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 § 63.2-100‘Abused or neglected child’ means any child younger than age 18 whose parents or other person responsible for his or her care creates or inflicts, threatens to create or inflict, or allows to be created or inflicted upon the child a physical or mental injury by other than accidental means, or creates a substantial risk of death, disfigurement, or impairment of bodily or mental functions, including, but not limited to, a child who is with his or her parent or other person responsible for his or her care either (i) during the manufacture or attempted manufacture of a Schedule I or II controlled substance, or (ii) during the unlawful sale of such substance by that child’s parents or other person responsible for his or her care, when such manufacture, or attempted manufacture or unlawful sale would constitute a felony violation.

Neglect

Citation: Ann. Code § 63.2-100‘Abused or neglected child’ means any child younger than age 18:

• Whose parents or other person responsible for his or her care neglects or refuses to provide care necessary for his or her health
• Who is without parental care or guardianship caused by the unreasonable absence or the mental or physical incapacity of the child’s parent, guardian, legal custodian or other person standing in loco parentis
• Whose parents or other person responsible for his or her care creates a substantial risk of physical or mental injury by knowingly leaving the child alone in the same dwelling, including an apartment, with a person to whom the child is not related by blood or marriage and who the parent or other person responsible for his or her care knows has been convicted of an offense against a minor for which registration is required as a violent sexual offender

Sexual Abuse/Exploitation

Citation: Ann. Code § 63.2-100The term ‘abused or neglected child’ includes any child younger than age 18 whose parents or other person responsible for his or her care commits or allows to be committed any act of sexual exploitation or any sexual act upon a child in violation of the law.

Emotional Abuse

Citation: Ann. Code § 63.2-100The term ‘abused or neglected child’ includes any child younger than age 18 whose parents or other person responsible for his or her care creates or inflicts, threatens to create or inflict, or allows to be created or inflicted upon the child a mental injury or creates a substantial risk of impairment of mental functions.

Abandonment

Citation: Ann. Code § 63.2-100
The term ‘abused or neglected child’ includes any child younger than age 18 whose parents or other person responsible for his or her care abandons the child.

Standards for Reporting

Citation: Ann. Code § 63.2-1509
A report is required when a mandatory reporter, in his or her professional or official capacity, has reason to suspect that a child is an abused or neglected child.

Persons Responsible for the Child

Citation: Ann. Code § 63.2-100Responsible persons include the child’s parents or another person responsible for the care of the child.

Exceptions

Citation: Ann. Code § 63.2-100No child who in good faith is under treatment solely by spiritual means through prayer, in accordance with the tenets and practices of a recognized church or religious denomination, shall for that reason alone be considered to be an abused or neglected child. Further, a decision by parents who have legal authority for the child or, in the absence of parents with legal authority for the child, any person with legal authority for the child who refuses a particular medical treatment for a child with a life-threatening condition shall not be deemed a refusal to provide necessary care if:

• The decision is made jointly by the parents, or other person with legal authority, and the child.
• The child has reached age 14 and is sufficiently mature to have an informed opinion on the subject of his or her medical treatment.
• The parents, or other person with legal authority, and the child have considered alternative treatment options.
• The parents, or other person with legal authority, and the child believe in good faith that such decision is in the child’s best interests.

Current Through August 2013

Defined in Domestic Violence Civil Laws

Citation: Ann. Code §§ 16.1-228; 38.2-508(7)‘Family abuse’ means any act involving violence, force, or threat that results in bodily injury or places one in reasonable apprehension of death, sexual assault, or bodily injury and that is committed by a person against such person’s family or household member. Such act includes, but is not limited to, any forceful detention; stalking; criminal sexual assault in violation of § 18.2-61, et seq.; or any criminal offense that results in bodily injury or places one in reasonable apprehension of death, sexual assault, or bodily injury.

The term ‘domestic violence’ means the occurrence of one or more of the following acts by a current or former family or household member, as defined in § 16.1-228:

• Attempting to cause or causing or threatening another person with physical harm, severe emotional distress, psychological trauma, rape, or sexual assault
• Engaging in a course of conduct or repeatedly committing acts toward another person, including following the person without proper authority, under circumstances that place the person in reasonable fear of bodily injury or physical harm
• Subjecting another person to false imprisonment
• Attempting to cause or causing damage to property to intimidate or attempt to control the behavior of another person

Defined in Child Abuse Reporting and Child Protection Laws

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

Defined in Criminal Laws

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

Persons Included in the Definition

Citation: Ann. Code § 16.1-228‘Family or household member’ means:

• The person’s spouse, whether or not he or she resides in the same home with the person
• The person’s former spouse, whether or not he or she resides in the same home with the person
• The person’s parents, stepparents, children, stepchildren, brothers, sisters, half-brothers, half-sisters, grandparents, and grandchildren regardless of whether such persons reside in the same home with the person
• The person’s mother-in-law, father-in-law, sons-in-law, daughters-in-law, brothers-in-law, and sisters-in-law who reside in the same home with the person
• Any individual who has a child in common with the person, whether or not the person and that individual have been married or have resided together at any time
• Any individual who cohabits or who, within the previous 12 months, cohabited with the person, and any children of either of them then residing in the same home with the person

Current Through June 2013

Confidentiality of Records

Citation: Ann. Code § 63.2-1515The information contained in the central registry shall not be open to inspection by the public.

Persons or Entities Allowed Access to Records

Citation: Ann. Code § 63.2-1515Appropriate disclosure may be made in accordance with board regulations.

When Public Disclosure of Records is Allowed

This issue is not addressed in the statutes reviewed.

Use of Records for Employment Screening

Citation: Ann. Code § 63.2-1515The department shall respond to requests for a search of the central registry made by local departments and local school boards regarding applicants for employment.

