Senate Bill No. 445
(By Senator Chafin)
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[Introduced January 30, 2002; referred to the Committee
on the Judiciary.]
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A BILL to amend and reenact section five, article six, chapter
forty-nine of the code of West Virginia, one thousand nine
hundred thirty-one, as amended, relating to the disposition
of abused or neglected children; and providing that all
placement alternatives be found by the court to be
unsuitable and contrary to the best interests of the child
before long-term or permanent foster care be considered.
Be it enacted by the Legislature of West Virginia:
That section five, article six, chapter forty-nine of the
code of West Virginia, one thousand nine hundred thirty-one, as
amended, be amended and reenacted to read as follows:
ARTICLE 6. PROCEDURE IN CASES OF CHILD NEGLECT OR ABUSE.
§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 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) (A) That continuation in the
home is contrary to the best interests of the child and why; (2)
(B) whether or not the department has made reasonable efforts,
with the child's health and safety being the paramount concern,
to preserve the family and to prevent 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; (3) (C) what efforts were
made or that the emergency situation made such efforts
unreasonable or impossible; and (4) (D) the specific
circumstances of the situation which 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) (i) Be continued in foster care for a specified period; (2) (ii) be considered for adoption; (3) (iii)
because of a child's special needs or circumstances, be
continued in foster care on a permanent or long-term basis; or
(4) (iv) be continued in foster care until reunification is
achieved: Provided, That foster care on a long-term or
permanent basis shall be considered only after all other
placement alternatives are found by the court to be unsuitable
and contrary to the best interests of the child. 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 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) (A) The child's need for continuity of care and
caretakers; (2) (B) the amount of time required for the child to
be integrated into a stable and permanent home environment; and
(3) (C) other factors as the court considers necessary and
proper. Notwithstanding any other provision of this article,
the court shall give consideration to the wishes of a child
fourteen years of age or older or otherwise of an age of
discretion as determined by the court regarding the permanent
termination of parental rights. 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) (i) That continuation in the home
is not in the best interest of the child and why; (2) (ii) why
reunification is not in the best interests of the child; (3)
(iii) whether or not the department made reasonable 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) (iv) whether or not the department made
reasonable 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:
(A) The parent has subjected the child to aggravated
circumstances which include, but are not limited to,
abandonment, torture, chronic abuse and sexual abuse;
(B) 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
(C) 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 considered 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 the
parents or custodians an improvement period not to exceed six
months. During this period 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 the hearing shall make a further
dispositional order in accordance with this section.
NOTE: The purpose of this bill is to effect placement of
neglected or abused children outside the foster care program
unless there remains no other choice.
Strike-throughs indicate language that would be stricken
from the present law, and underscoring indicates new language
that would be added.