West Virginia Judicial Benchbook

1 west VirginiaJudicial BenchbookFOR CHILD ABUSE ANDNEGLECT PROCEEDINGS 2012 west Virginia Court Improvement Program Oversight BoardWest Virginia Supreme Court of Appeals(Funding for the development and publication of this Benchbook was provided by the Department ofHealth & Human Services, Administration of Children and Families, under Court Improvement Programmatching grants.) west Virginia Judicial Benchbook CHILD ABUSE AND NEGLECT PROCEEDINGS (Revised January 2012) TABLE OF CONTENTS CHAPTER 1: TIMELINE SUMMARY CHAPTER 2: CHECKLISTS FOR ABUSE AND NEGLECT PROCEEDINGS CHAPTER 3: OVERVIEW PROCEDURE IN CHILD ABUSE AND NEGLECT PROCEEDINGS CHAPTER 4: SPECIAL PROCEDURES AND TOPICS FOR CHILD ABUSE AND NEGLECT CASES CHAPTER 5: CHILD ABUSE AND NEGLECT CASELAW DIGEST CHAPTER 6: RELEVANT STATUTES AND REGULATIONS CHAPTER 7: west Virginia RULES OF PROCEDURE FOR CHILD ABUSE AND NEGLECT PROCEEDINGS CHAPTER 8.

2 CASELAW DIGEST CASES Chapter 1 1-1 TIMELINE SUMMARY Chapter Contents I. FILING OF PETITION .. 1-2 A. Initial Order .. 1-2 B. Notice .. 1-4 C. Disclosures .. 1-4 D. Answer .. 1-4 E. Multidisciplinary Treatment Team .. 1-4 II. PRELIMINARY HEARING .. 1-5 A. Relevant Inquiry .. 1-5 III. PRE-ADJUDICATORY IMPROVEMENT PERIOD .. 1-6 A. Family Case Plan .. 1-6 B. Concurrent Plan .. 1-6 C. Length of Pre-adjudicatory Improvement Period .. 1-6 D. Progress Reports .. 1-6 IV. ADJUDICATORY PRE-HEARING CONFERENCE .. 1-7 V. ADJUDICATORY HEARING .. 1-7 A. Timing -- No Pre-adjudicatory Improvement Period.

3 1-7 B. Timing -- Pre-adjudicatory Improvement Period .. 1-7 C. Procedure for Adjudicatory Hearing .. 1-7 VI. POST-ADJUDICATORY IMPROVEMENT PERIOD .. 1-8 A. Grounds for Improvement Period .. 1-8 B. Family Case Plan .. 1-9 C. Initial Review Hearing .. 1-9 D. Subsequent Review Hearing .. 1-9 E. Extension .. 1-9 F. Revocation or Termination of Improvement Period .. 1-10 VII. DISPOSITION HEARING .. 1-10 A. Timing -- After Adjudicatory Hearing .. 1-10 B. Accelerated Disposition Hearing .. 1-10 C. Timing -- After Dispositional Improvement Period .. 1-10 D.

4 Legal Authority: Uncontested/Contested Disposition .. 1- 11 E. Disposition Order: Contents .. 1-11 F. Entry of Disposition Order .. 1-11 Chapter 1 Chapter 1 1-2 VIII. PERMANENCY HEARINGS .. 1-11 A. Purpose .. 1-11 B. Timing -- Reasonable Efforts Required .. 1-11 C. Timing -- Reasonable Efforts Not Required .. 1-12 IX. PERMANENT PLACEMENT REVIEW .. 1-12 A. MDT Responsibilities .. 1-12 B. Notice .. 1-12 C. Issues Subject to Review .. 1-12 D. Timing for Entry of Order .. 1-13 E. Dismissal .. 1-13 Note: Rule 6(a) of the west Virginia Rules of Civil Procedure governs the computation of time periods established by the Rules of Procedure for Child Abuse and Neglect Proceedings.

5 Rule 7. I. FILING OF PETITION A. Initial Order Court issues either: 1) Initial order filing petition and granting temporary custody to the Department of Health and Human Resources or to responsible relative; or 2) Initial order filing petition and not granting temporary W. Va. Code 49-6-3. If temporary custody is ordered, the order must state that continuation in the home is contrary to the welfare or best interests of the child and indicate whether reasonable efforts to preserve the family were made or whether reasonable efforts were not required because of the emergency situation.

6 W. Va. Code 49-6-3(a). 1. Initial order granting temporary custody. W. Va. Code 49-6-3(a) and Rule 16. a. Sets a preliminary hearing of petition within ten days of original filing; giving at least five days notice of such hearing. Rules 20 and 22. 1 See W. Va. Code 49-6-3(c) for ratification procedure when the Department takes emergency protective custody of child without prior Court Order. See also W. Va. Code 49-6-9 (emergency custody by law-enforcement officers).

7 JANIS Form 02 Initial Order Upon Filing Petition JANIS Form 52 Petition to Institute Child Abuse and Neglect Proceeding Chapter 1 1-3 b. If a parent is a co-petitioner, appoints that parent counsel separate from the prosecuting attorney. Rule 17(a). c. Appoints counsel for the child, any respondent who had physical custody of child, and for any other qualified respondent who appears and requests appointed counsel. W. Va. Code 49-6-2(a). d. Provides for immediate transfer of child to the Department or responsible person. e. Court may appoint a CASA representative for child in areas where CASA program is in good standing.

8 Rule 52(a). f. Court may also direct any party or the Department to initiate or become involved in services to facilitate reunification of the family. 2. Initial order which does not grant temporary custody. W. Va. Code 49-6-3(b). a. Court may set a preliminary hearing of petition upon at least five days notice to parents, if facts alleged in petition demonstrate imminent danger to child. If no preliminary hearing is set, the court should set the adjudicatory hearing, giving at least ten days' notice. Rule 20. In such cases, the adjudicatory hearing must begin within 30 days of the filing of the petition, provided no preadjudicatory improvement period is granted.

9 Rule 25. b. If a parent is a co-petitioner, appoints that parent counsel separate from the prosecuting attorney. Rule 17(a). c. Appoints counsel for child, any respondent who had physical custody of the child, and any qualified respondent who appears and requests appointed counsel. W. Va. Code 49-6-2(a). JANIS Form 04 CASA Assignment Order JANIS Form Order Appointing Guardian ad Litem Chapter 1 1-4 d. Court may appoint a CASA representative for child in area where CASA program in good standing. Rule 52(a). B. Notice Notice of the first hearing should be provided with the initial order.

10 W. Va. Code 49-6-3(a)-(b) and Rule 20. 1. Shall be sent all parties and other persons entitled to notice and the right to be heard at the hearing. Rule 20. 2. Notice specifies time and place of hearing and statement that proceedings can result in termination of parental rights. Rule 20. 3. Notice specifies the respondent's right to counsel and right to appointed counsel upon proof of financial eligibility. Rule 20; W. Va. Code 49-6-2(a). C. Disclosures Unless otherwise ordered, within three days of filing of petition, prosecutors shall provide all parties and other persons entitled to notice and right to be heard with discovery material to preparation of case.