COMMITTEE SUBSTITUTE
FOR
Senate Bill No. 587
(By Senators Bowman, Facemyer, Guills, Love, Edgell and Jenkins)
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[Originating in the Committee on the Judiciary;
reported March 23, 2005.]
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A BILL to amend and reenact §49-6-2 of the Code of West Virginia,
1931, as amended, relating to the appointment of counsel in
abuse and neglect cases.
Be it enacted by the Legislature of West Virginia:
That §49-6-2 of the Code of West Virginia, 1931, as amended,
be amended and reenacted to read as follows:
ARTICLE 6. PROCEDURE IN CASES OF CHILD NEGLECT OR ABUSE.
§49-6-2. Petition to court when child believed neglected or
abused-right to counsel; improvement period; hearing;
priority of proceeding; transcript.
(a) In any proceeding under the provisions of this article,
the child, his or her
custodial parent or parents and his or her
legally established custodian or other persons standing in loco
parentis to him
or her such persons other than the child being
hereinafter referred to as other party or parties, shall have the
right to be represented by counsel at every stage of the
proceedings and shall be informed by the court of their right to be
so represented and that if they cannot pay for the services of counsel, that counsel will be appointed.
Counsel of the child
shall be appointed in the initial order. If the order gives
physical custody of the child or children to the state, the initial
order shall appoint counsel for the parent or other person standing
in loco parentis who had physical custody of the child for the
majority of the time in the period immediately preceding the
petition: Provided, That such representation shall only continue
after the first appearance if the parent or other persons standing
in loco parentis cannot pay for the services of counsel. Counsel
for other parties shall only be appointed upon request for
appointment of counsel. If the
other requesting parties have not
retained counsel and
the other parties cannot pay for the services
of counsel, the court shall, by order entered of record,
at least
ten days prior to the date set for hearing, appoint an attorney or
attorneys to represent the other party or parties and so inform the
parties. Under no circumstances may the same attorney represent
both the child and the other party or parties, nor shall the same
attorney represent both parents or custodians. However, one
attorney may represent both parents or custodians where both
parents or guardians consent to this representation after the
attorney fully discloses to the client the possible conflict and
where the attorney assures the court that she or he is able to
represent each client without impairing her or his professional
judgment; however, if more than one child from a family is involved
in the proceeding, one attorney may represent all the children.
The court may allow to each attorney so appointed a fee in the same
amount which appointed counsel can receive in felony cases. Any
attorney appointed pursuant to this section shall by the first day of July, one thousand nine hundred ninety-three, and three hours
per year each year thereafter, receive a minimum of three hours of
continuing legal education training on representation of children,
child abuse and neglect:
Provided, however, That where no attorney
who has completed this training is available for such appointment,
the court shall appoint a competent attorney with demonstrated
knowledge of child welfare law to represent the child. Any
attorney appointed pursuant to this section shall perform all
duties required as an attorney licensed to practice law in the
State of West Virginia.
(b) In any proceeding brought pursuant to the provisions of
this article, the court may grant any respondent an improvement
period in accord with the provisions of this article. During such
period, the court may require temporary custody with a responsible
person which has been found to be a fit and proper person for the
temporary custody of the child or children or the state Department
or other agency during the improvement period. An order granting
such improvement period shall require the Department to prepare and
submit to the court a family case plan in accordance with the
provisions of section three, article six-d of this chapter.
(c) In any proceeding pursuant to the provisions of this
article, the party or parties having custodial or other parental
rights or responsibilities to the child shall be afforded a
meaningful opportunity to be heard, including the opportunity to
testify and to present and cross-examine witnesses. The petition
shall not be taken as confessed. A transcript or recording shall
be made of all proceedings unless waived by all parties to the
proceeding. The rules of evidence shall apply. Where relevant, the court shall consider the efforts of the state Department to
remedy the alleged circumstances. At the conclusion of the
hearing, the court shall make a determination based upon the
evidence and shall make findings of fact and conclusions of law as
to whether such child is abused or neglected, which shall be
incorporated into the order of the court. The findings must be
based upon conditions existing at the time of the filing of the
petition and proven by clear and convincing proof.
(d) Any petition filed and any proceeding held under the
provisions of this article shall, to the extent practicable, be
given priority over any other civil action before the court, except
proceedings under article two-a, chapter forty-eight of this code
and actions in which trial is in progress. Any petition filed
under the provisions of this article shall be docketed immediately
upon filing. Any hearing to be held at the end of an improvement
period and any other hearing to be held during any proceedings
under the provisions of this article shall be held as nearly as
practicable on successive days and, with respect to said hearing to
be held at the end of an improvement period, shall be held as close
in time as possible after the end of said improvement period and
shall be held within sixty days of the termination of such
improvement period.
(e) Following the court's determination, it shall be inquired
of the parents or custodians whether or not appeal is desired and
the response transcribed. A negative response shall not be
construed as a waiver. The evidence shall be transcribed and made
available to the parties or their counsel as soon as practicable,
if the same is required for purposes of further proceedings. If an indigent person intends to pursue further proceedings, the court
reporter shall furnish a transcript of the hearing without cost to
the indigent person if an affidavit is filed stating that he
or she
cannot pay therefor.
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(NOTE: The purpose of this bill is to require that counsel for
parties other than the child in an abuse and neglect proceeding
shall only be appointed upon personal appearance and request for
appointment of counsel.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.)