A central registry check shall be conducted of a person who has applied to be a volunteer with a:

• Virginia affiliate of Big Brothers/Big Sisters of America
• Virginia affiliate of Compeer
• Virginia affiliate of Childhelp USA
• Volunteer fire company or volunteer rescue squad
• Court-appointed special advocate program

Current Through March 2015

Citation: Ann. Code § 63.2-1512

Any person who makes a report or complaint pursuant to the reporting laws, takes a child into custody pursuant to law, or participates in a judicial proceeding resulting therefrom shall be immune from any civil or criminal liability in connection therewith, unless it is proven that such person acted in bad faith or with malicious intent.

Current Through February 2013

Individual Responsibility to Report

Citation: Ann. Code § 63.2-1509A mandated reporter who has reason to suspect that a child is an abused or neglected child shall report the matter immediately to the local department of the county or city wherein the child resides or wherein the abuse or neglect is believed to have occurred or to the toll-free child abuse and neglect hotline of the Department of Social Services.

The initial report may be an oral report but such report shall be reduced to writing by the child abuse coordinator of the local department on a form prescribed by the State Board of Social Services.

Content of Reports

Citation: Ann. Code § 63.2-1509A mandated reporter shall disclose all information that is the basis for his or her suspicion of abuse or neglect of the child and, upon request, shall make available to the child protective services coordinator and the local department that is the agency of jurisdiction any information, records, or reports that document the basis for the report.

Reporting Suspicious Deaths

Citation: Ann. Code § 63.2-1503(D)-(E)The local department shall upon receipt of a complaint, report immediately to the attorney for the Commonwealth and the local law enforcement agency and make available to them the records of the local department when abuse or neglect is suspected in any case involving the death of a child.

When abuse or neglect is suspected in any case involving the death of a child, the local department shall report the case immediately to the regional medical examiner and the local law enforcement agency.

Reporting Substance-Exposed Infants

Citation: Ann. Code § 63.2-1509(B)For purposes of making a report, ‘reason to suspect that a child is abused or neglected’ shall include:

• A finding made by a health-care provider within 6 weeks of the birth of a child that the results of toxicology studies of the child indicate the presence of a controlled substance not prescribed for the mother by a physician
• A finding made by a health-care provider within 6 weeks of the birth of a child that the child was born dependent on a controlled substance that was not prescribed by a physician for the mother and has demonstrated withdrawal symptoms
• A diagnosis made by a health-care provider at any time following a child’s birth that the child has an illness, disease, or condition that, to a reasonable degree of medical certainty, is attributable to in utero exposure to a controlled substance that was not prescribed by a physician for the mother or the child
• A diagnosis made by a health-care provider at any time following a child’s birth that the child has a fetal alcohol spectrum disorder attributable to in utero exposure to alcohol

When ‘reason to suspect’ is based upon this subsection, such fact shall be included in the report along with the facts relied upon by the person making the report.

Agency Receiving the Reports

Citation: Ann. Code §§ 63.2-1503; 63.2-1509The local department shall be the public agency responsible for receiving reports of suspected abuse or neglect. The local department shall ensure, through its own personnel or through cooperative arrangements with other local agencies, the capability of receiving reports or complaints and responding to them promptly on a 24-hours-a-day, 7-days-per-week basis.

The local department shall widely publicize a telephone number for receiving complaints and reports.

If an employee of the local department is suspected of abusing or neglecting a child, the report shall be made to the court of the county or city where the abuse or neglect was discovered. Upon receipt of such a report by the court, the judge shall assign the report to a local department that is not the employer of the suspected employee for investigation or family assessment.

Initial Screening Decisions

Citation: Ann. Code §§ 63.2-1503; 63.2-1508Upon receipt of a report of child abuse or neglect, the local department shall determine the validity of such report and make a determination to conduct an investigation or, if designated as a child protective services differential response agency by the department, a family assessment.

A valid report or complaint means the local department has evaluated the information and allegations of the report or complaint and determined that the local department shall conduct an investigation or family assessment because the following elements are present:

• The alleged victim child or children are under age 18 at the time of the complaint or report.
• The alleged abuser is the alleged victim child’s parent or other caregiver.
• The local department receiving the complaint or report has jurisdiction.
• The circumstances described allege suspected child abuse or neglect.

Agency Conducting the Assessment/Investigation

Citation: Ann. Code §§ 63.2-1503; 63.2-1504The local department shall be the public agency responsible for responding to complaints and reports.

The local department may develop multidisciplinary teams to provide consultation to the local department during the investigation of selected cases involving child abuse or neglect and to make recommendations regarding the prosecution of such cases. These teams may include, but are not limited to, members of the medical, mental health, legal, and law enforcement professions, including the attorney for the Commonwealth or his or her designee, a local child protective services representative, and the guardian ad litem or other court-appointed advocate for the child.

Assessment/Investigation Procedures

Citation: Ann. Code §§ 63.2-1505; 63.2-1506; 63.2-1516.01An investigation will determine:

• The immediate safety needs of the child
• The risk of future harm to the child
• Whether abuse or neglect has occurred
• If abuse or neglect has occurred, who abused or neglected the child
• A finding of either founded or unfounded based on the facts collected during the investigation

A family assessment will determine:

• The immediate safety needs of the child
• The protective and rehabilitative services needs of the child and family
• The risk of future harm to the child
• Alternative plans for the child’s safety if protective and rehabilitative services are indicated and the family is unable or unwilling to participate

An immediate investigation will be commenced if, at any time during the completion of the family assessment, the local department determines that an investigation is required. The following valid reports of child abuse or neglect shall be investigated:

• Sexual abuse
• A child fatality
• Abuse or neglect resulting in serious injury
• A child taken into the custody by the local department
• Cases involving a caregiver at a child care center, school, hospital, or any institution

The local department shall, at the initial time of contact with the person subject to an investigation, advise such person of the complaints or allegations made against the person, in a manner that is consistent with laws protecting the rights of the person making the report or complaint.

Timeframes for Completing Investigations

Citation: Ann. Code §§ 63.2-1505; 63.2-1506If the local department responds to the report or complaint by conducting an investigation, the local department shall:

• Make immediate investigation
• Determine within 45 days if a report of abuse or neglect is founded or unfounded and transmit a report of the findings to the department and to the person who is the subject of the investigation

Upon written justification by the local department, the determination may be extended up to a total of 60 days. If through the exercise of reasonable diligence the local department is unable to find the child who is the subject of the report, the time the child cannot be found shall not be computed as part of the 45-day or 60-day period, and documentation of such reasonable diligence shall be placed in the record.

