Senate Bill No. 566
(By Senator Love)
[Introduced February 19, 1996; referred to the Committee
on the Judiciary; and then to the Committee on Finance
A BILL to amend chapter forty-nine of the code of West Virginia,
one thousand nine hundred thirty-one, as amended, by adding
thereto a new article, designated article nine, relating to
child welfare generally; foster care; adjudicatory and
dispositional proceedings; creation of office of inspector
general; creation of bureau of quality assurance;
establishing of state-wide abuse and neglect report hotline;
rights of parties; temporary custody hearing; petitions;
guardian ad litem; continuance under supervision; findings
and adjudication; dispositional orders; protective
supervision; order of protection; placement; legal custody
or guardianship; judicial review; duration of wardship; and discharge of proceedings.
Be it enacted by the Legislature of West Virginia:
That chapter forty-nine of the code of West Virginia, one
thousand nine hundred thirty-one, as amended, be amended by
adding thereto a new article, designated article nine, to read as
ARTICLE 9. CHILD WELFARE REFORM ACT.
Unless the context clearly requires a different meaning, as
used in this article the following terms have the meanings
ascribed to them:
(a) "Adjudicatory hearing" means a hearing to determine
whether the allegations of a petition that a minor is abused or
neglected or requires authoritative intervention, are supported
by a preponderance of the evidence or whether the allegations of
a petition that a minor is delinquent are proved beyond a
(b) "Adult" means a person twenty-one years of age or older.
(c) "Agency" means a public or private minor care facility
legally authorized or licensed by this state for placement or
institutional care or for both placement and institutional care.
(d) "Association" means any organization, public or private,
engaged in welfare functions which include services to or on
behalf of children but does not include "agency" as herein
(e) "Court" means the circuit court in a session or division
assigned to hear proceedings under this article.
(f) "Dispositional hearing" means a hearing to determine
whether a minor should be adjudged to be a ward of the court, and
to determine what order of disposition should be made in respect
to a minor adjudged to be a ward of the court.
(g) "Emancipated minor" means any minor sixteen years of age
or over who has been completely or partially emancipated.
(h) "Guardianship of the person" of a minor means the duty
and authority to act in the best interest of the minor, subject
to residual parental rights and responsibilities, to make
important decisions in matters having a permanent effect on the
life and development of the minor and to be concerned with his or
her general welfare. It includes, but is not limited to:
(1) The authority to consent to marriage; to enlistment in
the armed forces of the United States; or to a major medical,
psychiatric or surgical treatment; to represent the minor in legal actions; and to make other decisions of substantial legal
significance concerning the minor;
(2) The authority and duty of reasonable visitation, except
to the extent that these have been limited in the best interest
of the minor by court order;
(3) The rights and responsibilities of legal custody except
where legal custody has been vested in another person or agency;
(4) The power to consent to the adoption of the minor, but
only if expressly conferred on the guardian by order of the
(i) "Juvenile law-enforcement officer" means a sworn
law-enforcement officer who has completed a basic recruit
training course, has been assigned to the position of juvenile
law-enforcement officer by his or her chief law-enforcement
officer and has completed the necessary juvenile officers
training as prescribed by the West Virginia local governmental
law-enforcement officers training board, or in the case of a
state law-enforcement officer, juvenile officer training approved
by the director of the state police.
(j) "Legal custody" means the relationship created by an order of court in the best interest of the minor which imposes on
the custodian the responsibility of physical possession of a
minor and the duty to protect, train and discipline him or her
and to provide him or her with food, shelter, education and
ordinary medical care, except as these are limited by residual
parental rights and responsibilities and the rights and
responsibilities of the guardian of the minor, if any.
(k) "Parent" means the father or mother of a minor and
includes any adoptive parent. It also includes the father whose
paternity is presumed or has been established under the laws of
this state or any other jurisdiction. "Parent" does not include
a person whose rights with respect to the minor have been
terminated in any manner provided by law.
(l) "Residual parental rights and responsibilities" means
those rights and responsibilities remaining with the parent after
the transfer of legal custody or guardianship of the minor,
including, but not limited to: The right to reasonable
visitation, which may be limited in the discretion of the court
based on the best interest of the minor in the discretion of the
court; the right to consent to adoption; the right to determine
the minor's religious affiliation; and the responsibility for his or her support.
(m) "Shelter" means the temporary care of a minor in
physically unrestricting facilities pending court disposition or
execution of court order for placement.
(n) "Station adjustment" means the informal handling of a
minor who is an alleged offender by a juvenile law-enforcement
(o) "Ward of the court" means a minor who is so adjudged and
thus is subject to the dispositional powers of the court under
§49-9-2. Training programs for the provision of foster
adoptive care services.
Training provided to foster parents shall include training
and information on their right to be heard, to bring a mandamus
action and to intervene in juvenile court, and the availability
of the hotline established in this article that foster parents
may use to report incidents of misconduct or violation of rules
by department employees, service providers or contractors.
Moneys for such training programs shall be derived from the
division of human services training fund, hereby created in the
state treasury. Deposits to this fund shall consist of federal financial participation in foster care and adoption care training
programs, public and unsolicited private grants and fees for such
training. Disbursements from the division of human services
training fund shall be made by the department of foster care and
adoptive care training services in accordance with federal
§49-9-3. Inspector general.
(a) The governor shall appoint, and the Senate shall
confirm, an inspector general who shall have the authority to
conduct investigations into allegations of or incidents of
possible misconduct, misfeasance, malfeasance or violations of
rules, procedures or laws by any employee, foster parent, service
provider or contractor of the division of human services. The
inspector general shall make recommendations to the director of
the state division of human services concerning sanctions or
disciplinary actions against division employees or providers of
service under contract to the department. The inspector general
shall be appointed for a term of four years. The inspector
general shall be independent of the operations of the department
and shall report to the director of the division of human
services and perform other duties the director may designate.
(b) The inspector general shall have access to all
information and personnel necessary to perform the duties of the
office. To minimize duplication of efforts the inspector general
shall coordinate his or her activities with the department.
