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SB291 SUB1 Senate Bill 291 History

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Key: Green = existing Code. Red = new code to be enacted
COMMITTEE SUBSTITUTE

FOR

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)

____________

[Originating in the Committee on the Judiciary;

reported March 3, 1994.]

____________




A BILL to amend article six, chapter forty-nine of the code of West Virginia, one thousand nine hundred thirty-one, as amended, by adding thereto a new section, designated section one-a; to amend and reenact section nine, article six-a of said chapter; to amend and reenact section 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 setting caseload standards for child protective service workers by the year one thousand nine hundred ninety-five; 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; 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 article six, chapter forty-nine of the code of West Virginia, one thousand nine hundred thirty-one, as amended, 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 section 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 6. PROCEDURE IN CASES OF CHILD NEGLECT OR ABUSE.

§49-6-1a. Minimum staffing complement for child protective services.

Notwithstanding any provision of this code to the contrary, 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 fifteen pending, ongoing cases or not more than eight child protective services investigations each month: Provided, That on and after the firstday of July, one thousand nine hundred ninety-five, 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, ongoing cases or not more than eight 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-five, as mandated by this subsection and each year thereafter. Direct child protective service worker positions, necessary to assure this staffing complement, are exempt from hiring restrictions and personnel ceilings.
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 services office to perform the duties and functions set forth in this article.
(b) The local child protective service shall 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 provideprotective 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 office 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) 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 ofthis response, within seventy-two hours, there shall be: A face- to-face interview with the child or children; and the development of a protection plan which may 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 for investigation of the allegations as defined by this chapter and require the local child protective service to submit a written report of the investigation to the referring circuit court or family law master within the time frames set forth by the 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.
(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 itsresponsibilities.
ARTICLE 7. GENERAL PROVISIONS.

§49-7-24. Rules and regulations under chapter.

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 victimas 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.
(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 concerning the 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 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 anyoffense 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 purpose of 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.
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