Introduced Version
House Bill 4010 History
| Email
Key: Green = existing Code. Red = new code to be enacted
H. B. 4010
(By Delegates Mahan, Houston, Leach,
Perdue, Stephens, Ashley and Howard)
[Introduced January 11, 2006; referred
to the Committee on Government Organization.]
A BILL to amend the Code of West Virginia, 1931, as amended, by
adding thereto a new article, designated §49-6F-1, §49-6F-2,
§49-6F-3, §49-6F-4, §49-6F-5, §49-6F-6, §49-6F-7, §49-6F-8 and
§49-6F-9, all relating to creating the Office of Family and
Child Protection Ombudsman; powers and duties of the Office of
Family and Child Protection Ombudsman; qualifications, term of
office and salary of the Ombudsman; authority for the
Ombudsman to hire staff; providing the Ombudsman and staff of
the Office of Family and Child Protection Ombudsman to
investigate and monitor the Department of Health and Human
Resources' Division of Child Protective Services; access Child
Protective Services records and information; communication
with children involved in Child Protective Services
investigations; confidentiality of information; immunity from
liability; sunset provision and defining terms.
Be it enacted by the Legislature of West Virginia:
That the Code of West Virginia, 1931, as amended, be amended by adding thereto a new article, designated §49-6F-1, §49-6F-2,
§49-6F-3, §49-6F-4, §49-6F-5, §49-6F-6, §49-6F-7, §49-6F-8 and
§49-6F-9
, all to read as follows:
ARTICLE 6F. OFFICE OF FAMILY AND CHILD PROTECTION OMBUDSMAN.
§49-6F-1. Purpose.
The Legislature is committed to providing for the well being
of children and families of the State of West Virginia. Securing
a future for some of our most vulnerable
citizens, those involved
in abuse and neglect proceedings, has proven to be daunting and on-
going effort for the Legislature. To continue to safeguard these
children and families, the Legislature hereby creates the Office of
Family and Child Protection Ombudsman. The Ombudsman shall be
charged with coordinating efforts on behalf of children and
families involved in abuse and neglect matters; to work with
advocacy groups; to advocate and promote systematic reforms; and,
to recommend changes in law, policy, rule or procedure necessary to
enhance the protection of child and families involved in abuse and
neglect matters.
§49-6F-2. Definitions.
In this article:
(1) "Child or children" means a person or persons yet to
attain the age of eighteen years.
(2) "Child abuse and neglect" means child abuse and neglect
as those terms are defined in section three, article one of this
chapter.
(3) "Child Fatality Review Team" means the group of
individuals established by section five, article five-D of this
chapter.
(4) "Child Protective Services" means the state agency within
the Department of Health and Human Resources charged with the
responsibility for review, investigation and placement of children
involved in child abuse and neglect matters established in article
six-A, chapter forty-nine of this code.
(5) "Court or judiciary" means either the Family Court, as
established by article two-A, chapter fifty-one of this code, or
Circuit Court, as established by article two, chapter fifty-one of
this code, of the county with jurisdiction of the abuse or neglect
case.
(6) "Department or state" means the State Department of Health
and Human Resources.
(7) "Multidisciplinary Team" means multidisciplinary team as
defined by section three, article one of this chapter.
(8) "Ombudsman" means the position created pursuant to section
three of this article.
(9) "Secretary" means the Secretary of the Department of
Health and Human Resources.
§49-6F-3. Office of Family and Child Protection Ombudsman created
to monitor child protective services; office to be
independent.
(a) There is hereby created the Office of Family and Child Protection Ombudsman to promote public awareness and understanding
of child protective services, to monitor and ensure compliance with
administrative acts, relevant statutes, legislative rules, and
internal policies pertaining to child protective services and the
investigations, placement, supervision and treatment of children in
child abuse and neglect cases.
(b) The Ombudsman shall report directly to the Governor.
(c) The Office of the Family and Child Protection Ombudsman
and the staff of the Ombudsman's office shall be independent of the
Department of Health and Human Resources.
Neither the Secretary
nor any employee of the Department may prevent, inhibit or prohibit
the Ombudsman from initiating, carrying out or completing any
investigation, review or other activity within the Ombudsman's
statutory duties and deemed necessary by the Ombudsman.
