Senate Bill No. 132
(By Senator Boley)
____________
[Introduced February 9, 2005; referred to the Committee
on Health and Human Resources; and then to the Committee on the
Judiciary.]
____________
A BILL to amend and reenact §49-2-14 of the Code of West Virginia,
1931, as amended, relating to clarifying the procedure for
removal of a child from a foster home.
Be it enacted by the Legislature of West Virginia:
That §49-2-14 of the Code of West Virginia, 1931, as amended,
be amended and reenacted to read as follows:
ARTICLE 2. STATE RESPONSIBILITIES FOR THE PROTECTION AND CARE OF
CHILDREN.
§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.
If the allegations prove to be untrue, or unsubstantiated, or true
but not the fault of the foster parents, the child shall be
promptly returned to the care of the foster parents.
(1) Whenever a social services official or other authorized
agency acting on behalf of a social services official proposes to
remove a child in foster family care from the foster family home,
the social services official or any other authorized agency, as may
be appropriate, shall notify the foster family parents, in writing,
of the intention to remove the child. The notification shall be given at least ten days prior to the proposed effective date of the
removal, except where the health or safety of the child requires
that the child be removed immediately from the foster family home.
The notification shall further advise the foster family parents
that they may request a conference with the social services
official or a designated employee and at which time the foster
parents, with or without a representative, may appear to have the
proposed action reviewed, be advised of the reasons therefore and
be afforded an opportunity to submit reasons why the child should
not be removed. Each social services official shall instruct and
require any authorized agency acting on the official?s behalf to
furnish notice in accordance with the provisions of this section.
Foster parents who do not object to the removal of the child from
their home may waive in writing their right to the ten day notice:
Provided, That the waiver may not be executed prior to the social
services official's or authorized agency?s determination to remove
the child from the foster home and the receipt by the foster
parents of notification of the determination.
(2) Upon the receipt of a request for a conference, the social
services official shall set a time and place for the conference to
be held within ten days of receipt of the request and shall send
written notice of the conference to the foster family parents and
their representative, if any, and to the authorized agency, if any,
at least five days prior to the date of the conference. Foster parents may bring two advocates to the conference, a child
psychologist, if any, any teacher or any other professional who
works with the child or family and who can give input into the
decision.
(3) The social services official shall render and issue a
decision as expeditiously as possible, but not later than two days
after the conference, and shall immediately send a written notice
of the decision to the foster family parents and their
representative, if any, and to the authorized agency, if any. The
decision shall advise the foster family parents of their right to
appeal to the Department and to request a fair hearing in
accordance with CAPTA and the ASFA.
(4) If a conference is requested, the child may not be removed
from the foster family home until at least five days after the
notice of decision is sent, or prior to the proposed effective date
of removal, whichever occurs later. All parties included in the
conference must agree to the removal or the child remains in the
placement and each member of the conference will submit a written
opinion of where the child should be placed to the circuit court
and a hearing will be convened specifically on the placement of the
child.
(5) Any person aggrieved by the decision of the Commissioner
of Department of Health and Human Resources or case worker to
remove a child from his or her care may appeal to the Department, which upon receipt of the appeal shall review the case, shall give
the person making the appeal an opportunity for a fair hearing
thereon and within thirty days render its decision. The Department
may also, on its own motions, review any decision made by the
public welfare official. The Department may make any additional
investigation it considers necessary.
(6) In any agreement for foster care between a social services
official, or other authorized agency acting on the official's
behalf, and the foster parents, there shall be a statement of
foster parents' rights provided under this section.
(7) If the cause of the removal was allegations of abuse or
neglect, and if the final determination is unsubstantiated or no
abuse, then the foster child shall be returned to the foster home,
and if the foster parents' license has been revoked it shall be
reinstated. (This shall be retroactive to cover ongoing cases and
cases where the children have not yet been adopted. Proof thereof
shall be submitted to the former foster parents.) If the final
determination is at risk, then the Department shall submit proof
that the problem is continuous, that a corrective action plan will
not solve the problem, and that the problem was the fault of the
foster parent, otherwise, the foster child must be returned. If
the determination is substantiated or maltreatment did occur, but
it was not the fault of the foster parent, then the child shall be
returned.
(8) It shall be the presumption of the court that it is in
the best interest of the child for the child to remain in a safe
and stable placement and maintain established relationships in
order to prevent serious emotional problems such as attachment
disorders. It is necessary to prevent multiple placements,
therefore, it is necessary to give foster parents and relatives
visitation. Visitation between a removed foster child and its
former foster parents or kinship care providers and their immediate
family shall occur bi-weekly for a minimum of one hour if the
natural parents still maintain parental rights but if parental
rights of the natural parents have been terminated, then visitation
shall be weekly for a minimum of two hours.
(9) In the case of children who have no legal parents because
the rights of their biological or adoptive parents have been
terminated, persons having physical custody, and former relative
and foster care providers, shall have the same rights to due
process and to custody of the child as a natural parent, unless the
persons waive their rights.
(10) It shall be the presumption of the court that it is not
in the best interests of the child to remove a child from a home
because the child might be abused or neglected. There shall be
some element of real danger that a child will be abused if left in
the home. This is to protect children from multiple and numerous
placements since the constant changing of placements shall be determined to be abuse and neglect which directly causes mental and
emotional problems for children, causing attachment disorders,
decreased ability to bond and decreased chance of finding a
permanent home.
(11) Unsubstantiated allegations shall be immediately and
completely expunged from the record, including computer, paper and
interoffice memos, to protect the innocent party's constitutional
rights and to prevent future investigations from being tainted by
the false allegations.
(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.
It shall
be presumed by the court to be in the best interests of the child
to stay in the original placement unless clear and convincing
evidence shows otherwise, or the child is being placed with a
relative or the foster parents do not wish to adopt or obtain
permanent custody. A worker's opinion may not be considered as
clear and convincing evidence. The child's opinion shall be sought
if the child is five years old or older.
(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
by clear and convincing
evidence.
(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.
Unless proven otherwise by clear and
convincing evidence, sibling rights to a close relationship may not
be denied and the court shall presume it to be in the best
interests of the children to be placed together.
NOTE: The purpose of this bill is to clarify the procedure
for removal of a child from a foster home.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.
Email
Webmaster | © 2024 West Virginia Legislature **
