H. B. 2211
(By Delegates Farris, Trump and Douglas)
[Introduced January 24, 1995; referred to the
Committee on the Judiciary.]
A BILL to amend and reenact sections two, three and five, article
six, chapter forty-nine of the code of West Virginia, one
thousand nine hundred thirty-one, as amended; and to amend
section three, article six-d of said chapter, all relating
to improvement periods in cases of abuse and neglect;
specifically, eliminating the preadjudicatory improvement
period and creating an extension of the post-dispositional
improvement period if compelling circumstances exist.
Be it enacted by the Legislature of West Virginia:
That sections two, three and five, article six, chapter
forty-nine of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be amended and reenacted; and
that section three, article six-d of said chapter be amended and
reenacted, all 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; hearing; priority of
proceeding; transcript.
(a) In any proceeding under the provisions of this article,
the child, his parents, his custodian or other persons standing
in loco parentis to him, 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. If the other 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, 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 under this article, any parent or
custodian may, prior to final hearing, move to be allowed an
improvement period of three to twelve months in order to remedy
the circumstances or alleged circumstances upon which the
proceeding is based. The court shall allow one such improvement
period unless it finds compelling circumstances to justify a
denial thereof, but may require temporary custody with a
responsible relative, which may include any parent, guardian, or
other custodian, 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) (b) In any proceeding under 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) (c) 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
(e) (d) 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 cannot pay therefor.
§49-6-3. Petition to court when child believed neglected or
abused -- Temporary custody.
(a) Upon the filing of a petition, the court may order that
the child alleged to be an abused or neglected child be delivered
for not more than ten days into the custody of the state
department or a responsible relative, which may include any
parent, guardian or other custodian pending a preliminary hearing, if it finds that: (1) There exists imminent danger to
the physical well-being of the child; and (2) there are no
reasonably available alternatives to removal of the child,
including, but not limited to, the provision of medical,
psychiatric, psychological or homemaking services in the child's
present custody:
Provided, That where the alleged abusing
person, if known, is a member of a household, the court shall not
allow placement pursuant to this section of the child or children
in said home unless the alleged abusing person is or has been
precluded from visiting or residing in said home by judicial
order. In a case where there is more than one child in the home,
or in the temporary care, custody or control of the alleged
offending parent, the petition shall so state, and
notwithstanding the fact that the allegations of abuse or neglect
may pertain to less than all of such children, each child in the
home for whom relief is sought shall be made a party to the
proceeding. Even though the acts of abuse or neglect alleged in
the petition were not directed against a specific child who is
named in the petition, the court shall order the removal of such
child, pending final disposition, if it finds that there exists imminent danger to the physical well-being of the child and a
lack of reasonable available alternatives to removal. The
initial order directing such custody shall contain an order
appointing counsel and scheduling the preliminary hearing, and
upon its service shall require the immediate transfer of custody
of such child or children to the state department or a
responsible relative which may include any parent, guardian or
other custodian. The court order shall state: (1) That
continuation in the home is contrary to the best interests of the
child and why; and (2) whether or not the state department made
a reasonable effort to prevent the placement or that the
emergency situation made such efforts unreasonable or impossible.
The order may also direct any party or the department to initiate
or become involved in services to facilitate reunification of the
family.
(b) Whether or not the court orders immediate transfer of
custody as provided in subsection (a) of this section, if the
facts alleged in the petition demonstrate to the court that there
exists imminent danger to the child, the court may schedule a
preliminary hearing giving the respondents at least five days' actual notice. If the court finds at the preliminary hearing
that there are no alternatives less drastic than removal of the
child and that a hearing on the petition cannot be scheduled in
the interim period, the court may order that the child be
delivered into the temporary custody of the state department or
a responsible relative, which may include any parent, guardian or
other custodian, or another appropriate person or agency for a
period not exceeding sixty days:
Provided, That the court order
shall state: (1) That continuation in the home is contrary to
the best interests of the child and state the reasons therefor;
(2) whether or not the department made reasonable efforts to
prevent the child's removal from his or her home; (3) whether or
not the state department made a reasonable effort to prevent the
placement or that the emergency situation made such efforts
unreasonable or impossible; and (4) what efforts should be made
by the department to facilitate the child's return home.
