H. B. 2814

(By Delegates Manuel and Douglas)
[Introduced February 24, 1995; referred to the
Committee on the Judiciary then Finance.]

A BILL to amend chapter forty-nine of the code of West Virginia, one thousand nine hundred thirty-one, as amended, by adding thereto a new article, designated article nine, relating to child welfare generally; foster care; adjudicatory and dispositional proceedings; creation of office of inspector general; creation of bureau or quality assurance; establishing of state-wide abuse and neglect report hotline; rights of parties; temporary custody hearing; petitions; guardian ad litem; continuance under supervision; findings and adjudication; dispositional orders; protective supervision; order of protection; placement; legal custody or guardianship; judicial review; duration of wardship; and discharge of proceedings.

Be it enacted by the Legislature of West Virginia:
That chapter forty-nine of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be amended by adding thereto a new article, designated article nine, to read as follows:
ARTICLE 9. CHILD WELFARE REFORM ACT.
§49-9-1. Definitions.
Unless the context clearly requires a different meaning, as used in this article the following terms have the meanings ascribed to them:
(a) "Adjudicatory hearing" means a hearing to determine whether the allegations of a petition that a minor is abused or neglected or requires authoritative intervention, are supported by a preponderance of the evidence or whether the allegations of a petition that a minor is delinquent are proved beyond a reasonable doubt.
(b) "Adult" means a person twenty-one years of age or older.
(c) "Agency" means a public or private minor care facility legally authorized or licensed by this state for placement or institutional care or for both placement and institutional care.
(d) "Association" means any organization, public or private, engaged in welfare functions which include services to or on behalf of children but does not include "agency" as herein defined.
(e) "Court" means the circuit court in a session or division assigned to hear proceedings under this article.
(f) "Dispositional hearing" means a hearing to determine whether a minor should be adjudged to be a ward of the court, and to determine what order of disposition should be made in respect to a minor adjudged to be a ward of the court.
(g) "Emancipated minor" means any minor sixteen years of age or over who has been completely or partially emancipated.
(h) "Guardianship of the person" of a minor means the duty and authority to act in the best interest of the minor, subject to residual parental rights and responsibilities, to make important decisions in matters having a permanent effect on the life and development of the minor and to be concerned with his or her general welfare. It includes, but is not limited to:
(1) The authority to consent to marriage; to enlistment in the armed forces of the United States; or to a major medical, psychiatric or surgical treatment; to represent the minor in legal actions; and to make other decisions of substantial legal significance concerning the minor;
(2) The authority and duty of reasonable visitation, except to the extent that these have been limited in the best interest of the minor by court order;
(3) The rights and responsibilities of legal custody except where legal custody has been vested in another person or agency; and
(4) The power to consent to the adoption of the minor, but only if expressly conferred on the guardian by order of the court.
(i) "Juvenile law-enforcement officer" means a sworn law-enforcement officer who has completed a basic recruit training course, has been assigned to the position of juvenile law-enforcement officer by his or her chief law-enforcement officer and has completed the necessary juvenile officers training as prescribed by the West Virginia local governmental law-enforcement officers training board, or in the case of a state law-enforcement officer, juvenile officer training approved by the director of the division of public safety.
(j) "Legal custody" means the relationship created by an order of court in the best interest of the minor which imposes on the custodian the responsibility of physical possession of a minor and the duty to protect, train and discipline him or her and to provide him or her with food, shelter, education and ordinary medical care, except as these are limited by residual parental rights and responsibilities and the rights and responsibilities of the guardian of the minor, if any.
(k) "Parent" means the father or mother of a minor and includes any adoptive parent. It also includes the father whose paternity is presumed or has been established under the laws of this state or any other jurisdiction. "Parent" does not include a person whose rights with respect to the minor have been terminated in any manner provided by law.
(l) "Residual parental rights and responsibilities" means those rights and responsibilities remaining with the parent after the transfer of legal custody or guardianship of the minor, including, but not limited to: The right to reasonable visitation, which may be limited in the discretion of the court based on the best interest of the minor in the discretion of the court; the right to consent to adoption; the right to determine the minor's religious affiliation; and the responsibility for his or her support.
(m) "Shelter" means the temporary care of a minor in physically unrestricting facilities pending court disposition or execution of court order for placement.
(n) "Station adjustment" means the informal handling of a minor who is an alleged offender by a juvenile law-enforcement officer.
(o) "Ward of the court" means a minor who is so adjudged and thus is subject to the dispositional powers of the court under this article.
§49-9-2. Training programs for the provision of foster
care and adoptive care services.
Training provided to foster parents shall include training and information on their right to be heard, to bring a mandamus action and to intervene in juvenile court, and the availability of the hotline established in this article that foster parents may use to report incidents of misconduct or violation of rules by department employees, service providers or contractors. Moneys for such training programs shall be derived from the division of human services training fund, hereby created in the state treasury. Deposits to this fund shall consist of federal financial participation in foster care and adoption care training programs, public and unsolicited private grants and fees for such training. Disbursements from the division of human services training fund shall be made by the department of foster care and adoptive care training services in accordance with federal standards.
§49-9-3. Inspector general.
(a) The governor shall appoint, and the Senate shall confirm, an inspector general who shall have the authority to conduct investigations into allegations of or incidents of possible misconduct, misfeasance, malfeasance or violations of rules, procedures or laws by any employee, foster parent, service provider or contractor of the division of human services. The inspector general shall make recommendations to the director of the state division of human services concerning sanctions or disciplinary actions against division employees or providers of service under contract to the department. The inspector general shall be appointed for a term of four years. The inspector general shall be independent of the operations of the department and shall report to the director of the division of human services and perform other duties the director may designate.
(b) The inspector general shall have access to all information and personnel necessary to perform the duties of the office. To minimize duplication of efforts the inspector general shall coordinate his or her activities with the department.
