ENGROSSED
COMMITTEE SUBSTITUTE
FOR
Senate Bill No. 678
(By Senator Love)
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[Originating in the Committee on the Judiciary;
reported March 3, 1999.]
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A BILL to amend and reenact section three, article one, chapter
forty-nine of the code of West Virginia, one thousand nine
hundred thirty-one, as amended; and to amend and reenact
section one, article seven of said chapter, all relating to
child welfare services; redefining the term "legal
guardianship" for purposes of abuse and neglect proceedings;
and eliminating certain exceptions to confidentiality of
records and information concerning a child or juvenile.
Be it enacted by the Legislature of West Virginia:
That section three, article one, chapter forty-nine of the
code of West Virginia, one thousand nine hundred thirty-one, as
amended, be amended and reenacted; and that section one, article
seven of said chapter be amended and reenacted, all to read as
follows:
ARTICLE 1. PURPOSES; DEFINITIONS.
§49-1-3. Definitions relating to abuse and neglect.
(a) "Abused child" means a child whose health or welfare is
harmed or threatened by:
(1) A parent, guardian or custodian who knowingly or
intentionally inflicts, attempts to inflict or knowingly allows
another person to inflict, physical injury or mental or emotional
injury, upon the child or another child in the home; or
(2) Sexual abuse or sexual exploitation; or
(3) The sale or attempted sale of a child by a parent,
guardian or custodian in violation of section sixteen, article
four, chapter forty-eight of this code.
In addition to its broader meaning, physical injury may
include an injury to the child as a result of excessive corporal
punishment.
(b) "Abusing parent" means a parent, guardian or other
custodian, regardless of his or her age, whose conduct, as
alleged in the petition charging child abuse or neglect, has been
adjudged by the court to constitute child abuse or neglect.
(c) "Child abuse and neglect" or "child abuse or neglect" means physical injury, mental or emotional injury, sexual abuse,
sexual exploitation, sale or attempted sale or negligent
treatment or maltreatment of a child by a parent, guardian or
custodian who is responsible for the child's welfare, under
circumstances which harm or threaten the health and welfare of
the child.
(d) "Child abuse and neglect services" means social services
which are directed toward:
(1) Protecting and promoting the welfare of children who are
abused or neglected;
(2) Identifying, preventing and remedying conditions which
cause child abuse and neglect;
(3) Preventing the unnecessary removal of children from
their families by identifying family problems and assisting
families in resolving problems which could lead to a removal of
children and a breakup of the family;
(4) In cases where children have been removed from their
families, providing services to the children and the families so
as to reunify such children with their families;
(5) Placing children in suitable adoptive homes when
reunifying the children with their families is not possible or
appropriate; and(6) Assuring the adequate care of children who have been
placed in the custody of the department or third parties.
(e) "Imminent danger to the physical well-being of the
child" means an emergency situation in which the welfare or the
life of the child is threatened. Such emergency situation exists
when there is reasonable cause to believe that any child in the
home is or has been sexually abused or sexually exploited, or
reasonable cause to believe that the following conditions
threaten the health or life of any child in the home:
(1) Nonaccidental trauma inflicted by a parent, guardian,
custodian, sibling or a babysitter or other caretaker;
(2) A combination of physical and other signs indicating a
pattern of abuse which may be medically diagnosed as battered
child syndrome;
(3) Nutritional deprivation;
(4) Abandonment by the parent, guardian or custodian; or
(5) Inadequate treatment of serious illness or disease; or
(6) Substantial emotional injury inflicted by a parent,
guardian or custodian; or
(7) Sale or attempted sale of the child by the parent,
guardian or custodian.
(f) "Legal guardianship" means the permanent relationship between a child and caretaker, established by order of the
circuit court having jurisdiction over the child, as established
pursuant to the provisions of article ten, chapter forty-four
chapters forty-eight and forty-nine of this code.
(g) "Multidisciplinary team" means a group of professionals
and paraprofessionals representing a variety of disciplines who
interact and coordinate their efforts to identify, diagnose and
treat specific cases of child abuse and neglect.
