Senate Bill No. 773
(By Senators White, Wooton, Ball, Bowman, Dittmar, Fanning,
Hunter, Kessler, Oliverio, Ross, Schoonover, Snyder, Buckalew,
Kimble and Scott)
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[Originating in the Committee on the Judiciary;
reported March 5, 1998.]
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A BILL to amend and reenact sections one and three, article one,
chapter forty-nine of the code of West Virginia, one thousand
nine hundred thirty-one, as amended; to amend and reenact
sections sixteen and seventeen, article two of said chapter;
to amend and reenact sections one, three, five and eight,
article six of said chapter; to further amend said article by
adding thereto two new sections, designated sections five-a
and five-b; and to amend and reenact section three, article
six-d of said chapter, all relating generally to enacting
legislation to comply with mandates of the federal Adoption
and Safe Families Act of l997 regarding the permanent
placement of children in foster care.
Be it enacted by the Legislature of West Virginia:
That sections one and three, article one, chapter forty-nine of the code of West Virginia, one thousand nine hundred thirty-one,
as amended, be amended and reenacted; that sections sixteen and
seventeen, article two of said chapter be amended and reenacted;
that sections one, three, five and eight, article six of said
chapter be amended and reenacted; that said article be further
amended by adding thereto two new sections, designated sections
five-a and five-b; and that section three, article six-d of said
chapter be amended and reenacted, all to read as follows:
ARTICLE 1. PURPOSES; DEFINITIONS.
§4-1-1. Purpose.
(a) The purpose of this chapter is to provide a system of
child welfare for the children of this state that has goals to:
(1) Assure each child care, safety and guidance;
(2) Serve the mental and physical welfare of the child;
(3) Preserve and strengthen the child's family ties;
(4) Recognize the fundamental rights of children and parents;
(5) Adopt procedures and establish programs that are family- focused rather than focused on specific family members, except
where the best interests of the child or the safety of the
community are at risk;
(6) Involve the child and his or her family or caregiver in
the planning and delivery of programs and services;
(7) Provide services that are community-based, in the least
restrictive settings that are consonant with the needs and potentials of the child and his or her family;
(8) Provide for early identification of the problems of
children and their families, and respond appropriately with
measures and services to prevent abuse and neglect or delinquency;
(9) Provide a system for the rehabilitation or detention of
juvenile delinquents; and
(10) Protect the welfare of the general public.
In pursuit of these goals it is the intention of the
Legislature to provide for removing the child from the custody of
parents only when the child's welfare or the safety and protection
of the public cannot be adequately safeguarded without removal;
and, when the child has to be removed from his or her family, to
secure for the child custody, care and discipline consistent with
the child's best interests and other goals herein set out. It is
further the intention of the Legislature to require that any
reunification, permanency or preplacement preventative services
address the safety of the child.
(b) The child welfare service of the state shall be
administered by the state department of health and human resources
and the division of juvenile services of the department of military
affairs and public safety.
The state department of health and human resources is
designated as the agency to cooperate with the United States
department of health and human services and United States department of justice in extending and improving child welfare
services, to comply with regulations thereof, and to receive and
expend federal funds for these services. The division of juvenile
services of the department of military affairs and public safety is
designated as the agency to cooperate with the United States
department of health and human services and United States
department of justice in operating, maintaining and improving
juvenile correction facilities and centers for the predispositional
detention of children, to comply with regulations thereof, and to
receive and expend federal funds for these services.
§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, 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, physical injury may
include an injury to the child as a result of excessive corporal
punishment.
(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 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 reunify such children to with their families;
(5) Placing children in suitable adoptive homes when restoring reunifying the children to with their families is not possible or
appropriate; and
(6) Assuring the adequate care of children away from their
families when the children who 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) Nonaccidental trauma inflicted by a parent, guardian,
custodian, sibling or a babysitter or other caretaker; 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) "Legal guardianship" means the relationship between a
child and caretaker as established pursuant to the provisions of
article ten, chapter forty-four of this code.
(f)(g) "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, educational,
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) (h)(1) "Neglected child" means a child:
(A) Whose physical or mental health is 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 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.
(h))(i) "Parenting skills" means a parent's competencies in
providing physical care, protection, supervision and psychological
support appropriate to a child's age and state of development.
(i) (j) "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)(k) "Sexual contact" means sexual contact as that term is
defined in section one, article eight-b, chapter sixty-one of this
code.
(k)(l) "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)(m) "Sexual intercourse" means sexual intercourse as that
term is defined in section one, article eight-b, chapter sixty-one
of this code.
(m)(n) "Sexual intrusion" means sexual intrusion as that term
is defined in section one, article eight-b, chapter sixty-one of
this code.
(n)(o) "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.
(o)(p) "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)(q) "Serious physical abuse" 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)(r) "Siblings" means children who have at least one
biological parent in common or who have been legally adopted by the
same parents or parent.
