H. B. 4649
(By Delegates Amores, Fleischauer, Craig,
and Schadler)
[Introduced February 26, 2004; referred to the
Committee on the Judiciary.]
A BILL to amend and reenact §49-5D-2,§49-5D-3 and §49-5D-3a of the
code of West Virginia, 1931, as amended; to amend said code by
adding thereto a new article, designated §49-10-1, §49-10-2,
§49-10-3, §49-10-4, §49-10-5, §49-10-6 and §49-10-7, all
relating to child welfare; providing for a child advocacy
center participation in multidisciplinary investigative teams;
providing for uniform comprehensive assessments of children;
preference to instate placement; including in team, court-
appointed special advocate when available; requiring team
preference of instate placement; requiring court preference
of instate placement; establishing child welfare oversight
panel; providing purpose of panel; establishing membership
requirements; establishing duties of the panel; requiring
annual reporting; directing department of health and human
resources participation in panel; providing for
confidentiality of panel proceedings and recordings and
exceptions and limitations thereon; and providing limited
immunity to persons participating in panel activities.
Be it enacted by the Legislature of West Virginia:
That §49-5D-2, §49-5D-3 and §49-5D-3a of the code of West
Virginia, 1931, as amended, be amended and reenacted; and that said
code be amended by adding thereto a new section, designated §49-
10-1, §49-10-2, §49-10-3, §49-10-4, §49-10-5, §49-10-6 and §49-10-7
all to read as follows:
CHAPTER 49. CHILD WELFARE.
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 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,
and a local law-enforcement officer employed by
a law-enforcement agency in the county
and a child advocacy center
representative, if such a program operates within 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) On or before the first day of January, one thousand
nine hundred ninety-five, 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.
(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 obtain and 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
there are no in-state facilities available or suitable to meet the
needs of the child.
(b) Each treatment team shall be convened and directed by the
child's or family's case manager. 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
guardian ad litem, if any, the prosecuting attorney or his or her
designee,
a court-appointed special advocate ("CASA"), when such a
volunteer program operates within the county, 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.
(c) 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.
§49-5D-3a. Recommendation of team to the court; hearing
requirement; required findings.
In any case in which a multidisciplinary treatment team
develops an individualized service plan for a child pursuant to the
provisions of section three of this article, the court shall review
the proposed service plan to determine if implementation of the
plan is in the child's best interests. If the court determines not to adopt the team's recommendations, it shall, sua sponte
, schedule
and hold within ten days of such determination, and prior to the
entry of an order placing the child in the custody of the
department or in an out-of-home setting, a hearing to consider
evidence from the team as to its rationale for the proposed service
plan. If, after a hearing held pursuant to the provisions of this
section, the court does not adopt the teams's recommended service
plan, it shall make specific written findings as to why the team's
recommended service plan was not adopted.
In any case in which the
court decides to order the child placed in an out-of-home setting,
it shall order such placement in an in-state facility or program
unless no in-state facility or program is available or suitable to
meet the needs of the child. If the court orders the child placed
in an out-of-state facility or program, it shall make specific
written findings supporting its conclusion that no in-state
facility or program was available or suitable to meet the needs of
the child.
ARTICLE 10. CHILD WELFARE OVERSIGHT PANEL.
§49-10-1. Establishment and purpose of child welfare oversight
panel.
The child welfare oversight panel is hereby established. Its
purpose is to monitor, study, evaluate, review, and make
recommendations regarding the state's child welfare system, giving
particular attention to reducing the system's over-reliance on out-
of-state resources and the enhancement of in-state resources.
§49-10-2. Membership.
(a) The panel shall be composed of twelve voting members and shall elect a chairman and vice-chairman from its members at its
first meeting.
(b) The secretary of the department of health and human
resources, the secretary of the department of military affairs and
public safety and the state superintendent of schools shall be ex-
officio voting members of the panel.
(c) The governor shall appoint three members who are
representative of the general public, three members who are
representative of professionals in the child welfare system and
three members who are representative of foster parents and children
in the child welfare system.
