Senate Bill No. 547

(By Senator Dugan)

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[Introduced February 13, 1998; 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 section twelve, article six of said chapter, all relating to child welfare; amending certain definitions concerning abuse and neglect; defining minimum necessary standards to prevent serious harm or injury to a child; clarifying that parental rights include the right to choose reasonable corporal punishment as a means of discipline; amending provisions relating to the granting of improvement periods in abuse and neglect cases; requiring that where the petitioner objects to a motion for an improvement period, the burden is upon the petitioner to show by clear and convincing evidence that the respondent is not likely to substantially comply with the improvement period; providing that the terms of any improvement period are the minimum acceptable standards for addressing issues identified in the petition; and providing for longer improvement periods.

Be it enacted by the Legislature of West Virginia:
That section three, article one, chapter forty-nine of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be amended and reenacted; and that section twelve, 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, serious physical injury or mental or emotional injury, upon the child or another child in the home; or
(2) Sexual abuse or sexual exploitation; or
(3) The sale or attempted sale of a child by a parent, guardian or custodian in violation of section sixteen, article four, chapter forty-eight of this code.
In addition to its broader meaning, serious physical injury may include an injury to the child as a result of excessive corporal punishment: Provided, That nothing in this section may be construed as prohibiting or acting to prohibit a parent from using reasonable corporal punishment as discipline.
(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 serious physical injury, mental or emotional injury, sexual abuse, sexual exploitation, sale or attempted sale or negligent treatment or maltreatment of a child by a parent, guardian or custodian who is responsible for the child's welfare, under circumstances which harm or threaten the health and welfare of the child.
(d) "Child abuse and neglect services" means social services which are directed toward:
(1) Protecting and promoting the welfare of children who are abused or neglected;
(2) Identifying, preventing and remedying conditions which cause child abuse and neglect;
(3) Preventing the unnecessary removal of children from their families by identifying family problems and assisting families in resolving problems which could lead to a removal of children and a breakup of the family;
(4) In cases where children have been removed from their families, providing services to the children and the families so as to restore such children to their families;
(5) Placing children in suitable adoptive homes when restoring the children to their families is not possible or appropriate; and
(6) Assuring the adequate care of children away from their families when the children have been placed in the custody of the department or third parties.
(e) "Imminent danger to the physical well-being of the child" means an emergency situation in which the welfare or the life of the child is threatened. Such emergency situation exists when there is reasonable cause to believe that any child in the home is or has been sexually abused or sexually exploited, or reasonable cause to believe that the following conditions threaten the health or life of any child in the home:
(1) Serious nonaccidental trauma inflicted by a parent, guardian, custodian, sibling or a babysitter or other caretaker, not including the use of reasonable corporal punishment as discipline; or
(2) A combination of physical and other signs indicating a pattern of abuse which may be medically diagnosed as battered child syndrome; or
(3) Nutritional deprivation; or
(4) Abandonment by the parent, guardian or custodian; or
(5) Inadequate treatment of serious illness or disease; or
(6) Substantial emotional injury inflicted by a parent, guardian or custodian; or
(7) Sale or attempted sale of the child by the parent, guardian or custodian.