(s) "Time-limited reunification services" means individual,
group, and family counseling, inpatient, residential or outpatient substance abuse treatment services, mental health services,
assistance to address domestic violence, services designed to
provide temporary child care and therapeutic services for families,
including crisis nurseries and transportation to or from any such
services, provided during fifteen of the most recent twenty-two
months a child has been in foster care, as determined by the
earlier date of the first judicial finding that the child is
subjected to abuse or neglect, or the date which is sixty days
after the child is removed from home.
ARTICLE 2. STATE RESPONSIBILITIES FOR THE PROTECTION AND CARE OF
CHILDREN.
§49-2-16. State responsibility for child care.
The division of juvenile services of the department of
military affairs and public safety is hereby authorized and
empowered to operate and maintain centers for juveniles needing
detention pending disposition by a court having juvenile
jurisdiction or temporary care following such court action.
The state department of health and human resources is hereby
authorized and empowered to provide care, support and protective
services for children who are handicapped by dependency, neglect,
single parent status, mental or physical disability, or who for
other reasons are in need of public service. Such department is
also hereby authorized and empowered in its discretion to accept
children for care from their parent or parents, guardian, custodian or relatives and to accept the custody of children committed to its
care by courts. The department of health and human services
resources or any county office of such department is also hereby
authorized and empowered in its discretion to accept temporary
custody of children for care from any law-enforcement officer in an
emergency situation.
Within ninety days of the date of the signatures to a
voluntary placement agreement, after receipt of physical custody,
the state department of health and human resources shall file with
the court a petition for review of the placement, stating the
child's situation and the circumstance that gives rise to the
voluntary placement. If the department intends to extend the
voluntary placement agreement, the department shall file with the
court a copy of the child's case plan. The court shall appoint an
attorney for the child, who shall also receive a copy of the case
plan. The court shall schedule a hearing and shall give notice of
the time and place and right to be present at such hearing to: The
child's attorney; the child, if twelve years of age or older; the
child's parents or guardians; the child's foster parents; any
preadoptive parent or relative providing care for the child; and
any other such persons as the court may in its discretion direct.
The child's presence at such hearing may be waived by the child's
attorney at the request of the child or if the child would suffer
emotional harm. At the conclusion of the proceedings, but no later than ninety days after the date of the signatures to the voluntary
placement agreement, the court shall enter an order determining
whether or not continuation of the voluntary placement is in the
best interests of the child; specifying under what conditions the
child's placement shall continue; and specifying whether or not the
department is required to and has made reasonable efforts to
preserve and to reunify the family, as set forth in subsection (d),
section three, article six of this chapter and/or provide a plan
for the permanent placement of the child.
§49-2-17. Subsidized adoption and legal guardianship.
From funds appropriated to the department of welfare health
and human resources, the commissioner secretary shall establish a
system of assistance for facilitating the adoption or legal
guardianship of children who are dependents of the department or a
child welfare agency licensed to place children for adoption,
legally free for adoption and in special circumstances either
because they:
(a) Have established emotional ties with prospective adoptive
parents or prospective legal guardians while in their care; or
(b) Are not likely to be adopted or become a ward of a legal
guardian by reason of one or more of the following conditions:
(1) They have a physical or mental disability;
(2) They are emotionally disturbed; or
(3) They are older children; or
(4) They are a part of a sibling group; or
(5) They are a member of a racial or ethnic minority; or
(6) They have any combination of these conditions.
The department shall provide assistance in the form of
subsidies or other services to parents who are found and approved
for adoption or legal guardianship of a child certified as eligible
for subsidy by the department, but before the final decree of
adoption or order of legal guardianship is entered, there must be
a written agreement between the family entering into the subsidized
adoption or legal guardianship and the department. Adoption or
legal guardianship subsidies in individual cases may commence with
the adoption or legal guardianship placement, and will vary with
the needs of the child as well as the availability of other
resources to meet the child's needs. The subsidy may be for
special services only, or for money payments, and either for a
limited period, or for a long term, or for any combination of the
foregoing. The specific financial terms of the subsidy shall be
included in the agreement between the department and the adopting
adoptive parents or legal guardians. The amount of the time-
limited or long-term subsidy may in no case exceed that which would
be allowable from time to time for such child under foster family
care, or, in the case of a special service, the reasonable fee for
the service rendered. In addition, the department shall provide
either medicaid or other health insurance coverage for any special needs child for whom there is an adoption or legal guardianship
assistance agreement between the department and the adoptive parent
or legal guardian and who the department determines cannot be
placed with an adoptive parent or legal guardian without medical
assistance because the child has special needs for medical, mental
health or rehabilitative care.
Whenever significant emotional ties have been established
between a child and his foster parents, and the foster parents seek
to adopt the child or to become legal guardians, the child shall be
certified as eligible for a subsidy conditioned upon his adoption
or his becoming a ward of a legal guardian under applicable
adoption procedures by the foster parents.
