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§49-2-1. Care for children committed to the state department.
It shall be the responsibility of the state department to provide care for neglected children who are committed to its care for custody or guardianship. For purposes of this chapter, the department of health and human resources is responsible for the care of the infant child of an unmarried mother who has been committed to the custody of the department while the infant is placed in the same licensed child welfare agency as his or her mother. The state department may provide care for such children in family homes meeting required standards, at board or otherwise, through a licensed child welfare agency, or in a state institution providing care for dependent or neglected children. The department in placing any child in the care of a family or a child welfare agency shall select as far as practicable a family holding the same religious belief as the parents or relatives of the child or a child welfare agency conducted under religious auspices of the same belief as the parents or relatives.

§49-2-2. Duration of custody or guardianship of children committed to state department.
A child committed to the state department for guardianship, after termination of parental rights, shall remain in the care of the department until he attains the age of eighteen years, or is married, or is adopted, or guardianship is relinquished through the court.

A child committed to the state department for custody shall remain in the care of the department until he attains the age of eighteen years, or until he is discharged because he is no longer in need of care.

§49-2-3. Development of standards of child care.
The state department shall be responsible for the development of desirable standards for the care of children. To this end, it shall cooperate with, advise and assist all child welfare agencies, including state institutions, which care for neglected, delinquent, or mentally or physically handicapped children, and shall supervise all such agencies. The department, in cooperation with the state department of health and with child welfare agencies, shall formulate and make available standards of child care and services for children, to which all child welfare agencies must conform.

§49-2-4.
Repealed.

Acts, 1981 Reg. Sess., Ch. 44.

§49-2-4a.
Repealed.

Acts, 1981 Reg. Sess., Ch. 44.

§49-2-5. Same -- Supervision, records and reports.

In order to improve standards of child care, the state department shall cooperate with the governing boards of child welfare agencies, assist the staffs of such agencies through advice on progressive methods and procedures of child care and improvement of the service rendered, and assist in the development of community plans of child care. The state department of health, or its duly authorized agent, may visit any child welfare agency to advise the agency on matters affecting the health of children and to inspect the sanitation of the buildings used for their care. Each child welfare agency shall keep such records regarding each child under its control and care as the state department may prescribe, and shall report to the department, whenever requested, such facts as may be required with reference to such children, upon blanks furnished by the department. All records regarding children and all facts learned about children and their parents or relatives shall be regarded as confidential and shall be properly safeguarded by the agency and the state department.

§49-2-6. Same -- Approval of articles of incorporation.
A child welfare agency shall not be incorporated in this state unless the articles of incorporation have first been examined and approved by the state department. Proposed amendments to such articles of incorporation shall likewise be subject to the examination and approval of the state department.

§49-2-7.
Repealed.

Acts, 1981 Reg. Sess., Ch. 44.

§49-2-8.
Repealed.

Acts, 1981 Reg. Sess., Ch. 44.

§49-2-9. Unsupervised foster homes -- Generally.
Any family home, not under the supervision of the state department of welfare or of a child welfare agency, in which one or more neglected children under the care of the state department of welfare and under eighteen years of age, separated from parents or guardian and not related by blood or marriage to the person maintaining the home, are received, cared for and maintained for compensation, or otherwise, shall be considered an unsupervised foster home. No person shall conduct an unsupervised foster home without a certificate from the state department.

§49-2-10. Same -- Certificate.
It shall be the duty of the state department in cooperation with the state department of health to establish reasonable minimum standards for foster-home care to which all certified foster homes must conform. No unsupervised foster home shall be certified until an investigation of the home and its standards of care has been made by the state department or by a licensed child welfare agency serving as its representative. Any such home that conforms to the established standards of care and to the prescribed rules shall receive a certificate from the state department, which shall be in force for one year from the date of issuance and which may be renewed unless revoked because of wilful violation of the provisions of this chapter. The certificate shall show the name of the persons authorized to conduct the home, its exact location and the number of children that may be received and cared for at one time. No certified foster home shall receive for care more children than are specified in the certificate.

