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An Act to amend and reenact §§
2.2-438
through
2.2-444
,
2.2-446
, and
2.2-447
of the Code of Virginia, relating to Office of the Children's Ombudsman; powers and duties; report; recommendations.
Be it enacted by the General Assembly of Virginia:
1. That §§
2.2-438
through
2.2-444
,
2.2-446
, and
2.2-447
of the Code of Virginia are amended and reenacted as follows:
§
2.2-438
. Definitions.
As used in this chapter, unless
the
context requires another meaning:
"Abused or neglected child" means the same as that term is defined in §
63.2-100
.
"Administrative act" includes an action, omission, decision, recommendation, practice, or other procedure of the Department, a local department, a children's residential facility, or a child-placing agency with respect to a particular child related to
agency placement
adoption, foster care, or
child
protective services.
"Agency placement adoption" means adoptions facilitated by child-placing agencies or local boards pursuant to Article 2 (§
63.2-1221
et seq.) of Chapter 12 of Title 63.2.
"Central registry" means the system maintained at the Department of Social Services pursuant to §
63.2-1515
.
"Child" means an individual who is (i) younger than the age of 18 or (ii) for purposes of the Fostering Futures program established pursuant to Article 2 (§
63.2-917
et seq.) of Chapter 9 of Title 63.2, younger than the age of 21 and meets the eligibility criteria set forth in §
63.2-919
.
"Child-placing agency" means (i) any person who places children in foster homes, adoptive homes, or independent living arrangements pursuant to §
63.2-1819
; (ii) a local board that places children in foster homes or adoptive homes pursuant to §§
63.2-900
,
63.2-903
, and
63.2-1221
; or (iii) an entity that assists parents with the process of delegating parental and legal custodial powers of their children pursuant to Chapter 10 (§
20-166
et seq.) of Title 20. "Child-placing agency" does not include the persons to whom such parental or legal custodial powers are delegated pursuant to Chapter 10 (§
20-166
et seq.) of Title 20. Officers, employees, or agents of the Commonwealth or any locality thereof, acting within the scope of their authority as such, who serve as or maintain a child-placing agency shall not be required to be licensed.
"Children's Ombudsman" or "Ombudsman" means the individual appointed to head the Office of the Children's Ombudsman under §
2.2-439
.
"Children's residential facility" means the same as that term is defined in §
63.2-100
.
"Child-serving agency" means (i) a state agency that provides services
or regulates the provision of services
to children, including the Department of Behavioral Health and Developmental Services, the Department of Education, the Department of Health, the Department of Juvenile Justice, the Department of Social Services, and the Office of Children's Services, and (ii) a local entity that provides services to children and that receives funding from a state agency under clause (i). "Child-serving agency" does not include any law-enforcement agency.
"Commissioner" means the Commissioner of Social Services or his designee or authorized representative.
"Complainant" means an individual who makes a complaint pursuant to §
2.2-441
.
"Department" means the Department of Social Services.
"Foster care" means
24-hour substitute
care
provided to a child by a foster parent, children's residential facility, or group home licensed or approved by the Department under Chapter 9 (§
63.2-900
) of Title 63.2; care provided to a child in a relative's home under a court order; or any other care provided at the time the child's custody has been given to a government agency
for children in the custody of the local board or who remain in the custody of their parents, but are placed away from their parents or guardians and for whom the local board has placement and care responsibility through a noncustodial agreement. "Child in foster care" includes children committed to the Department of Juvenile Justice who were in the custody of a local board immediately prior to their commitment to the Department of Juvenile Justice.
"Foster care services" means the provision of a full range of casework, treatment, and community services, including independent living services, for a planned period of time provided to a child meeting the requirements set forth in §
63.2-905
.
"Law-enforcement agency" means any crime victim and witness assistance program whose funding is provided in whole or in part by grants administered by the Department of Criminal Justice Services pursuant to §
9.1-104
, any state or local police or sheriff's department, any office of an attorney for the Commonwealth, or the Office of the Attorney General.
"Local department" means the local department of social services of any county or city in the Commonwealth.
"Office" means the Office of the Children's Ombudsman established under §
2.2-439
.
§
2.2-439
. Children's Ombudsman; appointment; removal.
