H. B. 2456
(By Delegates Mahan, Fleischauer, Fragale,
Spencer, Ashley and Rowan)
[Introduced February 16, 2009; referred to the
Committee on the Judiciary.]
A BILL to amend and reenact §49-1-3 of the Code of West Virginia,
1931, as amended; and to amend and reenact §49-6-3 and §49-6-5
of said code, all relating to child abuse and neglect
generally; defining terms; expanding definition of imminent
danger to the physical well-being of a child; prohibiting
parents, guardians and custodians from allowing access to
children by certain persons; and the obligation of the
Department of Health and Human Resources to attempt to
preserve the family in temporary and permanent custody
determinations.
Be it enacted by the Legislature of West Virginia:
That §49-1-3 of the Code of West Virginia, 1931, as amended,
be amended and reenacted; and that §49-6-3 and §49-6-5 of said code
be amended and reenacted, all to read as follows:
ARTICLE 1. PURPOSES; DEFINITIONS.
§49-1-3. Definitions relating to abuse and neglect.
As used in this chapter:
(a) "Abused child" means a child whose health or welfare is harmed or threatened by:
(1) 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; or
(2) Sexual abuse or sexual exploitation; or
(3) The sale or attempted sale of a child by a parent,
guardian or custodian in violation of section sixteen, article
four, chapter forty-eight of this code; or
(4) Domestic violence as defined in section two hundred two,
article twenty-seven, chapter forty-eight of this code.
In addition to its broader meaning, physical injury may
include an injury to the child as a result of excessive corporal
punishment.
(b) "Abusing parent" means a parent, guardian or other
custodian, regardless of his or her age, whose conduct, as alleged
in the petition charging child abuse or neglect, has been adjudged
by the court to constitute child abuse or neglect.
(c) "Battered parent" means a parent, guardian or other
custodian who has been judicially determined not to have 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 section two hundred two, article
twenty-seven, chapter forty-eight of this code, which domestic
violence was perpetrated by the person or persons determined to
have abused or neglected the child or children.
(d) "Child abuse and neglect" or "child abuse or neglect"
means physical injury, mental or emotional injury, sexual abuse,
sexual exploitation, sale or attempted sale or negligent treatment
or maltreatment of a child by a parent, guardian or custodian who
is responsible for the child's welfare, under circumstances which
harm or threaten the health and welfare of the child.
(e) "Child abuse and neglect services" means social services
which are directed toward:
(1) Protecting and promoting the welfare of children who are
abused or neglected;
(2) Identifying, preventing and remedying conditions which
cause child abuse and neglect;
(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;
(4) In cases where children have been removed from their
families, providing services to the children and the families so as
to reunify such children with their families or some portion
thereof;
(5) Placing children in suitable adoptive homes when
reunifying the children with their families, or some portion
thereof, is not possible or appropriate; and
(6) Assuring the adequate care of children who have been
placed in the custody of the department or third parties.
(f) "Child advocacy center" means a community-based organization that is a member in good standing with the West
Virginia Child Abuse Network, Inc., and is working to implement the
following program components:
(1) Child-appropriate/child-friendly facility: A child
advocacy center provides a comfortable, private, child-friendly
setting that is both physically and psychologically safe for
clients.
(2) Multidisciplinary team (MDT): A multidisciplinary team
for response to child abuse allegations includes representation
from the following: Law enforcement; child protective services;
prosecution; mental health; medical; victim advocacy; child
advocacy center.
(3) Organizational capacity: A designated legal entity
responsible for program and fiscal operations has been established
and implements basic sound administrative practices.
(4) Cultural competency and diversity: The CAC promotes
policies, practices and procedures that are culturally competent.
Cultural competency is defined as the capacity to function in more
than one culture, requiring the ability to appreciate, understand
and interact with members of diverse populations within the local
community.
(5) Forensic interviews: Forensic interviews are conducted in
a manner which is of a neutral, fact finding nature and coordinated
to avoid duplicative interviewing.