Provided, however, That if the court grants an improvement period
as provided in subsection (b), section two of this article, the
sixty-day limit upon temporary custody may be waived
(c) If a child or children shall, in the presence of a child protective service worker of the division of human services, be
in an emergency situation which constitutes an imminent danger to
the physical well-being of the child or children, as that phrase
is defined in section three, article one of this chapter, and if
such worker has probable cause to believe that the child or
children will suffer additional child abuse or neglect or will be
removed from the county before a petition can be filed and
temporary custody can be ordered, the worker may, prior to the
filing of a petition, take the child or children into his or her
custody without a court order:
Provided, That after taking
custody of such child or children prior to the filing of a
petition, the worker shall forthwith appear before a circuit
judge or a juvenile referee of the county wherein custody was
taken, or if no such judge or referee be available, before a
circuit judge or a juvenile referee of an adjoining county, and
shall immediately apply for an order ratifying the emergency
custody of the child pending the filing of a petition. The
circuit court of every county in the state shall appoint at least
one of the magistrates of the county to act as a juvenile
referee, who shall serve at the will and pleasure of the appointing court, and who shall perform the functions prescribed
for such position by the provisions of this subsection. The
parents, guardians or custodians of the child or children may be
present at the time and place of application for an order
ratifying custody, and if at the time the child or children are
taken into custody by the worker, the worker knows which judge or
referee is to receive the application, the worker shall so inform
the parents, guardians or custodians. The application for
emergency custody may be on forms prescribed by the supreme court
of appeals or prepared by the prosecuting attorney or the
applicant, and shall set forth facts from which it may be
determined that the probable cause described above in this
subsection exists. Upon such sworn testimony or other evidence
as the judge or referee deems sufficient, the judge or referee
may order the emergency taking by the worker to be ratified. If
appropriate under the circumstances, the order may include
authorization for an examination as provided for in subsection
(b), section four of this article. If a referee issues such an
order, the referee shall by telephonic communication have such
order orally confirmed by a circuit judge of the circuit or an adjoining circuit who shall on the next judicial day enter an
order of confirmation. If the emergency taking is ratified by
the judge or referee, emergency custody of the child or children
shall be vested in the state department until the expiration of
the next two judicial days, at which time any such child taken
into emergency custody shall be returned to the custody of his or
her parent, guardian or custodian unless a petition has been
filed and custody of the child has been transferred under the
provisions of section three of this article.
§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. 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 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 state 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: (1) That continuation in the home is
contrary to the best interests of the child and why; (2) whether
or not the state department made a reasonable effort to prevent
the placement to include a statement of what efforts were made or
that the emergency situation made such efforts unreasonable or
impossible; and (3) the specific circumstances of the situation
which makes 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: (1) Be continued in foster
care for a specified period; (2) should be considered for
adoption; (3) because of a child's special needs or
circumstances, be continued in foster care on a permanent or
long-term basis; or (4) be continued in foster care until
reunification is achieved. The court may order services to meet
the special needs of the child. Whenever the court transfers
custody of a youth to the department of human services, 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 or custodial 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
state 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: (1) The child's need
for continuity of care and caretakers; (2) the amount of time
required for the child to be integrated into a stable and
permanent home environment; and (3) other factors as the court
considers necessary and proper. Notwithstanding any other
provision of this article, the permanent parental rights shall
not be terminated if a child fourteen years of age or older or
otherwise of an age of discretion as determined by the court,
objects to such termination. 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: (1) That continuation in the home is not in
the best interest of the child and why; (2) why reunification is
not in the best interests of the child; (3) whether or not the
state department made a reasonable effort to prevent the
placement or that the emergency situation made such efforts
unreasonable or impossible; and (4) whether or not the state
department made a reasonable effort to reunify the family
including a description of what efforts were made or that such
efforts were unreasonable due to specific circumstances.
(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 deemed 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 abusing parent or parents 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 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) 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) The abusing parent or parents have abandoned the child;
(5) 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) 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 to the
parents or custodians an improvement period not to exceed twelve
months. During this period the parental rights shall not be
permanently terminated and the court shall require the parent to
rectify the conditions upon which the determination was based.
No more than one such post-dispositional improvement period may
be granted. The court may order the child to be placed with the
parents, a relative, the state department or other appropriate
placement 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 such hearing,
shall make a further dispositional order in accordance with this
section
or the court may grant one extension of the improvement
period, not to exceed six months, only if it finds compelling
circumstances to justify such an extension. At the end of such
an extension, the court shall hold a hearing to determine whether
the conditions have been adequately improved, and at the
conclusion of such hearing, shall make a further dispositional
order in accordance with this section.
ARTICLE 6D. WEST VIRGINIA CHILD PROTECTIVE SERVICES ACT.
§49-6D-3. Family case plans for parents of abused or neglected
children.
(a) Within the limits of funds available, the department of
human services shall develop a family case plan for every family
wherein a person has been referred to the department after being
allowed an improvement period under the provisions of subsection
(b), section two, or subsection (c), section five, article six of
this chapter, and for each family referred to the department for
supervision and treatment following a determination by a court
that a parent, guardian or custodian in such family has abused or neglected a child. The department may also prepare a family case
plan for any person who voluntarily seeks child abuse and neglect
services from the department, or who is referred to the
department by another public agency or private organization. The
family case plan is to clearly set forth an organized, realistic
method of identifying family problems and the logical steps to be
used in resolving or lessening those problems. Every family case
plan prepared by the department shall contain the following:
(1) A listing of specific, measurable, realistic goals to be
achieved;
(2) An arrangement of goals into an order of priority;
(3) A listing of the problems that will be addressed by each
goal;
(4) A specific description of how the assigned caseworker or
caseworkers and the abusing parent, guardian or custodian will
achieve each goal;
(5) A description of the departmental and community
resources to be used in implementing the proposed actions and
services;
(6) A list of the services which will be provided;
(7) Time targets for the achievement of goals or portions of
goals;
(8) An assignment of tasks to the abusing or neglecting
parent, guardian or custodian, to the caseworker or caseworkers,
and to other participants in the planning process; and
(9) A designation of when and how often tasks will be
performed.
