Overview of Law and Procedure

OVERVIEW OF LAW AND PROCEDURE
CHILD ABUSE AND NEGLECT PROCEEDINGS

INTRODUCTION
FILING A PETITION
EMERGENCY SITUATIONS
PRELIMINARY HEARING
MULTIDISCIPLINARY TREATMENT TEAMS
IMPROVEMENT PERIOD
FAMILY CASE PLAN
ADJUDICATORY HEARING
CHILD CASE PLAN
DISPOSITIONAL HEARING
PERMANENT PLACEMENT
APPEAL
TRANSCRIPTS
WEST VIRGINIA CODE SECTIONS
CONTRARY-TO-WELFARE AND REASONABLE EFFORTS FINDINGS
CHILD SUPPORT

INTRODUCTION

The guiding purpose of child abuse and neglect laws is to provide a safe, stable, and permanent home for abused and neglected children. W. Va. Code § 49-1-1. In furtherance of this purpose, the Rules of Procedure for Child Abuse and Neglect Proceedings ("RPCANP") are intended to provide: (1) a fair and timely disposition of child abuse and neglect cases; (2) judicial oversight of case planning; (3) a coordinated decision-making process; (4) a reduced number of unnecessary delays in case management; and (5) encouragement of involvement of all parties in the litigation as well as the involvement of all community agencies and resource personnel providing services to any party.

Child abuse and neglect proceedings are divided into five main stages:
1. Petition: The child abuse and neglect proceeding commences with the filing of a petition alleging abuse and neglect.
2. Preliminary hearing: The preliminary hearing is the first hearing held in a child abuse and neglect proceedings. The court will consider whether it should commit the child to temporary custody and/or whether there should be an improvement period.
3. Adjudicatory hearing: At the adjudicatory hearing the court makes a determination whether the child was abused or neglected at the time the petition was filed. Again, the court may commit the child to temporary custody and/or order an improvement period.
4. Final Dispositional hearing: At the dispositional hearing, the court determines what ought to be done with a child that has been adjudged abused and neglected. The court may find that the improvement periods have been successful and dismiss the petition, the court may order temporary custody and an additional improvement period or the court may terminate parental rights.
5. Permanent Placement Review: If the court terminates parental rights, the court will continue to monitor the child’s progress until the child is permanently placed.
Child abuse and neglect cases have priority over all civil proceedings, except for domestic violence proceedings and trials already in progress. W. Va. Code § 49-6-2(d). Upon the filing of a petition before the circuit court, a hearing must be docketed immediately. W. Va. Code § 49-6-1 and 2. Under no circumstances shall a civil protection proceeding be delayed pending the initiation, investigation, prosecution, or resolution of any other proceeding, including, but not limited to, criminal proceedings. RPCANP Rule 5.
FILING A PETITION
1. Contents of the Petition
  
  The first step in the procedure of a child abuse and neglect case is the filing of a petition. Either a reputable person or the West Virginia Department of Health and Human Resources (the Department) may file the petition if there is a belief that the child is neglected or abused. W. Va. Code § 49-6-1(a). The petition is preferably filed in the circuit court of the county where the child normally resides. However, the petition may also be filed in the circuit court of any county where the alleged abuse or neglect occurred, or where the custodial respondent or other named party resides. RPCANP Rule 4a.
  