(c) The inspector general shall be the primary liaison between the department and the division of public safety with regard to investigations conducted under the inspector general's auspices. If the inspector general determines that a possible criminal act has been committed or that special expertise is required in the investigation, he or she shall immediately notify the division of public safety. All investigations conducted by the inspector general shall be conducted in a manner designed to ensure the preservation of evidence for possible use in a criminal prosecution.
(d) The inspector general may recommend to the division of human services, the department of health and human resources or any other appropriate agency, sanctions to be imposed against service providers under the jurisdiction of or under contract with the department for the protection of minors in the custody or under the guardianship of the department who received services from those providers. The inspector general may seek the assistance of the attorney general or any of the several state's attorneys in imposing sanctions.
(e) The inspector general shall at all times be granted access to any foster home, facility or program operated for or licensed or funded by the department.
(f) Nothing in this section may limit investigations by the division of human services that may otherwise be required by law or that may be necessary in that department's capacity as the central administrative authority for minor welfare.
(g) The inspector general shall have the power to subpoena witnesses and compel the production of books and papers pertinent to an investigation authorized by this article. The power to subpoena or to compel the production of books and papers, however, may not extend to the person or documents of a labor organization or its representatives insofar as the person or documents of a labor organization relate to the function of representing an employee subject to investigation under this article. Any person who fails to appear in response to a subpoena or to answer any question or produce any books or papers pertinent to an investigation under this article, except as otherwise provided in this section, or who knowingly gives false testimony in relation to an investigation under this article is guilty of a misdemeanor.
(h) The inspector general shall provide to the Legislature and the governor, not later than the first day of January, of each year, a summary of reports and investigations made under this section for the prior fiscal year. The summaries shall detail the imposition of sanctions and the final disposition of those recommendations. The summaries may not contain any confidential or identifying information concerning the subjects of the reports and investigations. The summaries shall also include detailed recommended administrative actions and matters for consideration by the Legislature.
§49-9-4. Foster parent state-wide, toll-free telephone number.
(a) There shall be a state-wide, toll-free telephone number for foster parents to report to the inspector general of the department, suspected misconduct, malfeasance, misfeasance or violations of rules, procedures or laws by department employees, service providers or contractors that are detrimental to the best interest of minors receiving care, services or training from or who were committed to the department. Immediately upon receipt of a telephone call regarding suspected abuse or neglect of minors, the inspector general shall refer the call to the minor abuse and neglect hotline or to the state police. A mandated reporter may not be relieved of his or her duty to report incidents to the minor abuse and neglect hotline referred to in this subsection. The inspector general shall also establish rules and procedures for evaluating reports of suspected misconduct and violation of rules and for conducting an investigation of such reports.
(b) The inspector general shall prepare and maintain written records from the reporting source that shall contain the following information to the extent known at the time the report is made: (1) The names and addresses of the minor and the person responsible for the minor's welfare; (2) the nature of the misconduct and the detriment caused to the minor; and (3) the names of the persons or agencies responsible for the alleged misconduct. The inspector general may include the results of an investigation in reports compiled under this section. At the request of the reporting agent, the inspector general shall keep the identity of the reporting agent strictly confidential from the operation of the department. Until the inspector general determines what recommendations shall be made with regard to discipline or sanction of the department employee, service provider, or contractor, the department shall take whatever steps are necessary to assure that a person making a report in good faith under this section is not adversely affected solely on the basis of having made such report.
§49-9-5. Rights of parties to proceedings.
(a) Except as provided in this section, the minor who is the subject of the proceeding and his or her parents, guardian, legal custodian or responsible relative who are parties have the right to be present, to be heard, to present evidence material to the proceedings, to cross-examine witnesses, to examine pertinent court files and records and the right to be represented by counsel. At the request of any party financially unable to employ counsel, with the exception of a foster parent permitted to intervene under subsection (b) of this section, the court shall appoint the public defender or such other counsel as the case may require.
No hearing on any petition filed under this article may be commenced unless the minor who is the subject of the proceeding is represented by counsel. Each adult respondent shall be furnished a written "Notice of Rights" at or before the first hearing at which he or she appears.
(b)(1) Though not appointed guardian or legal custodian or otherwise made a party to the proceeding, any current or previously appointed foster parent or representative of an agency or association interested in the minor has the right to be heard by the court, but does not thereby become a party to the proceeding.
In addition to the foregoing right to be heard by the court, any current foster parent of a minor and the agency designated by the court or the division of human services as custodian of the minor who has been adjudicated an abused or neglected minor shall be given adequate notice at all stages of any hearing or proceeding under this article wherein the custody or status of the minor may be changed. Such notice shall contain a statement regarding the nature and denomination of the hearing or proceeding to be held, the change in custody or status of the minor sought to be obtained at such hearing or proceeding, and the date, time and place of such hearing or proceeding. The department of human services or the licensed minor welfare agency that has placed the minor with the foster parent shall notify the clerk of the court of the name and address of the current foster parent. The clerk shall mail the notice by certified mail marked for delivery to addressee only. The regular return receipt for certified mail is sufficient proof of service.
Any foster parent who is denied his or her right to be heard under this section may bring a mandamus action against the court or any public agency to enforce that right. The mandamus action may be brought immediately upon the denial of those rights but in no event may the action be brought later than thirty days after the foster parent has been denied the right to be heard.