(6) Medical evaluation: Specialized medical evaluation and
treatment are to be made available to CAC clients as part of the team response, either at the CAC or through coordination and
referral with other specialized medical providers.
(7) Therapeutic intervention: Specialized mental health
services are to be made available as part of the team response,
either at the CAC or through coordination and referral with other
appropriate treatment providers.
(8) Victim support/advocacy: Victim support and advocacy are
to be made available as part of the team response, either at the
CAC or through coordination with other providers, throughout the
investigation and subsequent legal proceedings.
(9) Case review: Team discussion and information sharing
regarding the investigation, case status and services needed by the
child and family are to occur on a routine basis.
(10) Case tracking: CACs must develop and implement a system
for monitoring case progress and tracking case outcomes for team
components:
Provided, That a child advocacy center may establish
a safe exchange location for children and families who have a
parenting agreement or an order providing for visitation or custody
of the children that require a safe exchange location.
(g) "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. Such emergency situation exists 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
or life of any child in the home:
(1) Nonaccidental trauma inflicted by a parent, guardian,
custodian, sibling or a babysitter or other caretaker;
(2) A combination of physical and other signs indicating a
pattern of abuse which may be medically diagnosed as battered child
syndrome;
(3) Nutritional deprivation;
(4) Abandonment by the parent, guardian or custodian;
(5) Inadequate treatment of serious illness or disease;
(6) Substantial emotional injury inflicted by a parent,
guardian or custodian; or
(7) Sale or attempted sale of the child by the parent,
guardian or custodian.
(h) "Legal guardianship" means the permanent relationship
between a child and caretaker, established by order of the circuit
court having jurisdiction over the child, pursuant to the
provisions of this chapter and chapter forty-eight of this code.
(i) "Multidisciplinary team" means a group of professionals
and paraprofessionals representing a variety of disciplines who
interact and coordinate their efforts to identify, diagnose and
treat specific cases of child abuse and neglect. Multidisciplinary
teams may include, but are not limited to, medical, educational,
child care and law-enforcement personnel, social workers,
psychologists and psychiatrists. Their goal is to pool their
respective skills in order to formulate accurate diagnoses and to
provide comprehensive coordinated treatment with continuity and
follow-up for
both parents,
guardians, custodians and children. "Community team" means a multidisciplinary group which addresses
the general problem of child abuse and neglect in a given community
and may consist of several multidisciplinary teams with different
functions.
(j) (1) "Neglected child" means a child:
(A) 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
such refusal, failure or inability is not due primarily to a lack
of financial means on the part of the parent, guardian or
custodian; or
(B) Who is presently without necessary food, clothing,
shelter, medical care, education or supervision because of the
disappearance or absence of the child's parent,
guardian or
custodian;
(2) "Neglected child" does not mean a child whose education is
conducted within the provisions of section one, article eight,
chapter eighteen of this code.
(k) "Parent" means an individual defined as a parent by law or
on the basis of a biological relationship, marriage to a person
with a biological relationship, legal adoption or other recognized
grounds.
(l) "Parental rights" means any and all rights and duties
regarding a parent to a minor child, including, but not limited to,
custodial rights and visitational rights and rights to participate in the decisions affecting a minor child.
(k) (m) "Parenting skills" means a parent's competencies in
providing physical care, protection, supervision and psychological
support appropriate to a child's age and state of development.
(n) "Placement" means any temporary or permanent placement of
a child who is in the custody of the state in any foster home,
group home or other facility or residence.
(o) "Serious physical abuse" means bodily injury which creates
a substantial risk of death, which causes serious or prolonged
disfigurement, prolonged impairment of health or prolonged loss or
impairment of the function of any bodily organ.
(
p) "Sexually violent predator" means a person found by a
court to be a sexually violent predator pursuant to section two-a,
article twelve, chapter fifteen of this code.
