H. B. 3009
(By Delegates Fleischauer, Stemple, Long,
Mahan, Kessler, Shook, Brown, Hrutkay,
Guthrie, Proudfoot and Fragale)
[Introduced
February 12, 2007
; referred to the
Committee on the Judiciary.]
A BILL to amend and reenact §49-1-3 and §49-1-4
of the Code of West
Virginia, 1931, as amended; and to amend and reenact §49-5D-2
and §49-5D-3
of said code, all relating to defining a child
advocacy center relating to abuse and neglect; defining a
child advocacy center related to child welfare in West
Virginia; setting forth the role of a child advocacy center in
multidisciplinary investigative teams; and setting forth the
role of a child advocacy center in multidisciplinary treatment
teams.
Be it enacted by the Legislature of West Virginia:
That §49-1-3 and §49-1-4
of the Code of West Virginia, 1931,
as amended, be amended and reenacted; and that §49-5D-2 and
§49-5D-3
of said code be amended and reenacted, all to read as
follows:
ARTICLE 1. PURPOSES AND 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; or
(4) Domestic violence as defined in section two hundred two,
article twenty-seven, 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) "Battered parent" means a parent, guardian or other
custodian who has been judicially determined not to have condoned
the abuse or neglect and has not been able to stop the abuse or
neglect of the child or children due to being the victim of
domestic violence as defined by section two hundred two, article twenty-seven, chapter forty-eight of this code, which domestic
violence was perpetrated by the person or persons determined to
have abused or neglected the child or children.
(d) "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.
(e) "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 or some portion
thereof;
(5) Placing children in suitable adoptive homes when reunifying the children with their families, or some portion
thereof, 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.
(f) "Child advocacy center" means a community based
organization that is a member in good standing with the West
Virginia Child Abuse Network, Inc. and is working to implement the
following program components:
(1) Child-appropriate/Child-friendly facility: A Children
Advocacy Center provides a comfortable, private, child-friendly
setting that is both physically and psychologically safe for
clients.
(2) Multidisciplinary team (MDT): A multidisciplinary team
for response to child abuse allegations includes representation
from the following: Law enforcement; child protective services;
prosecution; mental health; medical; victim advocacy; child
advocacy center.
(3) Organizational capacity: A designated legal entity
responsible for program and fiscal operations has been established
and implements basic sound administrative practices.
(4) Cultural competency and diversity: The CAC promotes
policies, practices and procedures that are culturally competent.
Cultural competency is defined as the capacity to function in more than one culture, requiring the ability to appreciate, understand
and interact with members of diverse populations within the local
community.
(5) Forensic interviews: Forensic interviews are conducted in
a manner which is of a neutral, fact finding nature and coordinated
to avoid duplicative interviewing.
(6) Medical evaluation: Specialized medical evaluation and
treatment are to be made available to CAC clients as part of the
team response, either at the CAC or through coordination and
referral with other specialized medical providers.
(7) Therapeutic intervention: Specialized mental health
services are to be made available as part of the team response,
either at the CAC or through coordination and referral with other
appropriate treatment providers.
(8) Victim support/advocacy: Victim support and advocacy are
to be made available as part of the team response, either at the
CAC or through coordination with other providers, throughout the
investigation and subsequent legal proceedings.
(9) Case review: Team discussion and information sharing
regarding the investigation, case status and services needed by the
child and family are to occur on a routine basis.
(10) Case tracking: CACs must develop and implement a system
for monitoring case progress and tracking case outcomes for team components.
(f) (g) "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;
(5) Inadequate treatment of serious illness or disease;
(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.
(g) (h) "Legal guardianship" means the permanent relationship
between a child and caretaker, established by order of the circuit
court having jurisdiction over the child, pursuant to the
provisions of chapters forty-eight and forty-nine of this code.
(h) (i) "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.
(i) (j) (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.
(j) (k) "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.
(k) (l) "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; or
(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.
(l) (m) "Sexual contact" means sexual contact as that term is
defined in section one, article eight-b, chapter sixty-one of this
code.
(m) (n) "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.
(n) (o) "Sexual intercourse" means sexual intercourse as that
term is defined in section one, article eight-b, chapter sixty-one
of this code.
