Bill Summary – FastDemocracy

CS for SB 528
                WEST VIRGINIA LEGISLATURE
                      2024 REGULAR SESSION
                         Committee Substitute for Senate Bill 528
                                By Senator Woelfel [Originating in the Committee on Health and Human Resources; and then to the Committee on the Judiciary; reported February 20, 2024]
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  A BILL to amend and reenact §49-1-201 of the Code of West Virginia, 1931, as amended; to
         amend and reenact §49-2-101, §49-2-809, and §49-2-813 of said code; and to amend and
         reenact §49-11-101 of said code, all relating to child welfare; defining terms; stating that
         protective services include both an investigative track and a family assessment track;
         requiring the Bureau for Social Services to establish a system of differential response and
         use appropriate screening tools to respond to reports received by centralized intake that
         complies with relevant law; providing data retention requirements; and amending
         requirements of the child welfare data dashboard.
     Be it enacted by the Legislature of West Virginia:
     ARTICLE           1.        GENERAL               PROVISIONS               AND           DEFINITIONS.
     §49-1-201.    Definitions related,   but not limited,   to child abuse and neglect.
         When used in this chapter, terms defined in this section have the meanings ascribed to
  them that relate to, but are not limited to, child abuse and neglect, except in those instances where
  a different meaning is provided or the context in which the word is used clearly indicates that a
  different meaning is intended.
         "Abandonment" means any conduct that demonstrates the settled purpose to forego the
  duties and parental responsibilities to the child:
          "Abused child" means:
         (1) A child whose health or welfare is being harmed or threatened by:
         (A) 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. Physical injury may include an injury to the child as a
 result of excessive corporal punishment;
        (B) Sexual abuse or sexual exploitation;
        (C) The sale or attempted sale of a child by a parent, guardian, or custodian in violation of
 §61-2-14h of this code;
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        (D) Domestic violence as defined in §48-27-202 of this code; or
        (E) Human trafficking or attempted human trafficking, in violation of §61-14-2 of this code.
        (2) A child conceived as a result of sexual assault, as that term is defined in this section, or
 as a result of the violation of a criminal law of another jurisdiction which has the same essential
 elements: Provided, That no victim of sexual assault may be determined to be an abusive parent,
 as that term is defined in this section, based upon being a victim of sexual assault.
            "Abusing parent" means a parent, guardian, or other custodian, regardless of his or her
 age, whose conduct has been adjudicated by the court to constitute child abuse or neglect as
 alleged in the petition charging child abuse or neglect.
        "Battered parent" for the purposes of §49-4-601 et seq. of this code means a respondent
 parent, guardian, or other custodian who has been adjudicated by the court to have not 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 §48-27-202 of this code, which was
 perpetrated by the same person or persons determined to have abused or neglected the child or
 children.
        "Child abuse and neglect" or "child abuse or neglect" means any act or omission that
 creates an abused child or a neglected child as those terms are defined in this section.
        "Child abuse and neglect services" means social services which are directed toward:
        (A) (1) Protecting and promoting the welfare of children who are abused or neglected;
        (B) (2) Identifying, preventing, and remedying conditions which cause child abuse and
 neglect;
        (C) (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;
        (D) (4) In cases where children have been removed from their families, providing time-
 limited reunification services to the children and the families so as to reunify those children with
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 their families, or some portion of the families;
        (E) (5) Placing children in suitable adoptive homes when reunifying the children with their
 families, or some portion of the families, is not possible or appropriate; and
        (F) (6) Assuring the adequate care of children or juveniles who have been placed in the
 custody of the department or third parties.
        "Condition requiring emergency medical treatment" means a condition which, if left
 untreated for a period of a few hours, may result in permanent physical damage; that condition
 includes, but is not limited to, profuse or arterial bleeding, dislocation or fracture,
 unconsciousness, and evidence of ingestion of significant amounts of a poisonous substance.