In all other cases, after reasonable efforts have been made
without the use of subsidy and no appropriate adoptive family or
legal guardian has been found for the child, the department shall
certify the child as eligible for a subsidy in the event of
adoption or a legal guardianship.
If the child is the dependent of a voluntary licensed child- placing agency, that agency shall present to the department
evidence of significant emotional ties between the child and his
foster parents or evidence of inability to place the child for
adoption. In no event shall the value of the services and
assistance provided by the department under an agreement pursuant
to this section exceed the value of assistance available to foster families in similar circumstances. All records regarding
subsidized adoptions or legal guardianships shall be held in
confidence, however, records regarding the payment of public funds
for subsidized adoptions or legal guardianships shall be available
for public inspection provided they do not directly or indirectly
identify any child or persons receiving funds for such child.
ARTICLE 6. PROCEDURE IN CASES OF CHILD NEGLECT OR ABUSE.
§49-6-1. Petition to court when child believed neglected or
abused; notice.
(a) If the state department or a reputable person believes
that a child is neglected or abused, the department or the person
may present a petition setting forth the facts to the circuit court
in the county in which the child resides, or to the judge of such
court in vacation. The petition shall be verified by the oath of
some credible person having knowledge of the facts. The petition
shall allege specific conduct including time and place, how such
conduct comes within the statutory definition of neglect or abuse
with references thereto, any supportive services provided by the
state department to remedy the alleged circumstances and the relief
sought. Upon filing of the petition, the court shall set a time
and place for a hearing and shall appoint counsel for the child.
When there is an order for temporary custody pursuant to section
three of this article, such hearing shall be held within thirty
days of such order, unless a continuance for a reasonable time is granted to a date certain, for good cause shown.
(b) The petition and notice of the hearing shall be served
upon both parents and any other custodian, giving to such parents
or custodian at least ten days' notice., and notice Notice shall
also be given to the state department, any foster or preadoptive
parent, and any relative providing care for the child. In cases
wherein personal service within West Virginia cannot be obtained
after due diligence upon any parent or other custodian, a copy of
the petition and notice of the hearing shall be mailed to such
person by certified mail, addressee only, return receipt requested,
to the last known address of such person. If said person signs the
certificate, service shall be complete and said certificate shall
be filed as proof of said service with the clerk of the circuit
court. If service cannot be obtained by personal service or by
certified mail, notice shall be by publication as a Class II legal
advertisement in compliance with the provisions of article three,
chapter fifty-nine of this code. A notice of hearing shall specify
the time and place of the hearing, the right to counsel of the
child and parents or other custodians at every stage of the
proceedings and the fact that such proceedings can result in the
permanent termination of the parental rights. Failure to object to
defects in the petition and notice shall not be construed as a
waiver.
(c) At the time of the institution of any proceeding under this article, the state department shall provide supportive
services in an effort to remedy circumstances detrimental to a
child.
§49-6-3. Petition to court when child believed neglected or abused
-- Temporary custody.
(a) Upon the filing of a petition, the court may order that
the child alleged to be an abused or neglected child be delivered
for not more than ten days into the custody of the state department
or a responsible person found by the court to be a fit and proper
person for the temporary care of the child pending a preliminary
hearing, if it finds that: (1) There exists imminent danger to the
physical well-being of the child; and (2) there are no reasonably
available alternatives to removal of the child, including, but not
limited to, the provision of medical, psychiatric, psychological or
homemaking services in the child's present custody: Provided,
That
where the alleged abusing person, if known, is a member of a
household, the court shall not allow placement pursuant to this
section of the child or children in said home unless the alleged
abusing person is or has been precluded from visiting or residing
in said home by judicial order. In a case where there is more than
one child in the home, or in the temporary care, custody or control
of the alleged offending parent, the petition shall so state, and
notwithstanding the fact that the allegations of abuse or neglect
may pertain to less than all of such children, each child in the
home for whom relief is sought shall be made a party to the proceeding. Even though the acts of abuse or neglect alleged in
the petition were not directed against a specific child who is
named in the petition, the court shall order the removal of such
child, pending final disposition, if it finds that there exists
imminent danger to the physical well-being of the child and a lack
of reasonable available alternatives to removal. The initial order
directing such custody shall contain an order appointing counsel
and scheduling the preliminary hearing, and upon its service shall
require the immediate transfer of custody of such child or children
to the state department or a responsible relative which may include
any parent, guardian, or other custodian. The court order shall
state: (1) That continuation in the home is contrary to the best
interests of the child and why; and (2) whether or not the state
department made a reasonable effort efforts to preserve the family
and prevent the placement or that the emergency situation made such
efforts unreasonable or impossible. The order may also direct any
party or the department to initiate or become involved in services
to facilitate reunification of the family.
