Current Through April 2016

Circumstances That Constitute Witnessing

This issue is not addressed in the statutes reviewed.

Consequences

This issue is not addressed in the statutes reviewed.

Current Through February 2016

Physical Abuse

Citation: Ann. Code § 49-1-201‘Abused child’ means a child whose health or welfare is being harmed or threatened by:

• A parent, guardian, or custodian who knowingly or intentionally inflicts, attempts to inflict, or knowingly allows another person to inflict physical injury or mental or emotional injury upon the child or another child in the home, including an injury to the child as a result of excessive corporal punishment
• Sexual abuse or sexual exploitation
• The sale or attempted sale of a child by a parent, guardian, or custodian in violation of § 61-2-14h
• Domestic violence as defined in § 48-27-202

‘Imminent danger to the physical well-being of the child’ means an emergency situation in which the welfare or the life of the child is threatened. These conditions may include a situation when there is reasonable cause to believe that any child in the home is or has been sexually abused or sexually exploited or there is reasonable cause to believe that the following conditions threaten the health, life, or safety of any child in the home:

• Nonaccidental trauma inflicted by a parent, guardian, custodian, sibling, babysitter, or other caregiver
• A combination of physical and other signs indicating a pattern of abuse that may be medically diagnosed as battered child syndrome
• Sale or attempted sale of the child by the parent, guardian, or custodian
• Any other condition that threatens the health, life, or safety of any child in the home

‘Serious physical abuse’ means bodily injury that creates a substantial risk of death, or causes serious or prolonged disfigurement, prolonged impairment of health, or prolonged loss or impairment of the function of any bodily organ.

Neglect

Citation: Ann. Code § 49-1-201‘Neglected child’ means a child:

• Whose physical or mental health is harmed or threatened by a present refusal, failure, or inability of the child’s parent, guardian, or custodian to supply the child with necessary food, clothing, shelter, supervision, medical care, or education
• Who is presently without necessary food, clothing, shelter, medical care, education, or supervision because of the disappearance or absence of the child’s parent or custodian

‘Imminent danger to the physical well-being of the child’ means an emergency situation in which the welfare or the life of the child is threatened. Such emergency situation exists when there is reasonable cause to believe that the following conditions threaten the health or life of any child in the home:

• Nutritional deprivation
• Inadequate treatment of serious illness or disease
• The impairment of the parent’s parenting skills due to abuse of alcohol, drugs, or other controlled substance, as defined § 60A-1-101, to such a degree as to pose an imminent risk to a child’s health or safety

Sexual Abuse/Exploitation

Citation: Ann. Code § 49-1-201‘Imminent danger to the physical well-being of the child’ includes an emergency situation in which there is reasonable cause to believe that any child in the home is or has been sexually abused or sexually exploited.

‘Sexual abuse’ means:

• Engaging in, attempting to engage in, or knowingly procuring another person to engage in sexual intercourse, sexual intrusion, or sexual contact with a child younger than age 16, notwithstanding the fact that the child may have willingly participated in such conduct or the fact that the child may have suffered no apparent physical, mental, or emotional injury as a result of such conduct
• Engaging in, attempting to engage in, or knowingly procuring another person to engage in sexual intercourse, sexual intrusion, or sexual contact with a child age 16 or older, notwithstanding the fact that the child may have consented to such conduct or the fact that the child may have suffered no apparent physical, mental, or emotional injury as a result of such conduct
• Any conduct whereby a parent, guardian, or custodian displays his or her sex organs to a child or procures another person to display his or her sex organs to a child for the purpose of gratifying the sexual desire of the parent, guardian, or custodian, of the person making such display, or of the child, or for the purpose of affronting or alarming the child

‘Sexual exploitation’ means an act whereby a parent, guardian, or custodian:

• Whether for financial gain or not, persuades, induces, entices, or coerces a child to engage in sexually explicit conduct
• Persuades, induces, entices, or coerces a child to display his or her sex organs for the sexual gratification of the parent, guardian, custodian, or a third person, or to display his or her sex organs under circumstances in which the parent, guardian, or custodian knows such display is likely to be observed by others who would be affronted or alarmed

Emotional Abuse

Citation: Ann. Code § 49-1-201The terms ‘child abuse and neglect’ or ‘child abuse or neglect’ include mental or emotional injury of a child by a parent, guardian, or custodian who is responsible for the child’s welfare, under circumstances that harm or threaten the health and welfare of the child.

‘Imminent danger to the physical well-being of the child’ includes substantial emotional injury inflicted by a parent, guardian, or custodian.

Abandonment

Citation: Ann. Code § 49-1-201
‘Abandonment’ means any conduct that demonstrates the settled purpose to forego the duties and parental responsibilities to the child.

‘Imminent danger to the physical well-being of the child’ includes abandonment by the parent, guardian, or custodian.

Standards for Reporting

Citation: Ann. Code § 49-2-803

A report is required when a mandatory reporter has reasonable cause to suspect that a child is neglected or abused or observes the child being subjected to conditions that are likely to result in abuse or neglect.

Persons Responsible for the Child

Citation: Ann. Code § 49-1-201Responsible persons include the child’s parent, guardian, or custodian.

Exceptions

Citation: Ann. Code § 49-1-201A child is not considered neglected when:

• The lack of necessary food, clothing, shelter, or medical care is due primarily to a lack of financial means on the part of the parent.
• The child’s education is conducted within the provisions of § 18-8-1 [which provides exemption from the State compulsory education requirement for private school enrollment or homeschooling].

Current Through August 2013

Defined in Domestic Violence Civil Laws

Citation: Ann. Code § 48-27-202‘Domestic violence’ or ‘abuse’ means the occurrence of one or more of the following acts between family or household members:

• Attempting to cause or intentionally, knowingly, or recklessly causing physical harm to another with or without dangerous or deadly weapons
• Placing another in reasonable apprehension of physical harm
• Creating fear of physical harm by harassment, stalking, psychological abuse, or threatening acts
• Committing either sexual assault or sexual abuse
• Holding, confining, detaining, or abducting another person against that person’s will

Defined in Child Abuse Reporting and Child Protection Laws

Citation: Ann. Code § 49-1-3(1)(D), (3)‘Abused child’ means a child whose health or welfare is harmed or threatened by domestic violence, as defined in § 48-27-202.