§49-6F-4. Appointment; qualifications; term of office.
(a) The Office of Family and Child Protection Ombudsman is
under the direct supervision of the Ombudsman. The Ombudsman is
the executive and administrative head of the office and shall be
appointed by the Governor with the advice and consent of the
Senate. The Ombudsman shall be an attorney admitted to practice law
in West Virginia and shall be qualified by training and experience
to direct the operations of the Office of Family and Child
Protection Ombudsman.
(b) The Ombudsman:
(1) Shall serve on a full-time basis and may not be engaged in any other profession or occupation;
(2) May not hold political office in the government of the
state either by election or appointment while serving as Ombudsman;
(3) Shall be a citizen of the United States and shall become
a citizen of the state within ninety days of appointment;
(4) Is entitled to receive an annual salary as provided by the
Governor; and
(5) Is ineligible for civil service coverage as provided in
section four, article six, chapter twenty-nine of this code.
(c) The Ombudsman shall hold office for a term of three years
and shall continue to hold office until reappointed or until a
successor is appointed. The Governor may remove the Ombudsman only
for neglect of duty, misconduct, or inability to perform duties.
Any vacancy shall be filled by similar appointment for the
remainder of the unexpired term.
§49-6F-5. Powers and duties of Child Protection Ombudsman; hiring
of staff.
(a) The powers and duties of the Ombudsman include, but are
not limited to:
(1) Review, monitoring and investigation of the performance of
child protective services rendered by the Department in child abuse
and neglect matters;
(2) Inspection and review of the operations, policies and
procedures of foster homes, group homes, residential treatment
facilities, shelters for the care of abused or neglected children, or any other public or private residential setting in which a child
has been placed by the Department.
(3) Intervention in pending litigation involving abused or
neglected children in order to insure Circuit or Family Court
Judges and Prosecuting Attorneys comply with legal requirements
related to abused or neglected children, and to appeal judicial
acts or orders to the West Virginia Supreme Court of Appeals in the
event the acts or orders appear not to be in compliance with
applicable legal requirements;
(4) Reporting to the Joint Committee on Government and Finance
annually no later than the thirty-first day of December of each
calendar year, concerning the state of the Department and the state
of the judiciary relative to each entity's specific duties in child
abuse and neglect matters;
(5) Acting as a neutral and non-adversarial arbiter in
disputes between citizens and the Department's Division of Child
Protective Services;
(6) Making recommendations to the Legislature and the Governor
for legislative or administrative changes designed to improve the
Department's performance in responding to child abuse and neglect
cases as well as the prosecuting attorney and judiciary's role in
the protection of children from child abuse and child neglect;
(7) Reviewing, evaluating, reporting on and making
recommendations concerning the procedures established by the
Department in providing services to children who are at risk of abuse or neglect, child in Department custody, or any child who
receives child protective services;
(8) Remaining knowledgeable and informed regarding current
law, changes in the law and trends in the law vis a vis child abuse
and child neglect and to answer queries from the public regarding
same;
(9) Remaining knowledgeable and informed concerning the
Department's administrative practices, procedures and policies as
they relate to the protection of children;
(10) Filing legal actions, including, but not limited to,
actions in mandamus, prohibition, or declaratory judgement actions,
that seek to require governmental officials to perform necessary
activities to adequately serve and protect children or to prohibit
those officials from engaging in actions that are counterproductive
to the protection and welfare of children;
(11) Dissemination of information to the public on the
objectives of the office, the services the office provides and the
methods by which the office may be contacted, including, but not
limited to a toll-free telephone number to receive and respond to
calls from citizens and a web page describing the services
available through the office;
(12) Aiding the Governor and the Legislature in proposing
methods of achieving increased coordination and collaboration among
state agencies and entities, including the judiciary, to ensure
maximum effectiveness and efficiency in the provision of services to children;
(13) Providing necessary training and technical assistance to
Child Protective Services, prosecuting attorneys and the judiciary
on issues relevant to the performance of their respective duties
with regard to child abuse and child neglect
; and
(14) Doing all necessary activities intended to improve the
Department's Child Protective Services Division.
