HB 5609 — Relating to confidentiality of child care records and the Foster Care Ombudsman

WESTHB5609 VIRGINIAHFAT LEGISLATUREFast REGULAR2-28Morgan SESSION3345 Delegate CommitteeFast Substitutemoved forto Houseamend Billthe 5609bill Byby Delegatesstriking Burkhammer,out Kimble,the title and Petittosubstituting [Originatingtherefor ina thenew Committeetitle, onto theread Judiciary;as follows:H.

ReportedB. on February 22, 2024] CS for HB 5609 A BILL to amend and reenact §49-5-101 of the Code of West Virginia, 1931, as amended, relating to the confidentiality of records;

and5609 providing-- that“A theBILL Departmentto ofamend Humanand Servicesreenact may§49-5-101 provideof the FosterCode Care Ombudsman the identity of aWest personVirginia, who1931, madeas aamended, reportrelating of abuse or neglect related to athe childconfidentiality fatality.of records;

Beand itproviding enactedthat bythe Department of Human Services shall provide information related to child abuse or neglect proceedings, including information relating to the Legislatureidentity of Westthe Virginia:person reporting or making a complaint of child abuse or neglect, to the Foster Care Ombudsman, or its designee, upon request and acting in the course of their official duties;

ARTICLEand 5.providing that the Department of Human Services in cases of a child fatality, or near fatality, due to child abuse or neglect shall release information that includes the identity of a person making a complaint of child abuse or neglect relating to the child fatality, or near fatality, to the Foster Care Ombudsman, or its designee, acting in the course of their official duties.”;    AdoptedRejected 

RECORD KEEPING AND DATABASE.

§49-5-101.

Confidentiality of records;

non-release of records;

exceptions;

penalties.

(a) Except as otherwise provided in this chapter or by order of the court, all records and information concerning a child or juvenile which are maintained by the Division of Corrections and Rehabilitation, the Department of Human Services, a child agency or facility, or court or law- enforcement agency, are confidential and may not be released or disclosed to anyone, including any federal or state agency.

(b) Notwithstanding the provisions of subsection (a) of this section or any other provision of this code to the contrary, records concerning a child or juvenile, except adoption records and records disclosing the identity of a person making a complaint of child abuse or neglect, may be made available:

(1) Where otherwise authorized by this chapter;

(2) To:

(A) The child;

(B) A parent whose parental rights have not been terminated;

(C) The attorney of the child or parent;

and (D) The Juvenile Justice Commission and its' designees acting in the course of their official duties;

(3) With the written consent of the child or of someone authorized to act on the child's behalf;

and CS for HB 5609 (4) Pursuant to an order of a court of record: Provided, That the court shall review the record or records for relevancy and materiality to the issues in the proceeding and safety and may issue an order to limit the examination and use of the records or any part thereof.

(c) In addition to those persons or entities to whom information may be disclosed under subsection (b) of this section, information related to child abuse or neglect proceedings, except information relating to the identity of the person reporting or making a complaint of child abuse or neglect, shall be made available upon request to:

(1) Federal, state, or local government entities, or any agent of those entities, including law-enforcement agencies and prosecuting attorneys, having a need for that information in order to carry out its responsibilities under law to protect children from abuse and neglect;

(2) The child fatality review team;

(3) Child abuse citizen review panels;

(4) Multidisciplinary investigative and treatment teams;

or (5) A grand jury, circuit court, or family court, upon a finding that information in the records is necessary for the determination of an issue before the grand jury, circuit court, or family court;

and (6) The West Virginia Crime Victims Compensation Fund and its designees acting in the course of their official duties.

(d) Information related to child abuse or neglect proceedings, including information relating to the identity of the person reporting or making a complaint of child abuse or neglect, shall be made available to the Foster Care Ombudsman, or its designee, upon request and acting in the course of their official duties pursuant to §49-9-107 of this code.

(d)(e)  If there is a child fatality or near fatality due to child abuse and neglect, information relating to a fatality or near fatality shall be made public by the Department of Human Services and provided to the entities described in subsection (c) of this section, all under the circumstances described in that subsection: Provided, That information released by the Department of Human CS for HB 5609 Services pursuant to this subsection may not include the identity of a person reporting or making a complaint of child abuse or neglect except when such information and records are released to the Foster Care Ombudsman, or its designee, acting in the course of their official duties pursuant to §49-9-107 of this code, the identity of a person reporting or making a complaint of child abuse or neglect may be included.

 For purposes of this subsection, "near fatality" means any medical condition of the child which is certified by the attending physician to be life threatening.

(e)(f) Except in juvenile proceedings which are transferred to criminal proceedings, law- enforcement records and files concerning a child or juvenile shall be kept separate from the records and files of adults and not included within the court files.

Law-enforcement records and files concerning a child or juvenile shall only be open to inspection pursuant to §49-5-103 of this code.

(f)(g) Any person who willfully violates the provisions of this section is guilty of a misdemeanor and, upon conviction thereof, shall be fined not more than $1,000, or confined in jail for not more than six months, or both fined and confined.

A person convicted of violating this section is also liable for damages in the amount of $300, or actual damages, whichever is greater.

(g)(h) Notwithstanding the provisions of this section, or any other provision of this code to the contrary, the name and identity of any juvenile adjudicated or convicted of a violent or felonious crime shall be made available to the public;

(h)(i)(1) Notwithstanding the provisions of this section or any other provision of this code to the contrary, the Division of Corrections and Rehabilitation may provide access to, and the confidential use of, a treatment plan, court records, or other records of a juvenile to an agency in another state which:

(A) Performs the same functions in that state that are performed by the Division of Corrections and Rehabilitation in this state;

(B) Has a reciprocal agreement with this state;

and (C) Has legal custody of the juvenile.