offense, described in article eight-b or eight-d of said
chapter or section twelve, article eight of said chapter, may
include a statement from a therapist, psychologist or physician
who is providing treatment to the child. A copy of all reports
shall be filed with the board of probation and parole.
§62-12-7a. Presentence diagnosis and classification; power of
court; custody of convicted person; provision for
presentence reports; penalty for escape.
Notwithstanding any other provision of law, when any person
has been found guilty of, or pleads guilty to, a felony, or any
offense described in article eight-d or eight-b, chapter sixty-
one of this code, against a minor child, the court may, prior to
pronouncing of sentence, direct that the person be delivered into
the custody of the commissioner of corrections, for the purposeof diagnosis and classification for a period not to exceed sixty
days:
Provided,
That the court shall require that a presentence
report be completed by the probation officer assigned to that
person and be made available to the commissioner of corrections
prior to delivery of the person to a statutorily approved
diagnosis and classification unit of the division of corrections.
While at the diagnosis and classification unit the person shall
undergo examination, diagnosis and classification and shall then
be remanded and delivered to the custody of the sheriff of the
county wherein he or she was found guilty or entered such plea.
Within ten days following the termination of the examination,
diagnosis and classification, the commissioner of corrections
shall make or cause to be made a report to the court wherein the
person was found guilty, or entered a plea of guilty, containing
the results, findings, conclusions and recommendations of the
commissioner with respect to such person.
Whenever a person is remanded into the custody of the
commissioner of corrections pursuant to this section, the person
shall be given credit on any sentence subsequently imposed by the
court equal to the time spent in such custody.
NOTE: The purpose of this bill is to provide for the
appointment of a special advocate to assist minors involved in
criminal proceedings before a court and to set forth the duties
of the special advocate. The bill requires that the Department
of Health and Human Resources meet caseload standards for child
protective service workers by 1996. The bill also restricts the
Department of Health and Human Resources from limiting child
abuse investigations or in limiting access to services by victims
of child abuse. The bill provides standards for investigationsof child abuse and neglect including establishing investigation
protocols for law enforcement and multidisciplinary child abuse
teams. The bill allows the release of confidential information
to the child advocate, investigation of referrals from circuit
courts and family law masters and the inclusion of statements of
child abuse therapists in presentencing reports.
Strike-throughs indicate language that would be stricken
from the present law, and underscoring indicates new language
that would be added.
§49-5E; §49-6A-1a; and §49-6A-11 are new; therefore, strike-
throughs and underscoring have been omitted.
Email
Webmaster | © 2024 West Virginia Legislature **
