Introduced Version
Senate Bill 124 History
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Key: Green = existing Code. Red = new code to be enacted
Senate Bill No. 124
(By Senators Miller, Laird, Fitzsimmons and Walters)
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[Introduced February 13, 2013; referred to the Committee on the
Judiciary; and then to the Committee on Finance.]
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A BILL to amend and reenact §29-21-13a of the Code of West
Virginia, 1931, as amended; and to amend and reenact §49-6-2
of said code, all relating to the compensation and expenses
for attorneys appointed by circuit courts in child abuse and
neglect proceedings.
Be it enacted by the Legislature of West Virginia:
That §29-21-13a of the Code of West Virginia, 1931, as
amended, be amended and reenacted; and that
§49-6-2
of said code be
amended and reenacted, all to read as follows:
ARTICLE 21. PUBLIC DEFENDER SERVICES.
§29-21-13a. Compensation and expenses for panel attorneys.
(a) All Panel attorneys shall maintain detailed and accurate
records of the time expended and expenses incurred on behalf of
eligible clients and upon completion of each case, exclusive of appeal, shall submit to the appointing court a voucher for
services. Claims for fees and expense reimbursements shall be
submitted to the appointing court on forms approved by the
executive director. The executive director shall establish
guidelines for the submission of vouchers and claims for fees and
expense reimbursements under this section. Claims submitted more
than ninety calendar days after the last date of service shall be
are rejected unless, for good cause, the appointing court
authorizes, in writing, an extension. Provided, That Claims where
the last date of service occurred prior to July 1, 2008, shall be
are rejected unless submitted prior to January 2, 2009.
The appointing court shall review the voucher to determine if
the time and expense claims are reasonable, necessary and valid and
shall forward the voucher to the agency with an order approving
payment of the claimed amount or of a lesser sum the court
considers appropriate.
(b) Notwithstanding any other provision of this section to the
contrary, Public Defender Services may pay by direct bill, prior to
the completion of the case, litigation expenses incurred by
attorneys appointed under this article.
(c) Notwithstanding any other provision of this section to the
contrary, a panel attorney may be compensated for services rendered
and reimbursed for expenses incurred prior to the completion of the case where: (1) More than six months have expired since the
commencement of the panel attorney's representation in the case;
and (2) no prior payment of attorney fees has been made to the
panel attorney by Public Defender Services during the case. The
executive director in his or her discretion, may authorize periodic
payments where ongoing representation extends beyond six months in
duration. The amounts of any fees or expenses paid to the panel
attorney on an interim basis, when combined with any amounts paid
to the panel attorney at the conclusion of the case, shall may not
exceed the limitations on fees and expenses imposed by this
section.
(d) In each case in which a panel attorney provides legal
representation under this article, and in each appeal after
conviction in circuit court, the panel attorney shall be
compensated at the following rates for actual and necessary time
expended for services performed and expenses incurred subsequent to
the effective date of this article:
(1) For attorney's work performed out of court, compensation
shall be at the rate of $45 per hour is $45 per hour except that
attorneys who are appointed to represent parties in child abuse and
neglect proceedings under article six, chapter forty-nine of this
code are compensated at the rate of $75 per hour for work performed
out of court or not attending multidisciplinary training, upon certification of training required under section two, article six,
chapter forty-nine of this code. For paralegal's work performed
out of court for the attorney, compensation shall be at the rate of
the paralegal's regular compensation on an hourly basis or, if
salaried, at the hourly rate of compensation which would produce
the paralegal's current salary but in no event shall the
compensation exceed $20 per hour. Out-of-court work includes, but
is not limited to, travel, interviews of clients or witnesses,
preparation of pleadings and prehearing or pretrial research.
(2) For attorney's work performed in court, compensation shall
be at the rate of is $65 per hour. No compensation for paralegal's
work performed in court shall be allowed. In-court work includes,
but is not limited to, all time spent awaiting hearing or trial
before a judge, magistrate, special master or other judicial
officer. Attorneys who are appointed to represent parties in child
abuse and neglect proceedings under article six, chapter forty-nine
of this code are compensated at the rate of $95 per hour for work
performed in court or attending multidisciplinary training, upon
certification of training required under section two, article six,
chapter forty-nine of this code.
(3) The maximum amount of compensation for out-of-court and in-
court work under this subsection is, as follows:
(A) For proceedings of any kind involving felonies for which a penalty of life imprisonment may be imposed, the amount as the
court may approve;
____(B) For child abuse and neglect proceedings
the maximum amount
is $5,000 unless the court, for good cause shown, approves payment
of a larger sum;
____(C) For all other eligible proceedings, three thousand dollars
proceedings, the maximum amount is $3,000 unless the court, for good
cause shown, approves payment of a larger sum.
