Senate Bill No. 587
(By Senators Bowman, Facemyer, Guills, Love, Edgell and Jenkins)
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[Introduced March 18, 2005; referred to the Committee
on the Judiciary; and then to the Committee on Finance.]
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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 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 for parties other than the child shall only be
appointed upon personal appearance and 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, 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.
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.