‘Battered parent’ means a parent, guardian, or other custodian who has been judicially determined not to have condoned the abuse or neglect and has not been able to stop the abuse or neglect of the child or children due to being the victim of domestic violence, as defined by § 48-27-202, and the domestic violence was perpetrated by the person or persons determined to have abused or neglected the child or children.

Defined in Criminal Laws

Citation: Ann. Code § 61-2-28‘Domestic battery’ means unlawfully and intentionally making physical contact of an insulting or provoking nature with a person’s family or household member or unlawfully and intentionally causing physical harm to a person’s family or household member.

‘Domestic assault’ means unlawfully attempting to commit a violent injury against a person’s family or household member or unlawfully committing an act that places a person’s family or household member in reasonable apprehension of immediately receiving a violent injury.

Persons Included in the Definition

Citation: Ann. Code §§ 48-27-204; 61-2-28‘Family or household members’ means persons who:

• Are or were married to each other
• Are or were living together as spouses
• Are or were sexual or intimate partners
• Are or were dating
• Are or were residing together in the same household
• Have a child in common regardless of whether they have ever married or lived together
• Have the following relationships to another person:
  • Parent or stepparent
  • Brother, sister, half-brother, half-sister, stepbrother, or stepsister
  • Father-in-law or mother-in-law
  • Stepfather-in-law or stepmother-in-law
  • Child or stepchild
  • Daughter-in-law, son-in-law, stepdaughter-in-law, or stepson-in-law
  • Grandparent or stepgrandparent
  • Aunt, aunt-in-law, or stepaunt
  • Uncle, uncle-in-law, or stepuncle
  • Niece or nephew
  • First or second cousin
• Have a relationship listed above to a family or household member

Current Through June 2013

Confidentiality of Records

Citation: Ann. Code § 49-7-1Except as otherwise provided below, all records and information concerning a child or juvenile that are maintained by the Division of Juvenile Services, the Department of Health and Human Resources, a child agency or facility, court, or law enforcement agency shall be kept confidential and shall not be released or disclosed to anyone, including any Federal or State agency.

Persons or Entities Allowed Access to Records

Citation: Ann. Code § 49-7-1Notwithstanding the provisions above or any other provision of law to the contrary, records concerning a child or juvenile, except adoption records and records disclosing the identity of a person making a complaint of child abuse or neglect, shall be made available:

• Where otherwise authorized by this chapter
• To the child, a parent whose parental rights have not been terminated, or the attorney of the child or parent
• With the written consent of the child or of someone authorized to act on the child’s behalf
• Pursuant to an order of a court of record

In addition to those persons or entities listed above, information related to child abuse or neglect proceedings, except information relating to the identity of the person reporting or making a complaint of child abuse or neglect, shall be made available, upon request, to:

• Federal, State, or local government entities or any agent of such entities, including law enforcement agencies and prosecuting attorneys, having a need for such information in order to carry out its responsibilities under law to protect children from abuse and neglect
• The child fatality review team
• Child abuse citizen review panels
• Multidisciplinary investigative and treatment teams
• A grand jury, circuit court, or family court, upon a finding that information in the records is necessary for the determination of an issue

When Public Disclosure of Records is Allowed

Citation: Ann. Code § 49-7-1In the event of a child fatality or near fatality due to child abuse and neglect, information relating to such fatality or near fatality shall be made public by the Department of Health and Human Resources and to the entities described above. Information released by the department shall not include the identity of a person reporting or making a complaint of child abuse or neglect.

Notwithstanding the provisions of this section, or any other provision of law to the contrary, the name and identity of any juvenile adjudicated or convicted of a violent or felonious crime shall be made available to the public.

Use of Records for Employment Screening

This issue is not addressed in the statutes reviewed.

Current Through March 2015

Citation: Ann. Code § 49-6A-6

Any person, official, or institution participating in good faith in any act permitted or required by the reporting laws shall be immune from any civil or criminal liability that otherwise might result by reason of such actions.

Current Through February 2013

Individual Responsibility to Report

Citation: Ann. Code § 49-6A-2A mandated reporter who has reasonable cause to suspect that a child is abused or neglected or observes the child being subjected to conditions that are likely to result in abuse or neglect shall immediately, and no more than 48 hours after suspecting this abuse or neglect, report the circumstances or cause a report to be made to the Department of Health and Human Resources. In any case in which the reporter believes that the child suffered serious physical abuse, sexual abuse, or sexual assault, the reporter also shall report immediately to the State Police and any law enforcement agency having jurisdiction to investigate the complaint.

Any person over age 18 who receives a disclosure from a credible witness or observes any sexual abuse or sexual assault of a child shall immediately, and no more than 48 hours after receiving such a disclosure or observing the sexual abuse or sexual assault, make a report to the department or the State Police or other law enforcement agency having jurisdiction to investigate the report.

Content of Reports

Citation: Ann. Code § 49-6A-2The report shall contain the reporter’s observations of the conditions or circumstances that led to the suspicion that a child was an abused or neglected child.

Reporting Suspicious Deaths

Citation: Ann. Code § 49-6A-3Any mandated reporter who has reasonable cause to suspect that a child has died as a result of child abuse or neglect shall report that fact to the appropriate medical examiner or coroner.

Upon the receipt of such a report, the medical examiner or coroner shall cause an investigation to be made and report the findings to the police, the appropriate prosecuting attorney, the local child protective service agency, and, if the institution making a report is a hospital, to the hospital.

Reporting Substance-Exposed Infants

Citation: CPS Policy Ch. 70,000, §§ 3.19; 3.20The Child Abuse Prevention and Treatment Act (CAPTA) is a key piece of Federal legislation that guides child protective services. This legislation requires that child protective services and other community service providers address the needs of newborn infants who have been identified as being affected by illegal drug abuse or experiencing withdrawal symptoms resulting from prenatal drug exposure. Health-care providers who are involved in the delivery or care of such infants are required to make a report to child protective services.