(b) Whether or not the court orders immediate transfer of
custody as provided in subsection (a) of this section, if the facts
alleged in the petition demonstrate to the court that there exists
imminent danger to the child, the court may schedule a preliminary
hearing giving the respondents at least five days' actual notice.
If the court finds at the preliminary hearing that there are no
alternatives less drastic than removal of the child and that a
hearing on the petition cannot be scheduled in the interim period, the court may order that the child be delivered into the temporary
custody of the state department or a responsible person or agency
found by the court to be a fit and proper person for the temporary
care of the child for a period not exceeding sixty days: Provided,
That the court order shall state: (1) That continuation in the
home is contrary to the best interests of the child and state set
forth the reasons therefor; (2) whether or not the department made
reasonable efforts to preserve the family and to prevent the
child's removal from his or her home; (3) whether or not the state
department made a reasonable effort efforts to preserve the family
and to prevent the placement or that the emergency situation made
such efforts unreasonable or impossible; and (4) what efforts
should be made by the department, if any, to facilitate the child's
return home: Provided, however, That if the court grants an
improvement period as provided in section twelve of this article,
the sixty-day limit upon temporary custody is waived.
(c) If a child or children shall, in the presence of a child
protective service worker, be in an emergency situation which
constitutes an imminent danger to the physical well-being of the
child or children, as that phrase is defined in section three,
article one of this chapter, and if such worker has probable cause
to believe that the child or children will suffer additional child
abuse or neglect or will be removed from the county before a
petition can be filed and temporary custody can be ordered, the worker may, prior to the filing of a petition, take the child or
children into his or her custody without a court order: Provided,
That after taking custody of such child or children prior to the
filing of a petition, the worker shall forthwith appear before a
circuit judge or a juvenile referee of the county wherein custody
was taken, or if no such judge or referee be available, before a
circuit judge or a juvenile referee of an adjoining county, and
shall immediately apply for an order ratifying the emergency
custody of the child pending the filing of a petition. The circuit
court of every county in the state shall appoint at least one of
the magistrates of the county to act as a juvenile referee, who
shall serve at the will and pleasure of the appointing court, and
who shall perform the functions prescribed for such position by the
provisions of this subsection. The parents, guardians or
custodians of the child or children may be present at the time and
place of application for an order ratifying custody, and if at the
time the child or children are taken into custody by the worker,
the worker knows which judge or referee is to receive the
application, the worker shall so inform the parents, guardians or
custodians. The application for emergency custody may be on forms
prescribed by the supreme court of appeals or prepared by the
prosecuting attorney or the applicant, and shall set forth facts
from which it may be determined that the probable cause described
above in this subsection exists. Upon such sworn testimony or other evidence as the judge or referee deems sufficient, the judge
or referee may order the emergency taking by the worker to be
ratified. If appropriate under the circumstances, the order may
include authorization for an examination as provided for in
subsection (b), section four of this article. If a referee issues
such an order, the referee shall by telephonic communication have
such order orally confirmed by a circuit judge of the circuit or an
adjoining circuit who shall on the next judicial day enter an order
of confirmation. If the emergency taking is ratified by the judge
or referee, emergency custody of the child or children shall be
vested in the state department until the expiration of the next two
judicial days, at which time any such child taken into emergency
custody shall be returned to the custody of his or her parent or
guardian or custodian unless a petition has been filed and custody
of the child has been transferred under the provisions of section
three of this article.
(d) For purposes of the court's consideration of temporary
custody pursuant to the provisions of subsection (a) or (b) of this
section, the department is not required to make reasonable efforts
to preserve the family if the court determines the parent has
subjected the child to aggravated circumstances which include, but
are not limited to, abandonment, torture, chronic abuse and sexual
abuse;
(1) The parent has:
(A) Committed murder of another child of the parent;
(B) Committed voluntary manslaughter of another child of the
parent;
(C) Attempted or conspired to commit such a murder or
voluntary manslaughter or been an accessory before or after the
fact to either such crime; or
(D) Committed unlawful or malicious wounding that results in
serious bodily injury to the child or to another child of the
parent; or
(2) The parental rights of the parent to a sibling have been
terminated involuntarily.
§49-6-5. Disposition of neglected or abused children.
(a) Following a determination pursuant to section two of this
article wherein the court finds a child to be abused or neglected,
the department shall file with the court a copy of the child's case
plan, including the permanency plan for the child. The term case
plan means a written document that includes, where applicable, the
requirements of the family case plan as provided for in section
three, article six-d of this chapter and that also includes at
least the following: A description of the type of home or
institution in which the child is to be placed, including a
discussion of the appropriateness of the placement and how the
agency which is responsible for the child plans to assure that the
child receives proper care and that services are provided to the parents, child and foster parents in order to improve the
conditions in the parent(s) home, facilitate return of the child to
his or her own home or the permanent placement of the child, and
address the needs of the child while in foster care, including a
discussion of the appropriateness of the services that have been
provided to the child. The term permanency plan refers to that
part of the case plan which is designed to achieve a permanent home
for the child in the least restrictive setting available. The plan
must document efforts to ensure that the child is returned home
within approximate time lines for reunification as set out in the
plan. Reasonable efforts to place a child for adoption or with a
legal guardian may be made at the same time reasonable efforts are
made to prevent removal or to make it possible for a child to
safely return home. If reunification is not the permanency plan
for the child, the plan must state why reunification is not
appropriate and detail the alternative placement for the child to
include approximate time lines for when such placement is expected
to become a permanent placement. This case plan shall serve as the
family case plan for parents of abused or neglected children.