  The petition must be verified under oath and contain the following:
  1. Specific allegations of misconduct: The petition should explain how the alleged misconduct comes within the statutory definition of abuse and/or neglect and include references to the statute. RPCANP Rule 18(a), (c); see also W. Va. Code § 49-1-3 (definitions relating to child abuse and neglect). In addition to the statutory references, the facts should include the time and place of the misconduct and whether the person responsible for the care of the child is incapacitated. RPCANP 18 (c). The petition should also contain the supportive services provided by the State to remedy the situation. W. Va. Code § 49-6-1.
  2. Description of children: The petition should also contain a description of all the children in the home or temporary care of the offending parents, even if there is no allegation of abuse toward the other children. W. Va. Code § 49-6-3(a). RPCANP 18(b). This information should include, the name, age, sex, and the current location of the child(ren). The petition need not include the location of the child if disclosing the location would endanger the child(ren) or seriously risk disruption of the current placement.
  3. The relief sought. RPCANP Rule 18(d); See also W. Va. Code § 49-6-3 (temporary custody).
  4. Uniform Child Custody Jurisdiction Act (UCCJA). The petition or attached affidavit should contain the information required by the UCCJA. W. Va. Code § 48-10-1, et seq. RPCANP Rule 18(e).
  The court must ensure that the facts in the petition are sufficiently specific. The sufficiency of each petition should be judged individually. State v. Scritchfield, 280 S.E.2d 315 (W. Va. 1981). (holding that a petition is insufficient when it only alleges one fact: that the mother had been a mental patient from time to time). Mere conclusions alone are insufficient. One reason for the specificity requirement is to put the offending parent on notice, allowing him/her to offer a rebuttal. See Moore v. Munchmeyer, 197 S.E.2d 648 (W. Va.1973).
  
  The court may allow the petition to be amended at any time until the final adjudicatory hearing begins, provided that an adverse party is granted sufficient time to respond to the amendment. After the final adjudicatory hearing begins, a petition may be amended only if the amendment does not prejudice an adverse party. If the petition is amended after the conclusion of a preliminary hearing in which custody has been temporarily transferred to the Department or a responsible person, it shall be unnecessary to conduct another preliminary hearing. RPCANP Rule 19.
2. Temporary Custody
  
  The court may order temporary custody based solely on the facts alleged in the petition. W. Va. Code § 49-6-3(a). The court may order the child into custody of the Department or any other person determined to be fit and proper for temporary custody. The court may order temporary custody based on the petition only after it makes the following specific findings:
  1. Imminent danger: The court must find that there exists imminent danger to the physical well-being of the child; and
  2. No reasonable alternatives: The court must also find that no reasonable alternatives to removal exist. Some reasonable alternatives that the court may consider are medical, psychological, psychiatric, family preservation or homemaking services in the child's present custody.
  When the court makes a determination granting temporary custody based on the petition, it must not allow placement of the child in the household of the alleged abusing person, unless there is a judicial order precluding the offending person from residing in or visiting the home. The child shall not be initially placed in emergency custody for more than 10 days without a preliminary hearing. RPCANP 22. If the allegations of abuse or neglect pertain to less than all the children listed in the petition as in the home, the court should also order the other children into temporary custody if the findings of imminent danger and no reasonable alternative apply as well to the other children. W. Va. Code § 49-6-3(a).
  
  When the court orders the temporary change of custody of a child based on the facts alleged in the petition, the circuit judge shall issue a transfer order. The transfer order must contain the following findings:
  1. Continuation in the home is contrary to the best interest of the child, and why; and
  2. Whether or not the Department made a reasonable effort to prevent the placement, or that an emergency situation exists making such efforts unreasonable or impossible, or that reasonable efforts were not required.W. Va. Code § § 49-2D-3; 49-6-3(b).
  The order may also contain a direction to the Department or any other person to become involved in the process in order to facilitate the reunification of the family. W. Va. Code § 49-6-3(a).
3. Initial Order
  1. First Hearing Date
    
    Regardless of whether the court orders a temporary custody change, the court must set an initial hearing date when the petition is filed. W. Va. Code § 49-6-1; RPCANP Rule 20. If the court orders a temporary placement at the time of the filing of the petition, a preliminary hearing must be held within 10 days regarding the emergency custody. W. Va. Code § 49-6-3(a); RPCANP Rule 22. Even if a transfer of custody is not made at the time the petition is filed, the court may set a preliminary hearing if facts alleged in the petition indicate existing imminent danger. W. Va. Code § 49-6-3(b). In any event, the court must give the respondents at least five days’ actual notice of the preliminary hearing. RPCANP Rule 20. Absent a preliminary hearing, then the adjudicatory hearing should be set to commence within 30 days of the filing of the petition. RPCANP Rule 25. The court may grant a continuance for a reasonable period of time upon a showing of good cause, as expressly found for reasons stated in the continuance order. RPCANP Rule 7.
  2. Appointment of Counsel
    