(l) (q) "Sexual abuse" means:
(A) As to a child who is less than sixteen years of age, any
of the following acts which a parent, guardian or custodian shall
engage in, attempt to engage in, or knowingly procure another
person to engage in, with such child, notwithstanding the fact that
the child may have willingly participated in such conduct or the
fact that the child may have suffered no apparent physical injury
or mental or emotional injury as a result of such conduct:
(i) Sexual intercourse;
(ii) Sexual intrusion; or
(iii) Sexual contact;
(B) As to a child who is sixteen years of age or older, any of the following acts which a parent, guardian or custodian shall
engage in, attempt to engage in, or knowingly procure another
person to engage in, with such child, notwithstanding the fact that
the child may have consented to such conduct or the fact that the
child may have suffered no apparent physical injury or mental or
emotional injury as a result of such conduct:
(i) Sexual intercourse;
(ii) Sexual intrusion; or
(iii) Sexual contact;
(C) Any conduct whereby 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 such display, or of the child, or
for the purpose of affronting or alarming the child.
(m) (r) "Sexual contact" means sexual contact as that term is
defined in section one, article eight-b, chapter sixty-one of this
code.
(n) (s) "Sexual exploitation" means an act whereby:
(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
section one, article eight-c, chapter sixty-one of this code;
(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 such display is
likely to be observed by others who would be affronted or alarmed.
(o) (t) "Sexual intercourse" means sexual intercourse as that
term is defined in section one, article eight-b, chapter sixty-one
of this code.
(p) (u) "Sexual intrusion" means sexual intrusion as that term
is defined in section one, article eight-b, chapter sixty-one of
this code.
(q) "Parental rights" means any and all rights and duties
regarding a parent to a minor child, including, but not limited to,
custodial rights and visitational rights and rights to participate
in the decisions affecting a minor child.
(r) "Placement" means any temporary or permanent placement of
a child who is in the custody of the state in any foster home,
group home or other facility or residence.
(s) "Serious physical abuse" means bodily injury which creates
a substantial risk of death, which causes serious or prolonged
disfigurement, prolonged impairment of health or prolonged loss or
impairment of the function of any bodily organ.
(t) (v) "Siblings" means children who have at least one
biological parent in common or who have been legally adopted by the
same parents or parent.
(u) (w) "Time-limited reunification services" means
individual, group and family counseling, inpatient, residential or
outpatient substance abuse treatment services, mental health services, assistance to address domestic violence, services
designed to provide temporary child care and therapeutic services
for families, including crisis nurseries and transportation to or
from any such services, provided during fifteen of the most recent
twenty-two months a child has been in foster care, as determined by
the earlier date of the first judicial finding that the child is
subjected to abuse or neglect, or the date which is sixty days
after the child is removed from home.
§49-6-3. Petition to court when child believed neglected or abused
-- Temporary custody.
(a) Upon the filing of a petition, the court may order that
the child alleged to be an abused or neglected child be delivered
for not more than ten days into the custody of the state department
or a responsible person found by the court to be a fit and proper
person for the temporary care of the child pending a preliminary
hearing, if it finds that: (1) There exists imminent danger to the
physical well-being of the child; and (2) there are no reasonably
available alternatives to removal of the child, including, but not
limited to, the provision of medical, psychiatric, psychological or
homemaking services in the child's present custody:
Provided, That
where the alleged abusing person, if known, is a member of a
household, the court shall not allow placement pursuant to this
section of the child or children in said home unless the alleged
abusing person is or has been precluded from visiting or residing
in said home by judicial order. In a case where there is more than
one child in the home, or in the temporary care, custody or control of the alleged offending parent,
custodian or guardian, the
petition shall so state, and notwithstanding the fact that the
allegations of abuse or neglect may pertain to less than all of
such children, each child in the home for whom relief is sought
shall be made a party to the proceeding. Even though the acts of
abuse or neglect alleged in the petition were not directed against
a specific child who is named in the petition, the court shall
order the removal of such child, pending final disposition, if it
finds that there exists imminent danger to the physical well-being
of the child and a lack of reasonable available alternatives to
removal. The initial order directing such custody shall contain an
order appointing counsel and scheduling the preliminary hearing,
and upon its service shall require the immediate transfer of
custody of such child or children to the department or a
responsible relative which may include any parent, guardian, or
other custodian. The court order shall state: (1) That
continuation in the home is contrary to the best interests of the
child and why; and (2) whether or not the department made
reasonable efforts to preserve the family and prevent the placement
or that the emergency situation made such efforts unreasonable or
impossible. The order may also direct any party or the department
to initiate or become involved in services to facilitate
reunification of the family.
