Senate Bill No. 407
(By Senators Bowman and White)
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[Introduced February 15, 1996; referred to the Committee
on the Judiciary.]
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A BILL to amend and reenact section two, article six, chapter
forty-nine of the code of West Virginia, one thousand nine
hundred thirty-one, as amended, relating to reducing the
preadjudicatory improvement period in cases of child abuse
and neglect; proof; and terms.
Be it enacted by the Legislature of West Virginia:
That section two, article six, chapter forty-nine of the
code of West Virginia, one thousand nine hundred thirty-one, as
amended, be amended and reenacted to read as follows:
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 or her custodian or other
persons standing in loco parentis to him or her, and 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 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,
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 under this article, any parent, or
custodian, guardian for the child, the state or other petitioner,
may, prior to final adjudicatory 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 one improvement period of three months, in
order to remedy the circumstances or alleged circumstances
causing the abuse or neglect. The parent or custodian must show,
by clear and convincing evidence, compelling reasons to justify
why an improvement period should be granted. The lack of
previous social or other services to the parent or custodian may
not be considered compelling reasons to grant an improvement
period, and the improvement period may not be granted unless:
(1) The parent or custodian recognizes the conditions which have
caused the abuse or neglect and/or are jeopardizing the child's
safety; and (2) the parent or custodian establishes a willingness
and ability to participate in the development of a plan for
treatment of the underlying circumstances causing the abuse or
neglect and for protection of the child's safety. The court 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. 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 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.
NOTE: This bill would reduce the preadjudicatory
improvement period in cases of child abuse and neglect. Parents would have to show compelling reasons why the period should be
granted and agree to certain terms.
Strike-throughs indicate language that would be stricken
from the present law, and underscoring indicates new language
that would be added.