(o) (p) "Sexual intrusion" means sexual intrusion as that term
is defined in section one, article eight-b, chapter sixty-one of
this code.
(p) (q) "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.
(q) (r) "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.
(r) (s) "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.
(s) (t) "Siblings" means children who have at least one
biological parent in common or who have been legally adopted by the
same parents or parent.
(t) (u) "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.
§49-1-4. Other definitions.
As used in this chapter:
(1) "Child welfare agency" means any agency or facility
maintained by the state or any county or municipality thereof, or
any agency or facility maintained by an individual, firm,
corporation, association or organization, public or private, to
receive children for care and maintenance or for placement in
residential care facilities, or any facility that provides care for
unmarried mothers and their children;
(2) "Child advocacy center" means a community based
organization that is a member in good standing with the West
Virginia Child Abuse Network, Inc. and is working to implement the
following program components:
(A) Child-appropriate/Child-friendly facility: A children's
advocacy center provides a comfortable, private, child-friendly
setting that is both physically and psychologically safe for
clients.
(B) Multidisciplinary team (MDT): A multidisciplinary team
for response to child abuse allegations includes representation
from the following: Law enforcement; child protective services;
prosecution; mental health; medical; victim advocacy; child
advocacy center.
(C) Organizational capacity: A designated legal entity
responsible for program and fiscal operations has been established
and implements basic sound administrative practices.
(D) Cultural competency and diversity: The Child advocacy
center promotes policies, practices and procedures that are
culturally competent. Cultural competency is defined as the
capacity to function in more than one culture, requiring the
ability to appreciate, understand and interact with members of
diverse populations within the local community.
(E) Forensic interviews: Forensic interviews are conducted in
a manner which is of a neutral, fact finding nature, and
coordinated to avoid duplicative interviewing.
(F) Medical evaluation: Specialized medical evaluation and
treatment are to be made available to child advocacy center clients
as part of the team response, either at the child advocacy center
or through coordination and referral with other specialized medical
providers.
(G) Therapeutic intervention: Specialized mental health services are to be made available as part of the team response,
either at the child advocacy center or through coordination and
referral with other appropriate treatment providers.
(H) Victim support/advocacy: Victim support and advocacy are
to be made available as part of the team response, either at the
child advocacy center or through coordination with other providers,
throughout the investigation and subsequent legal proceedings.
(I) Case review: Team discussion and information sharing
regarding the investigation, case status and services needed by the
child and family are to occur on a routine basis.
(J) Case tracking: Child advocacy centers must develop and
implement a system for monitoring case progress and tracking case
outcomes for team components.
(2) (3) "Community based," when referring to a facility,
program, or service, means located near the juvenile's home or
family and involving community participation in planning,
operation, and evaluation, and which may include, but is not
limited to, medical, educational, vocational, social and
psychological guidance, training, special education, counseling,
alcoholism and any treatment, and other rehabilitation services;
(3) (4)
"Court" means the circuit court of the county with
jurisdiction of the case or the judge thereof in vacation unless
otherwise specifically provided;
(4) (5)
"Custodian" means a person who has or shares actual
physical possession or care and custody of a child, regardless
of whether such person has been granted custody of the child by
any contract, agreement or legal proceedings;
(5) (6)
"Department" or "state department" means the state
Department of Health and Human Resources;
(6) (7)
"Division of juvenile services" means the division
within the Department of Military Affairs and Public Safety
pursuant to article five-e of this chapter;
(7) (8)
"Guardian" means a person who has care and custody of
a child as a result of any contract, agreement or legal proceeding;
(8) (9)
"Juvenile delinquent" means a juvenile who has been
adjudicated as one who commits an act which would be a crime under
state law or a municipal ordinance if committed by an adult;
(9) (10)
"Nonsecure facility" means any public or private
residential facility not characterized by construction fixtures
designed to physically restrict the movements and activities of
individuals held in lawful custody in such facility and which
provides its residents access to the surrounding community with
supervision;
(10) (11)
"Referee" means a juvenile referee appointed
pursuant to section one, article five-a of this chapter, except
that in any county which does not have a juvenile referee, the
judge or judges of the circuit court may designate one or more magistrates of the county to perform the functions and duties which
