Senate Bill No. 680
(By Senator Kessler)
____________
[Introduced February 23, 2004; referred to the Committee on the
Judiciary.]
____________
A BILL to amend and reenact §49-6-3 and §49-6-5 of the code of West
Virginia, 1931, as amended, all relating to court
consideration of temporary custody in child abuse and neglect
petitions.
Be it enacted by the Legislature of West Virginia:
That §49-6-3 and §49-6-5 of the code of West Virginia, 1931,
as amended, be amended and reenacted, all to read as follows:
ARTICLE 6. PROCEDURE IN CASES OF CHILD NEGLECT OR ABUSE.
§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 person found by the court to be a fit and proper
person for the temporary care of the child 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 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 department made reasonable efforts to preserve the family and 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 department or a responsible person or agency found
by the court to be a fit and proper person for the temporary care
of the child 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 set forth the
reasons therefor; (2) whether or not the department made reasonable
efforts to preserve the family and to prevent the child's removal
from his or her home; (3) whether or not the department made
reasonable efforts to preserve the family and 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, if any, to facilitate the child's return home: Provided, however, That if the court grants an improvement period
as provided in section twelve of this article, the sixty-day limit
upon temporary custody is waived.
(c) If a child or children shall, in the presence of a child
protective service worker, 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 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 or
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.
(d) For purposes of the court's consideration of temporary custody pursuant to the provisions of subsection (a) or (b) of this
section, the department is not required to make reasonable efforts
to preserve the family if the court determines:
(1) The parent has subjected the child to aggravated
circumstances which include, but are not limited to, abandonment,
torture, chronic abuse and sexual abuse;
(2) The parent has:
(A) Committed murder of another child; of the parent
(B) Committed voluntary manslaughter of another child; of the
parent
(C) Attempted or conspired to commit such a murder or
voluntary manslaughter or been an accessory before or after the
fact to either such crime; or
(D) Committed unlawful or malicious wounding that results in
serious bodily injury to the child or to another child; of the
parent or
(3) The parental rights of the parent to a sibling have been
terminated involuntarily.
§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. Reasonable efforts to place a child for adoption or with a
legal guardian may be made at the same time reasonable efforts are
made to prevent removal or to make it possible for a child to
safely return home. 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 or their counsel 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 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: (A) That continuation in the home is contrary to the
best interests of the child and why; (B) whether or not the
department has made reasonable efforts, with the child's health and
safety being the paramount concern, to preserve the family and to
prevent or eliminate the need for removing the child from the
child's home and to make it possible for the child to safely return
home; (C) what efforts were made or that the emergency situation made such efforts unreasonable or impossible; and (D) the specific
circumstances of the situation which made 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:
(i) Be continued in foster care for a specified period; (ii) be
considered for adoption; (iii) be considered for legal
guardianship; (iv) be considered for permanent placement with a fit
and willing relative; or (v) be placed in another planned permanent
living arrangement, but only in cases where the department has
documented to the circuit court a compelling reason for determining
that it would not be in the best interests of the child to follow
one of the options set forth in subparagraphs (i), (ii), (iii) or
(iv) of this paragraph. The court may order services to meet the
special needs of the child. Whenever the court transfers custody
of a youth to the department, 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, custodial or guardianship 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 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: (A) The child's need for
continuity of care and caretakers; (B) the amount of time required
for the child to be integrated into a stable and permanent home
environment; and (C) other factors as the court considers necessary
and proper. Notwithstanding any other provision of this article,
the court shall give consideration to the wishes of a child
fourteen years of age or older or otherwise of an age of discretion
as determined by the court regarding the permanent termination of
parental rights. 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:
(i) That continuation in the home is not in the best interest of
the child and why; (ii) why reunification is not in the best
interests of the child; (iii) whether or not the department made
reasonable efforts, with the child's health and safety being the
paramount concern, to preserve the family and to prevent the
placement or to eliminate the need for removing the child from the
child's home and to make it possible for the child to safely return
home, or that the emergency situation made such efforts
unreasonable or impossible; and (iv) whether or not the department
made reasonable efforts to preserve and reunify the family including a description of what efforts were made or that such
efforts were unreasonable due to specific circumstances.
(7) For purposes of the court's consideration of the
disposition custody of a child pursuant to the provisions of this
subsection, the department is not required to make reasonable
efforts to preserve the family if the court determines:
(A) The parent has subjected the child to aggravated
circumstances which include, but are not limited to, abandonment,
torture, chronic abuse and sexual abuse;
(B) The parent has:
(i) Committed murder of another child; of the parent
(ii) Committed voluntary manslaughter of another child; of the
parent
(iii) Attempted or conspired to commit such a murder or
voluntary manslaughter or been an accessory before or after the
fact to either such crime; or
(iv) Committed a felonious assault that results in serious
bodily injury to the child or to another child; of the parent or
(C) The parental rights of the parent to a sibling have been
terminated involuntarily.
(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 considered 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 person or persons 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 the
parents or custodians an improvement period not to exceed six
months. During this period the court shall require the parent to
rectify the conditions upon which the determination was based. The
court may order the child to be placed with the parents, or any
person found to be a fit and proper person, for the temporary care
of the child 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 the hearing shall
make a further dispositional order in accordance with this section.
NOTE: The purpose of this bill is to provide that a court
considering temporary custody of a child pursuant to an abuse or
neglect petition need not make reasonable efforts to preserve the
family if a parent has previously committed murder, voluntary
manslaughter or malicious wounding of another child. Currently the
law states that a court need not make reasonable efforts to
preserve the family if a parent previously committed murder,
voluntary manslaughter or malicious wounding of another child of
the parent.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.