(b) Whether or not the court orders immediate transfer of
custody as provided in subsection (a) of this section, if the facts
alleged in the petition demonstrate to the court that there exists imminent danger to the child, the court may schedule a preliminary
hearing giving the respondents at least five days' actual notice.
If the court finds at the preliminary hearing that there are no
alternatives less drastic than removal of the child and that a
hearing on the petition cannot be scheduled in the interim period,
the court may order that the child be delivered into the temporary
custody of the department or a responsible person or agency found
by the court to be a fit and proper person for the temporary care
of the child for a period not exceeding sixty days:
Provided, That
the court order shall state: (1) That continuation in the home is
contrary to the best interests of the child and set forth the
reasons therefor; (2) whether or not the department made reasonable
efforts to preserve the family and to prevent the child's removal
from his or her home; (3) whether or not the department made
reasonable efforts to preserve the family and to prevent the
placement or that the emergency situation made such efforts
unreasonable or impossible; and (4) what efforts should be made by
the department, if any, to facilitate the child's return home:
Provided, however, That if the court grants an improvement period
as provided in section twelve of this article, the sixty-day limit
upon temporary custody is waived.
(c) If a child or children shall, in the presence of a child
protective service worker, be in an emergency situation which
constitutes an imminent danger to the physical well-being of the
child or children, as that phrase is defined in section three,
article one of this chapter, and if such worker has probable cause to believe that the child or children will suffer additional child
abuse or neglect or will be removed from the county before a
petition can be filed and temporary custody can be ordered, the
worker may, prior to the filing of a petition, take the child or
children into his or her custody without a court order:
Provided,
That after taking custody of such child or children prior to the
filing of a petition, the worker shall forthwith appear before a
circuit judge or a juvenile referee of the county wherein custody
was taken, or if no such judge or referee be available, before a
circuit judge or a juvenile referee of an adjoining county, and
shall immediately apply for an order ratifying the emergency
custody of the child pending the filing of a petition. The circuit
court of every county in the state shall appoint at least one of
the magistrates of the county to act as a juvenile referee, who
shall serve at the will and pleasure of the appointing court, and
who shall perform the functions prescribed for such position by the
provisions of this subsection. The parents, guardians or
custodians of the child or children may be present at the time and
place of application for an order ratifying custody, and if at the
time the child or children are taken into custody by the worker,
the worker knows which judge or referee is to receive the
application, the worker shall so inform the parents, guardians or
custodians. The application for emergency custody may be on forms
prescribed by the Supreme Court of Appeals or prepared by the
prosecuting attorney or the applicant, and shall set forth facts
from which it may be determined that the probable cause described above in this subsection exists. Upon such sworn testimony or
other evidence as the judge or referee deems sufficient, the judge
or referee may order the emergency taking by the worker to be
ratified. If appropriate under the circumstances, the order may
include authorization for an examination as provided
for in
subsection (b), section four of this article. If a referee issues
such an order, the referee shall by telephonic communication have
such order orally confirmed by a circuit judge of the circuit or an
adjoining circuit who shall on the next judicial day enter an order
of confirmation. If the emergency taking is ratified by the judge
or referee, emergency custody of the child or children shall be
vested in the department until the expiration of the next two
judicial days, at which time any such child taken into emergency
custody shall be returned to the custody of his or her parent or
guardian or custodian unless a petition has been filed and custody
of the child has been transferred under the provisions of section
three of this article.
