Senate Bill No. 18
(By Senators Boley and Minear)
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[Introduced February 9, 2005; referred to the Committee
on Health and Human Resources; and then to the Committee on
Judiciary.]
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A BILL to amend and reenact §49-2-14 of the Code of West Virginia,
1931, as amended, relating to rights of foster parents and
certain relatives in child adoption procedures.
Be it enacted by the Legislature of West Virginia:
That §49-2-14 of the Code of West Virginia, 1931, as amended,
be amended and reenacted to read as follows:
ARTICLE 2. STATE RESPONSIBILITIES FOR THE PROTECTION AND CARE OF
CHILDREN.
§49-2-14. Criteria and procedure for removal of child from foster
home; notice of child's availability for placement;
limitations.
(a) The State Department may temporarily remove a child from
a foster home based on an allegation of abuse or neglect, including
sexual abuse, that occurred while the child resided in the home.
If the Department determines that reasonable cause exists to support the allegation, the Department shall remove all foster
children from the arrangement and preclude contact between the
children and the foster parents. If, after investigation, the
allegation is determined to be true by the Department or after a
judicial proceeding a Court finds the allegation to be true or if
the foster parents fail to contest the allegation in writing within
twenty calendar days of receiving written notice of said
allegations, the Department shall permanently terminate all foster
care arrangements with said foster parents: Provided, That if the
State Department determines that the abuse occurred due to no act
or failure to act on the part of the foster parents and that
continuation of the foster care arrangement is in the best
interests of the child, the Department may, in its discretion,
elect not to terminate the foster care arrangement or arrangements.
(b) When a child has been placed in a foster care arrangement
for a period in excess of eighteen consecutive months and the State
Department determines that the placement is a fit and proper place
for the child to reside, the foster care arrangement may not be
terminated unless such termination is in the best interest of the
child and:
(1) The foster care arrangement is terminated pursuant to
subsection (a) of this section;
(2) The foster care arrangement is terminated due to the child
being returned to his or her parent or parents;
(3) The foster care arrangement is terminated due to the child
being united or reunited with a sibling or siblings;
(4) The foster parent or parents agree to the termination in
writing;
(5) The foster care arrangement is terminated at the written
request of a foster child who has attained the age of fourteen; or
(6) A circuit court orders the termination upon a finding that
the State Department has developed a more suitable long-term
placement for the child upon hearing evidence in a proceeding
brought by the Department seeking removal and transfer.
(c) When a child has been residing in a foster home for a
period in excess of six consecutive months in total and for a
period in excess of thirty days after the parental rights of the
child's biological parents have been terminated and the foster
parents have not made an application to the Department to establish
an intent to adopt the child within thirty days of parental rights
being terminated, the State Department may terminate the foster
care arrangement if another, more beneficial, long-term placement
of the child is developed: Provided, That if the child is twelve
years of age or older, the child shall be provided the option of
remaining in the existing foster care arrangement if the child so
desires and if continuation of the existing arrangement is in the
best interest of the child.
(d) When a child is placed into foster care or becomes eligible for adoption and a sibling or siblings have previously
been placed in foster care or have been adopted, the Department
shall notify the foster parents or adoptive parents of the
previously placed or adopted sibling or siblings of the child's
availability for foster care placement or adoption to determine if
the foster parents or adoptive parents are desirous of seeking a
foster care arrangement or adoption of the child. Where a sibling
or siblings have previously been adopted, the Department shall also
notify the adoptive parents of a sibling of the child's
availability for foster care placement in that home and a foster
care arrangement entered into to place the child in the home if the
adoptive parents of the sibling are otherwise qualified or can
become qualified to enter into a foster care arrangement with the
Department and if such arrangement is in the best interests of the
child: Provided, That the Department may petition the Court to
waive notification to the foster parents or adoptive parents of the
child's siblings. This waiver may be granted, ex parte, upon a
showing of compelling circumstances.
(e) When a child is in a foster care arrangement and is
residing separately from a sibling or siblings who are in another
foster home or who have been adopted by another family and the
parents with whom the placed or adopted sibling or siblings reside
have made application to the Department to establish an intent to
adopt or to enter into a foster care arrangement regarding a child so that said child may be united or reunited with a sibling or
siblings, the State Department shall upon a determination of the
fitness of the persons and household seeking to enter into a foster
care arrangement or seek an adoption which would unite or reunite
siblings, and if termination and new placement are in the best
interests of the children, terminate the foster care arrangement
and place the child in the household with the sibling or siblings:
Provided, That if the Department is of the opinion based upon
available evidence that residing in the same home would have a
harmful physical, mental or psychological effect on one or more of
the sibling children or if the child has a physical or mental
disability which the existing foster home can better accommodate,
or if the Department can document that the reunification of the
siblings would not be in the best interest of one or all of the
children, the State Department may petition the circuit court for
an order allowing the separation of the siblings to continue:
Provided, however, That if the child is twelve years of age or
older, the State Department shall provide the child the option of
remaining in the existing foster care arrangement if remaining is
in the best interests of the child. In any proceeding brought by
the Department to maintain separation of siblings, such separation
may be ordered only if the court determines that clear and
convincing evidence supports the Department's determination. In
any proceeding brought by the Department seeking to maintain separation of siblings, notice shall be afforded, in addition to
any other persons required by any provision of this code to receive
notice, to the persons seeking to adopt a sibling or siblings of a
previously placed or adopted child and said persons may be parties
to any such action.
