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Introduced Version Senate Bill 18 History

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sb18 intr
Senate Bill No. 18

(By Senators Boley and Minear)

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[Introduced February 9, 2005; referred to the Committee

on Health and Human Resources; and then to the Committee on 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 rights of foster parents and certain relatives in child adoption procedures.

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.
(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.
(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.
(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.
(g) Notwithstanding any provision of this code to the contrary, foster parents having continuous care of a child for more than twelve months, or four or more months in the case of infants under the age of five years, through an authorized agency, shall, as an interested party, be entitled to intervene in any proceeding involving the custody of the child. Relatives or nonrelatives who have had a formal or an informal custody arrangement of a child, for any amount of time, or relatives who have had a close relationship but have not had physical custody, are entitled, as an interested party, to intervene in any proceeding involving the custody of the child. Relatives must be informed of this right in writing and a waiver of these rights shall be entered into the Court records for parties who are not interested. Any person who coerces another person to waive these rights shall, upon conviction therefor, be guilty of a misdemeanor punishable by up to one year in jail.
(1) A legal presumption exists that it is in the best interest of the child for foster parents, grandparents and relatives who have had custody of the child for eighteen of the last twenty-two months the State has held legal custody, to be permitted as an interested party to intervene in any proceeding involving the custody of the child.
(2) When the family court accepts the surrender of a child for adoption, the court shall inquire whether any foster parent or parents with whom the child resides, or any relative of the child, or other person, seeks to adopt the child. If the person or persons seek to adopt the child, the person or persons may submit, and the court shall accept, a petition for the adoption of the child. The court may order a home study at its discretion. The court shall establish a schedule for completion of the review process and shall promptly set a schedule for completion of the adoption. An authorized agency must make reasonable efforts to obtain a written release from all relatives, foster parents and former foster parents not interested in adopting the child or children. Either the release or sufficient proof that legal notice was made to any interested person who failed to respond to same shall be published to the court.
(3) An authorized agency shall provide written notification to all relatives, and relative care providers or foster parents, that a child is eligible for adoption. The agency shall, additionally, inform all relatives, relative care providers, foster parents or former foster parents who have not completed an application to become an adoptive parent, of the procedure for applying to adopt the child. An authorized agency must make reasonable efforts to obtain a written release from all relatives not interested in adopting the child. Either the release or sufficient proof that legal notice was made to any relative who failed to respond to same shall be published to the court.
(4) The court shall permit the following designated individuals to intervene as a party at any stage of a proceeding: (A) A foster parent with whom the child has resided for a period of at least four months; (B) a grandparent or a relative within the third degree of consanguinity regardless of whether the child ever resided in their home; (C) a relative within the fifth degree of consanguinity with whom the child has resided; (D) a stepparent with whom the child has resided; and (E) a person who wishes to become the child's permanent guardian.
(5) Any adult who, as a relative care provider or foster parent, has cared for a child continuously for a period of twelve months or more, or four or more months in the case of infants under the age of five years and any siblings they may have, may apply to an authorized agency for the placement of the child with them for the purpose of adoption, and if the child is eligible for adoption, the agency shall give preference to their application over other applications.
(6) In evaluating adoption applicants, authorized agencies shall extend preference to relative care providers or foster parents with whom a child has resided for twelve continuous months or, four or more months in the case of infants under the age of five years as well as any siblings they may have.
(7) Any agreement between an authorized agency and foster parents with whom a child or children are to be placed or boarded, shall contain the following language: It is duly acknowledged by the parties hereto that under the law of the State of West Virginia, a relative care provider or a foster parent shall have preference in any proceedings to adopt the child, subject to this agreement, upon the child having been in the custody of the relative care provider or foster parent for a period in excess of twelve months or four or more months in the case of infants under the age of five years and any siblings they may have.
(8) Foster parents or relative care providers in whose home a child has resided, including former foster parents, relative caregivers and caregivers where a child presently resides, shall receive written notice of a hearing to review the foster care status of a child who is eligible for adoption.
(9) An adoption subsidy shall be available for hard to place children. A child is considered hard to place when he or she has been in care with the same foster parent for twelve months or more, or four or more months in the case of infants under the age of five years and has developed a strong attachment to his or her foster parent while in their care, and separation from the foster parent would adversely affect the child's development. It shall be considered to be in the best interests of a child to continue in a placement even when a different placement is viewed us being more suitable.
(10) For purposes of this section, "foster parent" means a resource family providing care of children in state custody. This includes both licensed and unlicensed homes, formal and informal foster care arrangements with grandparents or relatives, both Departmental and privately contracted foster parents and prospective adoptive parents, whether, or not they have signed the adoption agreement.
(11) For purposes of this section, "former foster parents" means foster parents or relative care providers who, within the previous two years, had physical custody of the child for four or more months.



NOTE: This bill enhances rights in child adoption proceedings for foster parents and relatives of the child who have been care providers.

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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