COMMITTEE SUBSTITUTE
FOR
Senate Bill No. 445
(By Senator Chafin)
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[Originating in the Committee on the Judiciary;
reported February 6, 2002.]
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A BILL to amend and reenact sections five and eight, article six,
chapter forty-nine of the code of West Virginia, one thousand
nine hundred thirty-one, as amended, all 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 sections five and eight, article six, chapter forty-nine
of the code of West Virginia, one thousand nine hundred thirty-one,
as amended, be amended and reenacted, all 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) be
considered for legal guardianship; (iv) be considered for permanent
placement with a fit and willing relative; or (v) be placed in
another planned permanent living arrangement, but only in cases
where the department has documented to the circuit court a
compelling reason for determining that it would not be in the best
interests of the child to follow one of the options set forth in
subparagraphs (i), (ii), (iii) or (iv) of this paragraph. 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.
§49-6-8. Foster care review; annual reports to the court.
(a) If, twelve months after receipt by the department or its
authorized agent of physical custody of a child either by a court
ordered placement or by a voluntary agreement, the department has not placed a child in
permanent foster care or an adoptive home or
placed the child with a natural parent
or placed the child in legal
guardianship or permanently placed the child with a fit and willing
relative, the 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 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
or placed in legal guardianship or permanently placed with
a fit and willing relative.
(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.
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(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.)
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