WEST virginia legislature
2019 regular session
House Bill 2348
By Delegate Miley and Lovejoy
[Introduced January 11,
to the Committee on Seniors, Children, and Family Issues then the Judiciary.]
A BILL to amend the Code of West Virginia, 1931, as amended, by adding thereto a new section, designated §49-4-304, relating to authorizing magistrates to order emergency removal of a child when a parent’s drug use creates an unsafe environment; requiring certain information in order; providing automatic termination of order following 96 hours unless petition filed; and providing for the department to place child with relative or the department.
Be it enacted by the Legislature of West Virginia:
ARTICLE 4. COURT ACTIONS.
§49-4-304. Emergency removal of custody by magistrates.
(a) Magistrates are authorized to order the department to take emergency custody of a child who is in the physical custody of a party to an action or proceeding before the magistrate, if the magistrate finds that there is clear and convincing evidence that:
(1) A parent’s drug use has caused an unsafe environment for the child; and
(2) There are no reasonable available alternatives to the emergency custody order.
(b) An order entered pursuant to subsection (a) of this section must include specific written findings.
(c) A copy of the order issued pursuant to subsection (a) of this section shall be transmitted forthwith to the department, the circuit court and the prosecuting attorney.
(d) Upon receipt of an order issued pursuant to subsection (a) of this section, the department shall immediately respond and assist the magistrate.
(e) Upon receipt of an order issued pursuant to subsection (a) of this section, the circuit court shall cause to be entered and served, an administrative order in the name of and regarding the affected child, directing the department to submit, within 96 hours from the time the child was taken into custody, an investigative report to both the circuit and family court.
(f) The investigative report shall include a statement of whether the department intends to file a petition pursuant to §49-4-602 of this code.
(g) An order issued pursuant to subsection (a) of this section terminates by operation of law upon expiration of 96 hours from the time the child is initially taken into protective custody unless a petition is filed with the circuit court under §49-4-602 of this code within 96 hours from the time the child is initially taken into protective custody.
(h) The filing of a petition within 96 hours from the time the child is initially taken into protective custody extends the emergency custody order issued pursuant to subsection (a) of this section until a preliminary hearing is held before the circuit court, unless the circuit court orders otherwise.
(i) Any worker for the department assuming custody of a child pursuant to this section shall immediately notify the parents, parent, grandparents, grandparent, guardian or custodian of the child of the taking of the custody and the reasons therefor if the whereabouts of the parents, parent, grandparents, grandparent, guardian or custodian are known or can be discovered with due diligence and, if not, a 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 the child, the child will temporarily be placed in that person’s custody.
(j) In the event no other reasonable alternative is available for temporary placement of a child, the child may be housed by the department in an authorized child shelter facility.
NOTE: The purpose of this bill is to provide for magistrates to have the ability to remove a child from a home in which a parent’s use of drugs is causing an unsafe environment for the child.
Strike-throughs indicate language that would be stricken from a heading or the present law and underscoring indicates new language that would be added.