(c) The inspector general shall be the primary liaison
between the department and the state police with regard to
investigations conducted under the inspector general's auspices.
If the inspector general determines that a possible criminal act
has been committed or that special expertise is required in the
investigation, he or she shall immediately notify the state
police. All investigations conducted by the inspector general
shall be conducted in a manner designed to ensure the
preservation of evidence for possible use in a criminal
(d) The inspector general may recommend to the division of
human services, the department of health and human resources or
any other appropriate agency, sanctions to be imposed against
service providers under the jurisdiction of or under contract
with the department for the protection of minors in the custody
or under the guardianship of the department who received services
from those providers. The inspector general may seek the assistance of the attorney general or any of the several state's
attorneys in imposing sanctions.
(e) The inspector general shall at all times be granted
access to any foster home, facility or program operated for or
licensed or funded by the department.
(f) Nothing in this section may limit investigations by the
division of human services that may otherwise be required by law
or that may be necessary in that department's capacity as the
central administrative authority for minor welfare.
(g) The inspector general shall have the power to subpoena
witnesses and compel the production of books and papers pertinent
to an investigation authorized by this article. The power to
subpoena or to compel the production of books and papers,
however, may not extend to the person or documents of a labor
organization or its representatives insofar as the person or
documents of a labor organization relate to the function of
representing an employee subject to investigation under this
article. Any person who fails to appear in response to a
subpoena or to answer any question or produce any books or papers
pertinent to an investigation under this article, except as
otherwise provided in this section, or who knowingly gives false testimony in relation to an investigation under this article is
guilty of a misdemeanor.
(h) The inspector general shall provide to the Legislature
and the governor, not later than the first day of January, of
each year, a summary of reports and investigations made under
this section for the prior fiscal year. The summaries shall
detail the imposition of sanctions and the final disposition of
those recommendations. The summaries may not contain any
confidential or identifying information concerning the subjects
of the reports and investigations. The summaries shall also
include detailed recommended administrative actions and matters
for consideration by the Legislature.
§49-9-4. Foster parent state-wide, toll-free telephone number.
(a) There shall be a state-wide, toll-free telephone number
for foster parents to report to the inspector general of the
department, suspected misconduct, malfeasance, misfeasance or
violations of rules, procedures or laws by department employees,
service providers or contractors that are detrimental to the best
interest of minors receiving care, services or training from or
who were committed to the department. Immediately upon receipt
of a telephone call regarding suspected abuse or neglect of minors, the inspector general shall refer the call to the minor
abuse and neglect hotline or to the state police. A mandated
reporter may not be relieved of his or her duty to report
incidents to the minor abuse and neglect hotline referred to in
this subsection. The inspector general shall also establish
rules and procedures for evaluating reports of suspected
misconduct and violation of rules and for conducting an
investigation of such reports.
(b) The inspector general shall prepare and maintain written
records from the reporting source that shall contain the
following information to the extent known at the time the report
is made: (1) The names and addresses of the minor and the person
responsible for the minor's welfare; (2) the nature of the
misconduct and the detriment caused to the minor; and (3) the
names of the persons or agencies responsible for the alleged
misconduct. The inspector general may include the results of an
investigation in reports compiled under this section. At the
request of the reporting agent, the inspector general shall keep
the identity of the reporting agent strictly confidential from
the operation of the department. Until the inspector general
determines what recommendations shall be made with regard to discipline or sanction of the department employee, service
provider, or contractor, the department shall take whatever steps
are necessary to assure that a person making a report in good
faith under this section is not adversely affected solely on the
basis of having made such report.
§49-9-5. Rights of parties to proceedings.
(a) Except as provided in this section, the minor who is the
subject of the proceeding and his or her parents, guardian, legal
custodian or responsible relative who are parties have the right
to be present, to be heard, to present evidence material to the
proceedings, to cross-examine witnesses, to examine pertinent
court files and records and the right to be represented by
counsel. At the request of any party financially unable to
employ counsel, with the exception of a foster parent permitted
to intervene under subsection (b) of this section, the court
shall appoint the public defender or such other counsel as the
case may require.
No hearing on any petition filed under this article may be
commenced unless the minor who is the subject of the proceeding
is represented by counsel. Each adult respondent shall be
furnished a written "Notice of Rights" at or before the first hearing at which he or she appears.
(b)(1) Though not appointed guardian or legal custodian or
otherwise made a party to the proceeding, any current or
previously appointed foster parent or representative of an agency
or association interested in the minor has the right to be heard
by the court, but does not thereby become a party to the
In addition to the foregoing right to be heard by the court,
any current foster parent of a minor and the agency designated by
the court or the division of human services as custodian of the
minor who has been adjudicated an abused or neglected minor shall
be given adequate notice at all stages of any hearing or
proceeding under this article wherein the custody or status of
the minor may be changed. Such notice shall contain a statement
regarding the nature and denomination of the hearing or
proceeding to be held, the change in custody or status of the
minor sought to be obtained at such hearing or proceeding, and
the date, time and place of such hearing or proceeding. The
department of human services or the licensed minor welfare agency
that has placed the minor with the foster parent shall notify the
clerk of the court of the name and address of the current foster parent. The clerk shall mail the notice by certified mail marked
for delivery to addressee only. The regular return receipt for
certified mail is sufficient proof of service.
Any foster parent who is denied his or her right to be heard
under this section may bring a mandamus action against the court
or any public agency to enforce that right. The mandamus action
may be brought immediately upon the denial of those rights but in
no event may the action be brought later than thirty days after
the foster parent has been denied the right to be heard.
(2) If after an adjudication that a minor is abused or
neglected and an application has been made to restore the minor
to any parent, guardian or legal custodian found by the court to
have caused the neglect or to have inflicted the abuse on the
minor, a foster parent may petition the court to intervene in the
proceeding for the sole purpose of requesting that the minor be
placed with the foster parent, provided that the foster parent:
(1) Is the current foster parent of the minor; or (2) has
previously been a foster parent for the minor for one year or
more, has a foster care license or is eligible for such a
license, and is not the subject of any findings of abuse or
neglect of any minor. The juvenile court may only enter orders placing a minor with a specific foster parent under this
subsection and nothing in this section may be construed to confer
any jurisdiction or authority on the juvenile court to issue any
other orders requiring the appointed guardian or custodian of a
minor to place the minor in a designated foster home or facility.