For reports of drug-affected infants or infants suffering from fetal alcohol spectrum disorder, the intake assessment worker and supervisor will follow all intake assessment policies that are applicable to the report. In addition, the intake assessment worker will gather the following information:

• The name and address of the medical facility where the child was delivered
• The infant’s drug results, if applicable, including the type of drug for which the infant tested positive
• The birth mother’s drug test results, if applicable, including the type of drug for which she tested positive
• Information from medical personnel as to the condition of the infant upon birth, including specific data as to how the in utero drug or alcohol exposure has affected the infant (e.g., withdrawal, physical and/or neurological birth defects)
• The infant’s birth weight and gestational age
• The extent of prenatal care received by the birth mother
• The names and ages of any siblings the infant may have, including any abuse, neglect, or safety concerns regarding the siblings

Agency Receiving the Reports

Citation: Ann. Code § 49-6A-5Reports of child abuse and neglect shall be made immediately by telephone to the local State child protective service agency and shall be followed by a written report within 48 hours if so requested by the receiving agency. The department shall establish and maintain a 24-hour, 7-day-a-week telephone number to receive such calls reporting suspected or known child abuse or neglect.

A copy of any report of serious physical abuse, sexual abuse, or sexual assault shall be forwarded by the department to the appropriate law enforcement agency, the prosecuting attorney, or the coroner or medical examiner’s office. Reports of known or suspected institutional child abuse or neglect shall be made and received as all other reports made pursuant to this article.

Initial Screening Decisions

Citation: CPS Policy Ch. 70,000, § 3.3Whether or not to accept a referral for family functioning assessment is a critical decision in Child Protective Services (CPS). When making this decision, the supervisor must analyze all the information in the report to determine whether there is reasonable cause to suspect a child is abused or neglected or is subjected to conditions that will likely result in abuse or neglect.

CPS must accept for assessment any report that suggests that, assuming the reporter’s perceptions are true, an individual between birth and age 18 may have been subject to treatment that meets the definition of abuse or neglect in statute and CPS policy. A reporter need not have witnessed a specific injury nor does there have to be an injury for there to be a reason to believe that parental conduct results in a threat of harm to a child, which is included in the statutory definitions of an abused and neglected child.

Agency Conducting the Assessment/Investigation

Citation: Ann. Code § 49-6A-9The local CPS office shall investigate all reports of child abuse or neglect. Each local CPS office shall, upon notification of suspected child abuse or neglect, commence or cause to be commenced a thorough investigation of the report and the child’s environment.

Assessment/Investigation Procedures

Citation: CPS Policy Ch. 70,000, §§ 4.1; 4.2; 4.3; 4.4; 4.6The term ‘family functioning assessment’ refers to the function that is commonly referred to as investigation or initial assessment. The assessment determines who CPS will serve by assessing and reaching conclusions about caregivers who are unable or unwilling to protect their children from impending danger. The assessment provides a uniform, systematic, and structured approach to all family situations when a child is alleged to be abused or neglected.

Upon assignment of a report for assessment, the CPS worker will:

• Review the report and all previous reports, records, and documentation on the family
• Make face-to-face contact with the identified child within the response time assigned on the intake
• Inform the caregivers of the child abuse or neglect allegations, the reason for the contact, and the process for completing the assessment
• If at all possible, on the same day and in the following order, conduct interviews of the identified child, siblings, the nonmaltreating parent, the maltreating parent, and other adults in the home
• Assess for present dangers and implement a protection plan, if necessary

Detailed information must be collected through interviews, observations, and written materials provided by knowledgeable individuals. The CPS worker must conduct sufficient numbers of interviews of sufficient length and effort necessary to assure that due diligence is demonstrated and sufficient information is collected to assess threats of serious harm and determine if the children are abused or neglected.

Timeframes for Completing Investigations

Citation: Ann. Code § 49-6A-9; CPS Policy Ch. 70,000, § 3.4Each local CPS office shall respond immediately to all allegations of imminent danger to the physical well-being of the child or of serious physical abuse. As a part of this response, within 72 hours there shall be a face-to-face interview with the child or children and the development of a protection plan, which may involve law enforcement officers or the court.

In regulation: Response time is measured from the date and time the report is received by the department until face-to-face contact with the alleged victim child. The caregivers should be contacted the same day as the victim child unless contact will jeopardize child safety or extenuating circumstances exist (e.g., a caregiver is out of town). The response time is the maximum amount of time that the CPS worker has to make face-to-face contact in order to assess for present dangers and gather information to complete the family functioning assessment.

The selected response times are as follows:

• Immediate response: CPS must respond to the report as soon as possible unless there is a protective caregiver. If a protective caregiver clearly is documented in the record, and a same-day response will in no way jeopardize child safety, face-to-face contact must be made no later than the same day of the referral.
• 0-72 hour response: Face-to-face contact must be made with the child within 72 hours.
• 0-14 day response: Face-to-face contact must be made with the child within 14 days.

If the report indicates imminent danger to the child, the response time must be a maximum of 72 hours; however the supervisor may instruct social workers to make contact with the children and caregivers sooner based on the information collected.

Classification of Reports

Citation: CPS Policy Ch. 70,000, § 4.10During the family functioning assessment, the CPS worker will gather information in family functioning assessment areas related to child safety. The specific, detailed information in the assessment must be analyzed in order to determine if maltreatment did or did not occur. The maltreatment finding is based on whether a preponderance of the evidence (e.g., eyewitness accounts, worker observations, medical reports, professional evaluations) obtained during the assessment would lead the worker to conclude that maltreatment did or did not occur.

Current Through August 2015

Professionals Required to Report

Citation: Ann. Code § 49-2-803The following professionals are required to report:

• Medical, dental, or mental health professionals
• Christian Science practitioners or religious healers
• Teachers or other school personnel
• Social service, child care, or foster care workers
• Emergency medical services personnel
• Peace officers, law enforcement officials, or humane officers
• Members of the clergy
• Circuit court judges, family court judges, employees of the Division of Juvenile Services, or magistrates
• Youth camp administrators, counselors, employees, coaches, or volunteers of entities that provide organized activities for children
• Commercial film or photographic print processors

Reporting by Other Persons

Citation: Ann. Code § 49-2-803Nothing in this article is intended to prevent individuals from reporting suspected abuse or neglect on their own behalf. In addition to those persons and officials specifically required to report situations involving suspected abuse or neglect of children, any other person may make a report if that person has reasonable cause to suspect that a child has been abused or neglected in a home or institution or observes the child being subjected to conditions or circumstances that would reasonably result in abuse or neglect.

