Senate Bill No. 315
(By Senators Bowman and Kimble)
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[Introduced February 6, 1996; referred to the Committee
on the Judiciary.]
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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
sections two and three, article six of said chapter, all
relating to temporary custody of abused or neglected
children; findings; abuse or neglect to include physical,
mental or sexual abuse of another child in the home, risk of
serious emotional or physical harm, negligent entrustment
and abandonment; and admitting hearsay evidence in hearings
on child abuse and neglect.
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 sections two and
three, article six 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; or
(4) A parent, guardian or custodian who negligently entrusts
the care of the child to another, and while in the care of that
individual, the child suffers physical injury or mental or
emotional injury; or
(5) A parent, guardian or custodian who abandons a child for
a period of no less than thirty days, and during that time has no
contact with the child and does nothing to provide for the
physical and mental well-being of the child, when the failure to
provide is not due primarily to a lack of financial means on the
part of the parent, guardian or custodian; or
(6) The physical, mental or sexual abuse of another child
residing in the same home.
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, abandonment, 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, or the negligent entrustment by a parent, guardian
or custodian who is responsible for the child's welfare to an
individual who harms or threatens the health or 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 the 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 a third party.
(e) "Imminent danger to the physical well-being of the child
or risk of serious emotional or physical harm to 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
emotional or physical health or the 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; or
(8) Risk of serious emotional or physical harm to the child,
by a parent, guardian or custodian who has previously placed or
allowed the child to be in a situation which placed him or her at
risk of serious harm.
(f) (1) "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.
(2) "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 the 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) (1) 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 engages in, attempt attempts to engage in, or
knowingly procure procures another person to engage in, with such
the child, notwithstanding the fact that the child may have
willingly participated in such the conduct or the fact that the
child may have suffered no apparent physical injury or mental or emotional injury as a result of such the conduct:
(i) (A) Sexual intercourse; or
(ii) (B) Sexual intrusion; or
(iii) (C) Sexual contact; or
(B) (2) 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 engages in, attempt attempts to engage in, or
knowingly procure procures another person to engage in, with such
the child, notwithstanding the fact that the child may have
consented to such the conduct or the fact that the child may have
suffered no apparent physical injury or mental or emotional
injury as a result of such the conduct:
(i) (A) Sexual intercourse; or
(ii) (B) Sexual intrusion; or
(iii) (C) Sexual contact; or
(C) (3) 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 the 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 the 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) "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.
(q) "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 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 parents, his custodian guardians,
custodians or other persons standing in loco parentis to him or
her, such persons other than the child being hereinafter referred
to as other party or parties, 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. If the other parties
have not retained counsel and the other parties cannot pay for
the services of counsel, the court shall, by order entered of
record, at least ten days prior to the date set for hearing,
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 may the same attorney represent both parents,
guardians or custodians. However, one attorney may represent
both parents, guardians or custodians where both parents, or
guardians or custodians 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,
That where no attorney who has completed this training is
available for such the 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 under this article, any parent,
guardian or custodian may, prior to final hearing, move to be
allowed an improvement period of three to twelve months in order to remedy the circumstances or alleged circumstances upon which
the proceeding is based. The court shall allow one such
improvement period unless it finds compelling circumstances to
justify a denial thereof, but may require temporary custody with
a responsible relative, which may include any parent, guardian,
or other custodian, or the state department or other agency
during the improvement period. An order granting such an
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 under 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 may
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: Provided, That
the court shall permit the admission of hearsay evidence in the
hearing from inherently reliable sources such as law-enforcement
officers, medical personnel, social workers, foster parents and
other parties having contact with the child, regardless of the
child's availability to testify. 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 the child is abused or neglected, which shall be
incorporated into the order of the court. The findings must
shall 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 the 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 the improvement period.
(e) Following the court's determination, it shall be
inquired of the parents, guardians or custodians whether or not
appeal is desired and the response transcribed. A negative
response shall may 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.
§49-6-3. Petition to court when child believed neglected or
abused -- Temporary custody.
