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Introduced Version Senate Bill 132 History

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sb132 intr
Senate Bill No. 132

(By Senator Boley)

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[Introduced February 9, 2005; referred to the Committee

on Health and Human Resources; and then to the Committee on the Judiciary.]

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A BILL to amend and reenact §49-2-14 of the Code of West Virginia, 1931, as amended, relating to clarifying the procedure for removal of a child from a foster home.

Be it enacted by the Legislature of West Virginia:
That §49-2-14 of the Code of West Virginia, 1931, as amended, be amended and reenacted to read as follows:
ARTICLE 2. STATE RESPONSIBILITIES FOR THE PROTECTION AND CARE OF CHILDREN.

§49-2-14. Criteria and procedure for removal of child from foster home; notice of child's availability for placement; limitations.

(a) The State Department may temporarily remove a child from a foster home based on an allegation of abuse or neglect, including sexual abuse, that occurred while the child resided in the home. If the department determines that reasonable cause exists to support the allegation, the Department shall remove all foster children from the arrangement and preclude contact between the children and the foster parents. If, after investigation, the allegation is determined to be true by the Department or after a judicial proceeding a court finds the allegation to be true or if the foster parents fail to contest the allegation in writing within twenty calendar days of receiving written notice of said allegations, the Department shall permanently terminate all foster care arrangements with said foster parents: Provided, That if the State Department determines that the abuse occurred due to no act or failure to act on the part of the foster parents and that continuation of the foster care arrangement is in the best interests of the child, the department may, in its discretion, elect not to terminate the foster care arrangement or arrangements. If the allegations prove to be untrue, or unsubstantiated, or true but not the fault of the foster parents, the child shall be promptly returned to the care of the foster parents.
(1) Whenever a social services official or other authorized agency acting on behalf of a social services official proposes to remove a child in foster family care from the foster family home, the social services official or any other authorized agency, as may be appropriate, shall notify the foster family parents, in writing, of the intention to remove the child. The notification shall be given at least ten days prior to the proposed effective date of the removal, except where the health or safety of the child requires that the child be removed immediately from the foster family home. The notification shall further advise the foster family parents that they may request a conference with the social services official or a designated employee and at which time the foster parents, with or without a representative, may appear to have the proposed action reviewed, be advised of the reasons therefore and be afforded an opportunity to submit reasons why the child should not be removed. Each social services official shall instruct and require any authorized agency acting on the official?s behalf to furnish notice in accordance with the provisions of this section. Foster parents who do not object to the removal of the child from their home may waive in writing their right to the ten day notice: Provided, That the waiver may not be executed prior to the social services official's or authorized agency?s determination to remove the child from the foster home and the receipt by the foster parents of notification of the determination.
(2) Upon the receipt of a request for a conference, the social services official shall set a time and place for the conference to be held within ten days of receipt of the request and shall send written notice of the conference to the foster family parents and their representative, if any, and to the authorized agency, if any, at least five days prior to the date of the conference. Foster parents may bring two advocates to the conference, a child psychologist, if any, any teacher or any other professional who works with the child or family and who can give input into the decision.
(3) The social services official shall render and issue a decision as expeditiously as possible, but not later than two days after the conference, and shall immediately send a written notice of the decision to the foster family parents and their representative, if any, and to the authorized agency, if any. The decision shall advise the foster family parents of their right to appeal to the Department and to request a fair hearing in accordance with CAPTA and the ASFA.
(4) If a conference is requested, the child may not be removed from the foster family home until at least five days after the notice of decision is sent, or prior to the proposed effective date of removal, whichever occurs later. All parties included in the conference must agree to the removal or the child remains in the placement and each member of the conference will submit a written opinion of where the child should be placed to the circuit court and a hearing will be convened specifically on the placement of the child.
(5) Any person aggrieved by the decision of the Commissioner of Department of Health and Human Resources or case worker to remove a child from his or her care may appeal to the Department, which upon receipt of the appeal shall review the case, shall give the person making the appeal an opportunity for a fair hearing thereon and within thirty days render its decision. The Department may also, on its own motions, review any decision made by the public welfare official. The Department may make any additional investigation it considers necessary.
(6) In any agreement for foster care between a social services official, or other authorized agency acting on the official's behalf, and the foster parents, there shall be a statement of foster parents' rights provided under this section.
(7) If the cause of the removal was allegations of abuse or neglect, and if the final determination is unsubstantiated or no abuse, then the foster child shall be returned to the foster home, and if the foster parents' license has been revoked it shall be reinstated. (This shall be retroactive to cover ongoing cases and cases where the children have not yet been adopted. Proof thereof shall be submitted to the former foster parents.) If the final determination is at risk, then the Department shall submit proof that the problem is continuous, that a corrective action plan will not solve the problem, and that the problem was the fault of
the foster parent, otherwise, the foster child must be returned. If the determination is substantiated or maltreatment did occur, but it was not the fault of the foster parent, then the child shall be returned.
(8) It shall be the presumption of the court that it is in the best interest of the child for the child to remain in a safe and stable placement and maintain established relationships in order to prevent serious emotional problems such as attachment disorders. It is necessary to prevent multiple placements, therefore, it is necessary to give foster parents and relatives visitation. Visitation between a removed foster child and its former foster parents or kinship care providers and their immediate family shall occur bi-weekly for a minimum of one hour if the natural parents still maintain parental rights but if parental rights of the natural parents have been terminated, then visitation shall be weekly for a minimum of two hours.
