HB 2409 Text

H. B. 2409

          (By Delegates Miley, Manchin, Longstreth,
Barill and Jones)

          [Introduced February 13, 2013 ; referred to the
          Committee on the Judiciary then Finance.]

A BILL to amend the Code of West Virginia, 1931, as amended by adding thereto a new section, designated §49-6-9a, relating to permitting a family court judge to order a child who is in imminent danger to be taken into emergency custody by the Department of Health and Human Resources; setting forth the procedure to be used; setting forth where that child may be housed; setting forth time limitations and other requirements; and requiring notifications.
Be it enacted by the Legislature of West Virginia:
     That the Code of West Virginia, 1931, as amended, be amended by adding thereto a new section, designated §49-6-9a, to read as follows:
ARTICLE 6. PROCEDURE IN CASES OF CHILD NEGLECT OR ABUSE.
§49-6-9a. Custody Ordered from Family Court in emergency situations.
__(a) Where any child in a family court proceeding is in circumstances constituting imminent danger in the presence of a family court judge, and the family court judge finds the child to be neglected or abused as defined in section three, article one of this chapter, the judge may order the child to be taken into the emergency custody of the Department of Health and Human Resources without the court order otherwise required by section three of this article, if the judge finds that: (1) There exists an imminent danger to the physical well-being of the child as defined in section three, article one of this chapter; and (2) there are no reasonable, available alternatives to the emergency custody order. Upon notification by the family court judge that there exists an imminent danger to the physical well-being of the child, the department shall immediately respond and assist the judge in emergency placement of the child.
__(b) A child taken into emergency protective custody as subject to imminent danger under this section may be housed by the department or an authorized child shelter facility if no other reasonable alternative is available to the court. The authority to hold the child in protective custody as provided by this section, absent a petition and proper order granting temporary custody pursuant to section three of this article, shall terminate by operation of law upon expiration of ninety-six hours from the time the child is initially taken into protective custody.
__(c) The family court shall, within two judicial days of its emergency custody order issued pursuant to this section, file a written order specifying all the facts upon which the decision to order the child into protective custody was based and the date, time and place of the taking. A copy of the written order shall be transmitted forthwith to the department, the circuit court and prosecuting attorney of the county. Upon receiving the written order, the circuit court shall forthwith cause to be entered and served an administrative order in the name of and regarding the affected child directing the department to submit to the family and circuit court an investigative report, including whether the department intends to file a petition under section three of this article, or appear before the circuit court in not more than ninety-six hours from the taking at a scheduled hearing, to show cause why the department's investigation report has not been submitted to the circuit court and referring family court. The scheduled hearing may be mooted by the department's earlier submission of the investigative report or, in the alternative, the filing of a child abuse and neglect petition under section three of this article. The family court shall retain full jurisdiction of the child custody proceedings or protective order proceedings, or both, until a child abuse and neglect petition is filed.
__(d) Any worker for the department assuming custody of a child pursuant to this section shall immediately notify the child's parents, parent, guardian or custodian of the taking of custody of the child and the underlying reasons for taking custody, if the whereabouts of the parents, parent, guardian or custodian are known or can be discovered with due diligence; and if not, notice and explanation shall be given to the child's closest relative, if his or her whereabouts are known or can be discovered with due diligence within a reasonable time. An inquiry shall be made of relatives and neighbors, and if an appropriate relative or neighbor is willing to assume custody of such child, such child shall temporarily be placed in such custody.
__(e) No child may be taken into custody under circumstances not justified by this section or pursuant to section three of this article without appropriate process. Any retention of a child or order for retention of a child not complying with the time limits and other requirements specified in this article is void by operation of law.

  NOTE: The purpose of this bill is to permit a family court judge to order a child who is in imminent danger to be taken into emergency custody of the Department of Health and Human Resources. The bill sets forth the procedure to be used. The bill sets forth where that child may be housed. The bill sets forth time limitations and other requirements. The bill also requires notifications.

  This section is new; therefore, it has been completely underscored.

Print On Demand