If the local department responds to the report or complaint by conducting an assessment, the local department shall:

• Conduct an immediate family assessment
• Complete the family assessment within 45 days and transmit a report of the findings to the department and to the person who is the subject of the family assessment

Upon written justification by the local department, the family assessment may be extended up to a total of 60 days.

Classification of Reports

Citation: Admin. Code Tit. 22, § 40-705-10A report is ‘founded’ when a review of the facts shows by a preponderance of the evidence that child abuse and/or neglect has occurred. A determination that a case is founded shall be based primarily on first source evidence; in no instance shall a determination that a case is founded be based solely on indirect evidence or an anonymous complaint.

A report is ‘unfounded’ when a review of the facts does not show by a preponderance of the evidence that child abuse or neglect occurred.

Current Through August 2015

Professionals Required to Report

Citation: Ann. Code § 63.2-1509The following professionals are required to report:

• Persons licensed to practice medicine or any of the healing arts
• Hospital residents or interns, and nurses
• Social workers, family-services specialists, or probation officers
• Teachers or other employees at public or private schools, kindergartens, or nursery schools
• Persons providing full-time or part-time child care for pay on a regular basis
• Mental health professionals
• Law enforcement officers, animal control officers, or mediators
• Professional staff employed by private or State-operated hospitals, institutions, or facilities to which children have been placed for care and treatment
• Persons age 18 or older associated with or employed by any public or private organization responsible for the care, custody, or control of children
• Court-appointed special advocates
• Persons age 18 or older who have received training approved by the Department of Social Services for the purposes of recognizing and reporting child abuse and neglect
• Persons employed by a local department who determine eligibility for public assistance
• Emergency medical services providers, unless such providers immediately report the matter directly to the attending physician at the hospital to which the child is transported
• Persons employed by public or private institutions of higher education, other than an attorney who is employed by a public or private institution of higher education as it relates to information gained in the course of providing legal representation to a client
• Athletic coaches, directors, or other persons age 18 or older employed by or volunteering with private sports organizations or teams
• Administrators or employees age 18 or older of public or private day camps, youth centers, and youth recreation programs

Reporting by Other Persons

Citation: Ann. Code § 63.2-1510Any person who suspects that a child is abused or neglected may report.

Institutional Responsibility to Report

Citation: Ann. Code § 63.2-1509If the information is received by a teacher, staff member, resident, intern, or nurse in the course of professional services in a hospital, school, or similar institution, such person may, in place of making a report, immediately notify the person in charge of the institution or department, or his or her designee, who shall make the report forthwith. If the initial report of suspected abuse or neglect is made to the person in charge of the institution or department or his or her designee, such person shall notify the teacher, staff member, resident, intern, or nurse who made the initial report when the report of suspected child abuse or neglect is made to the local department or to the toll-free child abuse and neglect hotline, and of the name of the individual receiving the report, and shall forward any communication resulting from the report, including any information about any actions taken regarding the report.

Standards for Making a Report

Citation: Ann. Code § 63.2-1509A report is required when, in his or her professional or official capacity, a reporter has reason to suspect that a child is abused or neglected. For purposes of this section, ‘reason to suspect that a child is abused or neglected’ shall include:

• A finding made by a health-care provider within 6 weeks of the birth of a child that the results of toxicology studies of the child indicate the presence of a controlled substance not prescribed for the mother by a physician
• A finding made by a health-care provider within 6 weeks of the birth of a child that the child was born dependent on a controlled substance that was not prescribed by a physician for the mother and has demonstrated withdrawal symptoms
• A diagnosis made by a health-care provider at any time following a child’s birth that the child has an illness, disease, or condition that, to a reasonable degree of medical certainty, is attributable to in utero exposure to a controlled substance that was not prescribed by a physician for the mother or the child
• A diagnosis made by a health-care provider at any time following a child’s birth that the child has a fetal alcohol spectrum disorder attributable to in utero exposure to alcohol

When ‘reason to suspect’ is based upon this subsection, that fact shall be included in the report along with the facts relied upon by the person making the report.

Privileged Communications

Citation: Ann. Code §§ 63.2-1509; 63.2-1519The requirement to report shall not apply to any regular minister, priest, rabbi, imam, or duly accredited practitioner of any religious organization or denomination usually referred to as a church as it relates to information required by the doctrine of the religious organization or denomination to be kept in a confidential manner.

The physician-patient or husband-wife privilege is not permitted.

Inclusion of Reporter’s Name in Report

Not addressed in statutes reviewed.

Disclosure of Reporter Identity

Citation: Ann. Code § 63.2-1514Any person who is the subject of an unfounded report who believes that the report was made in bad faith or with malicious intent may petition the court for the release of the records of the investigation or family assessment. If the court determines that there is a reasonable question of fact as to whether the report was made in bad faith or with malicious intent and that disclosure of the identity of the reporter would not be likely to endanger the life or safety of the reporter, it shall provide to the petitioner a copy of the records of the investigation or family assessment.

Current Through April 2015

Citation: Ann. Code Ann. § 18.2-248.02Any person age 18 or older who knowingly allows (i) a minor under age 15, (ii) a minor age 15 or older with whom he or she maintains a custodial relationship, including but not limited to as a parent, stepparent, grandparent, step-grandparent, or who stands in loco parentis with respect to the minor, or (iii) a mentally incapacitated or physically helpless person of any age, to be present in the same dwelling, apartment, unit of a hotel, garage, shed, or vehicle during the manufacture or attempted manufacture of methamphetamine, as prohibited by § 18.2-248(C1), is guilty of a felony punishable by imprisonment for no less than 10 nor more than 40 years. This penalty shall be in addition to and served consecutively with any other sentence.