Nothing in this section may authorize the court to act in any way
less than in a just and speedy manner to reunify families where
it is in the best interest of the minor and, if reunification is
not in the best interest of the minor, to find another permanent
home for the minor. Nothing in this section, or in any order
issued by the court with respect to the placement of a minor with
a foster parent, may impair the ability of the division of human
services, or anyone else authorized to remove a minor from the
home of a foster parent if the division of human services or the
person removing the minor has reason to believe that the
circumstances or conditions of the minor are such that continuing
in the residence or care of the foster parent present an imminent
risk of harm to the life or health of the minor.
(c) The parties are entitled to written notice of all
proceedings. At the first appearance before the court by the
minor, his or her parents, guardian, custodian or responsible relative, the court shall explain the nature of the proceedings
and inform the parties of their rights under this section. Upon
an adjudication of wardship of the court, the court shall inform
the parties of their right to appeal therefrom as well as from
any other final judgment of the court.
(d) No sanction may be applied against the minor who is the
subject of the proceedings by reason of his or her refusal or
failure to testify in the course of any hearing held prior to
(e) In the discretion of the court, the minor may be
excluded from any part of a dispositional hearing and, with the
consent of the parent or parents, guardian, counsel or a guardian
ad litem, from any part of an adjudicatory hearing.
(f) The general public including the news media shall be
excluded from any hearing. The victim, and any representatives
of agencies and associations who in the opinion of the court have
a direct interest in the case or in the work of the court, shall
be admitted to the hearing. However, the court may, for the
minor's protection and for good cause shown, prohibit any person
or agency present in court from disclosing the minor's identity.
§49-9-6. Temporary custody hearing.
At the appearance of the minor at the temporary custody
hearing, all witnesses present shall be examined before the court
in relation to any matter connected with the allegations made in
(a) If the court finds that there is not probable cause to
believe that the minor is abused or neglected it shall release
the minor and dismiss the petition.
(b) If the court finds that there is probable cause to
believe that the minor is abused or neglected, the minor, his or
her parent, guardian, custodian and other persons able to give
relevant testimony shall be examined before the court. The
department of human services shall give testimony concerning
indicated reports of abuse and neglect, gathered through the
central registry, involving the minor's parent, guardian or
custodian. After such testimony, the court may, if it is in the
best interest of the minor, enter an order that the minor shall
be released upon the request of a parent, guardian or custodian
if the parent, guardian or custodian appears to take custody.
Custodian shall include any agency of the state which has been
given custody or wardship of the minor. If it is in the best
interest of the minor, the court may also prescribe shelter care and order that the minor be kept in a suitable place designated
by the court or in a shelter care facility designated by the
division of human services or a licensed minor welfare agency.
In determining that it is in the best interest of the minor to
prescribe shelter care, the court must find that it is a matter
of immediate and urgent necessity for the protection of the minor
or of the person or property of another that the minor be placed
in a shelter care facility or that he or she is likely to flee
the jurisdiction of the court, and must further find that
reasonable efforts have been made or that, in the best interest
of the minor, no efforts reasonably can be made to prevent the
necessity of removal of the minor from his or her home. The
court shall require documentation from the division of human
services as to the reasonable efforts that were made to prevent
the necessity of removal of the minor from his or her home or the
reasons why no efforts reasonably could be made to prevent the
necessity of removal. When a minor is placed in the home of a
close relative, the division of human services shall complete a
preliminary background review of the members of the minor's
custodian's household within ninety days of that placement, and
the information will be evaluated within one hundred eighty days. If the minor is ordered to be placed in a shelter care facility
of the division of human services or a licensed minor welfare
agency, the court shall, upon request of the appropriate
department or other agency, appoint the division of human
services director or other appropriate agency executive temporary
custodian of the minor and the court may enter such other orders
related to the temporary custody as it deems fit and proper,
including the provision of services to the minor or his or her
family to ameliorate the causes contributing to the finding of
probable cause or to the finding of the existence of immediate
and urgent necessity. Acceptance of services may not be
considered an admission of any allegation in a petition made
pursuant to this article, nor may a referral of services be
considered as evidence in any proceeding pursuant to this
article, except where the issue is whether the department has
made reasonable efforts to reunite the family. In making its
findings that it is in the best interest of the minor to
prescribe shelter care, the court shall state in writing: (1) Its
findings concerning the immediate and urgent necessity for the
protection of the minor or of the person or property of another;
and (2) the reasonable efforts that were made to prevent the removal of the minor from his or her home or the reasons why no
efforts reasonably could be made to prevent the removal of the
minor from his or her home. The parents, guardian, custodian,
temporary custodian and minor shall each be furnished a copy of
the written findings. The temporary custodian shall maintain a
copy of the court order and written findings in the case record
for the minor. The order together with the court's findings of
fact in support thereof shall be entered of record in the court.
Once the court finds that it is a matter of immediate and
urgent necessity for the protection of the minor that the minor
be placed in a shelter care facility, the minor may not be
returned to the parent, custodian or guardian until the court
finds that such placement is no longer necessary for the
protection of the minor.
(c) If prior to the shelter care hearing for a minor the
moving party is unable to serve notice on the opposing party, the
shelter care hearing may proceed ex parte. A shelter care order
from an ex parte hearing shall be endorsed with the date and hour
of issuance and shall be filed with the clerk's office and
entered of record. The order shall expire after ten days from
the time it is issued unless before its expiration it is renewed at a hearing upon appearance of the opposing party, or upon an
affidavit of the moving party as to all diligent efforts to
notify the opposing party by notice as herein prescribed. The
notice prescribed shall be in writing and shall be personally
delivered to the minor or the minor's attorney and to the last
known address of the other person or persons entitled to notice.
