H. B. 4033


(By Delegate Gillespie)
[Introduced January 20, 1998; referred to the
Committee on the Judiciary.]




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; and to further amend said article by adding thereto three new sections, designated sections seven-a, thirteen and fourteen, all relating to proceedings related to child abuse or neglect; allowing public access to involuntary termination of parental or custodial rights hearings; providing right of cross- examination to persons accused of neglect or abuse; requiring findings justifying removal of child from parents; giving family priority in determining placement of child; and providing criminal and civil penalties for false testimony regarding neglect or abuse.

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; and that said article be further amended by adding thereto three new sections, designated sections seven-a, thirteen and fourteen, all 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, and his or her legally established custodian 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 has 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 each year: 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 brought pursuant to the provisions of this article, the court may grant any respondent an improvement period in accord with the provisions of this article. During such period, the court may require temporary custody with a responsible person which who has been found to be a fit and proper person for the temporary custody of the child or children, 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 pursuant to the provisions of 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 and to face and cross-examine all persons making allegations of neglect or abuse or testifying to the underlying facts related to the allegations of child neglect or abuse. 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 be based upon conditions existing at the time of the filing of the petition and proven by clear and convincing proof.
(d) Upon request of the accused , all proceedings conducted with regard to alleged child abuse or neglect shall be open to the public and the news media.
(d) (e) 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 a 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 and shall be held within sixty days of the termination of such the improvement period.
(e) (f) Following the court's determination, it shall be inquired of the court shall ask the parents or custodians whether or not an appeal is desired and transcribe 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.
§49-6-7a. Involuntary termination of parental rights.

Notwithstanding any other provision of law, upon request of the parent or custodian, all proceedings for termination of parental or custodial rights shall be decided by jury and open to the public and to the news media.
§49-6-13. Limitations on custody.
(a) Notwithstanding any other provision of law, when a court determines, under the provisions of this article, that a child is to be removed from the custody of his or her parents, other legally established custodian or other person standing in loco parentis to the child, the court shall enter a written order stating with specificity its findings establishing good cause for removing the child from his or her parents, other legally established custodian or other person standing in loco parentis to the child.
(b) Notwithstanding any other provision of law, when a court determines, in any proceeding conducted under this article, that a child should be removed from the custody of his or her parents the court shall place the child in the custody of the next of kin of the parents or other appropriate family member, when possible, before considering placing the child in the custody of an unrelated person.
§49-6-14. Criminal and civil penalties for false testimony.
(a) Any person who willfully testifies falsely in support of allegations of child neglect or abuse against any other person is guilty of a felony and, upon conviction thereof, shall be confined in a state correctional facility not less than three nor more than ten years.
(b) Any person who willfully testifies falsely in support of allegations of child neglect or abuse against any other person is civilly liable to the other person in a minimum amount of one million dollars.


NOTE: The purpose of this bill is to make open to the public and news media all proceedings on alleged child abuse or neglect and termination of parental rights. It also requires courts to state with specificity findings establishing good cause for removing a child from his or her parents, and provides that persons accused of child neglect or abuse have the right to face and cross examine their accusers. It also gives preference to members of the parent's family in determining to whom should be given custody.

The bill provides criminal and civil penalties for giving false testimony of child abuse or neglect.

Strike-throughs indicate language that would be stricken from the present law, and underscoring indicates new language that would be added.

§§49-6-7a, 13 and 14 are new; therefore, strike-throughs and underscoring have been omitted.