Citation: Ann. Code § 63.2-1509(B)A report is required when, in his or her professional or official capacity, a reporter has reason to suspect that a child is abused or neglected. For purposes of this section, ‘reason to suspect that a child is abused or neglected’ shall include:

• A finding made by a health-care provider within 6 weeks of the birth of a child that the results of toxicology studies of the child indicate the presence of a controlled substance not prescribed for the mother by a physician
• A finding made by a health-care provider within 6 weeks of the birth of a child that the child was born dependent on a controlled substance that was not prescribed by a physician for the mother and has demonstrated withdrawal symptoms
• A diagnosis made by a health-care provider at any time following a child’s birth that the child has an illness, disease, or condition that, to a reasonable degree of medical certainty, is attributable to in utero exposure to a controlled substance that was not prescribed by a physician for the mother or the child
• A diagnosis made by a health-care provider at any time following a child’s birth that the child has a fetal alcohol spectrum disorder attributable to in utero exposure to alcohol

When ‘reason to suspect’ is based upon this subsection, that fact shall be included in the report along with the facts relied upon by the person making the report.

Current Through August 2014

Making The Appointment

Citation: Ann. Code §§ 16.1-266; 9.1-153Prior to the hearing by the court of any case involving a child who is alleged to be abused or neglected or who is the subject of an entrustment agreement or a petition seeking termination of residual parental rights or who is otherwise before the court pursuant to § 16.1-241(a)(4) or § 63.2-1230, the court shall appoint a discreet and competent attorney-at-law as guardian ad litem (GAL) to represent the child.

The director of the court-appointed special advocate (CASA) program shall assign an advocate to a child when requested to do so by the judge of the juvenile and domestic relations district court having jurisdiction over the proceedings. The advocate shall continue his or her association with each case to which he or she is assigned until relieved of his or her duties by the court or by the program director.

The Use of Court-Appointed Special Advocates (CASAs)

Citation: Ann. Code §§ 9.1-151; 9.1-153The Department of Criminal Justice Services shall administer a CASA program. The program shall provide services to children who are subjects of judicial proceedings (i) involving allegations that the child is abused, neglected, in need of services, or in need of supervision or (ii) for the restoration of parental rights pursuant to § 16.1-283.2 and for whom the juvenile and domestic relations district court judge determines such services are appropriate. CASA volunteer appointments may continue for youth age 18 and older who are in foster care if the court has retained jurisdiction pursuant to § 16.1-242, and the juvenile and domestic relations district court judge determines such services are appropriate.

The program shall provide services to children who are subjects of judicial proceedings involving allegations that the child is abused, neglected, or in need of services, and for whom the juvenile and domestic relations district court judge determines such services are appropriate. Services in each local CASA program shall be provided by volunteer CASAs, hereinafter referred to as advocates.

Qualifications/Training

Citation: Ann. Code §§ 16.1-266.1; 9.1-153The Judicial Council of Virginia, in conjunction with the Virginia State Bar and the Virginia Bar Association, shall adopt standards for attorneys appointed as GALs. The standards shall, as far as practicable, take into consideration the following criteria:

• License or permission to practice law in Virginia
• Current training in the roles, responsibilities, and duties of GAL representation
• Familiarity with the court system and general background in juvenile law
• Demonstrated proficiency in this area of the law

The Judicial Council shall maintain a list of attorneys who are qualified to serve as GALs based upon the standards and shall make the names available to the courts. If no attorney who is on the list is reasonably available, a judge in his or her discretion, may appoint any discreet and competent attorney who is admitted to practice law in Virginia.

The Department of Criminal Justice Services shall adopt regulations governing the qualifications of advocates who shall be deemed to be criminal justice employees. An advocate must be at least age 21, and the program director shall obtain a copy of the advocate’s criminal history record and information from the central registry on child abuse and neglect to certify that no records are maintained on him or her.

An advocate shall have no associations that create a conflict of interest or the appearance of such a conflict with his or her duties as an advocate. No advocate shall be assigned to a case of a child whose family has a professional or personal relationship with the advocate.

No applicant shall be assigned as an advocate until successful completion of a program of training required by regulations. The department shall set standards for both basic and ongoing training.

Specific Duties

Citation: Ann. Code § 9.1-153; Va. Sup. Ct. Rule 8:6The advocate’s duties shall include:

• Investigating the case to which he or she is assigned to provide independent factual information to the court
• Submitting to the court a written report of his or her investigation in compliance with the provisions of § 16.1-274
• Upon request of the court, making recommendations as to the child’s welfare
• Monitoring the case to ensure compliance with the court’s orders
• Assisting any appointed GAL to represent the child in providing effective representation of the child’s needs and best interests
• Reporting a suspected abused or neglected child pursuant to § 63.2-1509

The advocate is not a party to the case to which he or she is assigned and shall not call witnesses or examine witnesses. The advocate shall not, with respect to the case to which he or she is assigned, provide legal counsel or advice to any person, appear as counsel in court or in proceedings that are part of the judicial process, or engage in the unauthorized practice of law. The advocate may testify if called as a witness.

In court rules: The GAL shall vigorously represent the child fully protecting the child’s interests and welfare. The GAL shall advise the court of the wishes of the child in any case where the wishes of the child conflict with the opinion of the GAL as to what is in the child’s interests and welfare.

How the Representative Is Compensated

Citation: Ann. Code §§ 16.1-267; 9.1-152When the court appoints counsel to represent a child and, after an investigation by the court services unit, finds that the parents are financially able to pay for the attorney and refuse to do so, the court shall assess costs against the parents for such legal services in the maximum amount of that awarded the attorney by the court under the circumstances of the case, considering such factors as the ability of the parents to pay and the nature and extent of the counsel’s duties in the case. Such amount shall not exceed the maximum amount specified in § 19.2-163(1) if the action is in district court.

The Department of Criminal Justice Services shall provide a portion of any funding appropriated for this purpose to applicants seeking to establish and operate a local CASA program in their respective judicial districts. Only local programs operated in accordance with this article shall be eligible to receive State funds.

