HEARING CHECKLISTS

TABLE OF CONTENTS

PRELIMINARY HEARING CHECKLIST

ADJUDICATORY HEARING CHECKLIST

DISPOSITION HEARING CHECKLIST

IMPROVEMENT PERIOD CHECKLIST

PERMANENT PLACEMENT REVIEW CHECKLIST

PRELIMINARY HEARING CHECKLIST

 

  1. NOTICE AND APPOINTMENTS
    1. Have all necessary parties received timely notice of the hearing, pursuant to Rule 20? (This includes noncustodial parents and putative fathers) (If only one parent served, see Rule 21)

    2. Has a guardian ad litem been appointed for the child and is that guardian ad litem present in court for the hearing? WV Code § 49-6-2(a)

    3. Has a CASA been appointed and is that CASA present in court for the hearing? Rule 52

    4. If parents have counsel, is such counsel present in court for the hearing? If the parents do not already have counsel, advise them of their right to counsel, and appoint such counsel as needed. WV Code § 49-6-2(a)

  2. TEMPORARY CUSTODY AND PLACEMENT

    1. Should the child be returned home immediately or, based upon finding no alternative less drastic than removal, kept in an out-of-home placement prior to trial? WV Code § 49-6-3(b)

    1. What services, if any, would allow the child to remain safely at home?

    2. Will the parties voluntarily agree to participate in such services?

    3. If removal ordered, what efforts should be made by the Department, if any, to facilitate the child’s return home? WV Code § 49-6-3(b)(4)

    4. Are any protective orders necessary or appropriate?

    5. Are orders needed for examinations, evaluations or other immediate services? WV Code § 49-6-4

    6. If removal ordered, provide reasons why continuation in the home is contrary to the child’s best interests. WV Code § 49-6-3(b)(1)

    7. Findings as to whether the Department made reasonable efforts to prevent removal of the child, or that such reasonable efforts not possible or not required. WV Code § 49-6-3(b) & (d); WV Code § 49-2D-3

    8. Are there any responsible relatives or other responsible adults who are familiar with the child or family, who are available to serve as foster parents?

    9. Is the placement proposed by the Department the least disruptive and most family-like setting that meets the needs of the child?

  3. OTHER
    1. What are the terms and conditions of parental visitation? Rule 15

    2. What are the terms and conditions of sibling visitation? Rule 15

    3. Has petitioner’s counsel provided the required disclosures and discovery? Rule 10(b)

    4. Is there a person who is both legally obligated and able to pay child support? If so, what should the terms of any child support order be? WV Code § 49-7-5.

  4. ACTIONS

    1. Mark and admit any reports and exhibits.

    2. Set date for next hearing or conference

      1. If no pre-adjudicatory improvement period is granted, set adjudicatory hearing within the time frames applicable to the circumstances, as set forth in Rule 25;

      2. If pre-adjudicatory improvement period is granted, set status conference within the time frames applicable to the circumstances, as set forth in Rule 23.

    3. Enter preliminary hearing order, with findings to include matters set forth in WV Code § 49-6-3(b) and, if applicable, § 49-6-3(d).

    4. Determine whether to set adjudicatory prehearing conference. Rule 24

CROSS-REFERENCES

CODE

    West Virginia Code § 49-2D-3; § 49-6-2; § 49-6-3; § 49-6-4; § 49-7-5

RULES

    Rule 10, Rule 15, Rule 20, Rule 22, Rule 23, Rule 24, Rule 25

CASE LAW

    III. EMERGENCY CUSTODY

    IV. CHILD ABUSE AND NEGLECT PETITION

    V. RIGHT TO COUNSEL/DUTIES AND ROLES

OVERVIEW

    IV. PRELIMINARY HEARING

    XV. CONTRARY-TO-WELFARE AND REASONABLE EFFORTS FINDINGS


ADJUDICATORY HEARING CHECKLIST

 

  1. SERVICE AND NOTICE

    1. Have all necessary parties been served?

    2. If personal service not obtained on any parent or other custodian, ascertain and place on record whether "due diligence" efforts made under WV Code § 49-6-1(b). (See also Rule 21)

  2. STIPULATED OR UNCONTESTED ADJUDICATION

    1. Stipulated or uncontested adjudication must include:

      1. Facts supporting adjudication (which may incorporate written reports and admissions by respondent(s) in an answer and any written stipulation) and

      2. Statement of respondent(s)’ problems or deficiencies to be addressed at final disposition. Rule 26(a), (c) and (d)

    2. Was the consent to adjudication understood and voluntary? Rule 26(b)

  3. OTHER MATTERS TO BE ADDRESSED

    1. If adjudication is contested, was alleged abuse or neglect existing at the time of the filing of the petition proven by clear and convincing evidence? WV Code §49-6-2(c). If not, petition to be dismissed.