(f) "Multidisciplinary team" means a group of professionals and paraprofessionals representing a variety of disciplines who interact and coordinate their efforts to identify, diagnose and treat specific cases of child abuse and neglect. Multidisciplinary teams may include, but are not limited to, medical, child care and law-enforcement personnel, social workers, psychologists and psychiatrists. Their goal is to pool their respective skills in order to formulate accurate diagnoses and to provide comprehensive coordinated treatment with continuity and follow-up for both parents and children. "Community team" means a multidisciplinary group which addresses the general problem of child abuse and neglect in a given community and may consist of several multidisciplinary teams with different functions.
(g) (1) "Neglected child" means a child:
(A) Whose physical or mental health is seriously harmed or threatened by a present refusal, failure or inability of the child's parent, guardian or custodian to supply the child with necessary food, clothing, shelter, supervision, medical care or education, when such refusal, failure or inability is not due primarily to a lack of financial means on the part of the parent, guardian or custodian; or
(B) Who is presently without the minimum 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, nor is a neglected child one whose parents, by virtue of their own illiteracy, are unable to read or write to assist the child in learning.
(h) "Parenting skills" means a parent's competencies in providing the minimum necessary physical care, protection, supervision and psychological support appropriate to a child's age and state of development.
(i) "Sexual abuse" means:
(A) As to a child who is less than sixteen years of age, any of the following acts which a parent, guardian or custodian shall engage in, attempt to engage in, or knowingly procure another person to engage in, with such child, notwithstanding the fact that the child may have willingly participated in such conduct or the fact that the child may have suffered no apparent physical injury or mental or emotional injury as a result of such conduct:
(i) Sexual intercourse; or
(ii) Sexual intrusion; or
(iii) Sexual contact; or
(B) As to a child who is sixteen years of age or older, any of the following acts which a parent, guardian or custodian shall engage in, attempt to engage in, or knowingly procure another person to engage in, with such child, notwithstanding the fact that the child may have consented to such conduct or the fact that the child may have suffered no apparent physical injury or mental or emotional injury as a result of such conduct:
(i) Sexual intercourse; or
(ii) Sexual intrusion; or
(iii) Sexual contact; or
(C) Any conduct whereby a parent, guardian or custodian displays his or her sex organs to a child, or procures another person to display his or her sex organs to a child, for the purpose of gratifying the sexual desire of the parent, guardian or custodian, of the person making such display, or of the child, or for the purpose of affronting or alarming the child.
(j) "Sexual contact" means sexual contact as that term is defined in section one, article eight-b, chapter sixty-one of this code.
(k) "Sexual exploitation" means an act whereby:
(1) A parent, custodian or guardian, whether for financial gain or not, persuades, induces, entices or coerces a child to engage in sexually explicit conduct as that term is defined in section one, article eight-c, chapter sixty-one of this code;
(2) A parent, guardian or custodian persuades, induces, entices or coerces a child to display his or her sex organs for the sexual gratification of the parent, guardian, custodian or a third person, or to display his or her sex organs under circumstances in which the parent, guardian or custodian knows such display is likely to be observed by others who would be affronted or alarmed.
(l) "Sexual intercourse" means sexual intercourse as that term is defined in section one, article eight-b, chapter sixty-one of this code.
(m) "Sexual intrusion" means sexual intrusion as that 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, including the right to choose appropriate, reasonable physical discipline.
(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" or "serious physical injury" 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.
(r) "Minimum necessary standards" means the minimum amount necessary to prevent serious harm or injury to the child. Neither the department nor the court may force parents of this state to provide a higher standard of living than they are financially or socially able to provide. It is sufficient to meet this standard if the parents are providing the "minimum necessary" food, clothing, shelter, etc. to prevent serious physical or emotional harm to the children.
ARTICLE 6. PROCEDURE IN CASES OF CHILD NEGLECT OR ABUSE.