A. There is hereby created the Office of the Children's Ombudsman as a means of effecting changes in policy, procedure, and legislation; educating the public; investigating and reviewing actions of the Department, local departments, child-placing agencies, or children's residential facilities; and monitoring and ensuring compliance with relevant statutes, rules, and policies pertaining to child protective services and the placement, supervision, and treatment of, and improvement of delivery of care to, children in foster care and adoptive homes
in agency placement adoptions
.
B. The Office of the Children's Ombudsman shall be headed by the Children's Ombudsman, who shall be appointed by the Governor, subject to confirmation by the General Assembly. The individual shall be qualified by training and experience to perform the duties and exercise the powers of the Children's Ombudsman and the Office of the Children's Ombudsman as provided in this chapter.
C. The appointment shall be for a term of four years. The Governor may remove the Ombudsman for cause in accordance with §
2.2-108
. Vacancies shall be filled by appointment by the Governor for the unexpired term.
§
2.2-440
. Procedures; training; notification of safety concerns.
A. The Ombudsman shall establish procedures for the Office for budget, expenditures, and employment. Subject to annual appropriations, the Ombudsman shall employ sufficient personnel to carry out the duties and powers prescribed by this chapter.
B. The Ombudsman shall establish procedures for receiving and processing complaints from complainants and individuals not meeting the definition of complainant, conducting investigations, holding informal hearings, and reporting findings and recommendations resulting from investigations.
C. Personnel employed by the Office shall receive
mandatory
training in
domestic violence and in handling complaints alleging that a child is an abused or neglected
the areas of
child
abuse and neglect as determined by the Ombudsman
.
D. The Ombudsman shall notify a child-serving agency of any immediate safety concerns regarding a child or children who are part of an active or open child protective services or foster care case. This notification shall occur as soon as possible, but not later than one business day after the Ombudsman becomes aware of the concerns.
§
2.2-441
. Individuals making complaint to Children's Ombudsman.
A.
Any individual may submit a complaint to the Ombudsman. The Ombudsman has the sole discretion and authority to determine if a complaint falls within the Ombudsman's duties and powers to investigate and if a complaint involves an administrative act.
B.
Any of the following individuals may make a complaint to the Ombudsman with respect to a particular child, alleging that an administrative act is contrary to law, rule, or policy; imposed without an adequate statement of reason; or based on irrelevant, immaterial, or erroneous grounds:
1. The child, if the child is able to articulate a complaint, in accordance with the provisions of subsection A of §
2.2-446
;
2. A biological parent of the child;
3. A foster parent of the child;
4. An adoptive parent or a prospective adoptive parent of the child;
5. A legally appointed guardian of the child;
6. A guardian ad litem for the child;
7. A relative of the child or any person with a legitimate interest as defined in §
20-124.1
;
8. A Virginia legislator;
9. An individual required to report that a child is alleged to be an abused or neglected child under §
63.2-1509
; and
10. An attorney for any individual described in subdivisions 1 through 7.
B. Any individual may submit a complaint to the Ombudsman. The Ombudsman has the sole discretion and authority to determine if a complaint falls within the Ombudsman's duties and powers to investigate and if a complaint involves an administrative act.
C.
The Ombudsman may initiate an investigation upon receipt of a complaint from an individual not meeting the definition of complainant
, alleging that an administrative act is contrary to law, rule, or policy, imposed without an adequate statement of reason, or based on irrelevant, immaterial, or erroneous grounds
.
An individual not meeting the definition of complainant is not entitled to receive information under this chapter as if such individual is a complainant. The individual is entitled to receive the recommendations of the Ombudsman and the Department or local department's response to the recommendations of the Ombudsman in accordance with state and federal law
.
D.
During the course of
or prior to initiating
an investigation, the Ombudsman may refer a case to a child-serving agency if the Ombudsman determines that such agency received a complaint on the case but did not conduct an investigation. If the Ombudsman refers a case to a child-serving agency, such agency shall conduct an investigation of the case or provide notice to the Ombudsman explaining why an investigation was not conducted or what alternative steps may have been taken to address the situation. If an investigation has been conducted, the child-serving agency shall report the results to the Ombudsman.
§
2.2-442
. Children's Ombudsman; powers and duties.