    2. If abuse or neglect found, consider other issues that may need to be addressed until disposition, such as:

      1. Continuing child placement

      2. Further evaluations, examinations or services

      3. Any appropriate protective orders

      4. Parental/sibling visitation as permitted under Rule 15.

    3. If abuse or neglect found, direct the Department to prepare the child case plan, including the permanency plan, and (where applicable) the family case plan. WV Code § 49-6-5(a), Rule 28

    4. Is there a person who is both legally obligated and able to pay child support? If so, what should the terms of any child support order be? WV Code § 49-7-5.

    5. Inquire on record whether respondents desire appeal. If so, direct preparation of transcript. WV Code § 49-6-2(e)

  4. ACTIONS

    1. Mark and admit any reports and exhibits.

    2. Enter adjudication order with findings of fact and conclusions of law within 10 days of hearing, with notice of entry to all parties and other persons entitled to notice and opportunity to be heard.

    3. Set date for next hearing or conference

      1. If no post-adjudicatory improvement period is granted, set disposition hearing within the 45-day time frame set forth in Rule 32

      2. If post-adjudicatory improvement period is granted, set status conference within the time frames applicable to the circumstances, as set forth in Rule 37.

CROSS-REFERENCES

CODE

    West Virginia Code§ 49-6-2(c), (e); § 49-7-5.

RULES

    Rule 26, Rule 27, Rule 32, Rule 37

CASE LAW

    VII. ADJUDICATORY HEARING

OVERVIEW

    VIII. ADJUDICATORY HEARING

    IX. CHILD CASE PLAN


DISPOSITION HEARING CHECKLIST

 

  1. NOTICE AND PROCEDURE

    1. Have all parties, counsel and persons entitled to notice and the opportunity to be heard been given notice of the hearing? Rule 31

    2. Has the Department prepared and filed the child’s case plan that complies with Rule 28?

    3. Has the child’s case plan been provided to the parties, their counsel, and persons entitled to notice and the opportunity to be heard at least 5 judicial days prior to the hearing? Rule 29

    4. Have the parties submitted to the court, the other parties, and persons entitled to notice and the opportunity to be heard a witness list and a list of legal and factual issues 5 judicial days prior to the hearing? Rule 30

  2. STIPULATED OR UNCONTESTED DISPOSITIONS

    1. Does proposed stipulated or uncontested disposition comply with Rule 33(a)?

    2. Is the stipulation understood and voluntary? Rule 33(b)

    3. If the parent has voluntarily relinquished parental rights or if a parent does not contest termination, have the requirements of Rule 35(a) been met?

  3. CONTESTED DISPOSITIONS

    1. If a disposition involving termination is contested and opposed:
      1. Have findings been made under WV Code § 49-6-5(a)(6) and, if applicable, §49-6-5(a)(7)?

      2. Does the case plan require amendment in light of disposition findings made? Rule 35(b)

      3. Do any parties or persons entitled to notice and the opportunity to be heard desire modification to the child’s case plan, or have they offered a substitute child’s case plan? If so, follow the hearing requirements set forth in Rule 35(b)(2).

  4. ITEMS TO BE CONSIDERED IN ALL CASES INVOLVING TEMPORARY CUSTODY OR TERMINATION
    1. Are there objections to the child’s case plan? If so, the court must enter an order in compliance with Rule 34.

    2. Provide reasons why continuation in the home is contrary to the child’s best interests. WV Code § 49-6-5(a)(5) or (6)

    3. Findings as to whether the Department made reasonable efforts to prevent removal or make it possible for the child to return home, or that such efforts not required or impossible. WV Code § 49-6-5(a)(5), (6), or (7)

    4. If reasonable efforts required, a placement review conference pursuant to Rule 36(b) will be required.

    5. If no reasonable efforts required, a permanency hearing under Rule 36(d) and Rule 36a will be required, and continued placement review conferences will be required under Rule 36(b).

    6. Is there a person who is both legally obligated and able to pay child support? If so, what should the terms of any child support order be? WV Code § 49-7-5.

  5. ACTIONS
    1. Mark and admit any reports and exhibits.

    2. Make findings of fact and conclusions of law as to the appropriate disposition under WV Code §49-6-5.

    3. Enter disposition order Rule 36(a) containing the items set forth in Rule 36(c) within 10 days of the hearing.

    4. The disposition order shall also set the date and time of the permanency hearing under Rule 36(d) within 30 days, or the permanent placement review conference under Rule 36(b) within 90 days. (See D.2. above).

CROSS-REFERENCES

CODE

    West Virginia Code § 49-2D-3; §49-6-5(a), (c) §49-6D-3; § 49-7-5

RULES

    Rule 29, Rule 30, Rule 32, Rule 36, Rule 36a

CASE LAW

    VIII. DISPOSITIONAL HEARING

OVERVIEW

    X. DISPOSITIONAL HEARING

    XV. CONTRARY-TO-WELFARE AND REASONABLE EFFORTS FINDINGS


IMPROVEMENT PERIOD CHECKLIST

 

  1. REQUIREMENTS OF PRE-ADJUDICATORY IMPROVEMENT PERIOD

    1. A written motion filed at any time prior to the adjudication hearing.

    2. Respondent demonstrates, by clear and convincing evidence, likely to fully participate in improvement period and findings made, on the record, of the terms of improvement period.