    When the court issues the initial order based on the petition, the order must also include appointment of counsel for the child. W. Va. Code § 49-6-1(a). The parents or custodians also have a right to be represented by counselin any child abuse and neglect proceeding. W. Va. Code § 49-6-2(a). Assuming the parents or custodians cannot afford counsel, the court must appoint a lawyer to represent them. In no circumstance shall a lawyer represent both the child and any of the parents or custodians. A lawyer may represent multiple parents or custodians only if all parties consent to the multiple representation after full disclosure and consultation by the lawyer regarding possible conflicts. One lawyer may represent multiple children in the same matter. However, in any case, a lawyer shall not represent multiple parties unless first assuring the court that professional judgment will not be impaired by the multiple representation.
    
    The State Code states a preference for the type of lawyer the court should appoint to represent parties in a child abuse and neglect case. The prerequisite qualification is that appointed counsel must have at least threehours of annual CLE training on the representation of children in abuse and neglect proceedings. W. Va. Code § 49-6-2(a). However, if no lawyer meeting this requirement is available, the court may appoint other competent counsel. Under this statute, counsel must be appointed at least 10 days prior to the initial hearing.
  3. Appointment of CASA
    
    In those areas where a Court-Appointed Special Advocate (CASA) Program is operating, after a petition is filed the court may appoint a CASA representative, who shall by such appointment have access to information and court filings, receive notice of hearings and copies of orders, and be afforded opportunity to be heard.
  4. Visitation
    
    If the court orders emergency custody based on the petition, the court may order or deny visitation in a manner consistent with the child's best interest and well being. RPCANP Rule 15. In petitioning the court for visitation, the person so requesting shall inform the court of her or his relationship with the child and the amount of previous contact previously existing with the child. In ordering supervised visitation, the court should consider both the child's age, condition, and whether the surroundings are a safe, dignified or suitable placefor visitation. Visitation between the child and siblings should be incorporated into the permanent plan of the child whenever possible and appropriate.
EMERGENCY SITUATIONS

On occasion, a circuit judge may be called upon to ratify an emergency temporary custody order. In such cases, a child has already been transferred from the home because a child protective service worker has directly witnessed an emergency situation involving the imminent danger to the physical well being of the child(ren). W. Va. Code § § 49-2D-3; 49-6-3(c). The worker is required to forthwith appear before a judge in the county where custody was taken, or in an adjacent county if no judge is then available in the county of custody. This emergency situation will take place prior to the filing of the petition. The order ratifying the temporary custody will remain in effect only until such time as a petition is filed.
1. Ratification
  
  The emergency custody ratification request should set forth the facts from which the circuit court may determine whether there was probable cause that the physical well-being of the child was in immediate danger, and that without removal of the child, additional abuse and neglect may have occurred, or that the parent would flee. Based upon sworn testimony or other evidence, the court may ratify the emergency removal of the child. (See Supreme Court of Appeals Forms 2 and 3) If the court ratifies the emergency custody, the child may remain with the Department for no longer than two judicial days, or until the petition is filed and the court can make the determination with respect to temporary custody discussed above. W. Va. Code § 49-6-3(c). If no petition is filed and post-petition temporary custody transferred within this time period, then the child must be returned to the home from which she/he was removed.
2. Juvenile Referee
  
  W. Va. Code § 49-6-3(c) also requires that the circuit court appoint at least one county magistrate to serve as a juvenile referee. The juvenile referee shall have the authority to decide whether the emergency custody order should be ratified. However, if the juvenile referee ratifies an emergency custody, the magistrate must contact a circuit judge and obtain telephonic confirmation of the emergency custody order by the next judicial day. (See Supreme Court of Appeals Form 4)
PRELIMINARY HEARING
1. Notice
  