§49-2-11. Same -- Visits; records.
The state department or its authorized agent shall visit every certified foster home as often as is necessary to assure that proper care is given to the children. Every certified foster home shall maintain a record of the children received which shall include such facts in regard to the children and their care, and shall be in such form and manner as are prescribed by the state department.

§49-2-12. Same -- Removal of child from undesirable foster home.
If at any time the state department shall find a child in an unsupervised foster home where the child is subject to undesirable influences or lacks proper or wise care and management, it shall take necessary action to remove the child and arrange for his care.

§49-2-13. Parole of certain children to state department.
Children paroled from state institutions and homes for juveniles shall be paroled to the state department. Thereafter, unless the court which committed the child otherwise provides, the state department shall, notwithstanding any other provision of this code, have supervisory control over every child so paroled, and shall have authority to revoke the parole or to discharge the child from parole. Upon the revocation of any parole and the return of the parolee to the institution from which he was paroled, all authority over the parolee, originally vested in such institution, shall again become operative.

§49-2-14. Criteria and procedure for removal of child from foster home; notice of child's availability for placement; limitations.

(a) The state department may temporarily remove a child from a foster home based on an allegation of abuse or neglect, including sexual abuse, that occurred while the child resided in the home. If the department determines that reasonable cause exists to support the allegation, the department shall remove all foster children from the arrangement and preclude contact between the children and the foster parents. If, after investigation, the allegation is determined to be true by the department or after a judicial proceeding a court finds the allegation to be true or if the foster parents fail to contest the allegation in writing within twenty calendar days of receiving written notice of said allegations, the department shall permanently terminate all foster care arrangements with said foster parents: Provided, That if the state department determines that the abuse occurred due to no act or failure to act on the part of the foster parents and that continuation of the foster care arrangement is in the best interests of the child, the department may, in its discretion, elect not to terminate the foster care arrangement or arrangements.

(b) When a child has been placed in a foster care arrangement for a period in excess of eighteen consecutive months and the state department determines that the placement is a fit and proper place for the child to reside, the foster care arrangement may not be terminated unless such termination is in the best interest of the child and:

(1) The foster care arrangement is terminated pursuant to subsection (a) of this section;

(2) The foster care arrangement is terminated due to the child being returned to his or her parent or parents;

(3) The foster care arrangement is terminated due to the child being united or reunited with a sibling or siblings;

(4) The foster parent or parents agree to the termination in writing;

(5) The foster care arrangement is terminated at the written request of a foster child who has attained the age of fourteen; or

(6) A circuit court orders the termination upon a finding that the state department has developed a more suitable long-term placement for the child upon hearing evidence in a proceeding brought by the department seeking removal and transfer.

(c) When a child has been residing in a foster home for a period in excess of six consecutive months in total and for a period in excess of thirty days after the parental rights of the child's biological parents have been terminated and the foster parents have not made an application to the department to establish an intent to adopt the child within thirty days of parental rights being terminated, the state department may terminate the foster care arrangement if another, more beneficial, long-term placement of the child is developed: Provided, That if the child is twelve years of age or older, the child shall be provided the option of remaining in the existing foster care arrangement if the child so desires and if continuation of the existing arrangement is in the best interest of the child.

(d) When a child is placed into foster care or becomes eligible for adoption and a sibling or siblings have previously been placed in foster care or have been adopted, the department shall notify the foster parents or adoptive parents of the previously placed or adopted sibling or siblings of the child's availability for foster care placement or adoption to determine if the foster parents or adoptive parents are desirous of seeking a foster care arrangement or adoption of the child. Where a sibling or siblings have previously been adopted, the department shall also notify the adoptive parents of a sibling of the child's availability for foster care placement in that home and a foster care arrangement entered into to place the child in the home if the adoptive parents of the sibling are otherwise qualified or can become qualified to enter into a foster care arrangement with the department and if such arrangement is in the best interests of the child: Provided, That the department may petition the court to waive notification to the foster parents or adoptive parents of the child's siblings. This waiver may be granted, ex parte, upon a showing of compelling circumstances.