In addition to any powers described in this chapter, the Children's Ombudsman has the authority to do all of the following with regard to
children for whom a report of abuse or neglect was made,
children receiving child-protective
or foster care
services, in foster care, or placed for adoption
in an agency placement adoption,
and children who
may have
died as a result of alleged
or suspected
abuse or neglect:
1. Pursue all necessary action, including legal action, to protect the rights and welfare of such children;
2. Pursue legislative advocacy in the best interest of such children;
3. Review policies and procedures relating to any child-serving agency's involvement with such children upon the Ombudsman's own initiative or upon receipt of a complaint and make recommendations for improvement;
4. Initiate investigations of administrative acts of the Department, a local department, a children's residential facility, or a child-placing agency in cases relating to such children upon the Ombudsman's own initiative or upon receipt of a complaint; and
5.
Subject to an appropriation of funds, commence and conduct
Conduct
investigations into alleged violations of the rights of a foster parent.
§
2.2-443
. Children receiving child-protective services, in foster care, or placed for adoption in agency placement adoption; powers of Children's Ombudsman; child fatality cases; investigation.
A. The Ombudsman may do all of the following:
1. Determine, in the Ombudsman's sole discretion, if a complaint involves an administrative act.
2. Decide, in the Ombudsman's discretion, whether to investigate an administrative act.
3. Upon the Ombudsman's own initiative or upon receipt of a complaint
and subject to an appropriation of funds
, investigate an alleged violation of the rights of a foster parent.
4. Except as otherwise provided in this subdivision, access records and reports necessary to carry out the Ombudsman's powers and duties under this chapter to the same extent and in the same manner as provided to the Department
and local departments, including reports submitted in accordance with §§
9.1-153
and
16.1-274
. The Ombudsman shall be provided access to medical and mental health disorder records in the same manner as access is provided to the Department
and local departments
. The Ombudsman may request substance use disorder records if the Ombudsman obtains a valid consent or a court order under 42 C.F.R. Part 2. In the course of a child fatality investigation, the Ombudsman may access records from the court of jurisdiction,
the Office of the
Attorney General,
prosecuting attorney,
the local attorney for the Commonwealth,
or any attorney retained by the Department or local department
and reports from a county
child fatality review team
to the same extent and in the same manner as provided to the Department or local department under state law.
5.
Request a subpoena from a court requiring the production of a record or report necessary to carry out the Ombudsman's duties and powers, including a child fatality investigation. If the person to whom a subpoena is issued fails or refuses to produce the record or report, the Ombudsman may petition the court for enforcement of the subpoena
Make an ex parte application to the circuit court for the county or city wherein evidence is sought for the issuance of a subpoena duces tecum in furtherance of an investigation or to request production of any relevant records, documents, and physical or other evidence of the Department, local department, child-placing agency, children's residential facility, or any person, partnership, association, or corporation located in the Commonwealth
.
6. Hold informal hearings and request that individuals appear before the Ombudsman and give testimony or produce documentary or other evidence that the Ombudsman considers relevant to a matter under investigation.
7. Make recommendations to the Governor and the General Assembly concerning the need for child protective services, adoption, or foster care legislation, policy, or practice without prior review by other offices, departments, or agencies in the executive branch in order to facilitate rapid implementation of recommendations or for suggested improvements to the recommendations. No other office, department, or agency shall prohibit the release of an Ombudsman's recommendation to the Governor or the General Assembly.
B. The Ombudsman may investigate
all
child fatality cases that occurred or are alleged
or suspected
to have occurred due to abuse or neglect of a child in the following situations:
1. A child died during an active child protective services investigation or open services case, or there was a valid or invalid child protective services complaint within 12 months immediately preceding the child's death.
2. A child died while in foster care, unless the death is determined to have resulted from natural causes and there were no prior child protective services or licensing complaints concerning the foster home.
3. A child was returned home from foster care and there is an active foster care case.
4. A foster care case involving the deceased child or sibling was closed within 24 months immediately preceding the child's death.
C. Subject to state appropriations, an investigation under subsection B shall be completed within 12 months after the Ombudsman opens a child fatality case for investigation.
D. The Ombudsman is subject to the same standards for safeguarding the confidentiality of information under this section and the same sanctions for unauthorized release of information as the Department.