Current Through April 2014

When Case Plans Are Required

Citation: Ann. Code § 16.1-281A foster care plan shall be prepared for a child in any case in which:

• A local board of social services places a child through an agreement with the parents or guardians where legal custody remains with the parents or guardian.
• Legal custody of a child is given to a local board of social services, a child welfare agency, or the local department of social services.

The individual family service plan developed by the family assessment and planning team pursuant to § 2.2-5208 may be accepted by the court as the foster care plan if it meets the requirements of this section.

The plan must be filed with the juvenile and domestic relations district court within 45 days following the transfer of custody or the board’s or public agency’s placement of the child unless the court, for good cause shown, allows an extension of time that shall not exceed an additional 60 days.

Who May Participate in the Case Planning Process

Citation: Ann. Code § 16.1-281The local Department of Social Services or child welfare agency shall prepare the foster care plan.

The representatives of the department or agency shall involve the child’s parent(s) in the development of the plan, except when parental rights have been terminated or the local department or child welfare agency has made diligent efforts to locate the parent(s) and the parent(s) cannot be located, and any other person or persons standing in loco parentis at the time the board or child welfare agency obtained custody or the board placed the child.

The representatives of the department or agency shall involve the child in the development of the plan, if such involvement is consistent with the best interests of the child.

If either the parent or child is not involved in the development of the plan, the reasons why must be documented.

Contents of a Case Plan

Ann. Code § 16.1-281The foster care plan shall describe in writing:

• The programs, care, services, and other support that will be offered to the child and his or her parents and other prior custodians
• The participation and conduct that will be sought from the child’s parents and other prior custodians
• The visitation and other contacts that will be permitted between the child and his or her parents and other prior custodians, and between the child and his or her siblings
• The nature of the placement or placements that will be provided for the child
• For school-age children, the school placement of the child
• For a child age 14 and older, the child’s needs and goals in the areas of counseling, education, housing, employment, and money management skills development, along with specific independent living services that will be provided to the child to help him or her reach these goals

In cases in which a foster care plan approved prior to July 1, 2011, identifies independent living as the goal for the child, and in cases involving children admitted to the United States as refugees or asylees who are age 16 or older and for whom the goal is independent living, the plan shall also describe the programs and services that will help the child prepare for the transition from foster care to independent living.

If consistent with the child’s health and safety, the plan shall be designed to support reasonable efforts to return the child to his or her parents or other prior custodians within the shortest practicable time, which shall be specified in the plan. The child’s health and safety shall be the paramount concern of the court and the agency throughout the placement, case planning, service provision, and review process.

If the department or child welfare agency concludes that it is not reasonably likely that the child can be returned to his or her prior family within a practicable time, consistent with the best interests of the child, in a separate section of the plan the department, child welfare agency, or team shall (a) include a full description of the reasons for this conclusion; (b) provide information on the opportunities for placing the child with a relative or in an adoptive home; (c) design the plan to lead to the child’s successful placement with a relative if a subsequent transfer of custody to the relative is planned, or in an adoptive home within the shortest practicable time, and if neither of such placements is feasible; (d) explain why permanent foster care is the plan for the child or independent living is the plan for the child in cases involving children admitted to the United States as refugees or asylees who are age 16 or older and for whom the goal is independent living.

Current Through November 2012

This issue is not addressed in the statutes reviewed.

Current Through January 2016

Schedule of Hearings

Citation: Ann. Code §§ 16.1-278.2; 16.1-281; 16.1-282; 16.1-282.1; 16.1-282.2Hearings shall be scheduled as follows:

• A dispositional hearing will be held within 60 days of removal to review and approve the foster care plan.
• A foster care review shall be held within 60 days of the child’s initial foster care placement to review and approve the foster care plan.
• A foster care review hearing shall be held within 4 months of the dispositional hearing.
• A permanency hearing will be held:
  • Within 30 days of a determination that reasonable efforts to reunify are not required
  • Within 10 months of the dispositional hearing
• An additional foster care review hearing will be held:
  • Every 6 months for any child who is placed in another planned permanent living arrangement for long as the child remains in the legal custody of the board or child welfare agency
  • Annually for any child who remains in the custody of a local board of social services and (i) on whose behalf a petition to terminate parental rights has been granted, filed, or ordered to be filed; (ii) who is placed in permanent foster care, or (iii) who is age 16 or older and for whom the plan is Independent Living

Persons Entitled to Attend Hearings

Citation: Ann. Code § 16.1-282Notice of a hearing shall be provided to:

• The child’s parents
• The child if he or she is age 12 or older
• The child’s guardian ad litem
• Any other person standing in loco parentis
• The foster parents
• The petitioning board, public agency, or child welfare agency
• Such other persons as the court, in its discretion, may direct, including, but not limited to, preadoptive parents for a child in foster care

Determinations Made at Hearings

Citation: Ann. Code § 16.1-282.1Before approving a plan for the child, the court shall find:

• When returning home remains the goal for the child, what progress the parent has made toward reunification with the child, whether the parent has maintained a close and positive relationship with the child, and whether the child is likely to return home within the near future
• When returning home is not the goal for the child, what progress is being made to achieve the permanent goal identified by the plan
• Whether reasonable efforts have been made

Permanency Options

Citation: Ann. Code § 16.1-281Permanency options include:

• Return to the parent
• Transfer custody to a fit and willing relative
• Adoption
• Permanent foster care
• Independent living for a child age 16 or older
• Another planned permanent living arrangement

Current Through March 2016

Citation: Ann. Code § 20-124.3In determining the best interests of a child for purposes of determining custody or visitation arrangements, including any pendente lite orders pursuant to law, the court shall consider the following:

• The age and physical and mental condition of the child, giving due consideration to the child’s changing developmental needs
• The age and physical and mental condition of each parent
• The relationship existing between each parent and each child, giving due consideration to the positive involvement with the child’s life, the ability to accurately assess and meet the emotional, intellectual, and physical needs of the child
• The needs of the child, giving due consideration to other important relationships of the child, including, but not limited to, siblings, peers, and extended family members
• The role that each parent has played and will play in the future, in the upbringing and care of the child
• The propensity of each parent to actively support the child’s contact and relationship with the other parent, including whether a parent has unreasonably denied the other parent access to or visitation with the child
• The relative willingness and demonstrated ability of each parent to maintain a close and continuing relationship with the child, and the ability of each parent to cooperate in and resolve disputes regarding matters affecting the child
• The reasonable preference of the child, if the court deems the child to be of reasonable intelligence, understanding, age, and experience to express such a preference
• Any history of family abuse as that term is defined in § 16.1-228 or sexual abuse
• Such other factors as the court deems necessary and proper to the determination

If the court finds a history [of abuse], the court may disregard the factors above [regarding a parent’s willingness to support the child’s relationship with the other parent].

