Senate Bill No. 739
(By Senator Kessler)
____________
[Introduced February 20, 2006; 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 §49-6-2 and §49-6-5
of said code, all relating to child abuse and neglect; and
effectuating "battered parent" finding in appropriate cases of
domestic violence.
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 §49-6-2 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.
(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 is otherwise without fault for the abuse or neglect
of the child but has been the victim of domestic violence as
defined by section two hundred two, article twenty-seven, chapter
forty-eight of this code.
(c) (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.
(d) (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.
(e) (f) "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.
(f) (g) "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 chapters forty-eight and forty-nine of this code.
(g) (h) "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 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.
(h) (i) (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 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.
(i) (j) "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.
(j) (k) "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.
(k) (l) "Sexual contact" means sexual contact as that term is
defined in section one, article eight-b, chapter sixty-one of this
code.
(l) (m) "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.
(m) (n) "Sexual intercourse" means sexual intercourse as that
term is defined in section one, article eight-b, chapter sixty-one
of this code.
(n) (o) "Sexual intrusion" means sexual intrusion as that term is defined in section one, article eight-b, chapter sixty-one of
this code.
(o) (p) "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.
(p) (q) "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.
(q) (r) "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.
(r) (s) "Siblings" means children who have at least one
biological parent in common or who have been legally adopted by the
same parents or parent.
(s) (t) "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.
ARTICLE 6. PROCEDURE IN CASES OF CHILD NEGLECT OR ABUSE.
§49-6-2. Petition to court when child believed neglected or
abused, right to counsel; improvement period;
hearing; priority of proceeding; transcript.
(a) In any proceeding under the provisions of this article,
the child, his
or her or parents and his or her legally established
custodian or other persons standing in loco parentis to him or her
shall have the right to be represented by counsel at every stage of
the proceedings and shall be informed by the court of their right
to be so represented and that if they cannot pay for the services
of counsel, that counsel will be appointed. Counsel of the child
shall be appointed in the initial order. If the order gives
physical custody of the child to the state, the initial order shall
appoint counsel for the parents or, if the parents are separated or
divorced, the parents or parent or other person or persons standing
in loco parentis who had physical custody of the child for the
majority of the time in the period immediately preceding the
petition:
Provided, That such representation shall only continue
after the first appearance if the parent or other persons standing
in loco parentis cannot pay for the services of counsel. Counsel
for other parties shall only be appointed upon request for appointment of counsel. If the requesting parties have not
retained counsel and cannot pay for the services of counsel, the
court shall, by order entered of record, appoint an attorney or
attorneys to represent the other party or parties and so inform the
parties. Under no circumstances may the same attorney represent
both the child and the other party or parties, nor shall the same
attorney represent both parents or custodians. However, one
attorney may represent both parents or custodians where both
parents or guardians consent to this representation after the
attorney fully discloses to the client the possible conflict and
where the attorney assures the court that she or he is able to
represent each client without impairing her or his professional
judgment; however, if more than one child from a family is involved
in the proceeding, one attorney may represent all the children.
The court may allow to each attorney so appointed a fee in the same
amount which appointed counsel can receive in felony cases. Any
attorney appointed pursuant to this section shall by the first day
of July, one thousand nine hundred ninety-three, and three hours
per year each year thereafter, receive a minimum of three hours of
continuing legal education training on representation of children,
child abuse and neglect:
Provided, however, That where no attorney
who has completed this training is available for such appointment,
the court shall appoint a competent attorney with demonstrated
knowledge of child welfare law to represent the child. Any attorney appointed pursuant to this section shall perform all
duties required as an attorney licensed to practice law in the
State of West Virginia.
(b) In any proceeding brought pursuant to the provisions of
this article, the court may grant any respondent an improvement
period in accord with the provisions of this article. During such
period, the court may require temporary custody with a responsible
person which has been found to be a fit and proper person for the
temporary custody of the child or children or the state department
or other agency during the improvement period. An order granting
such improvement period shall require the department to prepare and
submit to the court a family case plan in accordance with the
provisions of section three, article six-d of this chapter.