(d) For purposes of the court's consideration of temporary
custody pursuant to the provisions of subsection (a) or (b) of this
section, the department is not required to make reasonable efforts
to preserve the family if the court determines:
(1) The parent,
custodian or guardian has subjected the child,
another child of the parent
custodian or guardian, or any other
child residing in the same household or under the temporary or
permanent custody of the parent,
custodian or guardian to
aggravated circumstances which include, but are not limited to, abandonment, torture, chronic abuse and sexual abuse;
(2) The parent,
custodian or guardian has:
(A) Committed murder of the child's other parent, another
child of the parent, or any other child residing in the same
household or under the temporary or permanent custody of the
parent,
custodian or guardian;
(B) Committed voluntary manslaughter of the child's other
parent, another child of the parent, or any other child residing in
the same household or under the temporary or permanent custody of
the parent,
custodian or guardian;
(C) Attempted or conspired to commit such a murder or
voluntary manslaughter or been an accessory before or after the
fact to either such crime; or
(D) Committed unlawful or malicious wounding that results in
serious bodily injury to the child, the child's other parent, to
another child of the parent, or any other child residing in the
same household or under the temporary or permanent custody of the
parent,
custodian or guardian; or
(3) The parental rights of the parent to a sibling have been
terminated involuntarily;
or
(4) The parent, custodian or guardian knowingly exposes or
fails to prevent a child from being exposed to a sexually violent
predator or a person required to register with the State Police for
committing child abuse or neglect, pursuant to section two, article
thirteen, chapter fifteen of this code. Provided, That: this
provision does not apply when the parent, custodian or guardian cannot prevent the prohibited person from interacting with the
child because the person has such legal right because of a familial
relationship to the child.
§49-6-5. Disposition of neglected or abused children.
(a) Following a determination pursuant to section two of this
article wherein the court finds a child to be abused or neglected,
the department shall file with the court a copy of the child's case
plan, including the permanency plan for the child. The term case
plan means a written document that includes, where applicable, the
requirements of the family case plan as provided
for in section
three, article six-d of this chapter and that also includes at
least the following: A description of the type of home or
institution in which the child is to be placed, including a
discussion of the appropriateness of the placement and how the
agency which is responsible for the child plans to assure that the
child receives proper care and that services are provided to the
parents,
custodian or guardian and child
and foster parents in
order to improve the conditions in the
parent(s) home
of the parent
or parents, custodian or guardian; facilitate return of the child
to his or her own home or the permanent placement of the child; and
address the needs of the child while in foster care, including a
discussion of the appropriateness of the services that have been
provided to the child. The term "permanency plan" refers to that
part of the case plan which is designed to achieve a permanent home
for the child in the least restrictive setting available. The plan
must document efforts to ensure that the child is returned home within approximate time lines for reunification as set out in the
plan. Reasonable efforts to place a child for adoption or with a
legal guardian may be made at the same time reasonable efforts are
made to prevent removal or to make it possible for a child to
safely return home. If reunification is not the permanency plan
for the child, the plan must state why reunification is not
appropriate and detail the alternative placement for the child to
include approximate time lines for when such placement is expected
to become a permanent placement. This case plan shall serve as the
family case plan for parents,
custodians and guardians of abused or
neglected children. Copies of the child's case plan shall be sent
to the child's attorney and parent, guardian or custodian or their
counsel at least five days prior to the dispositional hearing. The
court shall forthwith proceed to disposition giving both the
petitioner and respondents an opportunity to be heard. The court
shall give precedence to dispositions in the following sequence:
(1) Dismiss the petition;
(2) Refer the child, the abusing parent, the battered parent
or other family members to a community agency for needed assistance
