Senate Bill No. 624
(By Senators Unger, Jenkins and Barnes)
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[Introduced February 17, 2006; referred to the Committee
on the Judiciary; and then to the Committee on Finance.]
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A BILL to amend and reenact §49-6-5 of the Code of West Virginia,
1931, as amended; and to amend and reenact §61-8D-4 of said
code, all relating to parental manufacture, possession or
distribution of a controlled substance while a child is
present in the home; disposition of neglected children; and
criminal penalty.
Be it enacted by the Legislature of West Virginia:
That §49-6-5 of the Code of West Virginia, 1931, as amended,
be amended and reenacted; and that §61-8D-4 of said code be amended
and reenacted, all to read as follows:
CHAPTER 49. CHILD WELFARE.
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: (A) That continuation in the home is contrary to the
best interests of the child and why; (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; (C) what efforts were made or that the emergency situation
made such efforts unreasonable or impossible; and (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:
(i) Be continued in foster care for a specified period; (ii) be
considered for adoption; (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: (A) The child's need for
continuity of care and caretakers; (B) the amount of time required
for the child to be integrated into a stable and permanent home
environment; and (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:
(i) That continuation in the home is not in the best interest of
the child and why; (ii) why reunification is not in the best
interests of the child; (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 (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 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 are found to have had the
child present in the home or other facility during the manufacture,
possession or distribution of a controlled substance as defined in
section one hundred one, article one, chapter sixty-a of this code;
(2) (3) 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) (4) 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) (5) The abusing parent or parents have abandoned the child;
(5) (6) 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) (7) 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 the hearing shall
make a further dispositional order in accordance with this section.
CHAPTER 61. CRIMES AND THEIR PUNISHMENT.
ARTICLE 8D. CHILD ABUSE.
§61-8D-4. Child neglect resulting in injury; child neglect creating risk of injury; criminal penalties.
(a) If any parent, guardian or custodian shall neglect a child
and by such neglect cause said child bodily injury, as such term is
defined in section one, article eight-b of this chapter, then such
parent, guardian or custodian shall be guilty of a felony and, upon
conviction thereof, shall be fined not less than one hundred nor
more than one thousand dollars or committed to the custody of the
division of corrections for not less than one nor more than three
years, or in the discretion of the court, be confined in the county
jail for not more than one year, or both such fine and confinement
or imprisonment.
(b) If any parent, guardian or custodian shall neglect a child
and by such neglect cause said child serious bodily injury, as such
term is defined in section one, article eight-b of this chapter,
then such parent, guardian or custodian shall be guilty of a felony
and, upon conviction thereof, shall be fined not less than three
hundred nor more than three thousand dollars or committed to the
custody of the Division of Corrections for not less than one nor
more than ten years, or both such fine and imprisonment.
(c) The provisions of this section shall not apply if the
neglect by the parent, guardian or custodian is due primarily to a
lack of financial means on the part of such parent, guardian or
custodian.
(d) The provisions of this section shall not apply to any
parent, guardian or custodian who fails or refuses, or allows
another person to fail or refuse, to supply a child under the care, custody or control of such parent, guardian or custodian with
necessary medical care, when such medical care conflicts with the
tenets and practices of a recognized religious denomination or
order of which such parent, guardian or custodian is an adherent or
member.
(e) Any person who grossly neglects a child and by the gross
neglect creates a substantial risk of serious bodily injury or of
death to the child is guilty of a felony and, upon conviction
thereof, shall be fined not more than three thousand dollars and
confined to the custody of the Division of Corrections for not less
than one nor more than five years.
(f) Any person who has a child present in a home or other
facility during the manufacture, possession or distribution of a
controlled substance as defined in section one hundred one, article
one, chapter sixty-a of this code is guilty of a felony and, upon
conviction thereof, shall be imprisoned in a state correctional
facility not less than ten years nor more than thirty-five years.
NOTE: The purpose of this bill is to provide a criminal
penalty for a parent who engages in the manufacture, possession or
distribution of a controlled substance while a child is present in
the home.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.