may be performed by a referee under this chapter;
(11) (12)
"Secretary" means the secretary of health and human
resources;
(12) (13)
"Secure facility" means any public or private
residential facility which includes construction fixtures designed
to physically restrict the movements and activities of juveniles or
other individuals held in lawful custody in such facility;
(13) (14)
"Staff-secure facility" means any public or private
residential facility characterized by staff restrictions of the
movements and activities of individuals held in lawful custody in
such facility and which limits its residents' access to the
surrounding community, but is not characterized by construction
fixtures designed to physically restrict the movements and
activities of residents;
(14) (15)
"Status offender" means a juvenile who has been
adjudicated as one:
(A) Who habitually and continually refuses to respond to the
lawful supervision by his or her parents, guardian or legal
custodian such that the child's behavior substantially endangers
the health, safety, or welfare of the juvenile or any other person;
(B) Who has left the care of his or her parents, guardian or
custodian without the consent of such person or without good cause;
(C) Who is habitually absent from school without good cause;
or
(D) Who violates any West Virginia municipal, county, or state
law regarding use of alcoholic beverages by minors;
(15) (16)
"Valid court order" means a court order given to a
juvenile who was brought before the court and made subject to such
order, and who received, before the issuance of such order, the
full due process rights guaranteed to such juvenile by the
Constitutions of the United States and the State of West Virginia.
ARTICLE 5D. MULTIDISCIPLINARY TEAMS.
§49-5D-2. Multidisciplinary investigative teams; establishment;
procedures; coordination between agencies.
(a) The prosecuting attorney shall establish a
multidisciplinary investigative team in each county. The
multidisciplinary team shall be headed and directed by the
prosecuting attorney or his or her designee and shall include as
permanent members the prosecuting attorney or his or her designee,
a local child protective services caseworker from the department of
health and human resources, a local law-enforcement officer
employed by a law-enforcement agency in the county, a child
advocacy center representative where available and, where
appropriate to the particular case under consideration and
available, a child advocacy center representative, and a
representative from the licensed domestic violence program serving the county. The department of health and human resources and any
local law-enforcement agency or agencies selected by the
prosecuting attorney shall appoint their representatives to the
team by submitting a written designation of the team to the
prosecuting attorney of each county within thirty days of the
prosecutor's request that the appointment be made. Within fifteen
days of the appointment, the prosecuting attorney shall notify the
chief judge of each circuit within which the county is situated of
the names of the representatives so appointed. Any other person or
any other appointee of an agency who may contribute to the team's
efforts to assist a minor child as may be determined by the
permanent members of the team may also be appointed as a member of
the team by the prosecutor with notification to the chief judge.
(b) Any permanent member of the multidisciplinary
investigative team shall refer all cases of accidental death of any
child reported to their agency and all cases when a child dies
while in the custody of the state for investigation and review by
the team. The multidisciplinary investigative team shall meet at
regular intervals at least once every calendar month.
(c) The investigative team shall be responsible for
coordinating or cooperating in the initial and ongoing
investigation of all civil and criminal allegations pertinent to
cases involving child sexual assault, child sexual abuse, child
abuse and neglect, and shall make a recommendation to the county prosecuting attorney as to the initiation or commencement of a
civil petition and/or criminal prosecution.
(d) State, county and local agencies shall provide the
multidisciplinary investigative team with any information requested
in writing by the team as allowable by law or upon receipt of a
certified copy of the circuit court's order directing said agencies
to release information in its possession relating to the child.
The team shall assure that all information received and developed
in connection with the provisions of this article remains
confidential. For purposes of this section, the term
"confidential" shall be construed in accordance with the provisions
of section one, article seven of this chapter.
§49-5D-3. Multidisciplinary treatment planning process.
(a) (1) A multidisciplinary treatment planning process shall
be established within each county of the state, either separately
or in conjunction with a contiguous county, by the secretary of the
department with advice and assistance from the prosecutor's
advisory council as set forth in section four, article four,
chapter seven of this code. The Division of Juvenile Services
shall establish a similar treatment planning process for
delinquency cases in which the juvenile has been committed to the
custody of the director of the division.