        "Family assessment response" means a response to selected reports of child abuse and
 neglect using a family-centered approach that is protection- and prevention-oriented and that
 evaluates the strengths and needs of the child’s family, as well as the conditions of the child. These
 cases may be staffed by socially necessary service providers or other providers contracted by the
 Department of Human Services to conduct this assessment. Any external service providers
 contracted by the Department of Human Services to conduct a family assessment response shall
 be trained to recognize signs of abuse and neglect.
        "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. These conditions may include an emergency
 situation 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, life, or safety of any child in the home:
        (A) (1) Nonaccidental trauma inflicted by a parent, guardian, custodian, sibling, babysitter,
 or other caretaker;
        (B) (2) A combination of physical and other signs indicating a pattern of abuse which may
 be medically diagnosed as battered child syndrome;
        (C) (3) Nutritional deprivation;
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        (D) (4) Abandonment by the parent, guardian, or custodian;
        (E) (5) Inadequate treatment of serious illness or disease;
        (F) (6) Substantial emotional injury inflicted by a parent, guardian, or custodian;
        (G) (7) Sale or attempted sale of the child by the parent, guardian, or custodian;
        (H) (8) The parent, guardian, or custodian’s abuse of alcohol or drugs or other controlled
 substance as defined in §60A-1-101 of this code, has impaired his or her parenting skills to a
 degree as to pose an imminent risk to a child’s health or safety; or
        (I) (9) Any other condition that threatens the health, life, or safety of any child in the home.
        "Investigative assessment response" means a response to reports of child abuse and
 neglect using a formal information gathering process to determine whether a child is abused,
 neglected, or neglected and abused.
        "Neglected child" means a child:
        (A) (1) 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 that refusal, failure, or
 inability is not due primarily to a lack of financial means on the part of the parent, guardian, or
 custodian;
        (B) (2) 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; or
        (C) (3) "Neglected child" does not mean a child whose education is conducted within the
 provisions of §18-8-1 et seq. of this code.
        "Petitioner or copetitioner" means the department or any reputable person who files a child
 abuse or neglect petition pursuant to §49-4-601 et seq. of this code.
        "Permanency plan" means the part of the case plan which is designed to achieve a
 permanent home for the child in the least restrictive setting available.
        "Respondent" means all parents, guardians, and custodians identified in the child abuse
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  and neglect petition who are not petitioners or copetitioners.
          "Sexual abuse" means:
          (A) (1) Sexual intercourse, sexual intrusion, sexual contact, or conduct proscribed by §61-
  8c-3 of this code, which a parent, guardian, or custodian engages in, attempts to engage in, or
  knowingly procures another person to engage in, with a child notwithstanding the fact that for a
  child who is less than 16 years of age, the child may have willingly participated in that conduct or
 the child may have suffered no apparent physical, mental, or emotional injury as a result of that
 conduct or, for a child 16 years of age or older, the child may have consented to that conduct or the
 child may have suffered no apparent physical injury or mental or emotional injury as a result of that
 conduct;
         (B) (2) Any conduct where 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 that
 display, or of the child, or for the purpose of affronting or alarming the child; or
         (C) (3) Any of the offenses proscribed in §61-8b-7, §61-8b-8, or §61-8b-9 of this code.
         "Sexual assault" means any of the offenses proscribed in §61-8b-3, §61-8b-4, or §61-8b-5
 of this code.
         "Sexual contact" means sexual contact as that term is defined in §61-8b-1 of this code.
         "Sexual exploitation" means an act where:
         (A) (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
 §61-8c-1 of this code;
         (B) (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 that the display is likely to be observed by others who would be
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 affronted or alarmed; or
         (C) (3) A parent, guardian, or custodian knowingly maintains or makes available a child for
 the purpose of engaging the child in commercial sexual activity in violation of §61-14-5 of this
 code.
         "Sexual intercourse" means sexual intercourse as that term is defined in §61-8b-1 of this
 code.
         "Sexual intrusion" means sexual intrusion as that term is defined in §61-8b-1 of this code.
         "Serious physical abuse" means bodily injury which creates a substantial risk of death,
 causes serious or prolonged disfigurement, prolonged impairment of health, or prolonged loss or
 impairment of the function of any bodily organ.
      ARTICLE           2.       STATE           RESPONSIBILITIES               FOR         CHILDREN.