§49-6-12. Improvement period in cases of child neglect or abuse.

(a) A court may grant a respondent an improvement period of a period not to exceed three six months prior to making a finding that a child is abused or neglected pursuant to section two of this article only when:
(1) The respondent files a written motion requesting the improvement period;
(2) If the petitioner objects to the motion, the petitioner the respondent demonstrates shall demonstrate, by clear and convincing evidence, that the respondent is not likely to fully substantially participate in the improvement period and the court further makes a finding, on the record, of the terms of the improvement period. These terms shall represent minimum acceptable standards that shall be required to address the issues identified in the petition;
(3) In the order granting the improvement period, the court: (A) Orders that a hearing be held to review the matter within sixty days of the granting of the improvement period; or (B) orders that a hearing be held to review the matter within ninety days of the granting of the improvement period and that the department submit a report as to the respondents progress in the improvement period within sixty days of the order granting the improvement period; and
(4) The order granting the improvement period requires the department to prepare and submit to the court an individualized family case plan in accordance with the provisions of section three, article six-d of this chapter;
(b) After finding that a child is an abused or neglected child pursuant to section two of this article, a court may grant a respondent an improvement period of a period not to exceed six months one year when:
(1) The respondent files a written motion requesting the improvement period;
(2) The respondent demonstrates, If the petitioner objects to the motion, the petitioner shall demonstrate, by clear and convincing evidence, that the respondent is not likely to fully substantially participate in the improvement period and the court further makes a finding, on the record, of the terms of the improvement period. These terms shall represent minimum acceptable standards that shall be required to address the issues adjudicated by the court;
(3) In the order granting the improvement period, the court: (A) Orders that a hearing be held to review the matter within sixty days of the granting of the improvement period; or (B) orders that a hearing be held to review the matter within ninety days of the granting of the improvement period and that the department submit a report as to the respondent's progress in the improvement period within sixty days of the order granting the improvement period;
(4) Since the initiation of the proceeding, the respondent has not previously been granted any improvement period or the respondent demonstrates that since the initial improvement period, the respondent has experienced a substantial change in circumstances. Further, the respondent shall demonstrate that due to that change in circumstances the respondent is likely to fully participate in a further improvement period; and
(5) The order granting the improvement period requires the department to prepare and submit to the court an individualized family case plan in accordance with the provisions of section three, article six-d of this chapter.
(c) The court may grant an improvement period not to exceed six months one year as a disposition pursuant to section five of this article when:
(1) The respondent moves in writing for the improvement period;
(2) The respondent demonstrates, If the petitioner objects to this motion, the petitioner shall demonstrate by clear and convincing evidence, that the respondent is not likely to fully substantially participate in the improvement period and the court further makes a finding, on the record, of the terms of the improvement period. These terms shall represent minimum acceptable standards that shall be required to address the issues adjudicated by the court;
(3) In the order granting the improvement period, the court: (A) Orders that a hearing be held to review the matter within sixty days of the granting of the improvement period; or (B) orders that a hearing be held to review the matter within ninety days of the granting of the improvement period and that the department submit a report as to the respondent's progress in the improvement period within sixty eighty days of the order granting the improvement period; and
(4) Since the initiation of the proceeding, the respondent has not previously been granted any improvement period or the respondent demonstrates that since the initial improvement period, the respondent has experienced a substantial change in circumstances. Further, the respondent shall demonstrate that due to that change in circumstances, the respondent is likely to fully participate in the improvement period; and
(5) (4) The order granting the improvement period shall require the department to prepare and submit to the court an individualized family case plan in accordance with the provisions of section three, article six-d of this chapter.
(d) When any improvement period is granted to a respondent pursuant to the provisions of this section, the respondent shall be responsible for the initiation and completion of all terms of the improvement period. The court may order the state department to pay expenses associated with the services provided during the improvement period when the respondent has demonstrated that he or she is unable to bear such expenses. This shall be done to fulfill the department's duty to make reasonable efforts to reunify a family under state and federal law.
(e) When any improvement period is granted to a respondent pursuant to the provisions of this section, the respondent shall execute a release of all medical information regarding that respondent, including, but not limited to, information provided by mental health and substance abuse professionals and facilities. Such release shall be accepted by any such professional or facility regardless of whether the release conforms to any standard required by that facility.
(f) When any respondent is granted an improvement period pursuant to the provisions of this article, the department shall monitor the progress of such person in the improvement period. When the respondent fails to participate in substantially comply with any service mandated by the improvement period, the state department shall initiate action to inform the court of that failure. When the department demonstrates that the respondent has failed to participate in substantially comply with any provision of the improvement period, the court shall forthwith may terminate the improvement period.
(g) A court may extend any improvement period granted pursuant to subsections (b) or (c) of this section for a period not to exceed three months at a time when the court finds that the respondent has substantially complied with the terms of the improvement period; that the continuation of the improvement period will not substantially impair the ability of the department to permanently place the child; that the granting of the extension shall be consistent with the department's duty to make reasonable efforts to reunify the family under state and federal law; and that such extension is otherwise consistent with the best interest of the child.
(h) Upon the motion by any party, the court shall terminate any improvement period granted pursuant to this section when the court finds that respondent has failed to fully participate in substantially comply with the terms of the improvement period or when the court finds that the terms of the improvement period have been completed and the case should be dismissed.
(i) This section may not be construed to prohibit a court from ordering a respondent to participate in services designed to reunify a family or to relieve the department of any duty to make reasonable efforts to reunify a family required by state or federal law.
(j) Any hearing scheduled pursuant to the provisions of this section may be continued only for good cause upon a written motion properly served on all parties. When a court grants such continuance, the court shall enter an order granting the continuance which shall specify a future date when the hearing will be held.
(k) Any hearing to be held at the end of an improvement period shall be held as nearly as practicable on successive days and shall be held as close in time as possible after the end of said improvement period and shall be held no later than sixty days of the termination of such improvement period.




NOTE: The purpose of this bill is to amend certain definitions and provisions relating to improvement periods in child abuse and neglect cases.

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