Multidisciplinary teams may include, but are not limited to,
medical, educational, child care and law-enforcement personnel,
social workers, psychologists and psychiatrists. Their goal is
to pool their respective skills in order to formulate accurate
diagnoses and to provide comprehensive coordinated treatment with
continuity and follow-up for both parents and children.
"Community team" means a multidisciplinary group which addresses
the general problem of child abuse and neglect in a given
community and may consist of several multidisciplinary teams with
different functions.
(h) (1) "Neglected child" means a child:
(A) Whose physical or mental health is harmed or threatened
by a present refusal, failure or inability of the child's parent,
guardian or custodian to supply the child with necessary food, clothing, shelter, supervision, medical care or education, when
such refusal, failure or inability is not due primarily to a lack
of financial means on the part of the parent, guardian or
custodian; or
(B) Who is presently without necessary food, clothing,
shelter, medical care, education or supervision because of the
disappearance or absence of the child's parent or custodian;
(2) "Neglected child" does not mean a child whose education
is conducted within the provisions of section one, article eight,
chapter eighteen of this code.
(i) "Parenting skills" means a parent's competencies in
providing physical care, protection, supervision and
psychological support appropriate to a child's age and state of
development.
(j) "Sexual abuse" means:
(A) As to a child who is less than sixteen years of age, any
of the following acts which a parent, guardian or custodian shall
engage in, attempt to engage in, or knowingly procure another
person to engage in, with such child, notwithstanding the fact
that the child may have willingly participated in such conduct or
the fact that the child may have suffered no apparent physical
injury or mental or emotional injury as a result of such conduct:(i) Sexual intercourse;
(ii) Sexual intrusion;
(iii) Sexual contact;
(B) As to a child who is sixteen years of age or older, any
of the following acts which a parent, guardian or custodian shall
engage in, attempt to engage in, or knowingly procure another
person to engage in, with such child, notwithstanding the fact
that the child may have consented to such conduct or the fact
that the child may have suffered no apparent physical injury or
mental or emotional injury as a result of such conduct:
(i) Sexual intercourse;
(ii) Sexual intrusion; or
(iii) Sexual contact;
(C) Any conduct whereby a parent, guardian or custodian
displays his or her sex organs to a child, or procures another
person to display his or her sex organs to a child, for the
purpose of gratifying the sexual desire of the parent, guardian
or custodian, of the person making such display, or of the child,
or for the purpose of affronting or alarming the child.
(k) "Sexual contact" means sexual contact as that term is
defined in section one, article eight-b, chapter sixty-one of
this code.(l) "Sexual exploitation" means an act whereby:
(1) A parent, custodian or guardian, whether for financial
gain or not, persuades, induces, entices or coerces a child to
engage in sexually explicit conduct as that term is defined in
section one, article eight-c, chapter sixty-one of this code;
(2) A parent, guardian or custodian persuades, induces,
entices or coerces a child to display his or her sex organs for
the sexual gratification of the parent, guardian, custodian or a
third person, or to display his or her sex organs under
circumstances in which the parent, guardian or custodian knows
such display is likely to be observed by others who would be
affronted or alarmed.
(m) "Sexual intercourse" means sexual intercourse as that
term is defined in section one, article eight-b, chapter
sixty-one of this code.
(n) "Sexual intrusion" means sexual intrusion as that term
is defined in section one, article eight-b, chapter sixty-one of
this code.
(o) "Parental rights" means any and all rights and duties
regarding a parent to a minor child, including, but not limited
to, custodial rights and visitational rights and rights to
participate in the decisions affecting a minor child.(p) "Placement" means any temporary or permanent placement
of a child who is in the custody of the state in any foster home,
group home or other facility or residence.
(q) "Serious physical abuse" means bodily injury which
creates a substantial risk of death, which causes serious or
prolonged disfigurement, prolonged impairment of health or
prolonged loss or impairment of the function of any bodily organ.