(f) Where two or more siblings have been placed in separate
foster care arrangements and the foster parents of the siblings
have made application to the Department to enter into a foster care
arrangement regarding the sibling or siblings not in their home or
where two or more adoptive parents seek to adopt a sibling or
siblings of a child they have previously adopted, the Department's
determination as to placing the child in a foster care arrangement
or in an adoptive home shall be based solely upon the best
interests of the siblings.
(g) Notwithstanding any provision of this code to the
contrary, foster parents having continuous care of a child for more
than twelve months, or four or more months in the case of infants
under the age of five years, through an authorized agency, shall,
as an interested party, be entitled to intervene in any proceeding
involving the custody of the child. Relatives or nonrelatives who
have had a formal or an informal custody arrangement of a child,
for any amount of time, or relatives who have had a close
relationship but have not had physical custody, are entitled, as an
interested party, to intervene in any proceeding involving the custody of the child. Relatives must be informed of this right in
writing and a waiver of these rights shall be entered into the
Court records for parties who are not interested. Any person who
coerces another person to waive these rights shall, upon conviction
therefor, be guilty of a misdemeanor punishable by up to one year
in jail.
(1) A legal presumption exists that it is in the best interest
of the child for foster parents, grandparents and relatives who
have had custody of the child for eighteen of the last twenty-two
months the State has held legal custody, to be permitted as an
interested party to intervene in any proceeding involving the
custody of the child.
(2) When the family court accepts the surrender of a child for
adoption, the court shall inquire whether any foster parent or
parents with whom the child resides, or any relative of the child,
or other person, seeks to adopt the child. If the person or
persons seek to adopt the child, the person or persons may submit,
and the court shall accept, a petition for the adoption of the
child. The court may order a home study at its discretion. The
court shall establish a schedule for completion of the review
process and shall promptly set a schedule for completion of the
adoption. An authorized agency must make reasonable efforts to
obtain a written release from all relatives, foster parents and
former foster parents not interested in adopting the child or children. Either the release or sufficient proof that legal notice
was made to any interested person who failed to respond to same
shall be published to the court.
(3) An authorized agency shall provide written notification to
all relatives, and relative care providers or foster parents, that
a child is eligible for adoption. The agency shall, additionally,
inform all relatives, relative care providers, foster parents or
former foster parents who have not completed an application to
become an adoptive parent, of the procedure for applying to adopt
the child. An authorized agency must make reasonable efforts to
obtain a written release from all relatives not interested in
adopting the child. Either the release or sufficient proof that
legal notice was made to any relative who failed to respond to same
shall be published to the court.
(4) The court shall permit the following designated
individuals to intervene as a party at any stage of a proceeding:
(A) A foster parent with whom the child has resided for a period of
at least four months; (B) a grandparent or a relative within the
third degree of consanguinity regardless of whether the child ever
resided in their home; (C) a relative within the fifth degree of
consanguinity with whom the child has resided; (D) a stepparent
with whom the child has resided; and (E) a person who wishes to
become the child's permanent guardian.
(5) Any adult who, as a relative care provider or foster parent, has cared for a child continuously for a period of twelve
months or more, or four or more months in the case of infants under
the age of five years and any siblings they may have, may apply to
an authorized agency for the placement of the child with them for
the purpose of adoption, and if the child is eligible for adoption,
the agency shall give preference to their application over other
applications.
(6) In evaluating adoption applicants, authorized agencies
shall extend preference to relative care providers or foster
parents with whom a child has resided for twelve continuous months
or, four or more months in the case of infants under the age of
five years as well as any siblings they may have.
(7) Any agreement between an authorized agency and foster
parents with whom a child or children are to be placed or boarded,
shall contain the following language: It is duly acknowledged by
the parties hereto that under the law of the State of West
Virginia, a relative care provider or a foster parent shall have
preference in any proceedings to adopt the child, subject to this
agreement, upon the child having been in the custody of the
relative care provider or foster parent for a period in excess of
twelve months or four or more months in the case of infants under
the age of five years and any siblings they may have.
(8) Foster parents or relative care providers in whose home a
child has resided, including former foster parents, relative caregivers and caregivers where a child presently resides, shall
receive written notice of a hearing to review the foster care
status of a child who is eligible for adoption.
(9) An adoption subsidy shall be available for hard to place
children. A child is considered hard to place when he or she has
been in care with the same foster parent for twelve months or more,
or four or more months in the case of infants under the age of five
years and has developed a strong attachment to his or her foster
parent while in their care, and separation from the foster parent
would adversely affect the child's development. It shall be
considered to be in the best interests of a child to continue in a
placement even when a different placement is viewed us being more
suitable.
(10) For purposes of this section, "foster parent" means a
resource family providing care of children in state custody. This
includes both licensed and unlicensed homes, formal and informal
foster care arrangements with grandparents or relatives, both
Departmental and privately contracted foster parents and
prospective adoptive parents, whether, or not they have signed the
adoption agreement.
(11) For purposes of this section, "former foster parents"
means foster parents or relative care providers who, within the
previous two years, had physical custody of the child for four or more months.
NOTE: This bill enhances rights in child adoption proceedings
for foster parents and relatives of the child who have been care
providers.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.