(c) In any proceeding pursuant to the provisions of this
article, the party or parties having custodial or other parental
rights or responsibilities to the child shall be afforded a
meaningful opportunity to be heard, including the opportunity to
testify and to present and cross-examine witnesses. The petition
shall not be taken as confessed. A transcript or recording shall
be made of all proceedings unless waived by all parties to the
proceeding. The rules of evidence shall apply. Where relevant,
the court shall consider the efforts of the state department to
remedy the alleged circumstances. At the conclusion of the
hearing, the court shall make a determination based upon the evidence and shall make findings of fact and conclusions of law as
to whether such child is abused or neglected
and, if applicable,
whether the parent, guardian or custodian is a battered parent, all
of which shall be incorporated into the order of the court. The
findings must be based upon conditions existing at the time of the
filing of the petition and proven by clear and convincing proof.
(d) Any petition filed and any proceeding held under the
provisions of this article shall, to the extent practicable, be
given priority over any other civil action before the court, except
proceedings under article two-a, chapter forty-eight of this code
and actions in which trial is in progress. Any petition filed
under the provisions of this article shall be docketed immediately
upon filing. Any hearing to be held at the end of an improvement
period and any other hearing to be held during any proceedings
under the provisions of this article shall be held as nearly as
practicable on successive days and, with respect to said hearing to
be held at the end of an improvement period, shall be held as close
in time as possible after the end of said improvement period and
shall be held within sixty days of the termination of such
improvement period.
(e) Following the court's determination, it shall be inquired
of the parents or custodians whether or not appeal is desired and
the response transcribed. A negative response shall not be
construed as a waiver. The evidence shall be transcribed and made available to the parties or their counsel as soon as practicable,
if the same is required for purposes of further proceedings. If an
indigent person intends to pursue further proceedings, the court
reporter shall furnish a transcript of the hearing without cost to
the indigent person if an affidavit is filed stating that he or she
cannot pay therefor.
§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, child and foster parents in order to improve the
conditions in the parent(s) home; 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 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 or custodian
which prescribe the manner of supervision and care of the child and
which are within the ability of any parent or parents or custodian
to perform;
(5) Upon a finding that the abusing
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
of the
abusing or battered parent or parents 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 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
or and guardianship rights
and
/or responsibilities of the abusing
or battered 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. 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 has subjected the child to aggravated
circumstances which include, but are not limited to, abandonment,
torture, chronic abuse and sexual abuse;
(B) The parent has:
(i) Committed murder of another child of the parent
or the
child's other parent;
(ii) Committed voluntary manslaughter of another child of the
parent
or the child's other parent;
(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 or to another child of the parent
or the
child's other parent; or
(C) The parental rights of the parent to a sibling have been
terminated involuntarily.
(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
or battered adult or adults 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 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 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 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 have abandoned the child;
(5) The abusing parent or parents 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 in fulfilling
their responsibilities to the child;
or
(6) The abusing parent or parents have incurred emotional
illness, mental illness or mental deficiency of such duration or
nature as to render such parent or parents incapable of exercising
proper parenting skills or sufficiently improving the adequacy of
such skills;
or
(7) The battered parent's parenting skills have been seriously
impaired and said person has willfully refused or is presently
unwilling to cooperate in the development of a reasonable treatment
plan or has not adequately responded to or followed through the
recommended and appropriate treatment plan which could have
sufficiently improved the capacity for adequate parental
functioning.
(c) The court may, as an alternative disposition, allow the
parents or custodians an improvement period not to exceed six
months. During this period the court shall require the parent to
rectify the conditions upon which the determination was based. The court may order the child to be placed with the parents, 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 effectuate a "battered
parent" finding in appropriate cases of domestic violence.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.
Email
Webmaster | © 2024 West Virginia Legislature **