(r) "Siblings" means children who have at least one
biological parent in common or who have been legally adopted by
the same parents or parent.
(s) "Time-limited reunification services" means individual,
group, and family counseling, inpatient, residential or
outpatient substance abuse treatment services, mental health
services, assistance to address domestic violence, services
designed to provide temporary child care and therapeutic services
for families, including crisis nurseries and transportation to or
from any such services, provided during fifteen of the most
recent twenty-two months a child has been in foster care, as
determined by the earlier date of the first judicial finding that
the child is subjected to abuse or neglect, or the date which is
sixty days after the child is removed from home.
ARTICLE 7. GENERAL PROVISIONS.§49-7-1. Confidentiality of records.
(a) Except as otherwise provided in this chapter, all
records and information concerning a child or juvenile which are
maintained by the state department, as defined in section four,
article one of this chapter, a child agency or facility, court of
or law-enforcement agency shall be kept confidential and shall
not be released or disclosed to anyone, including any federal or
state agency.
(b) Notwithstanding the provisions of subsection (a) of this
section or any other provision of this code to the contrary,
records concerning a child or juvenile, except adoption records,
juvenile court records and records disclosing the identity of a
person making a complaint of child abuse or neglect shall be made
available:
(1) Where otherwise authorized by this chapter;
(2) To:
(A) The child;
(B) A parent whose parental rights have not been terminated;
or
(C) The attorney of the child or parent; or
(3) With the written consent of the child or of someone
authorized to act on the child's behalf.(4) Pursuant to a subpoena or order of a court of record;
however, a subpoena for such records may be quashed by a court
for good cause.
(c) In addition to those persons or entities to whom
information may be disclosed under subsection (b) of this
section, information related to child abuse or neglect
proceedings, except information relating to the identity of the
person reporting or making a complaint of child abuse or neglect,
shall be made available, upon request, to:
(1) Federal, state or local government entities, or any
agent of such entities, including law-enforcement agencies and
prosecuting attorneys, having a need for such information in
order to carry out its responsibilities under law to protect
children from abuse and neglect;
(2) The child fatality review team;
(3) Child abuse citizen review panels;
(4) Multidisciplinary investigative and treatment teams; or
(5) A grand jury, circuit court or family law master, upon
a finding that information in the records is necessary for the
determination of an issue before the grand jury, circuit court or
family law master.
(d) In the event of a child fatality or near fatality due to child abuse and neglect, information relating to such fatality or
near fatality shall be made public by the department of health
and human resources and to the entities described in subsection
(c) of this section, all under the circumstances described in
that subsection: Provided, That information released by the
department of health and human resources pursuant to this
subsection shall not include the identity of a person reporting
or making a complaint of child abuse or neglect. For purposes of
this subsection, "near fatality" means any medical condition of
the child which is certified by the attending physician to be
life-threatening.
(e) Except in juvenile proceedings which are transferred to
criminal proceedings, law-enforcement records and files
concerning a child or juvenile 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 or
juvenile shall only be open to inspection pursuant to the
provisions of sections seventeen and eighteen, article five of
this chapter.
(f) Any person who willfully violates the provisions of this
section is guilty of a misdemeanor and, upon conviction thereof,
shall be fined not more than one thousand dollars, or confined in the county or regional jail for not more than six months, or be
both fined and confined. A person convicted of violating the
provisions of this section shall also be liable for damages in
the amount of three hundred dollars or actual damages, whichever
is greater.
(g) Notwithstanding the provisions of this section, or any
other provision of this code to the contrary, the name and
identity of any juvenile adjudicated or convicted of a violent or
felonious crime shall be made available to the public.
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(NOTE: The purpose of this bill is to modify the definition
of "legal guardianship" to state the term means the permanent
relationship between a child and caretaker, created by order of
the circuit court having jurisdiction over the child and to
eliminate an exception to the confidentiality of child and
juvenile records.
Strike-throughs indicate language that would be stricken
from the present law, and underscoring indicates new language
that would be added.)
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