§
2.2-444
. Decision to investigate; notice; pursuing administrative remedies or channels of complaint; further investigation; violation of state or federal criminal law; complaint against child-placing agency.
A. Upon deciding to investigate a complaint from a complainant or an individual not meeting the definition of complainant, the Ombudsman shall notify the complainant or the individual not meeting the definition of complainant of the decision to investigate and shall notify the Department or local department
or
,
children's residential facility, or child-placing agency of the intention to investigate. If the Ombudsman declines to investigate a complaint or continue an investigation, the Ombudsman shall notify the complainant or the individual not meeting the definition of complainant and the Department or local department,
or
children's residential facility, or child-placing agency of the decision and of the reasons for the Ombudsman's action.
B. The Ombudsman shall advise a complainant of administrative remedies and may advise the individual to pursue all administrative remedies or channels of complaint open to the complainant before pursuing a complaint with the Ombudsman. Subsequent to the administrative processing of a complaint, the Ombudsman may conduct further investigations of a complaint upon the request of the complainant or upon the Ombudsman's own initiative.
C. If the Ombudsman finds in the course of an investigation that an individual's action is in violation of state or federal criminal law, the Ombudsman shall immediately report that fact to the local attorney for the Commonwealth or the Attorney General. If the complaint is against a child-placing agency, the Ombudsman shall refer the matter to the Department or local department for further action with respect to licensing or approval.
D. The Ombudsman may refer any complaints regarding administrative acts related to a child receiving protective or foster care services in any facility as defined in §
37.2-100
to the Office of the State Inspector General.
§
2.2-446
. Confidentiality of record of Children's Ombudsman; disclosure; limitations; release of certain information.
A. All statements, documentation, and other evidence received or maintained by the Office or its agents in connection with complaints made to or investigations undertaken pursuant to the Ombudsman's powers enumerated in §
2.2-442
shall be confidential and not subject to the Virginia Freedom of Information Act (§
2.2-3700
et seq.) and are not discoverable in legal proceedings. If the Ombudsman identifies action or inaction by the state through its agencies or services that failed to protect children, the Ombudsman shall provide any findings and recommendations to the agency affected by those findings and to the
Governor or
General Assembly upon request
, and may provide those findings and recommendations to the complainant, to the extent consistent with state or federal law
. The Ombudsman shall not disclose any information that impairs the rights of the child or the child's parents or guardians.
If the child is the complainant, the Ombudsman need not gain the consent of the Department or local department, the children's residential facility, the child-placing agency, or the foster parent or guardian of the child or other person having custody or care of the child to receive information from or communicate with the child.
B. Unless otherwise part of the public record, the Office shall not release any of the following confidential information to the general public:
1. Records relating to a mental health evaluation or treatment of a parent or child;
2. Records relating to the evaluation or treatment of a substance abuse-related disorder of a parent or child;
3. Records relating to a medical diagnosis or treatment of a parent or child;
4. Records relating to domestic violence-related services and sexual assault services provided to a parent or child; or
5. Records relating to educational services provided to a parent or child.
C. Notwithstanding subsection B, if the Ombudsman determines that disclosure of confidential information is necessary to identify, prevent, or respond to the abuse or neglect of a child, the Ombudsman may disclose such information to the Department or local department, a court, a law-enforcement agency, or a prosecuting attorney investigating a report of known or suspected abuse or neglect of a child. The Ombudsman shall not release the address, telephone number, or other information regarding the whereabouts of a victim or suspected victim of domestic violence unless ordered to by a court.
D. Except as provided in subsection C, the Ombudsman shall not disclose information relating to an ongoing law-enforcement investigation or an ongoing child protective services investigation. The Ombudsman may release the results of its investigation to a complainant, or an individual not meeting the definition of complainant, if the Ombudsman receives notification of and determines that releasing the results of its investigation is not related to and will not interfere with an ongoing law-enforcement investigation or ongoing child protective services investigation.
E. The Ombudsman shall not disclose the identity of an individual making a complaint alleging that a child is an abused or neglected child unless that individual's written permission is obtained first or a court has ordered the Ombudsman to release such information.
F. The Ombudsman may release an individual's identity who makes an intentionally false report alleging that a child is an abused or neglected child, subject to other laws relating to such disclosure.