and dismiss the petition;
(3) Return the child to his or her own home under supervision
of the department;
(4) Order terms of supervision calculated to assist the child
and any abusing parent or battered parent or parents,
guardian or
custodian which prescribe the manner of supervision and care of the
child and which are within the ability of any parent or parents,
guardian or custodian to perform;
(5) Upon a finding that the abusing parent or battered parent
or parents are presently unwilling or unable to provide adequately
for the child's needs, commit the child temporarily to the custody
of the state department, a licensed private child welfare agency or
a suitable person who may be appointed guardian by the court. The
court order shall state: (A) That continuation in the home is
contrary to the best interests of the child and why; (B) whether or
not the department has made reasonable efforts, with the child's
health and safety being the paramount concern, to preserve the
family, or some portion thereof, and to prevent or eliminate the
need for removing the child from the child's home and to make it
possible for the child to safely return home; (C) what efforts were
made or that the emergency situation made such efforts unreasonable
or impossible; and (D) the specific circumstances of the situation
which made such efforts unreasonable if services were not offered
by the department. The court order shall also determine under what
circumstances the child's commitment to the department shall
continue. Considerations pertinent to the determination include
whether the child should: (i) Be continued in foster care for a
specified period; (ii) be considered for adoption; (iii) be
considered for legal guardianship; (iv) be considered for permanent
placement with a fit and willing relative; or (v) be placed in
another planned permanent living arrangement, but only in cases
where the department has documented to the circuit court a
compelling reason for determining that it would not be in the best interests of the child to follow one of the options set forth in
subparagraphs (i), (ii), (iii) or (iv) of this paragraph. The
court may order services to meet the special needs of the child.
Whenever the court transfers custody of a youth to the department,
an appropriate order of financial support by the parents,
custodian, or guardians shall be entered in accordance with section
five, article seven of this chapter; or
(6) Upon a finding that there is no reasonable likelihood that
the conditions of neglect or abuse can be substantially corrected
in the near future and, when necessary for the welfare of the
child, terminate the parental, custodial and guardianship rights
and responsibilities of the abusing parent and commit the child to
the permanent sole custody of the nonabusing parent, if there be
one, or, if not, to either the permanent guardianship of the
department or a licensed child welfare agency. The court may award
sole custody of the child to a non-abusing battered parent. If the
court shall so find, then in fixing its dispositional order the
court shall consider the following factors: (A) The child's need
for continuity of care and caretakers; (B) the amount of time
required for the child to be integrated into a stable and permanent
home environment; and (C) other factors as the court considers
necessary and proper. Notwithstanding any other provision of this
article, the court shall give consideration to the wishes of a
child fourteen years of age or older or otherwise of an age of
discretion as determined by the court regarding the permanent
termination of parental rights. No adoption of a child shall take place until all proceedings for termination of parental rights
under this article and appeals thereof are final. In determining
whether or not parental rights should be terminated, the court
shall consider the efforts made by the department to provide
remedial and reunification services to the parent. The court order
shall state: (i) That continuation in the home is not in the best
interest of the child and why; (ii) why reunification is not in the
best interests of the child; (iii) whether or not the department
made reasonable efforts, with the child's health and safety being
the paramount concern, to preserve the family, or some portion
thereof, and to prevent the placement or to eliminate the need for
removing the child from the child's home and to make it possible
for the child to safely return home, or that the emergency
situation made such efforts unreasonable or impossible; and (iv)
whether or not the department made reasonable efforts to preserve
and reunify the family, or some portion thereof, including a
description of what efforts were made or that such efforts were
unreasonable due to specific circumstances.