Copies of the child's case plan shall be sent to the child's
attorney and parent, guardian or custodian or their counsel at
least five days prior to the dispositional hearing. The court
shall forthwith proceed to disposition giving both the petitioner
and respondents an opportunity to be heard. The court shall give precedence to dispositions in the following sequence:
(1) Dismiss the petition;
(2) Refer the child, the abusing parent, or other family
members to a community agency for needed assistance and dismiss the
petition;
(3) Return the child to his or her own home under supervision
of the state department;
(4) Order terms of supervision calculated to assist the child
and any abusing parent or parents or custodian which prescribe the
manner of supervision and care of the child and which are within
the ability of any parent or parents or custodian to perform;
(5) Upon a finding that the abusing parent or parents are
presently unwilling or unable to provide adequately for the child's
needs, commit the child temporarily to the custody of the state
department, a licensed private child welfare agency or a suitable
person who may be appointed guardian by the court. The court order
shall state: (1) That continuation in the home is contrary to the
best interests of the child and why; (2) whether or not the state
department has made a reasonable effort efforts, with the child's
health and safety being the paramount concern, to preserve the
family and to prevent the placement or eliminate the need for;
removing the child from the child's home and to make it possible
for the child to safely return home; to include a statement of what
efforts were made or that the emergency situation made such efforts unreasonable or impossible; and (3) the specific circumstances of
the situation which makes made such efforts unreasonable if
services were not offered by the department. The court order shall
also determine under what circumstances the child's commitment to
the department shall continue. Considerations pertinent to the
determination include whether the child should: (1) Be continued
in foster care for a specified period; (2) should be considered for
adoption; (3) because of a child's special needs or circumstances,
be continued in foster care on a permanent or long-term basis; or
(4) be continued in foster care until reunification is achieved.
The court may order services to meet the special needs of the
child. Whenever the court transfers custody of a youth to the
department, an appropriate order of financial support by the
parents or guardians shall be entered in accordance with section
five, article seven of this chapter; or
(6) Upon a finding that there is no reasonable likelihood that
the conditions of neglect or abuse can be substantially corrected
in the near future, and when necessary for the welfare of the
child, terminate the parental, custodial or guardianship rights
and/or responsibilities of the abusing parent and commit the child
to the permanent sole custody of the nonabusing parent, if there be
one, or, if not, to either the permanent guardianship of the state
department or a licensed child welfare agency. If the court shall
so find, then in fixing its dispositional order, the court shall consider the following factors: (1) The child's need for
continuity of care and caretakers; (2) the amount of time required
for the child to be integrated into a stable and permanent home
environment; and (3) other factors as the court considers necessary
and proper. Notwithstanding any other provision of this article,
the permanent parental rights shall not be terminated if a child
fourteen years of age or older or otherwise of an age of discretion
as determined by the court, objects to such termination. No
adoption of a child shall take place until all proceedings for
termination of parental rights under this article and appeals
thereof are final. In determining whether or not parental rights
should be terminated, the court shall consider the efforts made by
the department to provide remedial and reunification services to
the parent. The court order shall state: (1) That continuation in
the home is not in the best interest of the child and why; (2) why
reunification is not in the best interests of the child; (3)
whether or not the state department made a reasonable effort
efforts, with the child's health and safety being the paramount
concern, to preserve the family and to prevent the placement or to
eliminate the need for removing the child from the child's home and
to make it possible for the child to safely return home, or that
the emergency situation made such efforts unreasonable or
impossible; and (4) whether or not the state department made a
reasonable effort efforts to preserve and reunify the family including a description of what efforts were made or that such
efforts were unreasonable due to specific circumstances.
(7) For purposes of the court's consideration of the
disposition custody of a child pursuant to the provisions of this
subsection the department is not required to make reasonable
efforts to preserve the family if the court determines the parent
has subjected the child to aggravated circumstances which include,
but are not limited to, abandonment, torture, chronic abuse and
sexual abuse;
(A) The parent has:
(i) Committed murder of another child of the parent;
(ii) Committed voluntary manslaughter of another child of the
parent;
(iii) Attempted or conspired to commit such a murder or
voluntary manslaughter or been an accessory before or after the
fact to either such crime; or
(iv) Committed a felonious assault that results in serious
bodily injury to the child or to another child of the parent; or
(B) The parental rights of the parent to a sibling have been
terminated involuntarily.