(2) If after an adjudication that a minor is abused or neglected and an application has been made to restore the minor to any parent, guardian or legal custodian found by the court to have caused the neglect or to have inflicted the abuse on the minor, a foster parent may petition the court to intervene in the proceeding for the sole purpose of requesting that the minor be placed with the foster parent, provided that the foster parent: (1) Is the current foster parent of the minor; or (2) has previously been a foster parent for the minor for one year or more, has a foster care license or is eligible for such a license, and is not the subject of any findings of abuse or neglect of any minor. The juvenile court may only enter orders placing a minor with a specific foster parent under this subsection and nothing in this section may be construed to confer any jurisdiction or authority on the juvenile court to issue any other orders requiring the appointed guardian or custodian of a minor to place the minor in a designated foster home or facility. Nothing in this section may authorize the court to act in any way less than in a just and speedy manner to reunify families where it is in the best interest of the minor and, if reunification is not in the best interest of the minor, to find another permanent home for the minor. Nothing in this section, or in any order issued by the court with respect to the placement of a minor with a foster parent, may impair the ability of the division of human services, or anyone else authorized to remove a minor from the home of a foster parent if the division of human services or the person removing the minor has reason to believe that the circumstances or conditions of the minor are such that continuing in the residence or care of the foster parent present an imminent risk of harm to the life or health of the minor.
(c) The parties are entitled to written notice of all proceedings. At the first appearance before the court by the minor, his or her parents, guardian, custodian or responsible relative, the court shall explain the nature of the proceedings and inform the parties of their rights under this section. Upon an adjudication of wardship of the court, the court shall inform the parties of their right to appeal therefrom as well as from any other final judgment of the court.
(d) No sanction may be applied against the minor who is the subject of the proceedings by reason of his or her refusal or failure to testify in the course of any hearing held prior to final adjudication.
(e) In the discretion of the court, the minor may be excluded from any part of a dispositional hearing and, with the consent of the parent or parents, guardian, counsel or a guardian ad litem, from any part of an adjudicatory hearing.
(f) The general public including the news media shall be excluded from any hearing. The victim, and any representatives of agencies and associations who in the opinion of the court have a direct interest in the case or in the work of the court, shall be admitted to the hearing. However, the court may, for the minor's protection and for good cause shown, prohibit any person or agency present in court from disclosing the minor's identity.
§49-9-6. Temporary custody hearing.
At the appearance of the minor at the temporary custody hearing, all witnesses present shall be examined before the court in relation to any matter connected with the allegations made in the petition.
(a) If the court finds that there is not probable cause to believe that the minor is abused or neglected it shall release the minor and dismiss the petition.
(b) If the court finds that there is probable cause to believe that the minor is abused or neglected, the minor, his or her parent, guardian, custodian and other persons able to give relevant testimony shall be examined before the court. The department of human services shall give testimony concerning indicated reports of abuse and neglect, gathered through the central registry, involving the minor's parent, guardian or custodian. After such testimony, the court may, if it is in the best interest of the minor, enter an order that the minor shall be released upon the request of a parent, guardian or custodian if the parent, guardian or custodian appears to take custody. Custodian shall include any agency of the state which has been given custody or wardship of the minor. If it is in the best interest of the minor, the court may also prescribe shelter care and order that the minor be kept in a suitable place designated by the court or in a shelter care facility designated by the division of human services or a licensed minor welfare agency. In determining that it is in the best interest of the minor to prescribe shelter care, the court must find that it is a matter of immediate and urgent necessity for the protection of the minor or of the person or property of another that the minor be placed in a shelter care facility or that he or she is likely to flee the jurisdiction of the court, and must further find that reasonable efforts have been made or that, in the best interest of the minor, no efforts reasonably can be made to prevent the necessity of removal of the minor from his or her home. The court shall require documentation from the division of human services as to the reasonable efforts that were made to prevent the necessity of removal of the minor from his or her home or the reasons why no efforts reasonably could be made to prevent the necessity of removal. When a minor is placed in the home of a close relative, the division of human services shall complete a preliminary background review of the members of the minor's custodian's household within ninety days of that placement, and the information will be evaluated within one hundred eighty days. If the minor is ordered to be placed in a shelter care facility of the division of human services or a licensed minor welfare agency, the court shall, upon request of the appropriate department or other agency, appoint the division of human services director or other appropriate agency executive temporary custodian of the minor and the court may enter such other orders related to the temporary custody as it deems fit and proper, including the provision of services to the minor or his or her family to ameliorate the causes contributing to the finding of probable cause or to the finding of the existence of immediate and urgent necessity. Acceptance of services may not be considered an admission of any allegation in a petition made pursuant to this article, nor may a referral of services be considered as evidence in any proceeding pursuant to this article, except where the issue is whether the department has made reasonable efforts to reunite the family. In making its findings that it is in the best interest of the minor to prescribe shelter care, the court shall state in writing: (1) Its findings concerning the immediate and urgent necessity for the protection of the minor or of the person or property of another; and (2) the reasonable efforts that were made to prevent the removal of the minor from his or her home or the reasons why no efforts reasonably could be made to prevent the removal of the minor from his or her home. The parents, guardian, custodian, temporary custodian and minor shall each be furnished a copy of the written findings. The temporary custodian shall maintain a copy of the court order and written findings in the case record for the minor. The order together with the court's findings of fact in support thereof shall be entered of record in the court.
Once the court finds that it is a matter of immediate and urgent necessity for the protection of the minor that the minor be placed in a shelter care facility, the minor may not be returned to the parent, custodian or guardian until the court finds that such placement is no longer necessary for the protection of the minor.
(c) If prior to the shelter care hearing for a minor the moving party is unable to serve notice on the opposing party, the shelter care hearing may proceed ex parte. A shelter care order from an ex parte hearing shall be endorsed with the date and hour of issuance and shall be filed with the clerk's office and entered of record. The order shall expire after ten days from the time it is issued unless before its expiration it is renewed at a hearing upon appearance of the opposing party, or upon an affidavit of the moving party as to all diligent efforts to notify the opposing party by notice as herein prescribed. The notice prescribed shall be in writing and shall be personally delivered to the minor or the minor's attorney and to the last known address of the other person or persons entitled to notice. The notice shall also state the nature of the allegations, the nature of the order sought by the state, including whether temporary custody is sought, and the consequences of failure to appear. The notice shall explain the rights of the parties and the procedures to vacate or modify a shelter care order as provided in this section. The notice for a shelter care hearing shall be substantially as follows:
NOTICE TO PARENTS AND CHILDREN OF SHELTER CARE HEARING
On ............ at ............, before the Honorable ..............., (address:)..................., the state of West Virginia will present evidence: (1) That (name of child) ................ is abused or neglected for the following reasons: .............................................; and (2) that there is "immediate and urgent necessity" to remove the child from the responsible relative.