§
2.2-447
. Report of findings; recommendations; consultation with individual, Department, local department, children's residential facility, or child-placing agency; publication of adverse report; notice of actions; information provided to complainant; child fatality investigation; report.
A. The Ombudsman shall prepare a report of the factual findings of an investigation and make recommendations to the Department, local department, children's residential facility, or child-placing agency if the Ombudsman finds any of the following:
1. A matter should be further considered by the Department, local department, children's residential facility, or child-placing agency.
2. An administrative act or omission should be modified, canceled, or corrected.
3. Reasons should be given for an administrative act or omission.
4. Other action should be taken by the Department, local department, children's residential facility, or child-placing agency.
B.
The Department, local department, children's residential facility, or child-placing agency that is the subject of such report may provide the Ombudsman with a written response to the report within 14 calendar days of receiving such report or within a reasonable time agreed to by the Ombudsman. The Ombudsman may prepare an epilogue to such written response. The Ombudsman shall provide the Commissioner with a copy of any such report, written response, or epilogue.
C. The Ombudsman may request to be notified by the Department, local department, children's residential facility, or child-placing agency of any action taken in response to recommendations provided by the Ombudsman.
D. The Ombudsman may publish a report prepared pursuant to this section on the Office's website (i) subject to the provisions of subsections B, C, D, and E of §
2.2-446
and (ii) provided that information contained in the report that is confidential under federal or state law and the name of any child, parent, and employee of the Department, local department, children's residential facility, and child-placing agency contained in such report is redacted, unless such information has otherwise been made public.
E.
At least 30 calendar days before publishing a report that is adverse to the Department, the local department, a children's residential facility, a child-placing agency, or the individual that is or was the subject of an investigation by the Ombudsman, the Ombudsman shall inform the Department, the local department, the children's residential facility, the child-placing agency, or the individual. When publishing a report adverse to the Department, local department, children's residential facility, child-placing agency, or individual, the Ombudsman shall include in the publication any
statement of reasonable length made to the Ombudsman
written response
by the Department, local department, children's residential facility, child-placing agency, or individual in defense or mitigation of the action.
The Ombudsman may request to be notified by the Department, local department, children's residential facility, child-placing agency, or individual, within a specified time, of any action taken on any recommendation presented.
The Ombudsman shall not disclose information in any published report if doing so could endanger the health or welfare of a child or another individual.
C.
F.
The Ombudsman shall notify the complainant of the
actions taken
recommendations made
by the Ombudsman and
by
the Department, local department, children's residential facility, or child-placing
agency
agency's response to such recommendations
.
D.
G.
The Ombudsman may provide to the complainant the following information:
1. A copy of the Ombudsman's report regarding the investigation's findings, recommendations to the Department or local department made according to the investigation, the Department or local department's response to the Ombudsman's findings and recommendations, and any epilogue to the Ombudsman's report and the Department or local department's response; or
2. Information that has otherwise been made public.
H. The Ombudsman may provide an individual who is not the complainant but has submitted a complaint, subject to the provisions of this section and §
2.2-446
, with a copy of the Ombudsman's report regarding the investigation's findings and recommendations.
E.
I.
The Ombudsman shall not release information to the individual making the complaint if doing so could endanger the health or welfare of a child or another individual.
F.
J.
With respect to a child fatality case investigated under subsection B of §
2.2-443
and upon review of records or other information received under subdivision A 3 or 4 of §
2.2-443
in the course of a child fatality investigation, if there is no ongoing child protection proceeding involving a sibling of the child who died, the Ombudsman shall provide any necessary recommendations for improving systemic issues that are discovered during the investigation of the child fatality. The recommendations may be provided to the court of jurisdiction, the state court administrative office, the
county
state or regional
child fatality review team, medical professionals, or attorneys or other legal professionals involved with the particular child who died. The recommendations shall also be summarized and included in the annual report referenced in subsection
G
K
.
G.
K.
The Ombudsman shall submit to the Governor, the
director of the Department
Commissioner
, and the General Assembly an annual report on the Ombudsman's activities, including any recommendations regarding the need for legislation or for a change in rules or policies.
The Ombudsman may publish such report.