Current Through January 2013

Circumstances That Are Grounds for Termination of Parental Rights

Citation: Ann. Code § 16.1-283The parental rights of a parent may be terminated if the court finds, based upon clear and convincing evidence, that it is in the best interests of the child and that:

• The neglect or abuse suffered by the child presented a serious and substantial threat to his or her life, health, or development.
• It is not reasonably likely that the conditions that resulted in such neglect or abuse can be substantially corrected or eliminated to allow the child’s safe return to his or her parent within a reasonable period of time, due to any of the following:
  • The parent has a mental or emotional illness or intellectual disability of such severity that there is no reasonable expectation that the parent will be able to undertake responsibility for the care needed by the child in accordance with his or her age and stage of development.
  • The parent has habitually abused or is addicted to intoxicating liquors, narcotics, or other dangerous drugs to the extent that proper parental ability has been seriously impaired.
  • The parent, without good cause, has not responded to or followed through with appropriate, available, and reasonable rehabilitative efforts on the part of social, medical, mental health, or other rehabilitative agencies designed to reduce, eliminate, or prevent the neglect or abuse of the child.
• The parent, without good cause, has failed to maintain continuing contact with and to provide or substantially plan for the future of the child for a period of 6 months after the child’s placement in foster care.
• The parent, without good cause, has been unwilling or unable within a reasonable period of time, not to exceed 12 months from the date the child was placed in foster care, to remedy substantially the conditions that led to the child’s foster care placement.

The parental rights of a parent may be terminated if the court finds, based upon clear and convincing evidence, that it is in the best interests of the child and that:

• The child was abandoned under such circumstances that either the identity or the whereabouts of the parent cannot be determined.
• The child’s parent, guardian, or relatives have not come forward to identify the child and claim a relationship to the child within 3 months of the child’s placement in foster care.
• Diligent efforts have been made to locate the child’s parent without avail.

The parental rights of a parent of a child who is in the custody of a local board or licensed child-placing agency may be terminated by the court if the court finds, based upon clear and convincing evidence, that it is in the best interests of the child and that:

• The parental rights of the parent regarding a sibling of the child have previously been involuntarily terminated
• The parent has been convicted of murder or voluntary manslaughter, or a felony attempt, conspiracy or solicitation to commit any such offense, if the victim of the offense was a child of the parent, a child with whom the parent resided at the time such offense occurred, or the other parent of the child.
• The parent has been convicted of felony assault resulting in serious bodily injury, felony bodily wounding resulting in serious bodily injury, or felony sexual assault, if the victim of the offense was a child of the parent or a child with whom the parent resided at the time of such offense.
• The parent has subjected any child to aggravated circumstances, including torture, chronic or severe abuse, or chronic or severe sexual abuse.

Circumstances That Are Exceptions to Termination of Parental Rights

Citation: Ann. Code § 16.1-283Notwithstanding any other provisions of this section, residual parental rights shall not be terminated if it is established that the child, if he or she is age 14 or older or otherwise of an age of discretion as determined by the court, objects to such termination.

Residual parental rights of a child age 14 or older may be terminated over the objection of the child if the court finds that any disability of the child reduces the child’s developmental age and that the child is not otherwise of an age of discretion.

Circumstances Allowing Reinstatement of Parental Rights

This issue is not addressed in the statutes reviewed.

Current Through December 2014

Definitions

Citation: Ann. Code §§ 16.1-228; 63.2.100‘Permanent foster care placement’ means the place of residence in which a child resides and in which he or she has been placed pursuant to the provisions of §§ 63.2-900 and 63.2-908 with the expectation and agreement between the placing agency and the place of permanent foster care that the child shall remain in the placement until he or she reaches the age of majority, unless modified by court order or unless removed pursuant to § 16.1-251 or 63.2-1517. A permanent foster care placement may be a place of residence of any natural person or persons deemed appropriate to meet a child’s needs on a long-term basis.

‘Kinship care’ means the full-time care, nurturing, and protection of children by relatives.

Purpose of Guardianship

Citation: Ann. Code §§ 63.2-900.1; 63.2-908When a child has been removed from his or her home, the local board shall, in accordance with regulations adopted by the State Board of Social Services, determine whether the child has a relative who is eligible to become a kinship foster parent.

A court shall not order that a child be placed in permanent foster care unless it finds that (i) diligent efforts have been made by the local department to place the child with his or her natural parents and such efforts have been unsuccessful, and (ii) diligent efforts have been made by the local department to place the child for adoption and such efforts have been unsuccessful or adoption is not a reasonable alternative for a long-term placement for the child under the circumstances.

A Guardian’s Rights and Responsibilities

Citation: Ann. Code § 63.2-908Unless modified by the court order, the foster parent in the permanent foster care placement shall have the authority to consent to surgery, entrance into the armed services, marriage, application for a motor vehicle and driver’s license, application for admission into college, and any other such activities that require parental consent and shall have the responsibility for informing the placing department or agency of any such actions.

Qualifying the Guardian

Citation: Ann. Code §§ 63.2-900.1; 16.1-278.2; 16.1-278.3Kinship foster care placements shall be subject to all requirements of, and shall be eligible for all services related to, foster care placement. The Commissioner of Social Services, however, may grant a variance from the requirements of this chapter pursuant to 42 U.S.C. § 671(a)(10) and allow the placement of a child with a kinship foster care provider when he or she determines that (i) the requirement would impose a substantial hardship on the kinship foster care provider and (ii) the variance would not adversely affect the safety and well-being of the child. Variances granted pursuant to this subsection shall be considered and, if appropriate, granted on a case-by-case basis and shall include consideration of the unique needs of each child to be placed.