YOUR FAILURE TO APPEAR AT THE HEARING MAY RESULT IN PLACEMENT of the child in foster care until a hearing can be held. A hearing may not be held for up to ninety days.
At the shelter care hearing, parents have the following rights:
(1) To ask the court to appoint a lawyer if they cannot afford one;
(2) To ask the court to continue the hearing to allow them time to prepare;
(3) To present evidence concerning:
(A) Whether or not the child was abused or neglected;
(B) Whether or not there is "immediate and urgent necessity" to remove the child from his or her home (including: The parent's ability to care for the minor, conditions in the home and alternative means of protecting the minor other than removal);
(C) What is in the best interest of the minor; and
(D) To cross examine the state's witnesses.
(d) The notice for rehearing shall be substantially as follows:
NOTICE OF PARENT'S AND CHILD'S RIGHTS
TO REHEARING ON TEMPORARY CUSTODY
If you were not present at and did not have adequate notice of the shelter care hearing at which temporary custody of .........was awarded to ........., you have the right to request a full rehearing on whether the state should have temporary custody of ......... To request this rehearing, you must file with the clerk of the juvenile court (address):................., in person or by mailing a statement which sets forth the following:
(1) That you were not present at the shelter care hearing;
(2) That you did not get adequate notice including an explanation of how the notice was inadequate;
(3) Your signature; and
(4) Your signature must be notarized.
The rehearing shall be scheduled within one day of your filing this statement.
At the rehearing, your rights are the same as at the initial shelter care hearing. The enclosed notice explains those rights.
(e) At the shelter care hearing, a children has the following rights:
(1) To have a guardian ad litem appointed;
(2) To be declared competent as a witness and to present testimony concerning:
(A) Whether he or she is abused or neglected;
(B) Whether there is "immediate and urgent necessity" to be removed from home;
(C) What is in his or her best interest.
(3) To cross examine witnesses for other parties; and
(4) To obtain an explanation of any proceedings and orders of the court.
(f) If the parent, guardian, legal custodian, responsible relative, minor of age eight or over or counsel of the minor did not have actual notice of or was not present at the shelter care hearing, he or she may file an affidavit setting forth these facts, and the clerk shall set the matter for rehearing not later than forty-eight hours, excluding Sundays and legal holidays, after the filing of the affidavit. At the rehearing, the court shall proceed in the same manner as upon the original hearing.
(g) Only when there is reasonable cause to believe that the minor taken into custody is delinquent may the minor be kept or detained in a detention home or county or regional jail. This subsection may not be construed to limit subsection (h) of this section.
(h) No minor under sixteen years of age may be confined in a jail or any place ordinarily used for the confinement of adult prisoners in a police station. Minors under seventeen years of age must be kept separate from confined adults and may not at any time be kept in the same cell, room or yard with any adult imprisoned in this state.
(i) If the minor is not brought before a judicial officer within twenty-four hours, the minor shall immediately be released from custody.
(j) If neither the parent, guardian or custodian appears within twenty-four hours to take custody of a minor released upon request pursuant to subsection (b) of this section, then the clerk of the court shall set the matter for rehearing not later than seven days after the original order and shall issue a summons directed to the parent, guardian or custodian to appear. At the same time the probation department shall prepare a report on the minor. If a parent, guardian or custodian does not appear at the rehearing, the judge may enter an order prescribing that the minor be kept in a suitable place designated by the division of human services or a licensed minor welfare agency.
(k) Notwithstanding any other provision of this section any interested party, including the state, the temporary custodian, an agency providing services to the minor or family of the minor, foster parent, or any of their representatives, on notice to all parties entitled to notice, may file a motion that it is in the best interest of the minor to modify or vacate a temporary custody order on any of the following grounds:
(1) It is no longer a matter of immediate and urgent necessity that the minor remain in shelter care;
(2) There is a material change in the circumstances of the natural family from which the minor was removed;
(3) A person not a party to the alleged abuse or neglect, including a parent, relative or legal guardian, is capable of assuming temporary custody of the minor; or
(4) Services provided by the division of human services or a minor welfare agency or other service provider have been successful in eliminating the need for temporary custody.
In ruling on the motion, the court shall determine whether it is in the best interest of the minor to modify or vacate a temporary custody order.
The clerk shall set the matter for hearing not later than fourteen days after such motion is filed. In the event that the court modifies or vacates a temporary custody order but does not vacate its finding of probable cause, the court may order that appropriate services be continued or initiated in behalf of the minor and his or her family.
§49-9-7. Petition; supplemental petitions.
(a) Any adult person, agency or association may file, or the court on its own motion in the best interest of the minor may direct the filing through the state's attorney of a petition in respect of a minor under this article. The petition and all subsequent court documents shall be entitled "In the interest of ........., a minor."
(b) The petition shall be verified but the statements may be made upon information and belief. The petition shall allege whether the minor is abused or neglected, and set forth the following: (1) Facts sufficient to support the relief requested; (2) the name, age and residence of the minor; (3) the names and residences of his or her parents; (4) the name and residence of his or her legal guardian or the person or persons having custody or control of the minor, or of the nearest known relative if no parent or guardian can be found; and (5) if the minor upon whose behalf the petition is brought is sheltered in custody, the date on which such temporary custody was ordered by the court or the date set for a temporary custody hearing. If any of the facts herein required are not known by the petitioner, the petition shall so state.