(a) Upon the filing of a petition, the court may order that
the child alleged to be an abused or neglected child be delivered
for not more than ten days into the custody of the state
department or a responsible relative, which may include any
parent, guardian or other custodian pending a preliminary
hearing, if it finds that: (1) There exists imminent danger to
the physical well-being of the child or a risk of serious
emotional or physical harm to the child, and (2) there are no
reasonably available alternatives to removal of the child,
including, but not limited to, the provision of medical,
psychiatric, psychological or homemaking services in the child's
present custody: Provided, That where the alleged abusing
person, if known, is a member of a household, the court shall may
not allow placement pursuant to this section of the child or
children in said the home unless the alleged abusing person is or
has been precluded from visiting or residing in said the home by
judicial order. In a case where there is more than one child in
the home, or in the temporary care, custody or control of the alleged offending parent, the petition shall so state, and
notwithstanding the fact that the allegations of abuse or neglect
may pertain to less than all of such the children, each child in
the home for whom relief is sought shall be made a party to the
proceeding. Even though the acts of abuse or neglect alleged in
the petition were not directed against a specific child who is
named in the petition, the court shall order the removal of such
the child, pending final disposition, if it finds that there
exists imminent danger to the physical well-being of the child,
or a risk of serious emotional or physical harm to the child and
a lack of reasonable available alternatives to removal. The
initial order directing such the custody shall contain an order
appointing counsel and scheduling the preliminary hearing, and
upon its service shall require the immediate transfer of custody
of such the child or children to the state department or a
responsible relative which may include any parent, guardian, or
other custodian. The court order shall state: (1) That
continuation in the home is contrary to the best interests of the
child and why; and (2) whether or not the state department made
a reasonable effort to prevent the placement or that the
emergency situation made such efforts unreasonable or impossible.
The order may also direct any party or the department to initiate
or become involved in services to facilitate reunification of the
family.
(b) Whether or not the court orders immediate transfer of custody as provided in subsection (a) of this section, if the
facts alleged in the petition demonstrate to the court that there
exists imminent danger to the child or a risk of serious
emotional or physical harm to the child, the court may schedule
a preliminary hearing giving the respondents at least five days'
actual notice. If the court finds at the preliminary hearing
that there are no alternatives less drastic than removal of the
child and that a hearing on the petition cannot be scheduled in
the interim period, the court may order that the child be
delivered into the temporary custody of the state department or
a responsible relative, which may include any parent, guardian or
other custodian, or another appropriate person or agency for a
period not exceeding sixty days: Provided, That the court order
shall state: (1) That continuation in the home is contrary to
the best interests of the child and state the reasons therefor;
(2) whether or not the department made reasonable efforts to
prevent the child's removal from his or her home; (3) whether or
not the state department made a reasonable effort to prevent the
placement or that the emergency situation made such efforts
unreasonable or impossible; and (4) what efforts should be made
by the department to facilitate the child's return home:
Provided, however, That if the court grants an improvement period
as provided in subsection (b), section two of this article, the
sixty-day limit upon temporary custody may be waived.
(c) If a child or children shall are, in the presence of a child protective service worker of the division of human
services, be in an emergency situation which constitutes an
imminent danger to the physical well-being of the child or
children or a risk of serious emotional or physical harm to the
child or children, as that phrase is defined in section three,
article one of this chapter, and if such the worker has probable
cause to believe that the child or children will suffer
additional child abuse or neglect or will be removed from the
county before a petition can be filed and temporary custody can
be ordered, the worker may, prior to the filing of a petition,
take the child or children into his or her custody without a
court order: Provided, That after taking custody of such the
child or children prior to the filing of a petition, the worker
shall forthwith appear before a circuit judge or a juvenile
referee of the county wherein custody was taken, or if no such
judge or referee be is available, before a circuit judge or a
juvenile referee of an adjoining county, and shall immediately
apply for an order ratifying the emergency custody of the child
pending the filing of a petition. The circuit court of every
county in the state shall appoint at least one of the magistrates
of the county to act as a juvenile referee, who shall serve at
the will and pleasure of the appointing court, and who shall
perform the functions prescribed for such the position by the
provisions of this subsection. The parents, guardians or
custodians of the child or children may be present at the time and place of application for an order ratifying custody, and if
at the time the child or children are taken into custody by the
worker, the worker knows which judge or referee is to receive the
application, the worker shall so inform the parents, guardians or
custodians. The application for emergency custody may be on
forms prescribed by the supreme court of appeals or prepared by
the prosecuting attorney or the applicant, and shall set forth
facts from which it may be determined that the probable cause
described above in this subsection exists. Upon such sworn
testimony or other evidence as the judge or referee deems
sufficient, the judge or referee may order the emergency taking
by the worker to be ratified. If appropriate under the
circumstances, the order may include authorization for an
examination as provided for in subsection (b), section four of
this article. If a referee issues such an order, the referee
shall by telephonic communication have such the order orally
confirmed by a circuit judge of the circuit or an adjoining
circuit who shall on the next judicial day enter an order of
confirmation. If the emergency taking is ratified by the judge
or referee, emergency custody of the child or children shall be
vested in the state department until the expiration of the next
two judicial days, at which time any such child taken into
emergency custody shall be returned to the custody of his or her
parent, guardian or custodian unless a petition has been filed
and custody of the child has been transferred under the provisions of section three of this article.
NOTE: The purpose of this bill is to include physical,
mental or sexual abuse of another child in the home, risk of
serious emotional or physical harm, negligent entrustment and
abandonment in the definition of child abuse and neglect and to
admit hearsay evidence in hearings on child abuse and neglect.
Strike-throughs indicate language that would be stricken
from the present law, and underscoring indicates new language
that would be added.