The notice shall also state the nature of the allegations, the
nature of the order sought by the state, including whether
temporary custody is sought, and the consequences of failure to
appear. The notice shall explain the rights of the parties and
the procedures to vacate or modify a shelter care order as
provided in this section. The notice for a shelter care hearing
shall be substantially as follows:
NOTICE TO PARENTS AND CHILDREN OF SHELTER CARE HEARING
On ............ at ............, before the Honorable
..............., (address):..................., the state of West
Virginia will present evidence: (1) That (name of child)
................ is abused or neglected for the following
reasons: .............................................; and (2)
that there is "immediate and urgent necessity" to remove the
child from the responsible relative.
YOUR FAILURE TO APPEAR AT THE HEARING MAY RESULT IN
PLACEMENT OF THE CHILD IN FOSTER CARE UNTIL A HEARING CAN BE
HELD. A hearing may not be held for up to ninety days.
At the shelter care hearing, parents have the following
(1) To ask the court to appoint a lawyer if they cannot
(2) To ask the court to continue the hearing to allow them
time to prepare;
(3) To present evidence concerning:
(A) Whether or not the child was abused or neglected;
(B) Whether or not there is "immediate and urgent necessity"
to remove the child from his or her home (including: The parent's
ability to care for the minor, conditions in the home and
alternative means of protecting the minor other than removal);
(C) What is in the best interest of the minor; and
(D) To cross examine the state's witnesses.
(d) The notice for rehearing shall be substantially as
NOTICE OF PARENT'S AND CHILD'S RIGHTS
TO REHEARING ON TEMPORARY CUSTODY
If you were not present at and did not have adequate notice
of the shelter care hearing at which temporary custody of
.........was awarded to ........., you have the right to request
a full rehearing on whether the state should have temporary
custody of ......... To request this rehearing, you must file
with the clerk of the juvenile court (address):.................,
in person or by mailing a statement which sets forth the
(1) That you were not present at the shelter care hearing;
(2) That you did not get adequate notice including an
explanation of how the notice was inadequate;
(3) Your signature; and
(4) Your signature must be notarized.
The rehearing shall be scheduled within one day of your
filing this statement.
At the rehearing, your rights are the same as at the initial
shelter care hearing. The enclosed notice explains those rights.
(e) At the shelter care hearing, a children has the
(1) To have a guardian ad litem appointed;
(2) To be declared competent as a witness and to present testimony concerning:
(A) Whether he or she is abused or neglected;
(B) Whether there is "immediate and urgent necessity" to be
removed from home;
(C) What is in his or her best interest.
(3) To cross examine witnesses for other parties; and
(4) To obtain an explanation of any proceedings and orders
of the court.
(f) If the parent, guardian, legal custodian, responsible
relative, minor of age eight or over or counsel of the minor did
not have actual notice of or was not present at the shelter care
hearing, he or she may file an affidavit setting forth these
facts, and the clerk shall set the matter for rehearing not later
than forty-eight hours, excluding Sundays and legal holidays,
after the filing of the affidavit. At the rehearing, the court
shall proceed in the same manner as upon the original hearing.
(g) Only when there is reasonable cause to believe that the
minor taken into custody is delinquent may the minor be kept or
detained in a detention home or county or regional jail. This
subsection may not be construed to limit subsection (h) of this
(h) No minor under sixteen years of age may be confined in
a jail or any place ordinarily used for the confinement of adult
prisoners in a police station. Minors under seventeen years of
age must be kept separate from confined adults and may not at any
time be kept in the same cell, room or yard with any adult
imprisoned in this state.
(i) If the minor is not brought before a judicial officer
within twenty-four hours, the minor shall immediately be released
(j) If neither the parent, guardian or custodian appears
within twenty-four hours to take custody of a minor released upon
request pursuant to subsection (b) of this section, then the
clerk of the court shall set the matter for rehearing not later
than seven days after the original order and shall issue a
summons directed to the parent, guardian or custodian to appear.
At the same time the probation department shall prepare a report
on the minor. If a parent, guardian or custodian does not appear
at the rehearing, the judge may enter an order prescribing that
the minor be kept in a suitable place designated by the division
of human services or a licensed minor welfare agency.
(k) Notwithstanding any other provision of this section any interested party, including the state, the temporary custodian,
an agency providing services to the minor or family of the minor,
foster parent, or any of their representatives, on notice to all
parties entitled to notice, may file a motion that it is in the
best interest of the minor to modify or vacate a temporary
custody order on any of the following grounds:
(1) It is no longer a matter of immediate and urgent
necessity that the minor remain in shelter care;
(2) There is a material change in the circumstances of the
natural family from which the minor was removed;
(3) A person not a party to the alleged abuse or neglect,
including a parent, relative or legal guardian, is capable of
assuming temporary custody of the minor; or
(4) Services provided by the division of human services or
a minor welfare agency or other service provider have been
successful in eliminating the need for temporary custody.
In ruling on the motion, the court shall determine whether
it is in the best interest of the minor to modify or vacate a
temporary custody order.
The clerk shall set the matter for hearing not later than
fourteen days after such motion is filed. In the event that the court modifies or vacates a temporary custody order but does not
vacate its finding of probable cause, the court may order that
appropriate services be continued or initiated in behalf of the
minor and his or her family.
§49-9-7. Petition; supplemental petitions.
(a) Any adult person, agency or association may file, or the
court on its own motion in the best interest of the minor may
direct the filing through the state's attorney of a petition in
respect of a minor under this article. The petition and all
subsequent court documents shall be entitled "In the interest of
........., a minor."
(b) The petition shall be verified but the statements may be
made upon information and belief. The petition shall allege
whether the minor is abused or neglected, and set forth the
following: (1) Facts sufficient to support the relief requested;
(2) the name, age and residence of the minor; (3) the names and
residences of his or her parents; (4) the name and residence of
his or her legal guardian or the person or persons having custody
or control of the minor, or of the nearest known relative if no
parent or guardian can be found; and (5) if the minor upon whose
behalf the petition is brought is sheltered in custody, the date on which such temporary custody was ordered by the court or the
date set for a temporary custody hearing. If any of the facts
herein required are not known by the petitioner, the petition
shall so state.