(c) The petition must allege that it is in the best interest of the minor and of the public that he or she be adjudged a ward of the court and may pray generally for relief available under this article. The petition need not specify any proposed disposition following adjudication of wardship.
(d) If the person with power to consent to adoption of the minor seeks to appoint a guardian, the petition shall so state.
(e) At any time before dismissal of the petition or before final closing and discharge of the proceedings, one or more supplemental petitions in the best interest of the minor may be filed concerning the same minor. The supplemental petition shall specify sufficient facts in support of the relief requested.
§49-9-8. Date for adjudicatory hearing.
(a) Purpose and policy. -- The Legislature recognizes that serious delay in the adjudication of abuse or neglect cases can cause grave harm to the minor and the family and that it frustrates the best interest of the minor and the effort to establish permanent homes for minors in need. The purpose of this section is to insure that, consistent with the Federal Adoption Assistance and Minor Welfare Act of 1980, Public Law 96-272, as amended, and the intent of this article, the state of West Virginia will act in a just and speedy manner to determine the best interest of the minor, including providing for the safety of the minor, identifying families in need, reunifying families where it is in the best interest of the minor and, if reunification is not in the best interest of the minor, finding another home for the minor.
(b) When a petition is filed alleging that the minor is abused or neglected, an adjudicatory hearing shall be held within ninety days of the date of service of process upon the minor, parents, any guardian and any legal custodian.
(c) Upon written motion of a party filed not later than ten days prior to hearing, or upon the court's own motion and only for good cause shown, the court may continue the hearing for a period not to exceed thirty days, and only if the continuance is in the best interest of the minor. When the court grants a continuance, it shall enter specific factual findings to support its order, including factual findings supporting the court's determination that the continuance is in the best interest of the minor. Only one such continuance may be granted. A period of continuance for good cause as described in this section shall temporarily suspend as to all parties, for the time of the delay, the period within which a hearing must be held. On the day of the expiration of the delay, the period shall continue at the point at which it was suspended.
The term "good cause" as applied in this section shall be strictly construed. Neither stipulation by counsel nor the convenience of any party constitutes good cause. If the adjudicatory hearing is not heard within the time limits required by subsection (b) or (c) of this section, upon motion by any party the petition shall be dismissed without prejudice.
(d) The time limits of this section may be waived only by consent of all parties and approval by the court.
(e) For all cases filed before the first day of July, one thousand nine hundred ninety-five, an adjudicatory hearing must, be held within one hundred eighty days of the first day of July, one thousand nine hundred ninety-five.
§49-9-9. Guardian ad litem.
(a) Immediately upon the filing of a petition alleging that the minor is abused or neglected the court shall appoint a guardian ad litem for the minor if:
(1) Such petition alleges that the minor is an abused or neglected minor; or
(2) Such petition alleges that charges alleging the commission of any sex offense contained in this code have been filed against a defendant in any court and that the minor is the alleged victim of the offense of defendant.
Unless the guardian ad litem appointed pursuant to this section is an attorney-at-law the guardian ad litem shall be represented in the performance of his or her duties by counsel. The guardian ad litem shall represent the best interest of the minor and shall present recommendations to the court consistent with that duty.
(b) Before proceeding with the hearing, the court shall appoint a guardian ad litem for the minor if:
(1) No parent, guardian, custodian or relative of the minor appears at the first or any subsequent hearing of the case;
(2) The petition prays for the appointment of a guardian with power to consent to adoption; or
(3) The petition for which the minor is before the court resulted from a report made that the minor was abused or neglected.
(c) The court may appoint a guardian ad litem for the minor whenever it finds that there may be a conflict of interest between the minor and his or her parents or other custodian or that it is otherwise in the minor's best interest to do so.
(d) Unless the guardian ad litem is an attorney, he or she shall be represented by counsel.
(e) The reasonable fees of a guardian ad litem appointed under this section shall be fixed by the court and charged to the parents of the minor, to the extent they are able to pay. If the parents are unable to pay those fees, they shall be paid from the general fund of the county.
Whenever the petition alleges that the minor is neglected or abused because of physical abuse inflicted by the parent or guardian the guardian ad litem must have at least one face-to-face interview with the minor before the beginning of the adjudicatory hearing.
(f) A guardian ad litem appointed under this section, shall receive copies of any classified report of minor abuse or neglect made in which the minor who is the subject of the report is also the minor for whom the guardian ad litem is appointed under this section.
§49-9-10. Continuance under supervision.
(a) The court may enter an order of continuance: (1) Upon an admission or stipulation by the appropriate party or the minor of the facts supporting the petition and before proceeding to findings and adjudication or after hearing the evidence at the adjudicatory hearing but before noting in the minutes of proceeding a finding of whether or not the minor is abused or neglected; and (2) in the absence of objection made in open court by the minor, his or her parent, guardian, custodian, responsible relative, defense attorney or the state's attorney.
(b) If the minor, his or her parent, guardian, custodian, responsible relative, defense attorney or the state's attorney objects in open court to any such continuance and insists upon proceeding to findings and adjudication, the court shall so proceed.
(c) Nothing in this section may limit the power of the court to order a continuance of the hearing for the production of additional evidence or for any other proper reason.
(d) When a hearing where a minor is alleged to be abused or neglected is continued pursuant to this section, the court may permit the minor to remain in his or her home if the court determines and makes written factual findings that it is in the minor's best interests to do so, subject to such conditions concerning his or her conduct and supervision as the court may require by order.
(e) If a petition is filed charging a violation of a condition of the continuance under supervision, the court shall conduct a hearing. If the court finds that such condition of supervision has not been fulfilled the court may proceed to findings, adjudication and disposition. The filing of a petition for violation of a condition of the continuance under supervision shall toll the period of continuance under supervision until the final determination of the charge and the term of the continuance under supervision shall not run until the hearing and disposition of the petition for violation; provided where the petition alleges conduct that does not constitute a criminal offense, the hearing must be held within fifteen days of the filing of the petition unless a delay in such hearing has been occasioned by the minor, in which case the delay shall continue the tolling of the period of continuance under supervision for the period of such delay.