(2) Treatment teams shall assess, plan and implement a
comprehensive, individualized service plan for children who are victims of abuse or neglect and their families when a judicial
proceeding has been initiated involving the child or children for
juveniles and their families involved in status offense or
delinquency proceedings when, in a status offense proceeding, the
court refers the juvenile for services pursuant to sections eleven
and eleven-a, article five of this chapter and when, in a
delinquency proceeding, the court is considering placing the
juvenile in the department's custody or placing the juvenile
out-of-home at the department's expense pursuant to the provisions
of section thirteen
of said article. In any such status offense or
delinquency case, the juvenile probation officer shall notify the
local office of the Department of Health and Human Resources and
the Division of Juvenile Services at least five working days before
the court proceeding in order to allow the multidisciplinary
treatment team to convene and develop a comprehensive
individualized service plan for the child: Provided, That such
notice is not required in cases where the child is already in state
custody or there exist exigent circumstances which justify taking
the child immediately into custody without a judicial proceeding.
In developing an individualized service plan for a child, the team
shall utilize a uniform comprehensive assessment of the child. The
department shall adopt a standard uniform comprehensive assessment
instrument or protocol to be used by treatment teams.
(3) Prior to disposition, in each case in which a treatment planning team has been convened, the team shall advise the court as
to the types of services the team has determined are needed and the
type of placement, if any, which will best serve the needs of the
child. If the team determines that an out-of-home placement will
best serve the needs of the child, the team shall first consider
placement at facilities or programs located within the state. The
team may only recommend placement in an out-of-state facility if it
concludes, after considering the best interests and overall needs
of the child, that there are no available and suitable in-state
facilities which can satisfactorily meet the specific needs of the
child.
(b) Each treatment team shall be convened and directed by the
child's or family's case manager in the Department of Health and
Human Resources or the Division of Juvenile Services if the
juvenile has been ordered into its custody for examination and
diagnosis pursuant to section thirteen, article five of this
chapter. The treatment team shall consist of the child's custodial
parent or parents, guardian or guardians, other immediate family
members, the attorney or attorneys representing the child, the
parent or parents of the child, the child's attorney, the guardian
ad litem, if any, the prosecuting attorney or his or her designee,
a member of a child advocacy center when the child has been
processed through the child advocacy center program(s) and where
appropriate to the particular case under consideration and available, a court-appointed special advocate, a member of a child
advocacy center, an appropriate school official and any other
person or an agency representative who may assist in providing
recommendations for the particular needs of the child and family.
The child may participate in multidisciplinary treatment team
meetings if such is deemed appropriate by the multidisciplinary
treatment team. For purposes of delinquency proceedings, the
juvenile probation officer shall be a member of the treatment team.
Any person authorized by the provisions of this chapter to convene
a multidisciplinary team meeting may seek and receive an order of
the circuit court setting such meeting and directing attendance.
Members of the multidisciplinary team may participate in team
meetings by telephone or video conferencing: Provided, That a
member of a child advocacy center should participate in any case
when appropriate to the particular case under consideration.
© The treatment team shall coordinate its activities and
membership with local family resource networks and coordinate with
other local and regional child and family service planning
committees to assure the efficient planning and delivery of child
and family services on a local and regional level.
(d) State, county and local agencies shall provide the
multidisciplinary treatment teams with any information requested in
writing by the team as allowable by law or upon receipt of a
certified copy of the circuit court's order directing said agencies to release information in its possession relating to the child.
The team shall assure that all information received and developed
in connection with the provisions of this article remain
confidential. For purposes of this section, the term
"confidential" shall be construed in accordance with the provisions
of section one, article seven of this chapter.
(e) Nothing in this section may be construed to require a
multidisciplinary team meeting to be held prior to temporarily
placing a child out-of-home under exigent circumstances or upon a
court order placing the juvenile in a juvenile facility operated by
the Division of Juvenile Services.
NOTE: The purpose of this bill is to define what a child
advocacy center is and what services it shall provide in child
abuse and neglect cases and child welfare cases in West Virginia.
The bill also identifies that the child advocacy center is a member
of the multidisciplinary investigative team and a member of the
multidisciplinary treatment team so that the provisions of
confidentiality are applied per code. The bill also permits the
child advocacy center to assist the department of health and human
resources in facilitating the multidisciplinary treatment team
meetings and the prosecuting attorney in facilitating the
multidisciplinary investigative team meetings.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.