(e) When a child is in a foster care arrangement and is residing separately from a sibling or siblings who are in another foster home or who have been adopted by another family and the parents with whom the placed or adopted sibling or siblings reside have made application to the department to establish an intent to adopt or to enter into a foster care arrangement regarding a child so that said child may be united or reunited with a sibling or siblings, the state department shall upon a determination of the fitness of the persons and household seeking to enter into a foster care arrangement or seek an adoption which would unite or reunite siblings, and if termination and new placement are in the best interests of the children, terminate the foster care arrangement and place the child in the household with the sibling or siblings: Provided, That if the department is of the opinion based upon available evidence that residing in the same home would have a harmful physical, mental or psychological effect on one or more of the sibling children or if the child has a physical or mental disability which the existing foster home can better accommodate, or if the department can document that the reunification of the siblings would not be in the best interest of one or all of the children, the state department may petition the circuit court for an order allowing the separation of the siblings to continue: Provided, however, That if the child is twelve years of age or older, the state department shall provide the child the option of remaining in the existing foster care arrangement if remaining is in the best interests of the child. In any proceeding brought by the department to maintain separation of siblings, such separation may be ordered only if the court determines that clear and convincing evidence supports the department's determination. In any proceeding brought by the department seeking to maintain separation of siblings, notice shall be afforded, in addition to any other persons required by any provision of this code to receive notice, to the persons seeking to adopt a sibling or siblings of a previously placed or adopted child and said persons may be parties to any such action.

(f) Where two or more siblings have been placed in separate foster care arrangements and the foster parents of the siblings have made application to the department to enter into a foster care arrangement regarding the sibling or siblings not in their home or where two or more adoptive parents seek to adopt a sibling or siblings of a child they have previously adopted, the department's determination as to placing the child in a foster care arrangement or in an adoptive home shall be based solely upon the best interests of the siblings.

§49-2-15. Placing children from other states in private homes of state.
An institution or organization incorporated under the laws of another state shall not place a child in a private home in the state without the approval of the state department, and the agency so placing the child shall arrange for supervision of the child through its own staff or through a licensed child welfare agency in this state, and shall maintain responsibility for the child until he is adopted or discharged from care with the approval of the state department.

§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 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 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.

     (a) From funds appropriated to the Department of Health and Human Resources, the secretary shall establish a system of assistance for facilitating the adoption or legal guardianship of children. An adoption subsidy shall be available for children who are legally free for adoption and who are dependents of the department or a child welfare agency licensed to place children for adoption. A legal guardianship subsidy shall not require the surrender or termination of parental rights. For either subsidy, the children must be in special circumstances because one or more of the following conditions inhibit their adoption or legal guardianship placement:

     (1) They have a physical or mental disability;

     (2) They are emotionally disturbed;

     (3) They are older children;

     (4) They are a part of a sibling group; or

     (5) They are a member of a racial or ethnic minority.

     (b) 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 adoptive parents or legal guardians. The agreement may recognize and provide for direct payment by the department of attorney's fees to an attorney representing the adoptive parent. 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.

     (c) 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: Provided, that reasonable efforts to place a child without a subsidy shall not be required if it is in the best interest of the child because of such factors as the existence of significant emotional ties developed between the child and the prospective parent or guardian while in care as a foster child.

     (d) If the child is the dependent of a voluntary licensed child-placing agency, that agency shall present to the department evidence of the inability to place the child for adoption or legal guardianship without the use of subsidy or evidence that such efforts would not be in the best interests of the child. 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. Note: WV Code updated with legislation passed through the 2012 1st Special Session