§49-9-11. Findings and adjudication.
(a) After hearing the evidence the court shall make and note in the minutes of the proceeding a finding of whether or not the minor is abused, neglected or dependent. If it finds that the minor is not such a person, the court shall order the petition dismissed and the minor discharged.
(b) If the court finds and notes in its findings that the minor is either abused or neglected or dependent, the court shall then set a time not later than thirty days after the entry of the finding for a dispositional hearing at which hearing the court shall determine whether it is in the best interest of the minor and the public that he or she be made a ward of the court. To assist the court in making this and other determinations at the dispositional hearing, the court may order that an investigation be conducted and a dispositional report be prepared concerning the minor's physical and mental history and condition, family situation and background, economic status, education, occupation, history of delinquency or criminality, personal habits and any other information that may be helpful to the court. The dispositional hearing may be continued once for a period not to exceed thirty days if the court finds that such continuance is necessary to complete the dispositional report.
If the court finds that the minor is abused, neglected or dependent, the court shall then find whether such abuse, neglect or dependency is the result of physical abuse to the minor inflicted by a parent, guardian or legal custodian and such finding shall appear in the order of the court.
(c) The time limits of this section may be waived only by consent of all parties and approval by the court, as determined to be in the best interest of the minor.
(d) For all cases adjudicated prior to the first day of July, one thousand nine hundred ninety-five, for which no dispositional hearing has been held prior to that date, a dispositional hearing shall be held within ninety days of the first day of July, one thousand nine hundred ninety-five.
§49-9-12. Dispositional hearing; evidence; continuance.
(a) At the dispositional hearing, the court shall determine whether it is in the best interest of the minor and the public that he or she be made a ward of the court and, if he or she is to be made a ward of the court, the court shall determine the proper disposition best serving the interest of the minor and the public. All evidence helpful in determining these questions, including oral and written reports, may be admitted and may be relied upon to the extent of its probative value, even though not competent for the purposes of the preadjudicatory hearing.
(b)
Written notice must be given to all parties prior to proceeding to a dispositional hearing. Before making an order of disposition, the court shall advise the state's attorney, the parents, guardian, custodian or responsible relative or their attorneys of the factual contents and the conclusions of the reports prepared for the use of the court and considered by it, and afford fair opportunity, if requested, to controvert them. The court may order, however, that the documents containing such reports need not be submitted to inspection, or that sources of confidential information need not be disclosed except to the attorneys for the parties. Factual contents, conclusions, documents and sources disclosed by the court under this paragraph may not be further disclosed without the express approval of the court pursuant to an in camera hearing.
(c)A record of a prior continuance under supervision whether successfully completed or not, is admissible at the dispositional hearing.
(d)On its own motion or that of the state's attorney, a parent, guardian, custodian, responsible relative or their attorney, the court may adjourn the hearing for a reasonable period to receive reports or other evidence if the adjournment is in the best interest of the minor. In scheduling investigations and hearing, the court shall give priority to proceedings in which a minor has been removed from his or her home before an order of disposition has been made.
§49-9-13. Kinds of dispositional orders.
(a)The following kinds of orders of disposition may be made in respect of wards of the court:
(1)A minor found to be neglected or abused may be: (A) Continued in the custody of his or her parents, guardian or legal custodian; (B) placed in the custody of the department of health and human resources; or (C) ordered partially or completely emancipated.
However, in any case in which a minor is found by the court to be neglected or abused, custody of the minor may not be restored to any parent, guardian or legal custodian found by the court to have caused the neglect or to have inflicted the abuse on the minor, unless it is in the best interest of the minor, until such time as a hearing is held on the issue of the best interest of the minor and the fitness of such parent, guardian or legal custodian to care for the minor and the court enters an order that such parent, guardian or legal custodian is fit to care for the minor.
(2)A minor found to be dependent may be: (A) Placed in foster care; or (B) ordered partially or completely emancipated.
Custody of the minor may not be restored to any parent, guardian or legal custodian found by the court to have inflicted physical abuse on the minor until such time as a hearing is held on the issue of the fitness of such parent, guardian or legal custodian to care for the minor and the court enters an order that such parent, guardian or legal custodian is fit to care for the minor.
(b)Any order of disposition may provide for protective supervision.
(c)Unless the order of disposition expressly so provides, it may not operate to close proceedings on the pending petition, but is subject to modification until final closing and discharge of the proceedings.
(d)In addition to any other order of disposition, the court may order any minor adjudicated neglected with respect to his or her own injurious behavior to make restitution, in monetary or nonmonetary form. The parent, guardian or legal custodian of the minor may pay some or all of such restitution on the minor's behalf.
(e)Any order for disposition where the minor is committed or placed in foster care shall provide for the parents or guardian of the estate of such minor to pay to the legal custodian or guardian of the minor such sums as are determined by the custodian or guardian of the minor as necessary for the minor's needs. Such payments may not exceed the amount set by the court, in its discretion.
(f)Whenever the order of disposition requires the minor to attend school or participate in a program of training, the truant officer or designated school official shall regularly report to the court if the minor is a chronic or habitual truant.
§49-9-14. Protective supervision.
If the order of disposition, following a determination of the best interest of the minor, releases the minor to the custody of his or her parents, guardian or legal custodian, or continues him or her in such custody, the court may, if it is in the best interest of the minor, place the person having custody of the minor under supervision of the probation office. Rules or orders of court shall define the terms and conditions of protective supervision, which may be modified or terminated when the court finds that the best interest of the minor and the public will be served thereby.
§49-9-15. Order of protection.