Institutional Responsibility to Report

Citation: Ann. Code § 49-2-803Any person required to report who is a member of the staff or volunteer of a public or private institution, school, entity that provides organized activities for children, facility, or agency also shall immediately notify the person in charge of the institution, school, entity that provides organized activities for children, facility, or agency, or a designated agent thereof, who may supplement the report or cause an additional report to be made.

Standards for Making a Report

Citation: Ann. Code § 49-2-803Any mandatory reporter who has reasonable cause to suspect that a child is neglected or abused or observes the child being subjected to conditions that are likely to result in abuse or neglect shall report the circumstances or cause a report to be made to the Department of Health and Human Resources. In any case where the reporter believes that the child suffered serious physical abuse or sexual abuse or sexual assault, the reporter shall also immediately report, or cause a report to be made, to the State Police and any law-enforcement agency having jurisdiction to investigate the complaint.

Privileged Communications

Citation: Ann. Code § 49-2-811The privileged quality of communications between husband and wife and between any professional person and his or her patient or client, except that between attorney and client, cannot be invoked in situations involving suspected or known child abuse or neglect.

Inclusion of Reporter’s Name in Report

Not addressed in statutes reviewed.

Disclosure of Reporter Identity

Not addressed in statutes reviewed.

Current Through April 2015

Citation: W. Va. Code § 49-1-201‘Imminent danger to the physical well-being of the child’ means an emergency situation in which the welfare or the life of the child is threatened. Such emergency situation exists when the parent, guardian, or custodian’s abuse of alcohol, drugs, or other controlled substance, as defined in § 60A-1-101, has impaired his or her parenting skills to a degree as to pose an imminent risk to a child’s health or safety.

Citation: W.Va. Code § 60A-10-12Any person age 18 or older who knowingly causes or permits a minor to be present in a location where methamphetamine is manufactured or attempted to be manufactured is guilty of a felony and, upon conviction, shall be confined in a State correctional facility for not less than 1 year nor more than 5 years, fined not more than $10,000, or both.

Notwithstanding the provisions above, the penalty for a violation of said subsection when the child suffers serious bodily injury shall be confinement in a State correctional facility for not less than 3 years nor more than 15 years, a fine of not more than $25,000, or both.

Current Through August 2014

Making The Appointment

Citation: Ann. Code § 49-6-2In any child abuse or neglect proceeding, the child shall have the right to be represented by counsel at every stage of the proceedings. Counsel of the child shall be appointed by the court in the initial order.

Under no circumstances may the same attorney represent both the child and the other party or parties. However, if more than one child from a family is involved in the proceeding, one attorney may represent all the children.

The Use of Court-Appointed Special Advocates (CASAs)

Citation:This issue is not addressed in the statutes reviewed.

Qualifications/Training

Citation: Ann. Code § 49-6-2Effective July 1, 2012, any attorney appointed pursuant to this section shall receive a minimum of 8 hours of continuing legal education training per reporting period on child abuse and neglect procedure and practice. In addition, after July 1, 2013, any attorney appointed to represent a child must first complete training on representation of children that is approved by the administrative office of the Supreme Court of Appeals. The Supreme Court of Appeals shall develop procedures for approval and certification of training required under this section by July 1, 2012. However, when no attorney who has completed this training is available for appointment, the court shall appoint a competent attorney with demonstrated knowledge of child welfare law to represent the parent or child.

Specific Duties

Citation: Ann. Code § 49-6-2Any attorney appointed pursuant to this section shall perform all duties required as an attorney licensed to practice law in the State of West Virginia.

How the Representative Is Compensated

Citation: Ann. Code § 49-6-2The court may allow to each attorney so appointed a fee in the same amount that appointed counsel can receive in felony cases.

Current Through April 2014

When Case Plans Are Required

Citation: Ann. Code § 49-6D-3The Department of Health and Human Resources shall develop a unified child and family case plan for every family wherein a person has been referred to the department after being allowed an improvement period or where the child is placed in foster care. The case plan must be filed within 60 days of the child coming into foster care or within 30 days of the inception of the improvement period, whichever occurs first. The department also may prepare a case plan for any person who voluntarily seeks child abuse and neglect services from the department or who is referred to the department by another public agency or private organization. The case plan provisions shall comply with Federal law and the rules of procedure for child abuse and neglect proceedings.

Who May Participate in the Case Planning Process

Citation: Ann. Code § 49-6D-3The department shall convene a multidisciplinary treatment team, which shall develop the case plan. Parents, guardians, or custodians shall participate fully in the development of the case plan, and the child also shall fully participate if he or she is sufficiently mature and the child’s participation is otherwise appropriate.

Contents of a Case Plan

Foster Care Policy § 4.3The case plan requires the following information:

• A description of the type of home or facility where the child is to be placed
• A discussion of the safety and appropriateness of the placement
• A discussion of whether the placement is the least-restrictive, most familylike available and in the close proximity to the parent’s home
• If the child is placed a substantial distance from the home of the parents or in a different State, a discussion of why the placement is in the child’s best interests
• A description of how the child will receive safe and proper care in this placement
• A description of the child’s educational plan, whether he or she has remained in the same school he or she was attending at the time of removal, and how educational stability will be achieved
• A description of the services that are to be provided to the parents, child, and foster parents in order to improve the conditions in the parents’ home to facilitate the return of the child to his or her home or to secure a permanent placement for the child
• A discussion of the services that will be provided to the child while in foster care in order to address the specific needs of the child
• A discussion of the appropriateness of the services that have been provided to the child
• A listing of the child’s siblings and their locations and the date of the court order sanctioning separation, if applicable
• A description of the parents’ ability to contribute to the cost of placement
• The recommended visitation plan
• Documentation of the efforts to ensure that the child is returned home within the approximate time lines set out in the plan
• Documentation of the concurrent efforts to achieve permanency should the services designed to achieve reunification be deemed unsuccessful
• If return home is not the permanency plan for the child, a statement of why reunification is not appropriate that specifies in detail the alternative placement for the child, including approximate time lines for when such placement is expected to become a permanent placement
• In the case of a child whose permanency plan is adoption or placement in another permanent home, documentation of the steps being taken to find a permanent living arrangement, including child specific recruitment efforts
• A written description of the programs and services that will help children age 14 and older prepare for the transition from foster care to independence
• Documentation of an age-appropriate plan for the child that educates him or her about family planning, pregnancy prevention, sexually transmitted infections, and other issues related to healthy sexual development
• For a child who self-identifies as being sexually active, documentation of the supportive counseling offered to the child on the issues of abstinence and healthy sexual development
• Documentation of the child’s health and education background and progress, including all medical appointments, counseling, individual education plans, school conferences, etc.

