Senate Bill No. 385
(By Senators Cookman, Stollings, Unger, Plymale and Palumbo)
[Introduced February 27, 2013; referred to the Committee on the
A BILL to amend the Code of West Virginia, 1931, as amended, by
adding thereto a new section, designated §49-6-9a, relating to
authorizing a family court judge to order a child to be taken
into custody in emergency situations which occur in the
presence of the judge; and providing procedures when a child
is ordered taken into emergency custody.
Be it enacted by the Legislature of West Virginia:
That the Code of West Virginia, 1931, as amended, be amended
by adding thereto a new section, designated §49-6-9a, to read as
ARTICLE 6. PROCEDURE IN CASES OF CHILD NEGLECT OR ABUSE.
§49-6-9a. Family court order authorizing custody of a child in
(a) (1) Where any child in a family court proceeding is under
circumstances constituting imminent danger in the presence of a
family court judge and the family court judge finds the child to be
neglected or abused, as defined in section three, article one of
this chapter, the judge may order the child to be taken into the
emergency custody of the department without a court order otherwise
required by section three of this article, if the judge finds that:
(A) There exists an imminent danger to the physical well-being
of the child as defined in subsection (g), section three, article
one of this chapter; and
(B) There are no reasonable available alternatives to the
emergency custody order.
(2) Upon notification by the family court judge that there
exists an imminent danger to the physical well-being of the child,
the department shall immediately respond and assist the judge in
emergency placement of the child.
(b) A child taken into emergency protective custody under the
provisions of this section may be housed by the department in an
authorized child shelter facility if no other reasonable
alternative is available to the court. The authority to hold the
child in protective custody as provided by this section absent a
petition and proper order granting temporary custody pursuant to
section three of this article, terminates by operation of law upon expiration of ninety-six hours from the time the child is initially
taken into protective custody.
(c) Within two judicial days of the emergency custody order
issued pursuant to this section, the family court judge shall file
a written order specifying all of the facts upon which the decision
to order the child into protective custody was based and the date,
time and place of the taking of the child. A copy of the written
order shall be transmitted forthwith to the department, the circuit
court and prosecuting attorney. Upon receipt of the written order,
the circuit court shall forthwith cause to be entered and served an
administrative order in the name of and regarding the affected
child directing the department to submit to the family and circuit
court an investigative report including whether the department
intends to file a petition under section three of this article or
intends to appear before the circuit court in not more than
ninety-six hours from the taking of the child at a scheduled
hearing to show cause why the department's investigation report has
not been submitted to the circuit court and family court. The
scheduled hearing may become moot by the department's earlier
submission of the investigative report or, in the alternative, the
filing of an abuse and neglect petition under section three of this
article. The family court shall retain full jurisdiction of the
child custody or protective order proceedings, or both, until an abuse or neglect petition is filed.
(d) Any worker for the department assuming custody of a child
pursuant to the provisions of this section shall immediately notify
the parents, parent, guardian or custodian of the child of the
taking of the custody and the reasons therefor if the whereabouts
of the parents, parent, guardian or custodian are known or can be
discovered with due diligence and, if not, a notice and explanation
shall be given to the child's closest relative if his or her
whereabouts are known or can be discovered with due diligence
within a reasonable time. An inquiry shall be made of relatives
and neighbors and, if an appropriate relative or neighbor is
willing to assume custody of the child, the child shall temporarily
be placed in that person's custody.
(e) No child may be taken into custody under circumstances not
justified by this section or pursuant to section three of this
article without appropriate process. Any retention of a child or
order for retention of a child not complying with the time limits
and other requirements specified in this article are void by
operation of law.
NOTE: The purpose of this bill is to allow a family court
judge to order a child to be taken into custody in emergency
situations which occur in the presence of the judge.
This section is new; therefore, strike-throughs and
underscoring have been omitted.