(a)The court may make an order of protection in assistance of or as a condition of any other order authorized by this code. The order of protection shall be based on the best interest of the minor and may set forth reasonable conditions of behavior to be observed for a specified period. Such an order may require a person:
(1)To stay away from the home or the minor;
(2)To permit a parent to visit the minor at stated periods;
(3)To abstain from offensive conduct against the minor, his or her parent or any person to whom custody of the minor is awarded;
(4)To give proper attention to the care of the home;
(5)To cooperate in good faith with an agency to which custody of a minor is entrusted by the court or with an agency or association to which the minor is referred by the court;
(6) To prohibit and prevent any contact whatsoever with the minor by a specified individual or individuals who are alleged in either a criminal or juvenile proceeding to have caused injury to the minor or a sibling of the minor;
(7) To refrain from acts or omissions that tend to make the home not a proper place for the minor.
(b) The court shall enter an order of protection to prohibit and prevent any contact between a minor or a sibling of a minor and any person named in a petition seeking an order of protection who has been convicted of battery or has been convicted of an offense that resulted in the death of a minor, or has violated a previous order of protection under this section.
(c) When the court issues an order of protection against any person as provided by this section, the court shall direct a copy of such order to the sheriff of that county. The sheriff shall furnish a copy of the order of protection to the division of public safety with twenty-four hours of receipt, in the form and manner required by the division. The division of public safety shall maintain a complete record and index of such orders of protection and make this data available to all local law-enforcement agencies.
(d) After notice and opportunity for hearing afforded to a person subject to an order of protection, the order may be modified or extended for a further specified period or both or may be terminated if the court finds that the best interest of the minor and the public will be served thereby.
(e) An order of protection may be sought at any time during the course of any proceeding conducted pursuant to this article if such an order is in the best interest of the minor. Any person against whom an order of protection is sought may retain counsel to represent him or her at a hearing, and has the right to be present at the hearing, to be informed prior to the hearing in writing of the contents of the petition seeking a protective order and of the date, place and time of such hearing and to cross examine witnesses called by the petitioner and to present witnesses and argument in opposition to the relief sought in the petition.
(f) Diligent efforts shall be made by the petitioner to serve any person or persons against whom any order of protection is sought with written notice of the contents of the petition seeking a protective order and of the date, place and time at which the hearing on the petition is to be held. When a protective order is being sought in conjunction with a temporary custody hearing, if the court finds that the person against whom the protective order is being sought has been notified of the hearing or that diligent efforts have been made to notify such person, the court may conduct a hearing. If a protective order is sought at any time other than in conjunction with a temporary custody hearing, the court may not conduct a hearing on the petition in the absence of the person against whom the order is sought unless the petitioner has notified such person by personal service at least three days before the hearing or has sent written notice by first class mail to such person's last known address at least five days before the hearing.
(g) A person against whom an order of protection is being sought who is neither a parent, guardian, legal custodian or responsible relative does not have a right to appointed counsel or to be present at any hearing other than the hearing in which the order of protection is being sought or a hearing directly pertaining to that order. Unless the court orders otherwise, such person does not have a right to inspect the court file.
(h) All protective orders entered under this section shall be in writing. Unless the person against whom the order was obtained was present in court when the order was issued, the sheriff, other law-enforcement officials or special process server shall promptly serve that order upon that person and file proof of such service, in the manner provided for service of process in civil proceedings. The person against whom the protective order was obtained may seek a modification of the order by filing a written motion to modify the order within seven days after actual receipt by the person of a copy of the order. Any modification of the order granted by the court must be determined to be consistent with the best interest of the minor.
§49-9-16. Placement; legal custody or guardianship.
(a) If the court finds that the parents, guardian or legal custodian of a minor adjudged a ward of the court are unfit or are unable, for some reason other than financial circumstances alone, to care for, protect, train or discipline the minor or are unwilling to do so, and that it is in the best interest of the minor to take him or her from the custody of his or her parents, guardian or custodian, the court may:
(1) Place him or her in the custody of a suitable relative or other person;
(2) Place him or her under the guardianship of a probation officer;
(3) Commit him or her to an agency for care or placement, except an institution under the authority of the division of corrections;
(4) Commit him or her to the division human services for care and service. The division shall be given due notice of the pendency of the action and the director of the division of human services shall be appointed guardian of the minor. Whenever the division discharges a minor from its care and service, the director shall petition the court for an order terminating guardianship. The director may designate one or more other officers of the division, appointed as division officers by administrative order of the division director, authorized to affix the signature of the director to documents affecting the director-ward relationship of minor for whom he or she has been appointed guardian at such times as he or she is unable to perform the duties of his or her office. The signature authorization shall include, but not be limited to, matters of consent of marriage, enlistment in the armed forces, legal proceedings, adoption, major medical and surgical treatment and application for driver's license. Signature authorizations made pursuant to the provisions of this paragraph shall be filed with the secretary of state and the secretary of state shall provide upon payment of the customary fee, certified copies of the authorization to any court or individual who requests a copy.
In making a determination under this section, the court shall also consider whether, based on the best interest of the minor, appropriate services aimed at family preservation and family reunification have been unsuccessful in rectifying the conditions that have led to a finding of unfitness or inability to care for, protect, train or discipline the minor, or whether, based on the best interest of the minor, no family preservation or family reunification services would be appropriate.
(b) When making a placement, the court, wherever possible, shall select a person holding the same religious belief as that of the minor or a private agency controlled by persons of like religious faith of the minor. In addition, whenever alternative plans for placement are available, the court shall ascertain and consider, to the extent appropriate in the particular case, the views and preferences of the minor.
(c) When a minor is placed with a suitable relative or other person, the court shall appoint him or her the legal custodian or guardian of the minor. When a minor is committed to any agency, the court shall appoint the proper officer or representative thereof as legal custodian or guardian of the minor. No guardian of the person may consent to adoption of the minor unless that authority is conferred upon him or her by law. An agency whose representative is appointed guardian of the person or legal custodian of the minor may place him or her in any minor care facility, but the facility must be licensed or approved by the department of health and human resources as meeting the standards established for such licensing.