(b) In cases where the family has been referred to the
department by a court under the provisions of this chapter, and
further action before the court is pending, the family case plan
described in subsection (a) of this section shall be furnished to
the court within thirty days after the entry of the order
referring the case to the department, and shall be available to
counsel for the parent, guardian, or custodian and counsel for
the child or children. The department shall encourage
participation in the development of the family case plan by the
parent, guardian or custodian, and, if the child is above the age
of twelve years and the child's participation is otherwise
appropriate, by the child. It shall be the duty of counsel for
the participants to participate in the development of the family case plan. The family case plan may be modified from time to
time by the department to allow for flexibility in goal
development, and in each such case the modifications shall be
submitted to the court in writing. The court shall examine the
proposed family case plan or any modification thereof, and upon
a finding by the court that the plan or modified plan can be
easily communicated, explained and discussed so as to make the
participants accountable and able to understand the reasons for
any success or failure under the plan, the court shall inform the
participants of the probable action of the court if goals are met
or not met.
(c) (1) In addition to the family case plan provided for
under the provisions of subsection (b) of this section, the
department shall prepare, as an appendix to the family case plan,
an expanded "worker's case plan." As utilized by the department
under the provisions of this section, the worker's case plan
shall consist of the following:
(A) All of the information contained in the family case plan
described in subsection (c) of this section;
(B) A prognosis for each of the goals projected in the family case plan, assessing the capacity of the parent, guardian
or custodian to achieve the goal and whether available treatment
services are likely to have the desired outcome;
(C) A listing of the criteria to be used to assess the
degree to which each goal is attained;
(D) A description of when and how the department will decide
when and how well each goal has been attained;
(E) If possible, a listing of alternative methods and
specific services which the caseworker or caseworkers may
consider using if the original plan does not work; and
(F) A listing of criteria to be used in determining when the
family case plan should be terminated.
(2) Because the nature of the information contained in the
worker's case plan described in subdivision (1) of this
subsection may, in some cases, be construed to be negative with
respect to the probability of change, or may be viewed as a
caseworker's attempt to impose personal values into the
situation, or may raise barriers of hostility and resistance
between the caseworker and the family members, the worker's case
plan shall not be made available to the court or to persons outside of the department, but shall be used by the department
for the purpose of confirming the effectiveness of the family
case plan or for determining that changes in the family case plan
need to be made.
(d) In furtherance of the provisions of this article, the
commissioner of the
department division of human services shall,
within the limits of available funds, establish programs and
services for the following purposes:
(1) For the development and establishment of training
programs for professional and paraprofessional personnel in the
fields of medicine, law, education, social work and other
relevant fields who are engaged in, or intend to work in, the
field of the prevention, identification and treatment of child
abuse and neglect; and training programs for children, and for
persons responsible for the welfare of children, in methods of
protecting children from child abuse and neglect;
(2) For the establishment and maintenance of centers,
serving defined geographic areas, staffed by multidisciplinary
teams and community teams of personnel trained in the prevention,
identification and treatment of child abuse and neglect cases, to provide a broad range of services related to child abuse and
neglect, including direct support and supervision of satellite
centers and attention homes, as well as providing advice and
consultation to individuals, agencies and organizations which
request such services;
(3) For furnishing services of multidisciplinary teams and
community teams, trained in the prevention, identification and
treatment of child abuse and neglect cases, on a consulting basis
to small communities where such services are not available;
(4) For other innovative programs and projects that show
promise of successfully identifying, preventing or remedying the
causes of child abuse and neglect, including, but not limited to,
programs and services designed to improve and maintain parenting
skills, programs and projects for parent self-help, and for
prevention and treatment of drug-related child abuse and neglect;
and
(5) Assisting public agencies or nonprofit private
organizations or combinations thereof in making applications for
grants from, or in entering into contracts with, the secretary of
the federal department of health and human services for demonstration programs and projects designed to identify, prevent
and treat child abuse and neglect.
(e) Agencies, organizations and programs funded to carry out
the purposes of this section shall be structured so as to comply
with any applicable federal law, any regulation of the federal
department of health and human services or the secretary thereof,
and any final comprehensive plan of the federal advisory board on
child abuse and neglect. In funding organizations, the
department shall, to the extent feasible, ensure that parental
organizations combating child abuse and neglect receive
preferential treatment.
NOTE: The purpose of this bill is to eliminate the
preadjudicatory improvement period in cases of abuse and neglect.
The elimination of the improvement period requires the case to
move directly from the preliminary hearing into the final
adjudication. Parties will still be permitted to petition the
court for a post-dispositional improvement period and an
extension of the improvement period, not to exceed six months.
This extension is only to be granted if compelling circumstances
are found to justify such an extension. (One such circumstance
may be in the situation where an abused spouse is trying to get
back on their feet to support the child after the abuser has left
the home, etc.)
Strike-throughs indicate language that would be stricken
from the present law, and underscoring indicates new language
that would be added.