COMMITTEE SUBSTITUTE
FOR
Senate Bill No. 310
(By Senators Burdette, Mr. President, Walker, Lucht and Bailey)
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[Originating in the Committee on the Judiciary;
reported February 23, 1994.]
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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; creating guidelines by which
siblings who have been separated may be united or reunited
in foster homes or adoptive homes; removal of foster
children; procedures; judicial review; and rights of foster
parents and foster children.
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 battered
child 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, 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; 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 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.
(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 termis 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) "Siblings" means children who have at least one
biological parent in common or who have been legally adopted by
the same parents or parent.
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 noticeof 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, 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:
(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 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 aperiod 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, 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.
(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.
(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 siblingsresides 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, terminate the foster care
arrangement and place the child in the household with the sibling
or siblings: 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 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. 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 oradopted 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 two or more of
the children 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 child or children for
which placement or adoption is being considered.