(d) No placement by any probation officer or agency whose representative is appointed guardian of the person or legal custodian of a minor may be made in any out-of-state minor care facility unless it complies with the Interstate Compact on the Placement of Minors.
(e) The clerk of the court shall issue to the legal custodian or guardian of the minor a certified copy of the order of court, as proof of his or her authority. No other process is necessary as authority for the keeping of the minor.
(f) Custody or guardianship granted under this section continues until the court otherwise directs, but not after the minor reaches the age of nineteen years.
§49-9-17. Court review.
(a) The court may require any legal custodian or guardian of the person appointed under this article to report periodically to the court or may cite him or her into court and require him or her or his or her agency, to make a full and accurate report of his or her or its doings in behalf of the minor. The custodian or guardian, within ten days after the citation, shall make the report, either in writing verified by affidavit or orally under oath in open court or otherwise as the court directs. Upon the hearing of the report the court may remove the custodian or guardian and appoint another in his or her stead or restore the minor to the custody of his or her parents or former guardian or custodian. However, custody of the minor may not be restored to any parent, guardian or legal custodian in any case in which the minor is found to be neglected or abused, unless it is in the best interest of the minor, and if such neglect or abuse is found by the court to be the result of physical abuse inflicted on the minor by such parent, guardian or legal custodian, until such time as an investigation is made and a hearing is held on the issue of the fitness of such parent, guardian or legal custodian to care for the minor and the court enters an order that such parent, guardian or legal custodian is fit to care for the minor.
(b) A guardian or custodian appointed by the court pursuant to this article shall file updated case plans with the court every six months. Every agency which has guardianship of a minor shall file a supplemental petition for court review and further order, within eighteen months of an order, for shelter care and each eighteen months thereafter. Such petition shall state facts relative to the minor's present condition of physical, mental and emotional health as well as facts relative to his or her present custodial or foster care. The petition shall be set forth for hearing and the clerk shall mail ten days' notice of the hearing by certified mail, return receipt requested, to the person or agency having the physical custody of the minor, to the minor and other interested parties unless a written waiver of notice is filed with the petition.
Rights of wards of the court under this article are enforceable against any public agency by complaints for relief by mandamus filed in any proceedings brought under this article.
(c) The minor or any person interested in the minor may apply to the court for a change in custody of the minor and the appointment of a new custodian or guardian of the person or for the restoration of the minor to the custody of his or her parents or former guardian or custodian. However, custody of the minor may not be restored to any parent, guardian or legal custodian in any case in which the minor is found to be neglected or abused, unless it is in the best interest of the minor, and if such neglect or abuse is found by the court to be the result of physical abuse inflicted on the minor by such parent, guardian or legal custodian, until such time as an investigation is made and a hearing is held on the issue of the fitness of such parent, guardian or legal custodian to care for the minor and the court enters an order that such parent, guardian or legal custodian is fit to care for the minor. In the event that the minor has attained eighteen years of age and the guardian or custodian petitions the court for an order terminating his or her guardianship or custody, guardianship or custody shall terminate automatically thirty days after the receipt of the petition unless the court orders otherwise. No legal custodian or guardian of the person may be removed without his or her consent until given notice and an opportunity to be heard by the court.
(d) Whenever a parent, guardian or legal custodian petitions for restoration of custody of the minor and the minor was adjudicated, neglected or abused as a result of physical abuse, the court shall cause to be made an investigation as to whether the petitioner has ever been charged with or convicted of any criminal offense which would indicate the likelihood of any further physical abuse to the minor. Evidence of such criminal convictions shall be taken into account in determining fitness of the parent, guardian or legal custodian.
(1) Any agency of this state or any subdivision thereof shall cooperate with the agent of the court in providing any information sought in the investigation.
(2) The information derived from the investigation and any conclusions or recommendations derived from the information shall be provided to the parent, guardian or legal custodian seeking restoration of custody prior to the hearing on fitness and the petitioner shall have an opportunity at the hearing to refute the information or contest its significance.
(3) No information obtained from any investigation may be placed in any automated information system. All information shall be confidential.
§49-9-18. Duration of wardship and discharge of proceedings.
(a) All proceedings under this article in respect of any minor for whom a petition was filed after the effective date of this article automatically terminates upon his or her attaining the age of nineteen years, except that a court may continue the wardship of a minor until age twenty-one for good cause when there is satisfactory evidence presented to the court and the court makes written factual findings that the best interest of the minor and the public require the continuation of the wardship.
(b) Whenever the court determines and makes written factual findings and finds that the best interest of the minor and the public no longer require the wardship of the court, the court shall order the wardship terminated and all proceedings under this article respecting that minor finally closed and discharged. The court may at the same time continue or terminate any custodianship or guardianship theretofore ordered.
(c) The wardship of the minor and any custodianship or guardianship respecting the minor automatically terminates when he or she attains the age of nineteen years except as set forth in subsection (a) of this section. The clerk of the court shall at that time record all proceedings under this article as finally closed and discharged for that reason.

NOTE: The purpose of this bill is to revise current law relating to child welfare. It provides for training of foster parents; creates an office of inspector general and a bureau of quality assurance within the department of health and human resources; establishes a state-wide hotline for foster parents; defines terms; provides for the rights of parties to adjudicatory and dispositional proceedings; temporary custody hearings; petitions; guardian ad litem; continuance under supervision; findings and adjudication; evidence in dispositional hearings; kinds of dispositional orders; protective supervision; orders for protection; placement; legal custody or guardianship; judicial review; duration of wardship; and discharge of proceedings.

This article is new; therefore, strike-throughs and underscoring have been omitted.