Current Through November 2012

Citation: W. Va. Code Ann. § 49-6-5(a) (LexisNexis through W. Va. 2012 Legis. Serv., S.B. 484)The term ‘permanency plan’ refers to that part of the case plan that 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, detail the alternative placement for the child, and include approximate time lines for when such placement is expected to become a permanent placement.

Current Through January 2016

Schedule of Hearings

Citation: Ann. Code § 49-4-608A permanency hearing shall be held:

• Within 12 months of the child’s commitment to care and every 12 months thereafter
• Within 30 days of a finding that reasonable efforts are not required and at least every 3 months thereafter until permanency is achieved

Any party may petition the court for review of the child’s case at any time. The court shall grant such petition upon a showing that there is a change in circumstances or needs of the child that warrants court review.

Persons Entitled to Attend Hearings

Citation: Ann. Code § 49-4-608Any foster parent, preadoptive parent, or relative providing care for the child shall be given notice of and the opportunity to be heard at the permanency hearing.

Before the hearing, notice of the right to be present shall be provided to:

• The child’s attorney
• The child
• The child’s parents
• The child’s guardians
• The child’s foster parents
• Any preadoptive parent
• Any relative providing care for the child
• Any person entitled to notice and the right to be heard
• Other persons as the court may direct

The child’s presence may be waived by the child’s attorney at the request of the child or if the child is younger than age 12 and would suffer emotional harm.

Determinations Made at Hearings

Citation: Ann. Code § 49-4-608The purpose of the permanency hearing is:

• To review the child’s case
• To determine whether and under what conditions the child’s commitment to the Department of Health and Human Resources shall continue
• To determine what efforts are necessary to provide the child with a permanent home
• To determine if the department has made reasonable efforts to finalize the permanency plan

In the case of a child who has reached age 16, the court shall determine the services needed to assist the child to make the transition from foster care to Independent Living.

At the conclusion of the hearing the court shall, in accordance with the best interests of the child, enter an order containing all the appropriate findings. The court order shall state:

• Whether or not the department made reasonable efforts to preserve the family and to prevent out-of-home placement or that the specific situation made the effort unreasonable
• Whether or not the department made reasonable efforts to finalize the permanency plan and concurrent plan for the child
• The appropriateness of the child’s current placement, including its distance from the child’s home and whether or not it is the least restrictive and most family-like one available
• The appropriateness of the current educational setting and the proximity to the school in which the child is enrolled at the time of placement
• The services required to meet the child’s needs and achieve permanency

Permanency Options

Citation: Ann. Code § 49-4-608Permanency options include:

• Return to the parent
• Adoption
• Legal guardianship
• Permanent placement with a fit and willing relative
• Another planned permanent living arrangement

In the case of any child for whom another planned permanent living arrangement is the permanency plan, the court shall:

• Ask the child about his or her desired permanency outcome
• Make a judicial determination explaining why, as of the date of the hearing, another planned permanent living arrangement is the best permanency plan for the child
• Provide in the court order compelling reasons why it continues to not be in the best interests of the child to return home, be placed for adoption, be placed with a legal guardian, or be placed with a fit and willing relative

Current Through March 2016

Citation: Ann. Code § 49-1-105It is the purpose of this chapter to provide a system of coordinated child welfare and juvenile justice services for the children of this State. The State has a duty to assure that proper and appropriate care is given and maintained.

The child welfare and juvenile justice system shall:

• Assure each child care, safety and guidance
• Serve the mental and physical welfare of the child
• Preserve and strengthen the child’s family ties
• Recognize the fundamental rights of children and parents
• Develop and establish procedures and programs that are family-focused rather than focused on specific family members, except where the best interests of the child or the safety of the community are at risk
• Involve the child and the child’s family or the child’s caregiver in the planning and delivery of programs and services
• Provide community-based services in the least restrictive settings that are consistent with the needs and potentials of the child and his or her family
• Provide for early identification of the problems of children and their families, and respond appropriately to prevent abuse and neglect or delinquency
• Provide for the rehabilitation of status offenders and juvenile delinquents
• As necessary, provide for the secure detention of juveniles alleged or adjudicated delinquent
• Provide for secure incarceration of children or juveniles adjudicated delinquent and committed to the custody of the director of the Division of Juvenile Services
• Protect the welfare of the general public

Current Through January 2013

Circumstances That Are Grounds for Termination of Parental Rights

Citation: Ann. Code § 49-6-5The court shall terminate the parental rights of an abusing parent when:

• The parent has subjected any child in the household to aggravated circumstances that include, but are not limited to, abandonment, torture, chronic abuse, and sexual abuse.
• The parent has:
  • Committed murder or voluntary manslaughter of the child’s other parent, another child of the parent, or any other child residing in the same household
  • Attempted or conspired to commit such a murder or voluntary manslaughter
  • Committed a felonious assault that results in serious bodily injury to the child, the child’s other parent, or any other child residing in the same household
  • Committed sexual assault or sexual abuse of the child, the child’s other parent, guardian or custodian, another child of the parent or any other child residing in the same household
  • Has been required by State or Federal law to register with a sex offender registry
• The parental rights of the parent to another child have been terminated involuntarily.
• A parent has been required by State or Federal law to register with a sex offender registry, and the court has determined in consideration of the nature and circumstances surrounding the prior charges against that parent, that the child’s interests would not be promoted by a preservation of the family.
• The abusing parent has habitually abused or is 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.
• The abusing parent has willfully refused 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.
• The abusing parent has not responded to or followed through with a reasonable family case plan designed to reduce or prevent the abuse or neglect of the child.
• The parent has abandoned the child.
• The parent has repeatedly or seriously injured the child physically or emotionally or has sexually abused or sexually exploited the child.
• The parent suffers from emotional illness, mental illness, or mental deficiency of such duration or nature as to render the parent incapable of exercising proper parenting skills or sufficiently improving the adequacy of such skills.
• A battered parent’s parenting skills have been seriously impaired, and he or she 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.