(9) In the case of children who have no legal parents because the rights of their biological or adoptive parents have been terminated, persons having physical custody, and former relative and foster care providers, shall have the same rights to due process and to custody of the child as a natural parent, unless the persons waive their rights.
(10) It shall be the presumption of the court that it is not in the best interests of the child to remove a child from a home because the child might be abused or neglected. There shall be some element of real danger that a child will be abused if left in the home. This is to protect children from multiple and numerous placements since the constant changing of placements shall be determined to be abuse and neglect which directly causes mental and emotional problems for children, causing attachment disorders, decreased ability to bond and decreased chance of finding a permanent home.
(11) Unsubstantiated allegations shall be immediately and completely expunged from the record, including computer, paper and interoffice memos, to protect the innocent party's constitutional rights and to prevent future investigations from being tainted by the false allegations.
(b) When a child has been placed in a foster care arrangement for a period in excess of eighteen consecutive months and the State Department determines that the placement is a fit and proper place for the child to reside, the foster care arrangement may not be terminated unless such termination is in the best interest of the child and:
(1) The foster care arrangement is terminated pursuant to subsection (a) of this section;
(2) The foster care arrangement is terminated due to the child being returned to his or her parent or parents;
(3) The foster care arrangement is terminated due to the child being united or reunited with a sibling or siblings;
(4) The foster parent or parents agree to the termination in writing;
(5) The foster care arrangement is terminated at the written request of a foster child who has attained the age of fourteen; or
(6) A circuit court orders the termination upon a finding that the State Department has developed a more suitable long-term placement for the child upon hearing evidence in a proceeding brought by the Department seeking removal and transfer. It shall be presumed by the court to be in the best interests of the child to stay in the original placement unless clear and convincing evidence shows otherwise, or the child is being placed with a relative or the foster parents do not wish to adopt or obtain permanent custody. A worker's opinion may not be considered as clear and convincing evidence. The child's opinion shall be sought if the child is five years old or older.
(c) When a child has been residing in a foster home for a period in excess of six consecutive months in total and for a period in excess of thirty days after the parental rights of the child's biological parents have been terminated and the foster parents have not made an application to the Department to establish an intent to adopt the child within thirty days of parental rights being terminated, the State Department may terminate the foster care arrangement if another, more beneficial, long-term placement of the child is developed: Provided, That if the child is twelve years of age or older, the child shall be provided the option of remaining in the existing foster care arrangement if the child so desires and if continuation of the existing arrangement is in the best interest of the child.
(d) When a child is placed into foster care or becomes eligible for adoption and a sibling or siblings have previously been placed in foster care or have been adopted, the Department shall notify the foster parents or adoptive parents of the previously placed or adopted sibling or siblings of the child's availability for foster care placement or adoption to determine if the foster parents or adoptive parents are desirous of seeking a foster care arrangement or adoption of the child. Where a sibling or siblings have previously been adopted, the Department shall also notify the adoptive parents of a sibling of the child's availability for foster care placement in that home and a foster care arrangement entered into to place the child in the home if the adoptive parents of the sibling are otherwise qualified or can become qualified to enter into a foster care arrangement with the Department and if such arrangement is in the best interests of the child: Provided, That the Department may petition the court to waive notification to the foster parents or adoptive parents of the child's siblings. This waiver may be granted, ex parte, upon a showing of compelling circumstances by clear and convincing evidence.
(e) When a child is in a foster care arrangement and is residing separately from a sibling or siblings who are in another foster home or who have been adopted by another family and the parents with whom the placed or adopted sibling or siblings reside have made application to the Department to establish an intent to adopt or to enter into a foster care arrangement regarding a child so that said child may be united or reunited with a sibling or siblings, the State Department shall, upon a determination of the fitness of the persons and household seeking to enter into a foster care arrangement or seek an adoption which would unite or reunite siblings, and if termination and new placement are in the best interests of the children, terminate the foster care arrangement and place the child in the household with the sibling or siblings: Provided, That if the Department is of the opinion based upon available evidence that residing in the same home would have a harmful physical, mental or psychological effect on one or more of the sibling children or if the child has a physical or mental disability which the existing foster home can better accommodate, or if the Department can document that the reunification of the siblings would not be in the best interest of one or all of the children, the State Department may petition the circuit court for an order allowing the separation of the siblings to continue: Provided, however, That if the child is twelve years of age or older, the State Department shall provide the child the option of remaining in the existing foster care arrangement if remaining is in the best interests of the child. In any proceeding brought by the Department to maintain separation of siblings, such separation may be ordered only if the court determines that clear and convincing evidence supports the Department's determination. In any proceeding brought by the Department seeking to maintain separation of siblings, notice shall be afforded, in addition to any other persons required by any provision of this code to receive notice, to the persons seeking to adopt a sibling or siblings of a previously placed or adopted child and said persons may be parties to any such action.
(f) Where two or more siblings have been placed in separate foster care arrangements and the foster parents of the siblings have made application to the Department to enter into a foster care arrangement regarding the sibling or siblings not in their home or where two or more adoptive parents seek to adopt a sibling or siblings of a child they have previously adopted, the Department's determination as to placing the child in a foster care arrangement or in an adoptive home shall be based solely upon the best interests of the siblings. Unless proven otherwise by clear and convincing evidence, sibling rights to a close relationship may not be denied and the court shall presume it to be in the best interests of the children to be placed together.



NOTE: The purpose of this bill is to clarify the procedure for removal of a child from a foster home.

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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