  Once the court sets a hearing, it must ensure that all appropriate parties have notice of the hearing date. Notice of the first hearing must be served upon on the following parties: both parents, any other custodian, the state department, and a CASA representative if one has been appointed. W. Va. Code § 49-6-1(b); RPCANP Rule 20. If the court determines that the child is in imminent danger, the court may set a preliminary hearing, giving the parties only 5 days notice. In all other cases, the parties are to be given 10 days notice of the first hearing.
  
  The first attempt to provide notice should be to personally serve the respondent(s). W. Va. Code § 49-6-1(b). If personal service is not reasonably obtainable, then the respondent may be served by certified mail to the last known address. In either situation, service should include both the hearing notice and a copy of the petition. If the party cannot be served by personal service or certified mail, the party may be served by publication (class II legal advertisement).
  
  A preliminary hearing may proceed in some circumstance even though all the parents have not been personally served. RPCANP Rule 21. For instance, if the child is located in the state, and neither parent has been personally served, the court may accomplish service through publication and continue with the preliminary hearing. However, the court may not hold an adjudicatory hearing until the expiration of the answer time specified in the publication notice.
2. Temporary Custody
  
  The court should hold a preliminary hearing within 10 days of the filing of the petition (only 5-day notice required if petition facts demonstrate imminent danger). The court should consider at the preliminary hearing whether to order (or continue) temporary custody. If the court finds that the child is in imminent danger at the preliminary hearing, it may order temporary custody of the child to the Department or to another responsible person. W. Va. Code § 49-6-3(b). Similar to when a court orders temporary custody based on the facts alleged in the petition, the court ordering temporary custody at the preliminary hearing must include the following in an order:
  1. Continuation in the home is contrary to the welfare of the child. The court should state the reasons for this determination.
  2. The Departments efforts, including:
    1. Whether the Department made reasonable efforts to prevent the removal of the child.
    2. Whether the Department made a reasonable effort to prevent the placement, or because an emergency situation existed, such efforts would be unreasonable or impossible, or that such efforts were not required. W. Va. Code § § 49-2D-3; 49-6-3(b)(2), (3)
  3. What efforts should be made by the Department to facilitate the child's return to the home.
  (See also Overview Section XV. Contrary-To-Welfare And Reasonable Efforts Findings.)
  
  The court may order the temporary custody of the child for up to 60 days (or longer when improvement period granted).
  
  After the filing of the petition, the court must hold a preliminary hearing where the parties are offered an opportunity to be heard. W. Va. Code § 49-6-2(c). At a preliminary hearing, the court may order an improvement period consistent with the pre-adjudicatory guidelines set for in West Virginia Code § 49-6-12. Unless waived by the parties, the court shall make a transcript of the proceeding. The rules of evidence apply to all hearings in child abuse and neglect cases, including preliminary hearings.
MULTIDISCIPLINARY TREATMENT TEAMS

The court must convene a multidisciplinary treatment team (MDT) within 30 days after the petition is filed. RPCANP Rule 51. The MDT shall include the following individuals:
1. The child’s custodial parents, guardians, or other immediate family members;
2. The attorneys representing the parents;
3. The child, if over 12 years old and participation is otherwise appropriate; or if the child is under 12 years old, when the team determines that the child’s participation is appropriate;
4. The guardian ad litem;
5. The prosecuting attorney, or her or his designee; and
6. Any other agency, person or professional who may be helpful to the MDT’s efforts, including any CASA representative.
The purpose of the MDT is to plan and implement a comprehensive, individualized program for children in child abuse and neglect proceedings. W. Va. Code § 49-5D-3. The MDT will be involved throughout the circuit court proceedings. The team must be present at status conferences held during improvement periods and permanent placement review conferences.
IMPROVEMENT PERIOD

