Senate Bill No. 547
(By Senator Dugan)
____________
[Introduced February 13, 1998; referred to the
Committee on the Judiciary.]
____________
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.