(b) The Ombudsman may appoint an adequate number of staff to
properly perform the duties of the office. The total compensation
of the staff shall be within the limits of the amounts appropriated
by the Legislature for personal services of the office. All staff
shall serve at the will and pleasure of the Ombudsman.
§49-6F-6. Access to information; communication with children;
confidentiality.
(a) The Ombudsman shall have access to:
(1) All written reports of child abuse and neglect matters
including the names of all children involved in investigation,
treatment or placement by Child Protective Services;
(2) All records of local Multidisciplinary Teams created
pursuant to the provisions of section two, article five-D of this
chapter;
(3) All current and archived records maintained by Child
Protective Services;
(4) All court documents, including but not limited to,
pleadings, petitions, orders, and discovery information;
(5) All on-line case management information;
(6) All records of Child Fatality Review Teams created
pursuant to section five of article five-D of this chapter; and
(7) All state institutions serving children, and state
licensed facilities or residences for the purposes of carrying out
this article.
(b) The Ombudsman may communicate privately, by mail or
orally, with any child who is the subject of a Child Protective
Services investigation, treatment of placement;
(c) All records of the Ombudsman pertaining to the care and
treatment of a child shall remain confidential and are subject to
the same confidentiality requirements as set forth in article
seven, section one of this chapter. These records are not subject
to any method of legal compulsion without a showing of good cause
by the Circuit or Family Court. Information contained in those
records may not be disclosed publicly in any manner that would
disclose identifying information about complainants or witnesses.
§49-6F-7. Admissibility of evidence; testimony regarding official
duties; exceptions.
(a) Neither the Ombudsman nor the staff of the Office of
Family and Child Protection Ombudsman may be compelled in any
judicial or administrative proceeding to testify or produce
evidence regarding the exercise of the official duties of the
Ombudsman or of the Ombudsman's staff. All related memoranda, work
product, notes, and case files of the Ombudsman's Office are
confidential, are not subject to discovery, judicial or administrative subpoena, or other method of legal compulsion, and
are not admissible as evidence in a judicial or administrative
proceeding.
(b) The privilege described in subsection (a) of this section
does not apply when:
(1) The Ombudsman or the Ombudsman's staff has direct
knowledge of an alleged crime and the testimony, evidence, or
discovery sought is relevant to that allegation;
(2) The Ombudsman or the Ombudsman's staff has received a
threat of, or becomes aware of a risk of, imminent serious harm to
any person, and the testimony, evidence, or discovery sought is
relevant to that threat or risk; or
(3) The Ombudsman has been asked to provide general
information regarding the general operation of, or the general
processes employed at, the Ombudsman's office.
§49-6F-8. Immunity from liability for good faith performance of
duties.
(a) An employee of the Office of the Family and Child
Protection Ombudsman is not liable for good faith performance under
this article.
(b) No discriminatory, disciplinary, retaliatory action may be
taken against an employee of the Department, an employee of a
contracting agency of the Department, a foster parent, or a
recipient of service from Child Protective Services for any
communication made, or information given or disclosed, to aid the
Office of the Family and Child Protection Ombudsman in carrying out its responsibilities, unless the communication or information is
made, given or disclosed maliciously or not in good faith.
(c) All communications by the Ombudsman or employees of the
Office of the Family and Child Protection Ombudsman, if reasonably
related to the requirements of this section and done in good faith
are privileged. This privilege shall serve as a defense in any
action brought in libel or slander.
§49-6F-9. Sunset Provision.
The Office of Family and Child Protect Ombudsman shall
continue to exist, pursuant to article ten, chapter four of this
code, until the first day of July, two thousand ten, unless sooner
terminated, continued or reestablished to the provisions of that
article.
NOTE: The purpose of this bill is to create the Office of
Family and Child Protection Ombudsman. The bill, additionally,
authorizes the Ombudsman to hire staff; requires the Ombudsman to
investigate and monitor the Department of Health and Human
Resources Division of Child Protective Services; sets forth powers
and duties of the Ombudsman; defines terms; sets forth
qualification for the position and terms; provides for access to
information and sets forth the confidentiality requirements for
that information; and provides for the office to sunset on July 1,
2010.
This article is new; therefore, strike-throughs and
underscoring have been omitted.