A court may order an improvement period at any time during the child abuse and neglect proceeding. The purpose of the improvement period is to give the respondent the opportunity to rectify the circumstances that gave rise to the child abuse or neglect proceeding. During the improvement period, the respondent’s progress is monitored by the Department and any CASA representative appointed in the case. The two main components of the improvement period are the family case plan and the status conference. The Department develops a family case plan as detailed further in the section below. Periodically during the improvement period, the court holds status conferences to monitor the progress of the respondent. These status conferences take the form of hearings. The multidisciplinary team (MDT) must attend status conferences. RPCANP Rule 23andRule 37.
1. Pre-adjudicatory
  
  In conjunction with the preliminary hearing or any other hearing prior to adjudication, the court may also order an improvement period. W. Va. Code § 49-6-12(a). Court consideration for an improvement period is upon the written motion of the respondent. W. Va. Code § 49-6-12(a)(1). During any improvement period, the child may remain in any temporary custody arrangement as previously ordered by the court. W. Va. Code § 49-6-2(b). Included in the order granting an improvement period should be a provision requiring the Department to promptly prepare a family case plan.
  
  The maximum amount of time that the court may allow a pre-adjudicatory improvement period is 3 months. W. Va. Code § 49-6-12. In its motion to the court, the respondent must show that he or she is likely to fully participate in the improvement period. The respondent must make this showing by clear and convincing evidence.
  
  When an improvement period is granted, the court must make findings of the terms of the improvement period on the record. The court then should issue an order granting the improvement period. The following should be include in the order:
  1. A provision setting a hearing ("status conference") date within 60 days to review the improvement period or providing that the Department submit a progress report within 60 days;
  2. A provision setting a status conference within 90 days if the Department provides a progress report; and
  3. A provision requiring the Department to submit a family case plan within 30 days. The court then will hold these periodic status conferences to ensure that the parties are participating in the improvement period. The status conference provides an important oversight mechanism, ensuring that the improvement periods are being used effectively, rather than acting as an unneeded delay in the proceedings.
2. Post-adjudicatory
  
  The court may also order an improvement period after a final adjudicatory hearing. W. Va. Code §§ 49-6-5(c) and 49-6-12(b); RPCANP Rule 37. During these improvement periods, the court grants the respondent the opportunity to rectify the situation from which the determination of child abuse or neglect was made. W. Va. Code § 49-6-5(c). An improvement period after an adjudicatory hearing shall not exceed 6 months, with a 3-month extension under substantial compliance findings. However, if a pre-adjudicatory improvement period was allowed, a post-adjudicatory improvement period can only be granted upon a showing of substantial change of circumstances that make full participation likely. An order granting a post-adjudicatory improvement period also shall contain provisions setting dates similar to those in a pre-adjudicatory improvement period as stated above. For instance, a family case plan should be required, either a progress report should be submitted or a hearing to review the improvement period must be held within 60 days, if the progress report is filed, a status conference every 90 days, and a final hearing at the end of the improvement period must be held. The only difference is that, because the improvement period may be longer in duration, status conferences held to review the improvement period must be held every 90 days until the improvement period ends. RPCANP Rule 37.
3. Dispositional Improvement Periods
  
  The court may order a dispositional improvement period. W. Va. Code § 49-6-12(c). The dispositional improvement period shall not exceed six months, with a 3-month extension under substantial compliance findings.W. Va. Code § 49-6-12(g). To qualify for a dispositional improvement period, the respondent must not have been granted a previous improvement period, unless the respondent can demonstrate a substantial change in circumstances that makes full participation more likely.
4. Timing
  
  The hearings ordered pursuant to an improvement period may only be continued for good cause. The party seeking the continuance must file a written motion and serve the motion on all parties. If the court grants such a continuance, in the order granting the continuance, it also must state the future date when the hearing will be held. The hearing held at the end of the improvement period should be held as close to the end of the period as possible. In no circumstances, should the hearing at the end of the improvement period be held more than 60 days after the termination of the improvement period. W. Va. Code § 49-6-12(j), (k); RPCANP Rule 38.
  
