Senate Bill No. 310
(By Senators Burdette, Walker, Lucht and Bailey)
____________
[Introduced February 9, 1994; referred to the Committee
on the Judiciary.]
____________
A BILL to amend and reenact section three, article one, chapter
forty-nine of the code of West Virginia, one thousand nine
hundred thirty-one, as amended; and to amend and reenact
section fourteen, article two of said chapter, all relating
to children in foster care; and creating guidelines by which
siblings who have been separated through foster care and
adoption may be reunited.
Be it enacted by the Legislature of West Virginia:
That section three, article one, chapter forty-nine of the
code of West Virginia, one thousand nine hundred thirty-one, as
amended, be amended and reenacted; and that section fourteen,
article two of said chapter 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.
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) "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) "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 restore such children to their families;
(5) Placing children in suitable adoptive homes when
restoring the children to their families is not possible or
appropriate; and
(6) Assuring the adequate care of children away from their
families when the children have been placed in the custody of the
department or third parties.
(e) "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; or
(2) A combination of physical and other signs indicating a
pattern of abuse which may be medically diagnosed as batteredchild syndrome; or
(3) Nutritional deprivation; or
(4) Abandonment by the parent, guardian or custodian; or
(5) Inadequate treatment of serious illness or disease; or
(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) "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, 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.
(g) (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.
(h) "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.
(i) "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; or
(ii) Sexual intrusion; or
(iii) Sexual contact; or
(B) As to a child who is sixteen years of age or older, anyof 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; or
(ii) Sexual intrusion; or
(iii) Sexual contact; or
(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.
(j) "Sexual contact" means sexual contact as that term is
defined in section one, article eight-b, chapter sixty-one of
this code.
(k) "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 athird 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.
(l) "Sexual intercourse" means sexual intercourse as that
term is defined in section one, article eight-b, chapter sixty-
one of this code.
(m) "Sexual intrusion" means sexual intrusion as that term
is defined in section one, article eight-b, chapter sixty-one of
this code.
(n) "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.
(o) "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.
(p) "Sibling" means a brother, sister, half-brother or half-
sister, notwithstanding whether the relationship exists from
birth to the same parents or parent, or from the fact that some
or all siblings were adopted by the same parents or parent.
ARTICLE 2. STATE RESPONSIBILITIES FOR THE PROTECTION AND CARE
OF CHILDREN.
§49-2-14. Procedure for removal of child from foster home.
(a) If at any time the state department is of the opinion
that a child in a foster care home is lacking the proper care andsupervision, it may terminate the foster care arrangement:
Provided, That unless the foster parents have agreed in writing
or unless the state department is returning a child to its
natural parents or unless the child's existing foster care
arrangement causes the child to be separated from any siblings
who reside in another foster home or who have been adopted by
another family and the purpose of terminating the existing foster
care arrangement is to reunite the child with the siblings, the
state department must apply to the circuit court for termination
of a foster care arrangement involving a child who has resided in
such foster home for a period in excess of eighteen months. In
such a case the court may terminate the foster care arrangement
only if it finds that the child is lacking the proper care and
supervision or a meaningful relationship with the foster parents
has not been established and or that the state department has a
more suitable long-term arrangement for care and custody.
(b) If a child has been residing in a foster home for a
period in excess of twelve months in total or for a period in
excess of six months after the parental rights of the child's
natural parents have been terminated and the foster parents have
not made an application to the department to establish an intent
to adopt the child, the state department may terminate the foster
care arrangement: Provided, That the child be placed into a new
foster care arrangement in which the new foster parents have made
an application with the department to establish an intent to
adopt the child within twelve months of beginning the foster carearrangement: Provided, however, 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.
(c) If a child is in a foster care arrangement and is
residing separately from any siblings who are in another foster
home or who have been adopted by another family and the parents
with which the siblings reside have made an application to the
department to establish an intent to adopt or to enter into a
foster care arrangement with the child so that the child may be
reunited with the siblings, the state department shall terminate
the existing foster care arrangement and place the child in the
home in which said siblings reside: Provided, 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: Provided, however, That if the state
department is of the opinion that residing in the same home would
cause a harmful psychological effect on one or all of the
children as documented by proper medical records or if the child
has a physical or mental disability which the existing foster
home can accommodate and the proposed new foster home cannot
accommodate, or if the department can document that for any other
reason the reunification of the siblings would not be in the best
interest of one or all of the children, the state department may
allow the separation of the siblings to continue.
(d) The state department may temporarily remove a child froma foster home based on an allegation of abuse or neglect,
including sexual abuse, that occurred in the home. If the
allegation is proved to be true, the department shall terminate
the foster care arrangement.
NOTE: The purpose of this bill is to create legislation
which would bring siblings together who have been separated by
being in separate foster care and adoptive homes.
Strike-throughs indicate language that would be stricken
from the present law, and underscoring indicates new language
that would be added.