      §49-2-101.     Authorization and responsibility;     Bureau for Social Services.
          (a) The Bureau for Social Services is continued within the department. The bureau is under
  the immediate supervision of a commissioner.
          (b) The Bureau for Social Services is authorized to provide care, support, and protective
  services for children who are handicapped by dependency, neglect, single parent status, mental or
  physical disability, or who for other reasons are in need of public service. The bureau is also
  authorized to accept children for care from their parent or parents, guardian, custodian, or
  relatives, and to accept the custody of children committed to its care by courts. Protective services
  shall include the screening of reports, the performance of an assessment using either a family
  assessment response or an investigative assessment response, casework, or other services to
  help parents, guardians, other caretakers, and the court to prevent abuse, neglect, or abuse and
 neglect, to protect children, and preserve and strengthen families. The bureau or any county office
  of the department is also authorized to accept temporary custody of children for care from any law-
  enforcement officer in an emergency situation.
          (c) The bureau is responsible for the care of the infant child of an unmarried mother who
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 has been committed to the custody of the department while the infant is placed in the same
 licensed child welfare agency as his or her mother. The bureau provides care for those children in
 family homes meeting required standards, at board or otherwise, through a licensed child welfare
 agency, or in a state institution providing care for dependent or neglected children. If practical,
 when placing any child in the care of a family or a child welfare agency, the bureau shall select a
 family holding the same religious belief as the parents or relatives of the child, or a child welfare
 agency conducted under religious auspices of the same belief as the parents or relatives.
         (d) The Bureau of Social Services shall utilize a system of differential response that is
  based upon the severity of the report of child abuse or neglect which may include an investigative
  assessment of child abuse or neglect, family assessment and services, or referrals to prevention
  services.
     §49-2-809.                                  Reporting procedures.
         (a) Reports of child abuse and neglect pursuant to this article shall be made immediately to
  the Department of Child Protective Services by a method established by the Bureau for Social
  Services: Provided, That if the method for reporting is web-based, the Bureau for Social Services
  shall maintain a system for addressing emergency situations that require immediate attention and
  shall be followed by a written report within 48 hours if so requested by the receiving agency. The
  Bureau for Social Services shall establish and maintain a 24-hour, seven-day-a-week telephone
  number to receive calls reporting suspected or known child abuse or neglect. Notwithstanding any
  other provisions of the code to the contrary, the Bureau for Social Services shall utilize a system of
  differential response whereby when the Bureau for Social Services receives reports through its
 centralized intake system, the Bureau for Social Services shall utilize a differential response which
 shall comply with all relevant statutory provisions including but not limited to the frequency,
 severity, and overall risk to the child, and shall use the appropriate maltreatment screening tool to
 evaluate and screen reports. The Bureau for Social Services shall determine the appropriate
 assessment track for the matter:
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          (1) The screening tool shall analyze risk-indicative factors, including but not limited to, prior
 child protective service involvement, and recent repeat reports made to centralized intake;
          (2) The screening tool shall include information on the role of the reporter, the age of the
 child, the presence of prior child protective service involvement, and the number and recency of
 reports made to centralized intake.
          (b) The department shall have a redundancy for its system in the event of an outage to
 receive reports. This redundancy system shall be transparent, meaning that it shall allow for
 reporting in the same means as if the outage had not occurred and no time delay shall occur from
 when the outage occurs to when the redundancy system begins to operate. This redundancy
 system shall be operational no later than July 1, 2023. If the department contends that it currently
 has a redundancy system, it shall describe the system, provide an operational date for the system,
 and explain why calls to centralized intake were unanswered to the Joint Committee on
 Government and Finance by July 1, 2023
          (c) (b) A copy of any report of serious physical abuse, sexual abuse, or assault shall be
 forwarded by the department to the appropriate law-enforcement agency, the prosecuting
 attorney, or the coroner or medical examiner’s office. All reports under this article are confidential.
 Reports of known or suspected institutional child abuse or neglect shall be made and received as
 all other reports made pursuant to this article.
          (d) (c) The department shall annually submit a report in an electronic format, via the