(b) As used in this section, "no reasonable likelihood that
conditions of neglect or abuse can be substantially corrected"
shall mean that, based upon the evidence before the court, the
abusing adult or adults have demonstrated an inadequate capacity to solve the problems of abuse or neglect, on their own or with help.
Such conditions shall be deemed to exist in the following
circumstances, which shall not be exclusive:
(1) The abusing parent or parents have habitually abused or
are addicted to alcohol, controlled substances or drugs, to the
extent that proper parenting skills have been seriously impaired
and such person or persons have not responded to or followed
through the recommended and appropriate treatment which could have
improved the capacity for adequate parental functioning;
(2) The abusing parent or parents have willfully refused or
are presently unwilling to cooperate in the development of a
reasonable family case plan designed to lead to the child's return
to their care, custody and control;
(3) The abusing parent or parents have not responded to or
followed through with a reasonable family case plan or other
rehabilitative efforts of social, medical, mental health or other
rehabilitative agencies designed to reduce or prevent the abuse or
neglect of the child, as evidenced by the continuation or
insubstantial diminution of conditions which threatened the health,
welfare or life of the child;
(4) The abusing parent or parents have abandoned the child;
(5) The abusing parent or parents have repeatedly or seriously
injured the child physically or emotionally, or have sexually
abused or sexually exploited the child, and the degree of family stress and the potential for further abuse and neglect are so great
as to preclude the use of resources to mitigate or resolve family
problems or assist the abusing parent or parents in fulfilling
their responsibilities to the child; or
(6) The abusing parent or parents have incurred emotional
illness, mental illness or mental deficiency of such duration or
nature as to render such parent or parents incapable of exercising
proper parenting skills or sufficiently improving the adequacy of
such skills.
(c) The court may as an alternative disposition allow to the
parents or custodians an improvement period not to exceed six
months. During this period the parental rights shall not be
permanently terminated and the court shall require the parent to
rectify the conditions upon which the determination was based. The
court may order the child to be placed with the parents, or any
person found to be a fit and proper person for the temporary care
of the child during the period. At the end of the period the court
shall hold a hearing to determine whether the conditions have been
adequately improved, and at the conclusion of such hearing, shall
make a further dispositional order in accordance with this section.
§49-6-5a. Permanency hearing when court determines reasonable
efforts to preserve families not required.
(a) If the court finds, pursuant to the provisions of
subdivision (7), subsection (a), section five of this article that the department is not required to make reasonable efforts to
preserve the family, then notwithstanding any other provision, a
permanency hearing must be held within thirty days following the
entry of the court order so finding.
(b) The purpose of the permanency hearing is to determine the
permanency plan for the child that includes: (1) When the child
will be returned to the parent; (2) when the child will be placed
for adoption, in which event the state will file a petition for
termination of parental rights; or (3) when the child will be
referred for legal guardianship. In cases where the department has
demonstrated a compelling reason for determining it would not be in
the best interests of the child to return home, the court shall
determine whether the child should be referred for termination of
parental rights, be placed for adoption, be placed with a fit and
willing relative, be placed with a legal guardian or placed in
another planned permanent living arrangement.
(c) Any foster parent, preadoptive parent or relative
providing care for the child shall be given notice of and the
opportunity to be heard at the permanency hearing provided for in
this section.
§49-6-5b. When efforts to terminate parental rights required.
(a) Except as provided in subsection (b) of this section, the
department shall file or join in a petition or otherwise seek a
ruling in any pending proceeding to terminate parental rights:
(1) If a child has been in foster care for fifteen of the most
recent twenty-two months as determined by the earlier of the date
of the first judicial finding that the child is subjected to abuse
or neglect or the date which is sixty days after the child is
removed from the home;
(2) If a court has determined the child is abandoned; or
(3) If a court has determined the parent has committed murder
or voluntary manslaughter of another of his or her children; has
attempted or conspired to commit such murder or voluntary
manslaughter or has been an accessory before or after the fact of
either crime; has committed unlawful or malicious wounding
resulting in serious bodily injury to the child or to another of
his or her children; or the parental rights of the parent to a
sibling have been terminated involuntarily.
(b) The department may determine not to file a petition to
terminate parental rights when:
(1) At the option of the department, the child has been placed
with a relative;
(2) The department has documented in the case plan made
available for court review a compelling reason, including, but not
limited to, the child's age and preference regarding termination or
the child's placement in custody of the department based on any
proceedings initiated under article five of this chapter, that
filing the petition would not be in the best interests of the child; or
(3) The department has not provided, when reasonable efforts
to return a child to the family are required, the services to the
child's family as the department deems necessary for the safe
return of the child to the home.
§49-6-8. Foster care review; annual reports to the court.