(e) Actual and necessary expenses incurred in providing legal
representation for proceedings of any kind involving felonies for
which a penalty of life imprisonment may be imposed including, but
not limited to, expenses for travel, transcripts, salaried or
contracted investigative services and expert witnesses, shall be are
reimbursed in an amount as the court may approve. For all other
eligible proceedings, actual and necessary expenses incurred in
providing legal representation including, but not limited to,
expenses for travel, transcripts, salaried or contracted
investigative services and expert witnesses, shall be are reimbursed
to a maximum of $1,500 unless the court, for good cause shown,
approves reimbursement of a larger sum.
Expense vouchers shall specifically set forth the nature,
amount and purpose of expenses incurred and shall provide receipts,
invoices or other documentation required by the executive director and the State Auditor:
(1) (A) Reimbursement of expenses for production of transcripts
of proceedings reported by a court reporter is limited to the cost
per original page and per copy page as set forth in section four,
article seven, chapter fifty-one of this code.
(B) (i) There shall be is no reimbursement of expenses for or
production of a transcript of a preliminary hearing before a
magistrate or juvenile referee or of a magistrate court trial where
such the hearing or trial has also been recorded electronically in
accordance with the provisions of section eight, article five,
chapter fifty of this code or court rule.
(ii) Reimbursement of the expense of an appearance fee for a
court reporter who reports a proceeding other than one described in
subparagraph (i) of this paragraph, is limited to $25. Where a
transcript of a proceeding is produced, there shall be is no
reimbursement for the expense of any appearance fee.
(iii) Except for the appearance fees provided in this
paragraph, there shall be is no reimbursement for hourly court
reporters' fees or fees for other time expended by the court
reporter, either at the proceeding or traveling to or from the
proceeding.
(C) Reimbursement of the cost of transcription of tapes
electronically recorded during preliminary hearings or magistrate court trials is limited to $1 per page.
(2) Reimbursement for any travel expense incurred in an
eligible a proceeding is limited to the rates for the reimbursement
of travel expenses established by rules promulgated by the Governor
pursuant to the provisions of section eleven, article eight, chapter
twelve of this code and administered by the Secretary of the
Department of Administration pursuant to the provisions of section
forty-eight, article three, chapter five-a of this code.
(3) Reimbursement for investigative services is limited to a
rate of $30 per hour for work performed by an investigator.
(f) For purposes of compensation under this section, an appeal
from magistrate court to circuit court, an appeal from a final order
of the circuit court or a proceeding seeking an extraordinary remedy
made to the Supreme Court of Appeals shall be is considered a
separate case.
(g) Vouchers submitted under this section shall specifically
set forth the nature of the service rendered, the stage of
proceeding or type of hearing involved, the date and place the
service was rendered and the amount of time expended in each
instance. All time claimed on the vouchers shall be itemized to the
nearest tenth of an hour. If the charge against the eligible client
for which services were rendered is one of several charges involving
multiple warrants or indictments, the voucher shall indicate the fact and sufficiently identify the several charges so as to enable
the court to avoid a duplication of compensation for services
rendered. The executive director shall refuse to requisition payment
for any voucher which is not in conformity with the record keeping,
compensation or other provisions of this article or the voucher
guidelines established issued pursuant to subsection (a) of this
section and in such circumstance shall return the voucher to the
court or to the service provider for further review or correction.
(h) Vouchers submitted under this section after July 1, 2008,
shall be reimbursed within ninety days of receipt. Reimbursements
after ninety days shall bear interest from the ninety-first day at
the legal rate in effect for the calendar year in which payment is
due.
(i) Vouchers submitted for fees and expenses involving child
abuse and neglect cases shall be processed for payment before
processing vouchers submitted for all other cases.
§49-6-2. Petition to court when child believed neglected or abused
-- Right to counsel; improvement period; hearing;
priority of proceeding; transcript.