(c) The petition must allege that it is in the best interest
of the minor and of the public that he or she be adjudged a ward
of the court and may pray generally for relief available under
this article. The petition need not specify any proposed
disposition following adjudication of wardship.
(d) If the person with power to consent to adoption of the
minor seeks to appoint a guardian, the petition shall so state.
(e) At any time before dismissal of the petition or before
final closing and discharge of the proceedings, one or more
supplemental petitions in the best interest of the minor may be
filed concerning the same minor. The supplemental petition shall
specify sufficient facts in support of the relief requested.
§49-9-8. Date for adjudicatory hearing.
(a) Purpose and policy. -- The Legislature recognizes that
serious delay in the adjudication of abuse or neglect cases can
cause grave harm to the minor and the family and that it
frustrates the best interest of the minor and the effort to establish permanent homes for minors in need. The purpose of
this section is to insure that, consistent with the Federal
Adoption Assistance and Minor Welfare Act of 1980, Public Law
96-272, as amended, and the intent of this article, the state of
West Virginia will act in a just and speedy manner to determine
the best interest of the minor, including providing for the
safety of the minor, identifying families in need, reunifying
families where it is in the best interest of the minor and, if
reunification is not in the best interest of the minor, finding
another home for the minor.
(b) When a petition is filed alleging that the minor is
abused or neglected, an adjudicatory hearing shall be held within
ninety days of the date of service of process upon the minor,
parents, any guardian and any legal custodian.
(c) Upon written motion of a party filed not later than ten
days prior to hearing, or upon the court's own motion and only
for good cause shown, the court may continue the hearing for a
period not to exceed thirty days, and only if the continuance is
in the best interest of the minor. When the court grants a
continuance, it shall enter specific factual findings to support
its order, including factual findings supporting the court's determination that the continuance is in the best interest of the
minor. Only one such continuance may be granted. A period of
continuance for good cause as described in this section shall
temporarily suspend as to all parties, for the time of the delay,
the period within which a hearing must be held. On the day of
the expiration of the delay, the period shall continue at the
point at which it was suspended.
The term "good cause" as applied in this section shall be
strictly construed. Neither stipulation by counsel nor the
convenience of any party constitutes good cause. If the
adjudicatory hearing is not heard within the time limits required
by subsection (b) or (c) of this section, upon motion by any
party the petition shall be dismissed without prejudice.
(d) The time limits of this section may be waived only by
consent of all parties and approval by the court.
(e) For all cases filed before the first day of July, one
thousand nine hundred ninety-five, an adjudicatory hearing must,
be held within one hundred eighty days of the first day of July,
one thousand nine hundred ninety-five.
§49-9-9. Guardian ad litem.
(a) Immediately upon the filing of a petition alleging that the minor is abused or neglected the court shall appoint a
guardian ad litem for the minor if:
(1) Such petition alleges that the minor is an abused or
neglected minor; or
(2) Such petition alleges that charges alleging the
commission of any sex offense contained in this code have been
filed against a defendant in any court and that the minor is the
alleged victim of the offense of defendant.
Unless the guardian ad litem appointed pursuant to this
section is an attorney-at-law the guardian ad litem shall be
represented in the performance of his or her duties by counsel.
The guardian ad litem shall represent the best interest of the
minor and shall present recommendations to the court consistent
with that duty.
(b) Before proceeding with the hearing, the court shall
appoint a guardian ad litem for the minor if:
(1) No parent, guardian, custodian or relative of the minor
appears at the first or any subsequent hearing of the case;
(2) The petition prays for the appointment of a guardian
with power to consent to adoption; or
(3) The petition for which the minor is before the court resulted from a report made that the minor was abused or
(c) The court may appoint a guardian ad litem for the minor
whenever it finds that there may be a conflict of interest
between the minor and his or her parents or other custodian or
that it is otherwise in the minor's best interest to do so.
(d) Unless the guardian ad litem is an attorney, he or she
shall be represented by counsel.
(e) The reasonable fees of a guardian ad litem appointed
under this section shall be fixed by the court and charged to the
parents of the minor, to the extent they are able to pay. If the
parents are unable to pay those fees, they shall be paid from the
general fund of the county.
Whenever the petition alleges that the minor is neglected or
abused because of physical abuse inflicted by the parent or
guardian the guardian ad litem must have at least one
face-to-face interview with the minor before the beginning of the
(f) A guardian ad litem appointed under this section, shall
receive copies of any classified report of minor abuse or neglect
made in which the minor who is the subject of the report is also the minor for whom the guardian ad litem is appointed under this
§49-9-10. Continuance under supervision.
(a) The court may enter an order of continuance: (1) Upon an
admission or stipulation by the appropriate party or the minor of
the facts supporting the petition and before proceeding to
findings and adjudication or after hearing the evidence at the
adjudicatory hearing but before noting in the minutes of
proceeding a finding of whether or not the minor is abused or
neglected; and (2) in the absence of objection made in open court
by the minor, his or her parent, guardian, custodian, responsible
relative, defense attorney or the state's attorney.
(b) If the minor, his or her parent, guardian, custodian,
responsible relative, defense attorney or the state's attorney
objects in open court to any such continuance and insists upon
proceeding to findings and adjudication, the court shall so
(c) Nothing in this section may limit the power of the court
to order a continuance of the hearing for the production of
additional evidence or for any other proper reason.
(d) When a hearing where a minor is alleged to be abused or neglected is continued pursuant to this section, the court may
permit the minor to remain in his or her home if the court
determines and makes written factual findings that it is in the
minor's best interests to do so, subject to such conditions
concerning his or her conduct and supervision as the court may
require by order.
(e) If a petition is filed charging a violation of a
condition of the continuance under supervision, the court shall
conduct a hearing. If the court finds that such condition of
supervision has not been fulfilled the court may proceed to
findings, adjudication and disposition. The filing of a petition
for violation of a condition of the continuance under supervision
shall toll the period of continuance under supervision until the
final determination of the charge and the term of the continuance
under supervision shall not run until the hearing and disposition
of the petition for violation; provided where the petition
alleges conduct that does not constitute a criminal offense, the
hearing must be held within fifteen days of the filing of the
petition unless a delay in such hearing has been occasioned by
the minor, in which case the delay shall continue the tolling of
the period of continuance under supervision for the period of such delay.