Any order transferring custody of the child to a relative or other interested individual shall be entered only upon a finding, based upon a preponderance of the evidence, that the relative or other interested individual is one who, after an investigation as directed by the court, (i) is found by the court to be willing and qualified to receive and care for the child; (ii) is willing to have a positive, continuous relationship with the child; (iii) is committed to providing a permanent, suitable home for the child; and (iv) is willing and has the ability to protect the child from abuse and neglect; and the order shall so state.

Procedures for Establishing Guardianship

Citation: Ann. Code §§ 16.1-278.2; 16.1-278.3; 63.2-908The court shall hold a dispositional hearing within 60 days of an order removing a child from his or her home. If at the hearing the child is found to be (a) abused or neglected; (b) at risk of being abused or neglected by a parent or custodian who has been adjudicated as having abused or neglected another child in his or her care; or (c) abandoned by his or her parent or other custodian, or without parental care and guardianship because of his or her parent’s absence or physical or mental incapacity, the court may order a transfer of legal custody to a relative or other interested individual.

Any order terminating parental rights shall be accompanied by an order (i) continuing or granting custody to a local board of social services or to a licensed child-placing agency, or (ii) granting custody or guardianship to a relative or other interested individual.

A local department or a licensed child-placing agency shall have authority pursuant to a court order to place a child over whom it has legal custody in a permanent foster care placement in which the child shall remain until attaining majority or thereafter, until age 21, if such placement is a requisite to providing funds for the care of such child, so long as the child is a participant in an educational, treatment, or training program approved pursuant to regulations of the board.

Contents of a Guardianship Order

Citation: Ann. Code §§ 16.1-278.2; 16.1-278.3; 63.2-908The court’s order transferring custody to a relative or other interested individual should provide for, as appropriate, any terms or conditions which would promote the child’s interest and welfare, ongoing provision of social services to the child and the child’s custodian, and court review of the child’s placement.

When a child has been placed in a permanent foster care placement, and if the child has a continuing involvement with his or her natural parents, the natural parents should be involved in the planning for a permanent placement. The court order placing the child in a permanent placement shall include a specification of the nature and frequency of visiting arrangements with the natural parents.

Modification/Revocation of Guardianship

Citation: Ann. Code §§ 63.2-900.1; 63.2-908A child placed in kinship foster care shall not be removed from the physical custody of the kinship foster parent, provided the child has been living with the kinship foster parent for 6 consecutive months and the placement continues to meet approval standards for foster care, unless (i) the kinship foster parent consents to the removal; (ii) removal is agreed upon at a family partnership meeting as defined by the Department of Social Services; (iii) removal is ordered by a court of competent jurisdiction; or (iv) removal is warranted pursuant to § 63.2-1517.

No child shall be removed from the physical custody of the foster parents in the permanent care placement except upon order of the court or pursuant to § 16.1-251 or 63.2-1517. The department or agency so placing a child shall retain legal custody of the child.

Any change in the placement of a child in permanent foster care or the responsibilities of the foster parents for that child shall be made only by order of the court that ordered the placement pursuant to a petition filed by the foster parents, local department, licensed child-placing agency, or other appropriate party.

Eligibility for Guardianship Subsidy

Citation: Ann. Code §§ 63.2-900.1; 63.2-908The kinship foster parent shall be eligible to receive payment at the full foster care rate for the care of the child.

Any child placed in a permanent foster care placement by a local department shall, with the cooperation of the foster parents with whom the permanent foster care placement has been made, receive the same services and benefits as any other child in foster care pursuant to §§ 63.2-319, 63.2-900 and 63.2-903 and any other applicable provisions of law.

Links to Agency Policies

Code of Virginia, Title 63.2, Chapter 9 (PDF – 283 KB)

Virginia Department of Social Services:

• To the Child Kinship Care Means ‘Home:’ Virginia’s Legal Options for a Relative When a Child Cannot Live With His Parents (PDF – 698 KB)
• Kinship Care: The ‘Heart’ That Keeps Children Connected to Families: A Guide to Exploring the Kinship Care Options (PDF – 541 KB)

Current Through July 2013

Relative Placement for Foster Care and Guardianship

Citation: Ann. Code §§ 16.1-281; 63.2-900.1If the Department of Social Services concludes that it is not reasonably likely that the child can be returned to his or her prior family within a practicable time, consistent with the best interests of the child, it shall design a placement plan to lead to the child’s successful placement with a relative if a subsequent transfer of custody to the relative is planned.

The local board shall determine whether the child has a relative who is eligible to become a kinship foster parent, in accordance with regulations adopted by the State Social Services Board.

Requirements for Placement with Relatives

Citation: Ann. Code §§ 16.1-281; 63.2-900.1Any order transferring custody of the child to a relative other than the child’s prior family shall be entered only upon a finding, based upon a preponderance of the evidence, that the relative is one who, after an investigation as directed by the court:

• Is found by the court to be willing and qualified to receive and care for the child
• Is willing to have a positive, continuous relationship with the child
• Is committed to providing a permanent, suitable home for the child
• Is willing and has the ability to protect the child from abuse and neglect

The court’s order transferring custody to a relative should further provide for, as appropriate, any terms or conditions that would promote the child’s interests and welfare, ongoing provision of social services to the child and the child’s custodian, and court review of the child’s placement.

Kinship foster care placements shall be subject to all requirements of, and shall be eligible for all services related to, foster care. However, the department may grant a variance from such requirements and allow the placement of a child with a kinship foster care provider when it is determined that:

• The requirement would impose a substantial hardship on the kinship foster care provider.
• The variance would not adversely affect the safety and well-being of the child to be placed.

The kinship foster parent shall be eligible to receive payment at the full foster care rate for the care of the child.