(a) If, twelve months after receipt (by the state department
or its authorized agent) of physical custody of a child either by
a court ordered placement or by a voluntary agreement, the state
department has not placed a child in permanent foster care or an
adoptive home or placed the child with a natural parent, the state
department shall file with the court a petition for review of the
case. The department shall also file with the court a report
detailing the efforts that have been made to place the child in a
permanent home and copies of the child's case plan including the
permanency plan as defined in section five, article six of this
chapter. Copies of the report shall be sent to the child's
attorney and be made available to the child's parent(s) or
guardian. "Permanent foster care" shall mean a written arrangement
with an adult or adults following a six-month trial period whereby
the state department places the care, custody and control of a
child until the child's emancipation with such adult or adults.
The court shall schedule a hearing in chambers, giving notice and
the right to be present to: The child's attorney; the child, if twelve years of age or older; the child's parents; the child's
guardians; the child's foster parents; any preadoptive parent or
any relative providing care for the child; and such other persons
as the court may in its discretion direct. The child's presence
may be waived by the child's attorney at the request of the child
or if the child would suffer emotional harm. The purpose of the
hearing is to review the child's case, to determine whether and
under what conditions the child's commitment to the department
shall continue, and to determine what efforts are necessary to
provide the child with a permanent home. At the conclusion of the
hearing the court shall in accordance with the best interests of
the child enter an appropriate order of disposition. The court
order shall state: (1) Whether or not the department made
reasonable effort efforts to preserve the family and to prevent
out-of-home placement or that the specific situation made such
effort unreasonable; (2) the permanency plan for the child; and (3)
services required to meet the child's needs: Provided, That the
department is not required to make reasonable efforts to preserve
the family if the court determines any of the conditions set forth
in subdivision (7), subsection (a), section five of this article
exist. The court shall possess continuing jurisdiction over cases
reviewed under this section for so long as a child remains in
temporary foster care, or, when a child is returned to his or her
natural parents subject to conditions imposed by the court, for so long as the conditions are effective.
(b) The state department shall file a supplementary petition
for review with the court within twelve months and every twelve
months thereafter for every child that remains in the physical or
legal custody of the state department until the child is placed in
an adoptive home or permanent foster care or returned to his or her
parents.
(c) The state department shall annually report to the court
the current status of the placements of children in permanent care
and custody of the state department who have not been adopted.
(d) The state department shall file a report with the court in
any case where any child in the temporary or permanent custody of
the state receives more than three placements in one year no later
than thirty days after the third placement. This report shall be
provided to all parties and their counsel. Upon motion by any
party, the court shall review these placements and determine what
efforts are necessary to provide the child with a stable foster or
temporary home: Provided, That no report shall be provided to any
parent or parent's attorney whose parental rights have been
terminated pursuant to this article.
(e) The state department shall notify, in writing, the court,
the child, if over the age of twelve, the child's attorney, the
parents and the parents' attorney forty-eight hours prior to the
move if this is a planned move, or within forty-eight hours of the next business day after the move if this is an emergency move,
except where such notification would endanger the child or the
foster family. This notice shall not be required in any case where
the child is in imminent danger in the child's current placement.
The location of the child need not be disclosed, but the purpose of
the move should be. This requirement is not waived by placement of
the child in a home or other residence maintained by a private
provider. No notice shall be provided pursuant to this provision
to any parent or parent's attorney whose parental rights have been
terminated pursuant to this article.
(f) Nothing in this article precludes any party from
petitioning the court for review of the child's case at any time.
The court shall grant such petition upon a showing that there is a
change in circumstance or needs of the child that warrants court
review.
ARTICLE 6D. WEST VIRGINIA CHILD PROTECTIVE SERVICES ACT.
§49-6D-3. Family case plans for parents of abused or neglected
children.
(a) The department shall develop a family case plan for every
family wherein a person has been referred to the department after
being allowed an improvement period under the provisions of section
twelve, article six of this chapter. The department may also
prepare a family case plan for any person who voluntarily seeks
child abuse and neglect services from the department, or who is referred to the department by another public agency or private
organization. The family case plan is to clearly set forth an
organized, realistic method of identifying family problems and the
logical steps to be used in resolving or lessening those problems.
Every family case plan prepared by the department shall contain the
following:
(1) A listing of specific, measurable, realistic goals to be
achieved;
(2) An arrangement of goals into an order of priority;
(3) A listing of the problems that will be addressed by each
goal;
(4) A specific description of how the assigned caseworker or
caseworkers and the abusing parent, guardian or custodian will
achieve each goal;
(5) A description of the departmental and community resources
to be used in implementing the proposed actions and services;
(6) A list of the services, including time-limited
reunification services as defined in section three, article one of
this chapter, which will be provided;
(7) Time targets for the achievement of goals or portions of
goals;
(8) An assignment of tasks to the abusing or neglecting
parent, guardian or custodian, to the caseworker or caseworkers and
to other participants in the planning process; and
(9) A designation of when and how often tasks will be
performed; and
(10) The safety of the placement of the child and plans for
returning the child safely home.