  When a court orders any improvement period, it should receive from the respondent a medical release. The release shall provide for the release of any medical information concerning the respondent, including history of substance abuse and mental health. Physicians and facilities are required to accept this release regardless of whether the form conforms to the standards of release forms of the facility. W. Va. Code § 49-6-12(e).
  
  During the improvement period, the Department will monitor the progress of the respondent. If the Department informs the court that the respondent is failing to participate in any aspect of the improvement period, then the court shall terminate the improvement period. W. Va. Code § 49-6-12(f).
FAMILY CASE PLAN

Family case plans are prepared pursuant to a court order granting a motion for an improvement period. The purpose of the family case plan is to set forth a clear, well-organized, realistic method of identifying family problems and the logical steps toward reducing or resolving those problems. W. Va. Code § 49-6D-3(a). The Department develops the family case plan with the family members and the MDT.

When an improvement period is ordered, the Department should provide the court with a copy of the family case plan within 30 days. W. Va. Code § 49-6D-3(b). The court should inspect the case plan to ensure that it contains the following:
1. A list of specific, measurable, and realistic goals arranged in an order of priority;
2. A list of problems addressed by each goal;
3. A specific description of how the parties involved will achieve the goals;
4. Time targets for the achievement of goals; and
5. Tasks assigned to the abusing or neglecting parent, as well as to other participants in the process and a designation of when and how often tasks will be performed.
6. The safety of the placement of the child and plans for returning the child safely home.
The court should see that the case plan can be easily understood by the participants accountable under the plan. In addition, the court shall inform the participants of the consequences likely to follow from their failure the meet any of the goals listed in the case plan. W.Va. Code § 49-6D-3(a), (b)
ADJUDICATORY HEARING

As discussed above, the preliminary hearing serves an immediate purpose in a child abuse and neglect proceeding: assessing the child’s welfare close to the time that the petition has been filed. The court may find at the preliminary hearing that the child should be temporarily placed outside the home, and also may order an improvement period. At the adjudicatory hearing, the court determines whether the child was abused or neglected at the time the petition was filed.
1. Time When Hearing Must Be Held
  
  If the child is placed in temporary custody without an improvement period, the hearing must be held within 30 days of the temporary custody order. If an improvement period has been ordered, the hearing must be held within 60 days after the end of the improvement period. W. Va. Code § 49-6-2(d); RPCANP Rule 25. If no temporary custody has been ordered, the adjudicatory hearing must be held 30 days after the petition filed. RPCANP Rule 25.
2. Content of Adjudicatory Hearing
  
  The adjudicatory hearing must provide all parties a meaningful opportunity to be heard. This right to a meaningful hearing includes the right to present and cross-examine witnesses. Unless waived, a transcript shall be made available to all the parties. Finally, the rules of evidence also apply to adjudicatory hearings.
  
  The court should make a determination at the adjudicatory hearing whether the child is abused or neglected. The court’s findings must be based on clear and convincing proof that the conditions supporting the determination existed at the time the petition was filed. W. Va. Code § 49-6-2(c). After the court makes a determination, the court may order an improvement period. If the court previously granted an improvement period the court must find that the respondent has experienced a change in circumstances that will result in full participation in the second improvement period. W. Va. Code § 49-6-12(b).
3. Order
  
  After the court makes a determination at an adjudicatory hearing, the court must enter an order of adjudication containing findings of fact and conclusions of law. RPCANP Rule 27. In addition, court must order that the Department compile the child case plan, a family case plan, and permanent placement plan (included in child case plan). The order should also include any provisions for an improvement period, if applicable. The court must enter the order within 10 days of the conclusion of the hearing. All parties shall receive notice of the entry of the order.
4. Stipulated Adjudication and Uncontested Petitions
  