(d) The co-chairs of the legislative task force for juvenile
detention, foster care and adoption shall be ex-officio non-voting
members of the panel.
(e) Each member of the panel shall serve without compensation,
but may be reimbursed for actual and necessary expenses in a manner
consistent with guidelines of the travel management office of the
department of administration.
(f) The panel shall meet not less than once every month.
§49-10-3. Duties.
The child welfare oversight panel shall provide general
monitoring, oversight and evaluation of the child welfare system
including, but not limited to:
(a) Monitoring the department of health and human resources'
implementation of its program improvement plan and its allocation
of additional resources in support of the implementation;
(b) Studying the utilization and effectiveness of the comprehensive assessment and planning system as a deterrent to
unnecessary placement of youth out of state;
(c) Assisting the department of health and human resources in
developing a plan by a specified date for the purpose of creating
a process and strategy for assessing youth placed out of state,
identifying needed community services for their return to the state
and initiating discharge plans for the actual return of youth to
in-state placements as soon as appropriate, based on the youth's
individual needs;
(d) Assisting the department of education in developing a plan
by a specified date for the purpose of ensuring that all children
in out-of-home care receive education services, including, but not
limited to a plan for on-grounds schools at residential facilities;
(e) Evaluating the implementation of joint planning efforts
between the department of health and human resources and the
division of juvenile services for adjudicated youth eighteen years
or older;
(f) Making recommendations for programmatic reinvestment of
funds diverted from out-of-state placements; and
(g) Reviewing and publishing child welfare performance
indicators and making appropriate recommendations for policy and
programmatic changes affecting children at risk of or in out-of-
home care.
§49-10-4. Reporting.
The child welfare oversight panel shall submit a written
report of its findings and recommendations to the governor and the
legislature annually beginning on the first day of January, two thousand five.
§49-10-5. State Assistance.
The department of health and human resources and the division
of juvenile services shall:
(a) Provide the panel access to information on cases that the
panel desires to review, if the information is necessary for the
panel to carry out its functions; and
(b) Provide the panel, upon its request, staff assistance for
the performance of its duties.
§49-10-6. Confidentiality.
(a) The proceedings and records of the child welfare oversight
panel shall be confidential and privileged and may not be subject
to subpoena or discovery in a civil action, nor may they be
admitted as evidence in any civil action arising out of the matters
which are subject to evaluation and review of the panel. No person
may be permitted or required to testify in any such civil action as
to any evidence or other matters produced or presented during the
proceedings of the panel, or as to any findings, recommendations,
evaluations, opinions or other actions of the panel or any of its
members.
(b) Information, documents or records otherwise available from
original sources may not be construed as immune from discovery or
use in any civil action merely because they were presented during
proceedings of the panel.
(c) No person who has participated in activities conducted by
the panel may be prevented from testifying in a civil action as to
matters within his or her knowledge, but the witness may not be required to testify about his or her presentation before the panel
or opinions formed by him or her as a result of participation in
panel activities.
(d) The members and staff of the panel may not:
(1) Disclose to any person or governmental official any
identifying information about any specific child about which the
panel is provided information; or
(2) Make public any other information provided to the panel
concerning any specific child unless authorized by the state
statute.
(e) All information provided to the panel pursuant to its duty
to review any information specific to a particular child shall
either be destroyed following the review or shall be returned to
the individual or agency providing the information.
§49-10-7. Immunity from liability.
Notwithstanding any other provision of law, all persons,
including but not limited to members and staff of the panel and
persons called to present information to the panel, engaged in
activities conducted by the panel related to its duty to review
information as authorized by this article, shall be immune from
individual civil liability while acting in good faith and without
malice.
NOTE: The purpose of this bill is to provide for greater
efforts for instate placement of children in the custody of
the Department of Health and Human Services; provides for
expanding participation in placement teams; establishing
presumption of in-state placement being preferable for child
placements; creating a child welfare oversight panel; and
providing purpose, duties and other criteria for the panel.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that
wo9uold be added.
§49-7-10 et seq is new; therefor, strikethroughs and
underscoring have been omitted.
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