H. B. 4731
(By Delegates Mahan, Varner, Campbell, Staton,
Beane, Amores, Michael and Leach)
[Introduced February 23, 2006; referred to the
Committee on the Judiciary.]
A BILL to amend and reenact §49-5-21 of the Code of West Virginia,
1931, as amended; and to amend and reenact §49-6-5a and
§49-6-8 of said code, all relating to the quarterly judicial
review of juvenile proceedings; permanency hearings when a
court determines reasonable efforts to preserve families is
not required; foster care review; and annual reports to the
court.
Be it enacted by the Legislature of West Virginia:
That §49-5-21 of the Code of West Virginia, 1931, as amended,
be amended and reenacted; and that §49-6-5a and §49-6-8 of said
code be amended and reenacted, all to read as follows:
ARTICLE 5. JUVENILE PROCEEDINGS.
§49-5-21. Quarterly judicial review of juvenile proceedings.
For cases under this article in which the provisions of
section three, article five-d of this chapter apply, the court
wherein the juvenile proceeding is pending shall conduct regular
judicial review of the case with the multidisciplinary treatment
team and a juvenile probation officer in attendance. Such judicial review may be conducted as often as is considered necessary by the
court, but shall be conducted at least once every three calendar
months as long as the child remains in the legal or physical
custody of the state.
In conducting the judicial review required by this section,
the court shall address the extent of progress in the case,
treatment and service needs, permanent placement planning for the
juvenile, any uncontested issues and any other matters that the
court considers pertinent. An order reflecting the matters
considered, any uncontested rulings and the scheduling of an
evidentiary hearing on any contested issue shall be issued by the
court within ten judicial days of the judicial review.
At the
conclusion of each judicial review hearing, the court must enter an
order stating whether or not the department made reasonable efforts
to finalize the permanency plan.
ARTICLE 6. PROCEDURE IN CASES OF CHILD NEGLECT OR ABUSE.
§49-6-5a. Permanency hearing when court determines reasonable
efforts to preserve families not required.
(a) If the court finds, pursuant to the provisions of
subdivision (7), subsection (a), section five of this article that
the department is not required to make reasonable efforts to
preserve the family, then notwithstanding any other provision, a
permanency hearing must be held within thirty days following the
entry of the court order so finding
and must be conducted at least
once every three calendar months thereafter until a permanent
placement is achieved.
(b) The purpose of the permanency hearing is to determine the
permanency plan for the child that includes: (1) When the child
will be returned to the parent; (2) when the child will be placed
for adoption, in which event the state will file a petition for
termination of parental rights; or (3) when the child will be
referred for legal guardianship. In cases where the department has
demonstrated a compelling reason for determining it would not be in
the best interests of the child to return home, the court shall
determine whether the child should be referred for termination of
parental rights, be placed for adoption, be placed with a fit and
willing relative, be placed with a legal guardian or placed in
another planned permanent living arrangement.
At the conclusion of
each permanent placement review hearing, the court must enter an
order stating whether or not the department made reasonable efforts
to finalize the permanency plan.
(c) Any foster parent, preadoptive parent or relative
providing care for the child shall be given notice of and the
opportunity to be heard at the permanency hearing provided
for in
this section.
§49-6-8. Foster care review; annual reports to the court.
(a) If, twelve months after receipt by the department or its
authorized agent of physical custody of a child either by a court
ordered placement or by a voluntary agreement, the department has
not placed a child in an adoptive home or placed the child with a
natural parent or placed the child in legal guardianship or
permanently placed the child with a fit and willing relative, the department shall file with the court a petition for review of the
case. The department shall also file with the court a report
detailing the efforts that have been made to place the child in a
permanent home and copies of the child's case plan, including the
permanency plan as defined in section five, article six of this
chapter. Copies of the report shall be sent to the child's
attorney and be made available to the child's parent(s) or
guardian. The court shall schedule a hearing in chambers, giving
notice and the right to be present to: The child's attorney; the
child, if twelve years of age or older; the child's parents; the
child's guardians; the child's foster parents; any preadoptive
parent or any relative providing care for the child; and such other
persons as the court may, in its discretion, direct. The child's
presence may be waived by the child's attorney at the request of
the child or if the child would suffer emotional harm. The purpose
of the hearing is to review the child's case, to determine whether
and under what conditions the child's commitment to the department
shall continue and to determine what efforts are necessary to
provide the child with a permanent home. At the conclusion of the
hearing the court shall, in accordance with the best interests of
the child, enter an appropriate order of disposition. The court
order shall state: (1) Whether or not the department made
reasonable efforts to preserve the family and to prevent
out-of-home placement or that the specific situation made such
effort unreasonable; (2)
whether or not the department made
reasonable efforts to finalize the permanency plan for the child; and (3)
identify services required to meet the child's needs:
Provided, That the department is not required to make reasonable
efforts to preserve the family if the court determines any of the
conditions set forth in subdivision (7), subsection (a), section
five of this article exist. The court shall possess continuing
jurisdiction over cases reviewed under this section for so long as
a child remains in temporary foster care or, when a child is
returned to his or her natural parents subject to conditions
imposed by the court, for so long as the conditions are effective.
(b) The state department shall file a supplementary petition
for review with the court within twelve months and every twelve
months thereafter for every child that remains in the physical or
legal custody of the state department until the child is placed in
an adoptive home or returned to his or her parents or placed in
legal guardianship or permanently placed with a fit and willing
relative.
(c) The state department shall annually report to the court
the current status of the placements of children in permanent care
and custody of the state department who have not been adopted.
(d) The state department shall file a report with the court in
any case where any child in the temporary or permanent custody of
the state receives more than three placements in one year no later
than thirty days after the third placement. This report shall be
provided to all parties and their counsel. Upon motion by any
party, the court shall review these placements and determine what
efforts are necessary to provide the child with a stable foster or temporary home:
Provided, That no report shall be provided to any
parent or parent's attorney whose parental rights have been
terminated pursuant to this article.
(e) The state department shall notify, in writing, the court,
the child, if over the age of twelve, the child's attorney, the
parents and the parents' attorney forty-eight hours prior to the
move if this is a planned move, or within forty-eight hours of the
next business day after the move if this is an emergency move,
except where such notification would endanger the child or the
foster family. This notice shall not be required in any case where
the child is in imminent danger in the child's current placement.
The location of the child need not be disclosed, but the purpose of
the move should be. This requirement is not waived by placement of
the child in a home or other residence maintained by a private
provider. No notice shall be provided pursuant to this provision
to any parent or parent's attorney whose parental rights have been
terminated pursuant to this article.
(f) Nothing in this article precludes any party from
petitioning the court for review of the child's case at any time.
The court shall grant such petition upon a showing that there is a
change in circumstance or needs of the child that warrants court
review.
NOTE: The purpose of this bill is to require the courts to
enter an order stating whether or not the Department of Health and
Human Resources made reasonable efforts to finalize a permanency
plan for a child. Timely filing of this order will make the state
eligible for federal IV-E dollars.
Strike-throughs indicate language that would be stricken from the present law, and underscoring indicates new language that would
be added.
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