  At times, the respondent may not respond to the child abuse and neglect proceeding, or the parties may agree upon a stipulated adjudication. Before the court approves a stipulated adjudication, or before the court adjudicates on an uncontested petition, the court must include the following information in the adjudication:
  1. Agreed-upon facts that support the court’s involvement, including the respondent’s conduct, condition or problems; and
  2. A statement of the respondent’s problems to be addressed at the final dispositional hearing. RPCANP Rule 26(a).
  If the adjudication is stipulated, the court must ensure that the parties fully understand the consequences and the content of the stipulated adjudication. The court must find that the parties have voluntarily consented to the stipulation and that the stipulation or uncontested adjudication is in the best interest of the child. RPCANP Rule 26(b).
CHILD CASE PLAN

When a child has been adjudged abused or neglected, the court shall order the Department to complete a child case plan. W. Va. Code § 49-6-5. The child plan will include a permanency plan and the same requirements included in the family case plan. See also W. Va. Code § 49-6D-3. The child case plan can be a useful resource for the court at the dispositional hearing. The child case plan represents the Department’s and MDT’s recommendations with respect to the child. It may contain recommendations such as
1. Timetables for the parties to correct problems;
2. Efforts made by the Department to prevent the need for placement of the child;
3. An explanation why placement is in the best interest of the child;
4. A list of friends or relative that would provide a suitable and safe permanent place for the child;
5. A suggested visitation plan; and
6. The ability of parents to contribute financially to placement.
RPCANP 28.

The case plan should also contain a permanency plan. The permanency plan is designed to achieve a permanent placement home for the child. If reunification of the family is not in the permanency plan, the Department will explain why reunification is not appropriate. The child case plan must be compiled within 30 days after the final adjudicatory order is entered by the court. The plan must also be served on all parties involved at least 5 days before the dispositional hearing. RPCANP Rule 29.
DISPOSITIONAL HEARING
1. Timing
  
  The court shall hold the dispositional hearing within 45 days of the entry of the adjudicatory order if no improvement period has been ordered. RPCANP Rule 32(a). If an improvement period has been ordered, then the court shall hold the dispositional within 60 days after the improvement period ends.
  
  The parties may choose to have an accelerated dispositional hearing. In order to proceed with an accelerated dispositional hearing the following requirements must be met: (1) the parties must agree to the accelerated hearing; (2) the child case plan must have been completed and provided to the court and the parties, unless the parties have waived the right to the child case plan; (3) notice of the hearing was either effectuated or was waived by the parties. The accelerated dispositional provides an opportunity for the parties to move the child abuse and neglect proceeding along as quickly as possible. RPCANP Rule 32(b).
2. Disposition
  
  At the dispositional hearing, the court must give the parties an opportunity to be heard. The rules of evidence apply in the hearing, and the respondent(s) shall be given the opportunity to present and cross-examine witnesses. W. Va. Code § 49-6-2(c). At the conclusion of the hearing, the court will make a disposition. The statute lists the following dispositions a court may make:
  1. Dismiss the petition;
  2. Dismiss the petition and refer the child and/or abusing parent to acommunity agency for assistance;
  3. Return the child to the home under the supervision of the department;
  4. Order terms of supervision;
  5. Commit the child to the temporary custody of the department, or a suitable person who may be appointed guardian by the court; or
  6. Terminate parental rights. W. Va. Code § 49-6-5(a).
3. Order
  
  Following the dispositional hearing, the court must enter an order setting forth findings of fact and conclusions of law. RPCANP Rule 36(a). The court must enter the order within 10 days of the dispositional hearing. The court should include the following, if applicable, in the dispositional order:
  1. The date and time for the first placement review conference;
  2. The terms of visitation;
  3. Services provided to the child and the family;
  4. Restraining orders controlling the conduct of any party that may frustrate the disposition order;
  5. Corrective actions that any parties must take to alleviate problems;
  6. Conditions regarding the placement of the child, including any special needs the child may have;
  7. Steps to unite the child with siblings; and
  8. The terms and conditions of the child’s case plan or family case plan. RPCANP Rule 36(b), (c).
4. Temporary Custody
  