§49-9-11. Findings and adjudication.
(a) After hearing the evidence the court shall make and note
in the minutes of the proceeding a finding of whether or not the
minor is abused, neglected or dependent. If it finds that the
minor is not such a person, the court shall order the petition
dismissed and the minor discharged.
(b) If the court finds and notes in its findings that the
minor is either abused or neglected or dependent, the court shall
then set a time not later than thirty days after the entry of the
finding for a dispositional hearing at which hearing the court
shall determine whether it is in the best interest of the minor
and the public that he or she be made a ward of the court. To
assist the court in making this and other determinations at the
dispositional hearing, the court may order that an investigation
be conducted and a dispositional report be prepared concerning
the minor's physical and mental history and condition, family
situation and background, economic status, education, occupation,
history of delinquency or criminality, personal habits and any
other information that may be helpful to the court. The
dispositional hearing may be continued once for a period not to exceed thirty days if the court finds that such continuance is
necessary to complete the dispositional report.
If the court finds that the minor is abused, neglected or
dependent, the court shall then find whether such abuse, neglect
or dependency is the result of physical abuse to the minor
inflicted by a parent, guardian or legal custodian and such
finding shall appear in the order of the court.
(c) The time limits of this section may be waived only by
consent of all parties and approval by the court, as determined
to be in the best interest of the minor.
(d) For all cases adjudicated prior to the first day of
July, one thousand nine hundred ninety-five, for which no
dispositional hearing has been held prior to that date, a
dispositional hearing shall be held within ninety days of the
first day of July, one thousand nine hundred ninety-five.
§49-9-12. Dispositional hearing; evidence; continuance.
(a) At the dispositional hearing, the court shall determine
whether it is in the best interest of the minor and the public
that he or she be made a ward of the court and, if he or she is
to be made a ward of the court, the court shall determine the
proper disposition best serving the interest of the minor and the public. All evidence helpful in determining these questions,
including oral and written reports, may be admitted and may be
relied upon to the extent of its probative value, even though not
competent for the purposes of the preadjudicatory hearing.
Written notice must be given to all parties prior to
proceeding to a dispositional hearing. Before making an order of
disposition, the court shall advise the state's attorney, the
parents, guardian, custodian or responsible relative or their
attorneys of the factual contents and the conclusions of the
reports prepared for the use of the court and considered by it,
and afford fair opportunity, if requested, to controvert them.
The court may order, however, that the documents containing such
reports need not be submitted to inspection, or that sources of
confidential information need not be disclosed except to the
attorneys for the parties. Factual contents, conclusions,
documents and sources disclosed by the court under this paragraph
may not be further disclosed without the express approval of the
court pursuant to an in camera hearing.
(c)A record of a prior continuance under supervision
whether successfully completed or not, is admissible at the
(d)On its own motion or that of the state's attorney, a
parent, guardian, custodian, responsible relative or their
attorney, the court may adjourn the hearing for a reasonable
period to receive reports or other evidence if the adjournment is
in the best interest of the minor. In scheduling investigations
and hearing, the court shall give priority to proceedings in
which a minor has been removed from his or her home before an
order of disposition has been made.
§49-9-13. Kinds of dispositional orders.
(a)The following kinds of orders of disposition may be made
in respect of wards of the court:
(1)A minor found to be neglected or abused may be: (A)
Continued in the custody of his or her parents, guardian or legal
custodian; (B) placed in the custody of the department of health
and human resources; or (C) ordered partially or completely
However, in any case in which a minor is found by the court
to be neglected or abused, custody of the minor may not be
restored to any parent, guardian or legal custodian found by the
court to have caused the neglect or to have inflicted the abuse
on the minor, unless it is in the best interest of the minor, until such time as a hearing is held on the issue of the best
interest of the minor and the fitness of such parent, guardian or
legal custodian to care for the minor and the court enters an
order that such parent, guardian or legal custodian is fit to
care for the minor.
(2)A minor found to be dependent may be: (A) Placed in
foster care; or (B) ordered partially or completely emancipated.
Custody of the minor may not be restored to any parent,
guardian or legal custodian found by the court to have inflicted
physical abuse on the minor until such time as a hearing is held
on the issue of the fitness of such parent, guardian or legal
custodian to care for the minor and the court enters an order
that such parent, guardian or legal custodian is fit to care for
(b)Any order of disposition may provide for protective
(c)Unless the order of disposition expressly so provides,
it may not operate to close proceedings on the pending petition,
but is subject to modification until final closing and discharge
of the proceedings.
(d)In addition to any other order of disposition, the court may order any minor adjudicated neglected with respect to his or
her own injurious behavior to make restitution, in monetary or
nonmonetary form. The parent, guardian or legal custodian of the
minor may pay some or all of such restitution on the minor's
(e)Any order for disposition where the minor is committed
or placed in foster care shall provide for the parents or
guardian of the estate of such minor to pay to the legal
custodian or guardian of the minor such sums as are determined by
the custodian or guardian of the minor as necessary for the
minor's needs. Such payments may not exceed the amount set by
the court, in its discretion.
(f)Whenever the order of disposition requires the minor to
attend school or participate in a program of training, the truant
officer or designated school official shall regularly report to
the court if the minor is a chronic or habitual truant.
§49-9-14. Protective supervision.
If the order of disposition, following a determination of
the best interest of the minor, releases the minor to the custody
of his or her parents, guardian or legal custodian, or continues
him or her in such custody, the court may, if it is in the best interest of the minor, place the person having custody of the
minor under supervision of the probation office. Rules or
orders of court shall define the terms and conditions of
protective supervision, which may be modified or terminated when
the court finds that the best interest of the minor and the
public will be served thereby.
§49-9-15. Order of protection.
(a)The court may make an order of protection in assistance
of or as a condition of any other order authorized by this code.