    3. Has there been acknowledgement by parent(s) seeking improvement period that abuse/neglect has occurred, and/or has requesting parent(s) identified abuser? DHHR v. Doris S., 197 W. Va. 489, 475 S.E.2d 865 (1996)

    4. Court orders hearing to be held to review the matter within 60 days of granting improvement period OR court orders hearing to be held to review the matter within 90 days of the granting of improvement period and orders the Department to submit a progress report in 60 days of the order granting improvement period.

    5. Order requires Department to prepare and submit a family case plan that complies with WV Code § 49-6D-3.

    6. Improvement period not to exceed a period of 3 months, with no extensions allowed.

    WV Code §49-6-12(a) and Rule 23

  2. REQUIREMENTS OF POST-ADJUDICATORY IMPROVEMENT PERIOD AND DISPOSITIONAL IMPROVEMENT PERIOD

    1. A written motion filed following adjudicatory hearing and prior to disposition hearing.

    2. Respondent demonstrates, by clear and convincing evidence, likely to fully participate in improvement period and findings made, on the record, of the terms of improvement period

    3. Court orders hearing to be held to review the matter within 60 days of granting improvement period OR court orders hearing to be held to review the matter within 90 days of the granting of improvement period and orders the Department to submit a progress report in 60 days of the order granting improvement period.

    4. No previous improvement period has been granted, or respondent demonstrates by clear and convincing evidence that a substantial change of circumstances has occurred and that respondent is now likely to fully participate in a further improvement period.

    5. The order requires Department to prepare and submit a family case plan that complies with WV Code § 49-6D-3.

    6. Improvement period can be no longer than 6 months, unless later extended as set forth below.

WV Code §49- 6-12(b), (c) and Rule 37

  1. OTHER MATTERS

    1. Department may be ordered to pay expenses associated with any improvement period services when respondent is unable to bear such expenses. WV Code §49-6-12(d); WV Code §49-7-33

    2. With respect to any improvement period, respondent is required to execute a release of all medical information regarding that respondent. WV Code § 49-6-12(e)

    3. With respect to a post-adjudicatory improvement period or a disposition improvement period, the court may extend such improvement period for a period not to exceed 3 months upon finding that respondent has substantially complied with the terms of the improvement period that continuation will not substantially impair the ability of the Department to permanently place the child and that such extension is otherwise consistent with the best interest of the child. WV Code §49-6-12(g)

CROSS-REFERENCES

CODE

    West Virginia Code §49-6-12; §49-6D-3; §49-7-33

RULES

    Rule 23 Rule 37

CASE LAW

    VI. IMPROVEMENT PERIODS

OVERVIEW

    VI. IMPROVEMENT PERIOD


PERMANENT PLACEMENT REVIEW CHECKLIST

 

  1. NOTICE AND PROCEDURE

    1. Has 15-day notice been provided to the parties, counsel, and other persons entitled to notice and the opportunity to be heard? Rule 39(c)

    2. If termination was ordered, has Department submitted a permanent placement plan that meets the requirements of Rule 41(b)?

    3. Has the permanency plan been provided to the guardian ad litem, any remaining parties, and other persons entitled to notice and the opportunity to be heard? Rule 41(b)

    4. Has Department and the multi-disciplinary treatment team prepared and filed with the court a progress report describing the efforts to implement the permanency plan and any obstacles to permanent placement? Rule 40

    5. Were copies of the progress report provided to the parties and others 10 days in advance of the review conference? Rule 40

  2. DISCUSS

    1. Has permanent placement been achieved? If so, dismissal of the case is proper. Rule 41(b)

    2. Have reasonable efforts been made to finalize permanency plan in effect and secure a permanent placement, including all items set forth in Rule 41(a)?

    3. What changes should be made to the child’s case plan to effect a permanent placement? Rule 42(c)(1)

    4. What other changes should be made, or actions taken, to effect permanent placement? Rule 42(c)(2-5)

    5. Will permanent placement be achieved within 18 months of final disposition order? If not, what extraordinary reasons justify delay? Rule 43

  3. ACTIONS

    1. If no permanent placement yet achieved, set date for next review conference (within 3 months). Rule 39 and Rule 42(c)(6)

    2. Mark and admit any reports and exhibits.

    3. Enter order within 10 days determining whether permanent placement has been achieved, and making findings of fact and conclusions of law in support thereof. Rule 42

CROSS-REFERENCES

CODE

    West Virginia Code §49-6-5(a)

RULES

    Rule 39, Rule 40, Rule 41, Rule 42

CASE LAW

    VIII. DISPOSITIONAL HEARING

    X. TERMINATION OF PARENTAL RIGHTS

OVERVIEW

    XI. PERMANENT PLACEMENT

    XV. CONTRARY-TO-WELFARE AND REASONABLE EFFORTS FINDINGS