Circumstances That Are Exceptions to Termination of Parental Rights

Citation: Ann. Code § 49-6-5bA petition shall be filed when the child has been in foster care for 15 of the most recent 22 months. The Department of Health and Human Resources may determine not to file a petition to terminate parental rights when:

• At the option of the department, the child has been placed with a relative.
• The department has documented in the case plan a compelling reason, including, but not limited to, the child’s age and preference for termination, or the child’s placement in custody of the department based on another proceeding, that filing the petition would not be in the best interests of the child.
• The department has not provided, when reasonable efforts to return a child to the family are required, the services to the child’s family that the department deems necessary for the safe return of the child to the home.

Circumstances Allowing Reinstatement of Parental Rights

Citation: Ann. Code § 49-6-6Upon motion of a child, a child’s parent or custodian, or the department alleging a change of circumstances requiring a different disposition, the court shall conduct a hearing and may modify a dispositional order if the court finds by clear and convincing evidence a material change of circumstances and that such modification is in the child’s best interests; except a dispositional order terminating parental rights shall not be modified after the child has been adopted, except as provided below.

If the child is removed or relinquished from an adoptive home or other permanent placement after the case has been dismissed, any party with notice thereof and the receiving agency shall promptly report the matter to the circuit court of origin, the department, and the child’s counsel, and the court shall schedule a permanency hearing within 60 days. The department shall convene a multidisciplinary treatment team meeting within 30 days of the receipt of notice of permanent placement disruption.

If a child has not been adopted, the child or department may move the court to place the child with a parent or custodian whose rights have been terminated and/or restore such parent’s or guardian’s rights. Under these circumstances, the court may order such placement and/or restoration of a parent’s or guardian’s rights if it finds by clear and convincing evidence a material change of circumstances and that such placement and/or restoration is in the child’s best interests.

Current Through December 2014

Definitions

Citation: Ann. Code § 49-1-4; Pol. Man. § 1.1; 1.5‘Guardian’ means a person who has care and custody of a child as a result of any contract, agreement or legal proceeding.

In policy: For the purposes of the placement of children, the term ‘kinship/relatives’ means any person related to the child by blood or marriage, including cousins and in-laws. A person who the child considers a relative, such as a godparent or other significant person whom the child claims as kin, also may be considered as a placement resource.

Legal guardianship is a legally binding relationship between a child and a caregiver, other than the child’s biological parent, that may be considered as a permanent placement option for the child. This arrangement transfers all the rights and responsibilities for a child from the Department of Health and Human Resources to the caregiver through a court-sanctioned process. Parental rights are not required to be terminated in order for a child to be in a legal guardianship.

Purpose of Guardianship

Citation: Pol. Man. § 1.0The Department of Health and Human Resources is authorized by statute to utilize legal guardianship as a viable permanency option once reunification and adoption have been ruled out.

Permanency planning efforts should begin as soon as a child enters into the custody of the department or when it appears it may happen. All possible resources should be considered in order to arrive at the least restrictive, most appropriate environment for the child. Priority consideration must be given to the child’s relatives for the most suitable placement, provided the best interests of the child are the primary consideration. Throughout the life of the child’s case, appropriate family members should be sought out and considered for placement of the child or for family connections with the child.

The creation of a permanent family for children in custody is the main objective for children that are unable to be reunified with their family of origin. Adoption must be the primary choice for permanency planning, with other alternatives being considered only after adoption has been ruled out. Once reunification and adoption have been ruled out, legal guardianship may be considered, provided it would be in the child’s best interests.

A Guardian’s Rights and Responsibilities

Citation: Pol. Man. §§ 1.0; 1.5A legal guardianship is a judicially created and legally binding relationship between a child and caregiver that is intended to be permanent and self-sustaining as evidenced by the transfer to the caregiver of the following parental rights with respect to the child: protection, education, care, and control of the child; custody of the child; and decision-making. Parental rights are not required to be terminated in order to sanction a legal guardianship under § 49-2-17.

Subsidized legal guardianship is the transfer of legal responsibility for a minor child from the State to a private certified caregiver or guardian, who is provided with a monthly subsidy and/or medical card for the care and support of the child. The transfer of legal responsibility removes the child from the child welfare system, allows a caregiver to make important decisions on the child’s behalf, establishes a long-term caregiver for the child, and addresses the child’s financial needs through ongoing subsidy.

Qualifying the Guardian

Citation: Pol. Man. § 2.1Legal guardianship should be considered for a child when the following conditions have been met:

• The permanency goals of reunification and adoption have been ruled out and the reasons are documented in the case record.
• The child has resided with the prospective guardian for at least 6 months immediately prior to establishing legal guardianship and was eligible for foster care maintenance payments.
• The guardianship home was certified or approved as meeting the requirements as a foster home during the 6 months prior to establishing legal guardianship.
• The child must be at least age 12 if he or she is in the home of an unrelated caregiver, unless it is decided by the department that it would be in the child’s best interest to do legal guardianship at a younger age. There is no age limit when the caregiver is a kin/relative, provided it is in the child’s best interests.
• The best interests determination must be documented in the child’s case plan.
• The child must have a strong attachment to the prospective legal guardian and the guardian must have a strong commitment to caring permanently for the child.
• The child who is age 14 or older has been consulted regarding the guardianship arrangement.

Procedures for Establishing Guardianship

Citation: Pol. Man. §§ 2.0; 6.2Legal guardianship is the permanent transfer of legal responsibility for a child in State custody to either a kin/relative or an individual other than his or her parents. Unless specified otherwise by the court, a grant of custody of a child to the department by the court is sufficient for the department to transfer legal guardianship. The department may consent to the transfer of legal guardianship when certain conditions are met.