The order of protection shall be based on the best interest of
the minor and may set forth reasonable conditions of behavior to
be observed for a specified period. Such an order may require a
(1)To stay away from the home or the minor;
(2)To permit a parent to visit the minor at stated periods;
(3)To abstain from offensive conduct against the minor, his
or her parent or any person to whom custody of the minor is
(4)To give proper attention to the care of the home;
(5)To cooperate in good faith with an agency to which
custody of a minor is entrusted by the court or with an agency or association to which the minor is referred by the court;
(6) To prohibit and prevent any contact whatsoever with the
minor by a specified individual or individuals who are alleged in
either a criminal or juvenile proceeding to have caused injury to
the minor or a sibling of the minor;
(7) To refrain from acts or omissions that tend to make the
home not a proper place for the minor.
(b) The court shall enter an order of protection to prohibit
and prevent any contact between a minor or a sibling of a minor
and any person named in a petition seeking an order of protection
who has been convicted of battery or has been convicted of an
offense that resulted in the death of a minor, or has violated a
previous order of protection under this section.
(c) When the court issues an order of protection against any
person as provided by this section, the court shall direct a copy
of such order to the sheriff of that county. The sheriff shall
furnish a copy of the order of protection to the division of
public safety within twenty-four hours of receipt, in the form
and manner required by the division. The West Virginia state
police shall maintain a complete record and index of such orders
of protection and make this data available to all local law-enforcement agencies.
(d) After notice and opportunity for hearing afforded to a
person subject to an order of protection, the order may be
modified or extended for a further specified period or both or
may be terminated if the court finds that the best interest of
the minor and the public will be served thereby.
(e) An order of protection may be sought at any time during
the course of any proceeding conducted pursuant to this article
if such an order is in the best interest of the minor. Any
person against whom an order of protection is sought may retain
counsel to represent him or her at a hearing, and has the right
to be present at the hearing, to be informed prior to the hearing
in writing of the contents of the petition seeking a protective
order and of the date, place and time of such hearing and to
cross examine witnesses called by the petitioner and to present
witnesses and argument in opposition to the relief sought in the
(f) Diligent efforts shall be made by the petitioner to
serve any person or persons against whom any order of protection
is sought with written notice of the contents of the petition
seeking a protective order and of the date, place and time at which the hearing on the petition is to be held. When a
protective order is being sought in conjunction with a temporary
custody hearing, if the court finds that the person against whom
the protective order is being sought has been notified of the
hearing or that diligent efforts have been made to notify such
person, the court may conduct a hearing. If a protective order
is sought at any time other than in conjunction with a temporary
custody hearing, the court may not conduct a hearing on the
petition in the absence of the person against whom the order is
sought unless the petitioner has notified such person by personal
service at least three days before the hearing or has sent
written notice by first class mail to such person's last known
address at least five days before the hearing.
(g) A person against whom an order of protection is being
sought who is neither a parent, guardian, legal custodian or
responsible relative does not have a right to appointed counsel
or to be present at any hearing other than the hearing in which
the order of protection is being sought or a hearing directly
pertaining to that order. Unless the court orders otherwise,
such person does not have a right to inspect the court file.
(h) All protective orders entered under this section shall be in writing. Unless the person against whom the order was
obtained was present in court when the order was issued, the
sheriff, other law-enforcement officials or special process
server shall promptly serve that order upon that person and file
proof of such service, in the manner provided for service of
process in civil proceedings. The person against whom the
protective order was obtained may seek a modification of the
order by filing a written motion to modify the order within seven
days after actual receipt by the person of a copy of the order.
Any modification of the order granted by the court must be
determined to be consistent with the best interest of the minor.
§49-9-16. Placement; legal custody or guardianship.
(a) If the court finds that the parents, guardian or legal
custodian of a minor adjudged a ward of the court are unfit or
are unable, for some reason other than financial circumstances
alone, to care for, protect, train or discipline the minor or are
unwilling to do so, and that it is in the best interest of the
minor to take him or her from the custody of his or her parents,
guardian or custodian, the court may:
(1) Place him or her in the custody of a suitable relative
or other person;
(2) Place him or her under the guardianship of a probation
(3) Commit him or her to an agency for care or placement,
except an institution under the authority of the division of
(4) Commit him or her to the division of human services for
care and service. The division shall be given due notice of the
pendency of the action and the director of the division of human
services shall be appointed guardian of the minor. Whenever the
division discharges a minor from its care and service, the
director shall petition the court for an order terminating
guardianship. The director may designate one or more other
officers of the division, appointed as division officers by
administrative order of the division director, authorized to
affix the signature of the director to documents affecting the
director-ward relationship of the minor for whom he or she has
been appointed guardian at such times as he or she is unable to
perform the duties of his or her office. The signature
authorization shall include, but not be limited to, matters of
consent of marriage, enlistment in the armed forces, legal
proceedings, adoption, major medical and surgical treatment and application for driver's license. Signature authorizations made
pursuant to the provisions of this paragraph shall be filed with
the secretary of state and the secretary of state shall provide
upon payment of the customary fee, certified copies of the
authorization to any court or individual who requests a copy.
In making a determination under this section, the court
shall also consider whether, based on the best interest of the
minor, appropriate services aimed at family preservation and
family reunification have been unsuccessful in rectifying the
conditions that have led to a finding of unfitness or inability
to care for, protect, train or discipline the minor, or whether,
based on the best interest of the minor, no family preservation
or family reunification services would be appropriate.
(b) When making a placement, the court, wherever possible,
shall select a person holding the same religious belief as that
of the minor or a private agency controlled by persons of like
religious faith of the minor. In addition, whenever alternative
plans for placement are available, the court shall ascertain and
consider, to the extent appropriate in the particular case, the
views and preferences of the minor.
(c) When a minor is placed with a suitable relative or other person, the court shall appoint him or her the legal custodian or
guardian of the minor. When a minor is committed to any agency,
the court shall appoint the proper officer or representative
thereof as legal custodian or guardian of the minor. No guardian
of the person may consent to adoption of the minor unless that
authority is conferred upon him or her by law. An agency whose
representative is appointed guardian of the person or legal
custodian of the minor may place him or her in any minor care
facility, but the facility must be licensed or approved by the
department of health and human resources as meeting the standards
established for such licensing.