Requirements for Placement of Siblings

Citation: Ann. Code § 63.2-900.2All reasonable steps shall be taken to place siblings entrusted by a parent to the care of a local board or licensed child-placing agency; committed to the care of a local board or agency by any court of competent jurisdiction; or placed with a local board or public agency through an agreement between a local board or a public agency and the parent, parents, or guardians, where legal custody remains with the parent, parents, or guardian, together in the same foster home.

When siblings are placed in separate foster homes, the local department, child-placing agency, or public agency shall develop a plan to encourage frequent and regular visits or communication between the siblings. The visiting or communication plan shall take into account the wishes of the child and shall specify the frequency of visits or communication; identify the party responsible for encouraging that visits or communication occur; and state any other requirements or restrictions related to such visits or communication, as may be determined necessary by the local department, child-placing agency, or public agency.

Relatives Who May Adopt

Citation: Ann. Code § 63.2-1242.1A ‘close relative placement’ shall be an adoption by the child’s grandparent, great-grandparent, adult nephew or niece, adult brother or sister, adult uncle or aunt, or adult great-uncle or great-aunt.

In a close relative placement, the court may accept the written and signed consent of the birth parent(s) that is signed under oath and acknowledged by an officer authorized by law to take such acknowledgments.

Requirements for Adoption by Relatives

Citation: Ann. Code §§ 63.2-1242.2; 63.2-1242.3When the child has continuously resided in the home or has been in the continuous physical custody of the prospective adoptive parent who is a close relative for less than 3 years, the adoption proceeding, including court approval of the home study, shall commence in the juvenile and domestic relations district court pursuant to the parental placement adoption provisions of this chapter, with the following exceptions:

• The birth parent’s consent does not have to be executed in juvenile and domestic relations district court in the presence of the prospective adoptive parents.
• The simultaneous meeting specified in § 63.2-1231 is not required.
• No hearing is required for this proceeding.

When the child has continuously resided in the home or has been in the continuous physical custody of the prospective adoptive parent who is a close relative for 3 or more years, the parental placement provisions of this chapter shall not apply and the adoption proceeding shall commence in the circuit court.

For close relative adoptive placement:

• An order of reference, an investigation, and a report shall not be made if the home study report is filed with the court unless the court, in its discretion, requires an investigation and report to be made.
• The court may omit the probationary period and the interlocutory order and enter a final order of adoption when the court is of the opinion that the entry of an order would otherwise be proper.
• If the court determines that there is a need for an additional investigation, it shall refer the matter to the licensed child-placing agency that drafted the home study report for an investigation and report. The report shall be completed within such times as the court designates.
• The court may waive appointment of a guardian ad litem for the child.

Current Through March 2016

What Are Reasonable Efforts

Citation: Ann. Code § 16.1-281Reasonable efforts include programs, care, services, and other support that will be offered to the child and his or her parents that will lead to the return of the child to his or her parents within the shortest practicable time.

When Reasonable Efforts Are Required

Citation: Ann. Code §§ 16.1-278.4; 16.1-282.1(C)Reasonable efforts must be made to prevent removal of the child from his or her home, unless continued placement in the home would be contrary to the welfare of the child.

If the child has been removed from the home, reasonable efforts must be made:

• To reunite the child with the child’s family, if returning home is the permanent goal for the child
• To achieve the permanent goal identified in the case plan, if the goal is other than returning the child home

When Reasonable Efforts Are NOT Required

Citation: Ann. Code § 16.1-281Reasonable efforts to reunite the child with a parent are not required if the court finds that:

• The parental rights of the parent regarding a sibling of the child have previously been involuntarily terminated.
• The parent has been convicted of murder or voluntary manslaughter, or a felony attempt, conspiracy, or solicitation to commit any such offense, and the victim of the offense was a child of the parent, a child with whom the parent resided at the time the offense occurred, or the other parent of the child.
• The parent has been convicted of felony assault resulting in serious bodily injury, felony bodily wounding resulting in serious bodily injury, or felony sexual assault, and the victim of the offense was a child of the parent or a child with whom the parent resided at the time of such offense.
• Based on clear and convincing evidence, the parent has subjected any child to aggravated circumstances.
• The parent has abandoned a child.

Aggravated circumstances include torture, chronic or severe abuse, or chronic or severe sexual abuse, if the victim of such conduct was a child of the parent or child with whom the parent resided at the time such conduct occurred. Aggravated circumstances also include failure to protect the child from such conduct, if the conduct or failure to protect demonstrates a wanton or depraved indifference to human life, or has resulted in the death of the child or in serious bodily injury to the child.

Current Through February 2015

Who Can Nominate a Standby Guardian

Citation: Ann. Code §§ 16.1-349; 16.1-351A qualified parent may petition the juvenile court to approve a standby guardian for the child. ‘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.

Any other person may file a petition. If the petitioner, however, is someone other than the child’s custodial parent, the parent must give consent.

How to Establish a Standby Guardian

Citation: Ann. Code §§ 16.1-350; 16.1-352Upon 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 to the petitioner
• 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 parent will imminently become physically or mentally incapable of caring for the child or die as the 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

The parent may also name a standby guardian by executing a written designation at any time.

Children who are age 12 or older must be notified of any hearing.

How Standby Authority is Activated

Citation: Ann. Code §§ 16.1-352; 16.1-353The 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 the written consent of the qualified parent and filing of the consent with the court

The 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 § 16.1-350
Each parent whose identity and whereabouts are known must be notified of the petition.

Another known parent, stepparent, adult sibling, or other adult related to the child may request a hearing within 10 days. The court cannot proceed if a custody case is pending.

Authority Relationship of the Parent and the Standby

Citation: Ann. Code §§ 16.1-349; 16.1-354The standby guardian temporarily assumes the duties of guardian of a minor child on behalf of, or in conjunction with, a qualified parent upon the occurrence of a triggering event. This is meant to enable the parent to plan for the future care of a child, without terminating parental or legal rights.

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

Withdrawing Guardianship

Citation: Ann. Code § 16.1-354The 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.