(a) In any proceeding under the provisions of this article, the
child, his or her or parents and his or her legally established
custodian or other persons standing in loco parentis to him or her
shall have has the right to be represented by counsel at every stage of the proceedings and shall be informed by the court of their right
to be so represented and that if they cannot pay for the services
of counsel, that counsel will be appointed. Counsel of the child
shall be appointed in the initial order. If the order gives
physical custody of the child to the state, the initial order shall
appoint counsel for the parents or, if the parents are separated or
divorced, the parents or parent or other person or persons standing
in loco parentis who had physical custody of the child for the
majority of the time in the period immediately preceding the
petition. Provided, That such representation shall only continue
This representation continues after the first appearance if the
parent or other persons standing in loco parentis cannot pay for the
services of counsel. Counsel for other parties shall only be
appointed upon request for appointment of counsel. be appointed
counsel upon request. If the requesting parties have not retained
counsel and cannot pay for the services of counsel, the court shall,
by order entered of record, appoint an attorney or attorneys to
represent the other party or parties and so inform the parties.
Under no circumstances may the same attorney represent both the
child and the other party or parties nor shall the same attorney
represent both parents or custodians. However, One attorney may
represent both parents or custodians where both parents or guardians
consent to this representation after the attorney fully discloses to the client the possible conflict and where the attorney assures
the court that she or he is able to represent each client without
impairing her or his professional judgment. however, If more than
one child from a family is involved in the proceeding, one attorney
may represent all the children. A parent who has been judicially
determined to be battered shall be is entitled to his or her own
attorney. The court may allow to each attorney so appointed a fee
in the same amount which appointed counsel can receive in felony
cases. Effective July 1, 2012, any an attorney appointed pursuant
to this section shall receive a minimum of eight hours of continuing
legal education training per reporting period on child abuse and
neglect procedure and practice. In addition to this requirement,
after July 1, 2013, any an attorney appointed to represent a child
must first complete training on representation of children that is
approved by the administrative office of the Supreme Court of
Appeals. The Supreme Court of Appeals shall develop procedures for
approval and certification of training required under this section
by July 1, 2012. Provided, however, That Where no attorney who has
completed this training is available for such appointment, the court
shall appoint a competent attorney with demonstrated knowledge of
child welfare law to represent the parent or child. Any An attorney
appointed pursuant to this section shall perform all duties required
as an attorney licensed to practice law in the State of West Virginia.
(b) In any proceeding brought pursuant to the provisions of
this article, the court may grant any a respondent an improvement
period in accord with the provisions of this article. During such
the improvement period, the court may require temporary custody with
a responsible person which who has been found to be a fit and proper
person for the temporary custody of the child or children or the
state department or other agency during the improvement period. An
order granting such an improvement period shall require requires the
department to prepare and submit to the court a family case plan in
accordance with the provisions of section three, article six-d of
this chapter.
(c) In any proceeding pursuant to the provisions of this
article, the party or parties having custodial or other parental
rights or responsibilities to the child shall be afforded a
meaningful opportunity to be heard including the opportunity to
testify and to present and cross-examine witnesses. The petition
shall not be taken as confessed. A transcript or recording shall
be made of all proceedings unless waived by all parties to the
proceeding. The rules of evidence shall apply. Where relevant, the
court shall consider the efforts of the state department to remedy
the alleged circumstances. At the conclusion of the hearing, the
court shall make a determination based upon the evidence and shall make findings of fact and conclusions of law as to whether such
child is abused or neglected and, if applicable, whether the parent,
guardian, or custodian is a battered parent, all of which shall be
incorporated into the order of the court. The findings must be
based upon conditions existing at the time of the filing of the
petition and proven by clear and convincing proof.
(d) Any A petition filed and any a proceeding held under the
provisions of this article shall, to the extent practicable, be
given priority over any other civil action before the court, except
proceedings under article two-a, chapter forty-eight of this code
and actions in which trial is in progress. Any A petition filed
under the provisions of this article shall be docketed immediately
upon filing. Any A hearing to be held at the end of an improvement
period and any other hearing to be held during any proceedings under
the provisions of this article, shall be held as nearly as
practicable on successive days and, with respect to said the hearing
to be held at the end of an improvement period, shall be held as
close in time as possible after the end of said the improvement
period and shall be held within sixty days of the termination of
such improvement period.
(e) Following the court's determination, it shall be inquired
of the parents or custodians whether or not an appeal is desired and
the response transcribed. A negative response shall not be construed as is not a waiver. The evidence shall be transcribed and
made available to the parties or their counsel as soon as
practicable if the same is required for purposes of further
proceedings. If an indigent person intends to pursue further
proceedings, the court reporter shall furnish a transcript of the
hearing without cost to the indigent person if an affidavit is filed
stating that he or she cannot pay therefor.
NOTE: The purpose of this bill is to increase the hourly rate
for attorneys who are appointed in child abuse and neglect matters.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.