(7) For purposes of the court's consideration of the
disposition custody of a child pursuant to the provisions of this
subsection, the department is not required to make reasonable
efforts to preserve the family if the court determines:
(A) The parent,
custodian or guardian has subjected the child,
another child of the parent, or any other child residing in the
same household or under the temporary or permanent custody of the
parent,
custodian or guardian to aggravated circumstances which include, but are not limited to, abandonment, torture, chronic
abuse and sexual abuse;
(B) The parent,
custodian or guardian has:
(i) Committed murder of the child's other parent, another
child of the parent or any other child residing in the same
household or under the temporary or permanent custody of the
parent,
custodian or guardian;
(ii) Committed voluntary manslaughter of the child's other
parent, another child of the parent, or any other child residing in
the same household or under the temporary or permanent custody of
the parent,
custodian or guardian;
(iii) Attempted or conspired to commit such a murder or
voluntary manslaughter or been an accessory before or after the
fact to either such crime; or
(iv) Committed a felonious assault that results in serious
bodily injury to the child, the child's other parent, to another
child of the parent, or any other child residing in the same
household or under the temporary or permanent custody of the
parent,
custodian or guardian; or
(C) The parental rights of the parent to another child have
been terminated involuntarily;
or
(D) The parent, custodian or guardian knowingly exposes or
fails to prevent a child from being exposed to a sexually violent
predator or a person required to register with the State Police for
committing child abuse or neglect, pursuant to section two, article
thirteen, chapter fifteen of this code. Provided, That this provision does not apply when the parent, custodian or guardian
cannot prevent the prohibited person from interacting with the
child because the person has such legal right because of a familial
relationship to the child.
(b) As used in this section, "no reasonable likelihood that
conditions of neglect or abuse can be substantially corrected"
shall mean that, based upon the evidence before the court, the
abusing
adult or adults parent or parents, custodian or guardian
have demonstrated an inadequate capacity to solve the problems of
abuse or neglect on their own or with help. Such conditions shall
be considered to exist in the following circumstances, which shall
not be exclusive:
(1) The abusing parent or parents,
custodian or guardian have
habitually abused or are addicted to alcohol, controlled substances
or drugs, to the extent that proper parenting skills have been
seriously impaired and such person or persons have not responded to
or followed through the recommended and appropriate treatment which
could have improved the capacity for adequate parental functioning;
(2) The abusing parent or parents,
custodian or guardian have
willfully refused or are presently unwilling to cooperate in the
development of a reasonable family case plan designed to lead to
the child's return to their care, custody and control;
(3) The abusing parent or parents,
custodian or guardian have
not responded to or followed through with a reasonable family case
plan or other rehabilitative efforts of social, medical, mental
health or other rehabilitative agencies designed to reduce or prevent the abuse or neglect of the child, as evidenced by the
continuation or insubstantial diminution of conditions which
threatened the health, welfare or life of the child;
(4) The abusing parent or parents,
custodian or guardian have
abandoned the child;
(5) The abusing parent or parents,
custodian or guardian have
repeatedly or seriously injured the child physically or
emotionally, or have sexually abused or sexually exploited the
child, and the degree of family stress and the potential for
further abuse and neglect are so great as to preclude the use of
resources to mitigate or resolve family problems or assist the
abusing parent or parents,
custodian or guardian in fulfilling
their responsibilities to the child; or
(6) The abusing parent or parents,
custodian or guardian have
incurred emotional illness, mental illness or mental deficiency of
such duration or nature as to render such parent or parents,
custodian or guardian incapable of exercising proper parenting
skills or sufficiently improving the adequacy of such skills.
(7) The battered parent's parenting skills have been seriously
impaired and said person has willfully refused or is presently
unwilling or unable to cooperate in the development of a reasonable
treatment plan or has not adequately responded to or followed
through with the recommended and appropriate treatment plan.
(c) The court may, as an alternative disposition, allow the
parents,
guardians or custodians an improvement period not to
exceed six months. During this period the court shall require the parent,
custodian or guardian to rectify the conditions upon which
the determination was based. The court may order the child to be
placed with the parents,
custodian or guardian or any person found
to be a fit and proper person, for the temporary care of the child
during the period. At the end of the period, the court shall hold
a hearing to determine whether the conditions have been adequately
improved and at the conclusion of the hearing shall make a further
dispositional order in accordance with this section.
NOTE: The purpose of this bill is to prohibit parents,
guardians or custodians from allowing sexually violent predators
and registered child abusers access to children. The bill also
defines key terms and makes technical changes for purposes of
consistency.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.
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