(d) No placement by any probation officer or agency whose
representative is appointed guardian of the person or legal
custodian of a minor may be made in any out-of-state minor care
facility unless it complies with the Interstate Compact on the
Placement of Minors.
(e) The clerk of the court shall issue to the legal
custodian or guardian of the minor a certified copy of the order
of court, as proof of his or her authority. No other process is
necessary as authority for the keeping of the minor.
(f) Custody or guardianship granted under this section continues until the court otherwise directs, but not after the
minor reaches the age of nineteen years.
§49-9-17. Court review.
(a) The court may require any legal custodian or guardian of
the person appointed under this article to report periodically to
the court or may cite him or her into court and require him or
her or his or her agency, to make a full and accurate report of
his or her or its doings in behalf of the minor. The custodian
or guardian, within ten days after the citation, shall make the
report, either in writing verified by affidavit or orally under
oath in open court or otherwise as the court directs. Upon the
hearing of the report the court may remove the custodian or
guardian and appoint another in his or her stead or restore the
minor to the custody of his or her parents or former guardian or
custodian. However, custody of the minor may not be restored to
any parent, guardian or legal custodian in any case in which the
minor is found to be neglected or abused, unless it is in the
best interest of the minor, and if such neglect or abuse is found
by the court to be the result of physical abuse inflicted on the
minor by such parent, guardian or legal custodian, until such
time as an investigation is made and a hearing is held on the issue of the fitness of such parent, guardian or legal custodian
to care for the minor and the court enters an order that such
parent, guardian or legal custodian is fit to care for the minor.
(b) A guardian or custodian appointed by the court pursuant
to this article shall file updated case plans with the court
every six months. Every agency which has guardianship of a minor
shall file a supplemental petition for court review and further
order, within eighteen months of an order, for shelter care and
each eighteen months thereafter. Such petition shall state facts
relative to the minor's present condition of physical, mental and
emotional health as well as facts relative to his or her present
custodial or foster care. The petition shall be set forth for
hearing and the clerk shall mail ten days' notice of the hearing
by certified mail, return receipt requested, to the person or
agency having the physical custody of the minor, to the minor and
other interested parties unless a written waiver of notice is
filed with the petition.
Rights of wards of the court under this article are
enforceable against any public agency by complaints for relief by
mandamus filed in any proceedings brought under this article.
(c) The minor or any person interested in the minor may apply to the court for a change in custody of the minor and the
appointment of a new custodian or guardian of the person or for
the restoration of the minor to the custody of his or her
parents or former guardian or custodian. However, custody of the
minor may not be restored to any parent, guardian or legal
custodian in any case in which the minor is found to be neglected
or abused, unless it is in the best interest of the minor, and if
such neglect or abuse is found by the court to be the result of
physical abuse inflicted on the minor by such parent, guardian or
legal custodian, until such time as an investigation is made and
a hearing is held on the issue of the fitness of such parent,
guardian or legal custodian to care for the minor and the court
enters an order that such parent, guardian or legal custodian is
fit to care for the minor. In the event that the minor has
attained eighteen years of age and the guardian or custodian
petitions the court for an order terminating his or her
guardianship or custody, guardianship or custody shall terminate
automatically thirty days after the receipt of the petition
unless the court orders otherwise. No legal custodian or
guardian of the person may be removed without his or her consent
until given notice and an opportunity to be heard by the court.
(d) Whenever a parent, guardian or legal custodian petitions
for restoration of custody of the minor and the minor was
adjudicated, neglected or abused as a result of physical abuse,
the court shall cause to be made an investigation as to whether
the petitioner has ever been charged with or convicted of any
criminal offense which would indicate the likelihood of any
further physical abuse to the minor. Evidence of such criminal
convictions shall be taken into account in determining fitness of
the parent, guardian or legal custodian.
(1) Any agency of this state or any subdivision thereof
shall cooperate with the agent of the court in providing any
information sought in the investigation.
(2) The information derived from the investigation and any
conclusions or recommendations derived from the information shall
be provided to the parent, guardian or legal custodian seeking
restoration of custody prior to the hearing on fitness and the
petitioner shall have an opportunity at the hearing to refute the
information or contest its significance.
(3) No information obtained from any investigation may be
placed in any automated information system. All information
shall be confidential.
§49-9-18. Duration of wardship and discharge of proceedings.
(a) All proceedings under this article in respect of any
minor for whom a petition was filed after the effective date of
this article automatically terminates upon his or her attaining
the age of nineteen years, except that a court may continue the
wardship of a minor until age twenty-one for good cause when
there is satisfactory evidence presented to the court and the
court makes written factual findings that the best interest of
the minor and the public require the continuation of the
(b) Whenever the court determines and makes written factual
findings and finds that the best interest of the minor and the
public no longer require the wardship of the court, the court
shall order the wardship terminated and all proceedings under
this article respecting that minor finally closed and discharged.
The court may at the same time continue or terminate any
custodianship or guardianship theretofore ordered.
(c) The wardship of the minor and any custodianship or
guardianship respecting the minor automatically terminates when
he or she attains the age of nineteen years except as set forth
in subsection (a) of this section. The clerk of the court shall at that time record all proceedings under this article as finally
closed and discharged for that reason.
NOTE: The purpose of this bill is to revise current law
relating to child welfare. It provides for training of foster
parents; creates an office of inspector general and a bureau of
quality assurance within the department of health and human
resources; establishes a state-wide hotline for foster parents;
defines terms; provides for the rights of parties to adjudicatory
and dispositional proceedings; temporary custody hearings;
petitions; guardian ad litem; continuance under supervision;
findings and adjudication; evidence in dispositional hearings;
kinds of dispositional orders; protective supervision; orders for
protection; placement; legal custody or guardianship; judicial
review; duration of wardship; and discharge of proceedings.
This article is new; therefore, strike-throughs and
underscoring have been omitted.