Court action is necessary to transfer custody of the child from the department to the legal guardian. The prospective legal guardian’s attorney will petition the court to request the change in legal custody of the child. A copy of the legal guardian’s home study, a copy of the child’s posttermination placement plan, any termination of parental rights documentation, an original signed subsidized guardianship agreement, the application for subsidized guardianship, and an original signed consent must be submitted to the attorney for the prospective legal guardian for filing with the petition. The child’s caseworker will ensure the prospective legal guardian, the child, the child’s birth parents (if termination of parental rights has not occurred), and the child’s attorney are notified of the date and location of the hearing.

At the hearing, the court will determine whether to grant the request for transfer of custody. The child’s caseworker and prospective legal guardians must attend the hearing.

Contents of a Guardianship Order

Citation: Pol. Man. § 6.2After the finalization of the legal guardianship, the child’s caseworker will provide the legal guardians with one original signed agreement, a certified copy of the court order, and the child’s original birth certificate.

Modification/Revocation of Guardianship

Citation: Pol. Man. §§ 6.3; 6.4The legal guardianship agreement will terminate when the child reaches age 18 or is otherwise emancipated.

As soon as the department becomes aware that a legal guardianship may be disrupted, a caseworker will make contact with the family to determine what, if anything, the department can do to preserve the legal guardianship placement.

If the child is removed from an adoptive home or other permanent placement after the case has been dismissed from the court’s docket, any party with notice thereof and the receiving agency shall promptly report the matter to the circuit court of origin, the department, and the child’s counsel. The court shall schedule a permanent placement review conference within 60 days, with notice given to any appropriate parties and persons entitled to notice and the right to be heard. The department shall convene a multidisciplinary treatment team meeting within 30 days of the receipt of notice of permanent placement disruption.

If the child is placed into the custody of the department, the department worker must make an appropriate placement for the child.

If the child’s guardianship placement is disrupted due to the guardian’s death or inability to continue providing for the child, provided the guardian named a successor guardian at the time the agreement was signed, the child may move to reside with the successor guardian.

Eligibility for Guardianship Subsidy

Citation: Ann. Code § 49-2-17; Pol. Man. § 2.2For a legal guardianship subsidy, the children must be in special circumstances because one or more of the following conditions inhibit their guardianship placement:

• They have a physical or mental disability or are emotionally disturbed.
• They are older children, part of a sibling group, or members of a racial or ethnic minority.

The department shall provide assistance in the form of subsidies or other services to parents who are found and approved for legal guardianship of a child certified as eligible for subsidy. Before the order of legal guardianship is entered, there must be a written agreement between the family entering into the subsidized legal guardianship and the department.

After reasonable efforts have been made without the use of subsidy and no appropriate legal guardian has been found for the child, the department shall certify the child as eligible for a subsidy in the event of legal guardianship. Reasonable efforts to place a child without a subsidy shall not be required if it is in the best interests of the child because of such factors as the existence of significant emotional ties developed between the child and the prospective guardian while in care as a foster child.

In policy: For a child to be eligible to receive title IV-E kinship guardianship assistance, the child had to be title IV-E eligible while in foster care with the prospective relative guardian for 6 consecutive months. The child must meet all eligibility requirements for title IV-E foster care, including the requirement that the child was removed from an AFDC-eligible home pursuant to a voluntary placement agreement or as a result of a judicial determination that continuation in the home would be contrary to the welfare of the child and placed in an approved home. The child must be in foster care for at least 6 consecutive months with the prospective kin/relative guardian before finalizing the legal guardianship and receiving the subsidy.<

Links to Agency Policies

West Virginia Department of Health and Human Resources, Legal Guardianship Policy (PDF – 157 KB)

Current Through July 2013

Relative Placement for Foster Care and Guardianship

This issue is not addressed in the statutes and regulations reviewed.

Requirements for Placement with Relatives

This issue is not addressed in the statutes and regulations reviewed.

Requirements for Placement of Siblings

Citation: Ann. Code § 49-2-14When a child is in foster care or becomes eligible for adoption, and a sibling has previously been placed in foster care or been adopted, the Department of Health and Human Resources shall notify the foster or adoptive parents of the sibling of the child’s availability for foster placement or adoption to determine if the foster or adoptive parents want to seek a foster placement or adoption of the child.

When a child is in foster care and is living separately from a sibling who is in another foster home or who has been adopted by another family, and the parents with whom the sibling resides want to adopt or provide foster care so that the child may be reunited with a sibling, the department shall place the child in the household with the sibling upon a determination of the fitness of all household members and if the placement is in the best interests of the children. If, however, the department finds that residing in the same home would have a harmful physical, mental, or psychological effect on one or more of the siblings, or the child has a physical or mental disability that 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 interests of one or all of the children, the department may petition the court to allow the separation of the siblings to continue. If the child is age 12 or older, the department shall provide the child the option of remaining in the existing foster care placement if remaining is in the best interests of the child.

When two or more siblings are in separate foster care placements and the foster parents of the siblings have applied to provide foster care for a sibling not in their home or two or more adoptive parents seek to adopt a sibling of a child they have previously adopted, the department’s determination as to placing the child in a foster or adoptive home shall be based solely upon the best interests of the siblings.

Relatives Who May Adopt

This issue is not addressed in the statutes and regulations reviewed.

Requirements for Adoption by Relatives

This issue is not addressed in the statutes and regulations reviewed.

Current Through March 2016

What Are Reasonable Efforts

Citation: Ann. Code §§ 49-1-201; 49-1-206‘Child abuse and neglect services’ means social services that are directed toward:

• Protecting and promoting the welfare of children who are abused or neglected
• Identifying, preventing, and remedying conditions that cause child abuse and neglect
• Preventing the unnecessary removal of children from their families by identifying family problems and assisting families in resolving problems that could lead to a removal of children and a breakup of the family
• In cases in which children have been removed from their families, providing time-limited reunification services to the children and the families so as to reunify those children with their families or some portion thereof
• Placing children in suitable adoptive homes when reunifying the children with their families, or some portion thereof, is not possible or appropriate
• Assuring the adequate care of children or juveniles who have been placed in the custody of the Department of Health and Human Resources or third parties

The term ‘time-limited reunification services’ means individual, group, and family counseling; inpatient, residential, or outpatient substance abuse treatment services; mental health services; assistance to address domestic violence; services designed to provide temporary child care and therapeutic services for families, including crisis nurseries and transportation to or from those services, provided during 15 of the most recent 22 months a child has been in foster care, as determined by the earlier date of the first judicial finding that the child is subjected to abuse or neglect or the date that is 60 days after the child is removed from home.

