Introduced Version
House Bill 2409 History
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Key: Green = existing Code. Red = new code to be enacted
H. B. 2409
(By Delegates Miley, Manchin, Longstreth,
Barill and Jones)
[Introduced
February 13, 2013
; referred to the
Committee on the Judiciary then Finance.]
A BILL to amend the Code of West Virginia, 1931, as amended by
adding thereto a new section, designated §49-6-9a, relating to
permitting a family court judge to order a child who is in
imminent danger to be taken into emergency custody by the
Department of Health and Human Resources; setting forth the
procedure to be used; setting forth where that child may be
housed; setting forth time limitations and other requirements;
and requiring notifications.
Be it enacted by the Legislature of West Virginia:
That the Code of West Virginia, 1931, as amended, be amended
by adding thereto a new section, designated §49-6-9a, to read as
follows:
ARTICLE 6. PROCEDURE IN CASES OF CHILD NEGLECT OR ABUSE.
§49-6-9a. Custody Ordered from Family Court in emergency
situations.
__(a) Where any child in a family court proceeding is in circumstances constituting imminent danger in the presence of a
family court judge, and the family court judge finds the child to
be neglected or abused as defined in section three, article one of
this chapter, the judge may order the child to be taken into the
emergency custody of the Department of Health and Human Resources
without the court order otherwise required by section three of this
article, if the judge finds that: (1) There exists an imminent
danger to the physical well-being of the child as defined in
section three, article one of this chapter; and (2) there are no
reasonable, available alternatives to the emergency custody order.
Upon notification by the family court judge that there exists an
imminent danger to the physical well-being of the child, the
department shall immediately respond and assist the judge in
emergency placement of the child.
__(b) A child taken into emergency protective custody as subject
to imminent danger under this section may be housed by the
department or an authorized child shelter facility if no other
reasonable alternative is available to the court. The authority to
hold the child in protective custody as provided by this section,
absent a petition and proper order granting temporary custody
pursuant to section three of this article, shall terminate by
operation of law upon expiration of ninety-six hours from the time
the child is initially taken into protective custody.
__(c) The family court shall, within two judicial days of its emergency custody order issued pursuant to this section, file a
written order specifying all the facts upon which the decision to
order the child into protective custody was based and the date,
time and place of the taking. A copy of the written order shall be
transmitted forthwith to the department, the circuit court and
prosecuting attorney of the county. Upon receiving the written
order, the circuit court shall forthwith cause to be entered and
served an administrative order in the name of and regarding the
affected child directing the department to submit to the family and
circuit court an investigative report, including whether the
department intends to file a petition under section three of this
article, or appear before the circuit court in not more than
ninety-six hours from the taking at a scheduled hearing, to show
cause why the department's investigation report has not been
submitted to the circuit court and referring family court. The
scheduled hearing may be mooted by the department's earlier
submission of the investigative report or, in the alternative, the
filing of a child abuse and neglect petition under section three of
this article. The family court shall retain full jurisdiction of
the child custody proceedings or protective order proceedings, or
both, until a child abuse and neglect petition is filed.
__(d) Any worker for the department assuming custody of a child
pursuant to this section shall immediately notify the child's
parents, parent, guardian or custodian of the taking of custody of the child and the underlying reasons for taking custody, if the
whereabouts of the parents, parent, guardian or custodian are known
or can be discovered with due diligence; and if not, notice and
explanation shall be given to the child's closest relative, if his
or her whereabouts are known or can be discovered with due
diligence within a reasonable time. An inquiry shall be made of
relatives and neighbors, and if an appropriate relative or neighbor
is willing to assume custody of such child, such child shall
temporarily be placed in such custody.
__(e) No child may be taken into custody under circumstances not
justified by this section or pursuant to section three of this
article without appropriate process. Any retention of a child or
order for retention of a child not complying with the time limits
and other requirements specified in this article is void by
operation of law.
NOTE: The purpose of this bill is to permit a family court
judge to order a child who is in imminent danger to be taken into
emergency custody of the Department of Health and Human Resources.
The bill sets forth the procedure to be used. The bill sets forth
where that child may be housed. The bill sets forth time
limitations and other requirements. The bill also requires
notifications.
This section is new; therefore, it has been completely
underscored.