(b) In cases where the family has been referred to the
department by a court under the provisions of this chapter, and
further action before the court is pending, the family case plan
described in subsection (a) of this section shall be furnished to
the court within thirty days after the entry of the order referring
the case to the department, and shall be available to counsel for
the parent, guardian or custodian and counsel for the child or
children. The department shall encourage participation in the
development of the family case plan by the parent, guardian or
custodian, and, if the child is above the age of twelve years and
the child's participation is otherwise appropriate, by the child.
It shall be the duty of counsel for the participants to participate
in the development of the family case plan. The family case plan
may be modified from time to time by the department to allow for
flexibility in goal development, and in each such case the
modifications shall be submitted to the court in writing.
Reasonable efforts to place a child for adoption or with a legal
guardian may be made at the same time as reasonable efforts are
being made to prevent removal or to make it possible for a child to
return safely home.
The court shall examine the proposed family case plan or any modification thereof, and upon a finding by the
court that the plan or modified plan can be easily communicated,
explained and discussed so as to make the participants accountable
and able to understand the reasons for any success or failure under
the plan, the court shall inform the participants of the probable
action of the court if goals are met or not met.
(c) (1) In addition to the family case plan provided for under
the provisions of subsection (b) of this section, the department
shall prepare, as an appendix to the family case plan, an expanded
"worker's case plan". As utilized by the department under the
provisions of this section, the worker's case plan shall consist of
the following:
(A) All of the information contained in the family case plan
described in subsection (c) of this section;
(B) A prognosis for each of the goals projected in the family
case plan, assessing the capacity of the parent, guardian or
custodian to achieve the goal and whether available treatment
services are likely to have the desired outcome;
(C) A listing of the criteria to be used to assess the degree
to which each goal is attained;
(D) A description of when and how the department will decide
when and how well each goal has been attained;
(E) If possible, a listing of alternative methods and specific
services which the caseworker or caseworkers may consider using if the original plan does not work; and
(F) A listing of criteria to be used in determining when the
family case plan should be terminated.
(2) Because the nature of the information contained in the
worker's case plan described in subdivision (1) of this subsection
may, in some cases, be construed to be negative with respect to the
probability of change, or may be viewed as a caseworker's attempt
to impose personal values into the situation, or may raise barriers
of hostility and resistance between the caseworker and the family
members, the worker's case plan shall not be made available to the
court or to persons outside of the department, but shall be used by
the department for the purpose of confirming the effectiveness of
the family case plan or for determining that changes in the family
case plan need to be made.
(d) In furtherance of the provisions of this article, the
department shall, within the limits of available funds, establish
programs and services for the following purposes:
(1) For the development and establishment of training programs
for professional and paraprofessional personnel in the fields of
medicine, law, education, social work and other relevant fields who
are engaged in, or intend to work in, the field of the prevention,
identification and treatment of child abuse and neglect; and
training programs for children, and for persons responsible for the
welfare of children, in methods of protecting children from child abuse and neglect;
(2) For the establishment and maintenance of centers, serving
defined geographic areas, staffed by multidisciplinary teams and
community teams of personnel trained in the prevention,
identification, and treatment of child abuse and neglect cases, to
provide a broad range of services related to child abuse and
neglect, including direct support and supervision of satellite
centers and attention homes, as well as providing advice and
consultation to individuals, agencies and organizations which
request such services;
(3) For furnishing services of multidisciplinary teams and
community teams, trained in the prevention, identification and
treatment of child abuse and neglect cases, on a consulting basis
to small communities where such services are not available;
(4) For other innovative programs and projects that show
promise of successfully identifying, preventing or remedying the
causes of child abuse and neglect, including, but not limited to,
programs and services designed to improve and maintain parenting
skills, programs and projects for parent self-help, and for
prevention and treatment of drug-related child abuse and neglect;
and
(5) Assisting public agencies or nonprofit private
organizations or combinations thereof in making applications for
grants from, or in entering into contracts with, the secretary of the federal department of health and human services for
demonstration programs and projects designed to identify, prevent
and treat child abuse and neglect.
(e) Agencies, organizations and programs funded to carry out
the purposes of this section shall be structured so as to comply
with any applicable federal law, any regulation of the federal
department of health and human services or the secretary thereof,
and any final comprehensive plan of the federal advisory board on
child abuse and neglect. In funding organizations, the department
shall, to the extent feasible, ensure that parental organizations
combating child abuse and neglect receive preferential treatment.
___________
(NOTE: The purpose of this bill is to change various laws
governing child welfare to conform with the requirements of the
"Adoption and Safe Families Act of l997", as enacted by Congress.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.
§§49-6-5a and 49-6-5b are new; therefore, strike-throughs and
underscoring have been omitted.)