Senate Bill No. 177
(By Senators Unger and Hunter)
____________
[Introduced January 10, 2008; referred to the Committee on the
Judiciary.]
____________
A BILL to amend and reenact §49-6-5 of the Code of West Virginia,
1931, as amended; and to amend and reenact §61-8D-4 of said
code, all relating to parental manufacture, possession or
distribution of a controlled substance while a child is
present in the home; disposition of neglected children; and
criminal penalty.
Be it enacted by the Legislature of West Virginia:
That §49-6-5 of the Code of West Virginia, 1931, as amended,
be amended and reenacted; and that §61-8D-4 of said code be amended
and reenacted, all to read as follows:
CHAPTER 49. CHILD WELFARE.
ARTICLE 6. PROCEDURE IN CASES OF CHILD NEGLECT OR ABUSE.
§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, the battered 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 battered 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 battered 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, or some portion thereof, 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 and guardianship rights
and 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. The court may award
sole custody of the child to a nonabusing battered parent. 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, or some portion
thereof, 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, or some portion thereof, 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, another child of the parent, or any other child residing in the same household or under
the temporary or permanent custody of the parent 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 the child's other parent, another
child of the parent or any other child residing in the same
household or under the temporary or permanent custody of the
parent;
(ii) Committed voluntary manslaughter of the child's other
parent, another child of the parent, or any other child residing in
the same household or under the temporary or permanent custody 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, the child's other parent, to another
child of the parent, or any other child residing in the same
household or under the temporary or permanent custody of the
parent; or
(C) The parental rights of the parent to another child 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 are found to have had the
child present in the home or other facility during the manufacture,
possession or distribution of a controlled substance as defined in
section one hundred one, article one, chapter sixty-a of this code;
(2) (3) 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) (4) 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) (5) The abusing parent or parents have abandoned the
child;
(5) (6) 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;
(6) (7) 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; or
(7) (8) The battered parent's parenting skills have been
seriously impaired and said person has willfully refused or is
presently unwilling or unable to cooperate in the development of a
reasonable treatment plan or has not adequately responded to or
followed through with the recommended and appropriate treatment
plan.
(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.
CHAPTER 61. CRIMES AND THEIR PUNISHMENT.
ARTICLE 8D. CHILD ABUSE.
§61-8D-4. Child neglect resulting in injury; child neglect
creating risk of injury; criminal penalties.
(a) If any parent, guardian or custodian shall neglect a child
and by such neglect cause said child bodily injury, as such term is
defined in section one, article eight-b of this chapter, then such
parent, guardian or custodian shall be guilty of a felony and, upon
conviction thereof, shall be fined not less than one hundred nor
more than one thousand dollars or committed to the custody of the
Division of Corrections for not less than one nor more than three
years, or in the discretion of the court, be confined in
the county
jail for not more than one year, or both such fine and confinement
or imprisonment.
(b) If any parent, guardian or custodian shall neglect a child and by such neglect cause said child serious bodily injury, as such
term is defined in section one, article eight-b of this chapter,
then such parent, guardian or custodian shall be guilty of a felony
and, upon conviction thereof, shall be fined not less than three
hundred nor more than three thousand dollars or committed to the
custody of the Division of Corrections for not less than one nor
more than ten years, or both such fine and imprisonment.
(c) The provisions of this section shall not apply if the
neglect by the parent, guardian or custodian is due primarily to a
lack of financial means on the part of such parent, guardian or
custodian.
(d) The provisions of this section shall not apply to any
parent, guardian or custodian who fails or refuses, or allows
another person to fail or refuse, to supply a child under the care,
custody or control of such parent, guardian or custodian with
necessary medical care, when such medical care conflicts with the
tenets and practices of a recognized religious denomination or
order of which such parent, guardian or custodian is an adherent or
member.
(e) Any person who grossly neglects a child and by the gross
neglect creates a substantial risk of serious bodily injury or of
death to the child is guilty of a felony and, upon conviction
thereof, shall be fined not more than three thousand dollars and
confined to the custody of the Division of Corrections for not less than one nor more than five years.
(f) Any person who has a child present in a home or other
facility during the manufacture, possession or distribution of a
controlled substance as defined in section one hundred one, article
one, chapter sixty-a of this code is guilty of a felony and, upon
conviction thereof, shall be imprisoned in a state correctional
facility not less than ten years nor more than thirty-five years.
NOTE: The purpose of this bill is to provide a criminal
penalty for a parent who engages in the manufacture, possession or
distribution of a controlled substance while a child is present in
the home.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.