H. B. 2428
(By Delegates Mezzatesta, Kuhn, Thompson, and Michael)
[Introduced February 9, 1995; referred to the
Committee on the Judiciary.]
A BILL to amend and reenact section fourteen, article two,
chapter forty-nine of the code of West Virginia, one
thousand nine hundred thirty-one, as amended, relating to
making the best interest of the child the principal
consideration in determining whether to terminate a foster
care arrangement.
Be it enacted by the Legislature of West Virginia:
That section fourteen, article two, chapter forty-nine of
the code of West Virginia, one thousand nine hundred thirty-one,
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.
(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.
(c) In making the determination described in subsection (b)
of this section, the principal consideration shall be the best
interest of the child, and not the biological relationship the
child may have with the opposing party.
(c) (d) 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, 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) (e) 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.
(e) (f) 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) (g) 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.
NOTE: The purpose of this bill is to make the best interest
of the child the principal consideration in determining whether
to terminate the foster care arrangement.
Strike-throughs indicate language that would be stricken
from the present law, and underscoring indicates new language
that would be added.