Reasonable efforts are measures taken by the department to provide remedial and reunification services.

When Reasonable Efforts Are Required

Citation: Ann. Code § 49-4-604Reasonable efforts must be made:

• To preserve the family and to prevent placement
• To eliminate the need for removing the child from the child’s home
• To make it possible for the child to return home safely

When Reasonable Efforts Are NOT Required

Citation: Ann. Code § 49-4-602The department is not required to make reasonable efforts to preserve the family if the court determines:

• The parent has subjected the child, another child of the parent, or any other child residing in the same household to aggravated circumstances, including abandonment, torture, chronic abuse, and sexual abuse.
• The parent has:
  • Committed murder or voluntary manslaughter of the child’s other parent, another child of the parent, or any other child residing in the same household
  • Attempted or conspired to commit such a murder or voluntary manslaughter
  • 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
  • Committed sexual assault or sexual abuse of the child, the child’s other parent, another child of the parent, or any other child residing in the same household
  • Has been required by State or Federal law to register with a sex offender registry
• The parental rights of the parent to another child have been terminated involuntarily.
• The parent has habitually abused or is addicted to alcohol, controlled substances, or drugs, to the extent that proper parenting skills have been seriously impaired.
• The parent has refused to cooperate in the development of a reasonable family case plan.
• The abusing parent or parents have not responded to rehabilitative efforts designed to reduce or prevent the abuse or neglect of the child.
• The parent has abandoned the child.
• The parent has an emotional illness, mental illness, or mental deficiency of such duration or nature as to render such parent incapable of exercising proper parenting skills or sufficiently improving the adequacy of such skills.
• The abusing parent has repeatedly or seriously injured the child physically or emotionally, or have sexually abused or sexually exploited the child.
• The battered parent’s parenting skills have been seriously impaired, and the person has willfully refused or is presently unwilling or unable to cooperate with a reasonable treatment plan.

Current Through February 2015

Who Can Nominate a Standby Guardian

Citation: Ann. Code §§ 44A-5-2; 44A-5-3A parent, functional parent, or any person acting on a parent’s behalf may petition for a standby guardian for a child of a qualified parent. ‘Qualified parent’ means a parent who has been diagnosed by a licensed physician to be afflicted with a progressive or chronic condition caused by injury, disease, or illness from which, to a reasonable degree of medical probability, the patient cannot recover and that is likely to lead to debilitation or incompetence.

How to Establish a Standby Guardian

Citation: Ann. Code §§ 44A-5-3; 44A-5-4; 44A-5-5Upon petition, the court may approve a person as standby guardian for a child of a qualified parent upon the occurrence of a specific triggering event. The petition shall include:

• The name and address of the petitioner and his or her relationship to the child, the name and address of the child’s qualified parent, and the name and address of any other parent of the child whose identity and whereabouts are known
• The name, address, and birth date of the child
• The proposed triggering event
• Whether a determination of incompetence or debilitation has been made
• Whether there is a significant risk that the qualified parent will die imminently, become physically or mentally incapable of caring for the child, or die as a result of a progressive chronic condition or illness
• The name and address of the proposed standby guardian
• Any known reasons why the child’s other parent is not assuming or should not assume the responsibilities of a standby guardian

When a petition is filed by a person other than a parent having custody of the child, the standby guardian shall be appointed only with the consent of the qualified parent, unless the court finds that such consent cannot be given for medical reasons.

A parent may execute a written designation of a standby guardian at any time. The written designation shall be signed by the parent and witnessed by two adults.

Children who are age 14 or older must be notified of any hearing.

How Standby Authority is Activated

Citation: Ann. Code §§ 44A-5-4; 44A-5-5; 44A-5-6The authority of the standby guardian is effective:

• Upon receipt by the standby guardian of a determination of incompetence or a certificate of death
• If so requested in the petition, upon receipt by the standby guardian of a written consent of the qualified parent and filing of the consent with the court

A court-approved standby guardian then has 30 days to file confirming documents with the court. A standby guardian by written designation must petition the court for approval as soon as possible, but no later than 30 days after the triggering event.

If the parent has died, the standby guardian has 90 days to petition for the appointment of a permanent guardian or initiate proceedings to determine custody of the child.

Involvement of the Noncustodial Parent

Citation: Ann. Code § 44A-5-3
Each parent whose identity and whereabouts are known must receive notice and a copy of the petition; he or she has 10 days to request a hearing. The court cannot proceed if a custody case is pending.

Authority Relationship of the Parent and the Standby

Citation: Ann. Code §§ 44A-5-2; 44A-5-7The standby guardian temporarily assumes the duties of guardian of the child on behalf of or in conjunction with a qualified parent upon the occurrence of a triggering event. This enables the parent to plan for the future of the child without terminating parental or legal rights. It creates co-guardianship rights between a parent and the standby guardian, giving the standby guardian authority to act in a manner consistent with the known wishes of a qualified parent regarding the care, custody, and support of the child.

When a standby guardian’s authority is effective due to debilitation or incompetence of the parent, the standby guardian’s authority to act on behalf of the parent continues even when the parent is restored to health unless the parent notifies the guardian and, if appropriate, the court, in writing.

Withdrawing Guardianship

Citation: Ann. Code § 44A-5-7The authority of a standby guardian who has been approved by the court may be revoked by the parent by filing a notice of revocation with the court.

At any time following his or her approval by the court, a standby guardian may decline to serve by filing a written statement of refusal with the court and having the statement personally served on the parent.

When a written designation has been executed but is not yet effective because the triggering event has not yet occurred, the parent may revoke or the prospective standby guardian may refuse the designation by notifying the other party in writing.

A written designation may also be revoked by the execution of a subsequent inconsistent designation.