  The court may order at the dispositional hearing that the child be committed to temporary custody. W. Va. Code § 49-6-5(a)(5). If the court so orders, it must include the following in its order:
  1. Continuation in the home is contrary to the welfare of the child;
  2. Whether the department made reasonable efforts to prevent the placement, and what those reasonable efforts were, or that an emergency situation existed making efforts unreasonable or impossible, or that such reasonable efforts were not required;
    
    (See also Overview Section XV. Contrary-To-Welfare And Reasonable Efforts Findings.)
  3. The circumstances under which the temporary custody shall continue, and in considering these circumstances, the court shall contemplate the following:
    1. Whether the child should be continued in foster care, including,
      1. Whether foster care should continue temporarily, or until reunification; or
      2. Whether foster care should continue permanently;
    2. Whether the child should be considered for adoption;
  4. An order for financial support, if appropriate, from the parents if the child is transferred to the custody of the department.
5. Termination of Parental Rights
  
  The court may determine at the dispositional hearing that parental or custodial rights should be terminated. To support such a determination, the court must find that there is "no reasonable likelihood that the conditions of neglect or abuse can be substantially corrected in the near future" or that the welfare of the child necessitates termination of the parental or custodial rights. W. Va. Code § 49-6-5(a)(6). The statute provides that there is "no reasonable likelihood that the conditions of neglect and abuse can be substantially corrected" when the abusing adult has demonstrated an inability to solve the problems leading to the abuse or neglect on their own or with help. W. Va. Code § 49-6-5(b). An example of circumstances that support this determination include the following:
  1. The abusing adult has an addiction to alcohol or controlled substances that seriously impair her or his parenting skills and the abusing adult has not responded to the recommended treatment;
  2. The abusing adult has willfully refused to participate in a reasonable family case plan;
  3. The abusing adult has not responded to rehabilitative efforts such that the conditions that threatened the welfare of the child have not diminished in a substantial way;
  4. The child has been abandoned;
  5. The abusing adult has repeatedly seriously injured the child physically or emotionally, or have engaged in sexual abuse such that the degree of family stress and potential for further abuse are so great that it precluded the use of resources to resolve or mitigate the family problems; or
  6. The abusing parent suffers from emotional illness that has lasted for such a duration and is of such a nature as to the adult incapable of exercising proper parenting skills.
  The list above, however is not exhaustive, and there may be other circumstances that the court finds make the termination of parental rights necessary. Furthermore, the court should consider the following factors, generally, when deciding whether parental rights should be terminated:
  1. The child’s need for continuity of caretakers;
  2. The amount of time needed to integrate the child into a stable, permanent home; and
  3. Other factors the court considers necessary and proper.
  If the child is age 14 or older, or is of an age of discretion as determined by the court, parental rights shall not be terminated if the child objects to the termination. If the court terminates parental rights, the court should commit the child to the sole custody of the non-abusing parent, or to the permanent custody of the department. W. Va. Code § 49-6-5(a), (b).
  
  If the termination involves the first removal of the child from the home (or follows an extended improvement period in the home) the contrary-to-welfare and reasonable efforts to prevent placement findings must be made. If removal occurred earlier, reasonable efforts findings regarding finalizing the permanency plan are likely due. (See Overview Section XV. Contrary-To-Welfare And Reasonable Efforts Findings.)
6. Improvement Period
  
  The court may order an improvement period in lieu of making a disposition at the final dispositional hearing. An improvement period ordered at the dispositional hearing may not exceed 6 months with a 3-month extension under a showing of substantial change of circumstances making full participation likely. W. Va. Code § 49-6-5(c). If the court orders the improvement period, it should hold another final dispositional hearing to make a final disposition in the case within 60 days after the improvement period ends. If the court finds, as stated under the termination of parental rights section, that there is "no reasonable likelihood that the conditions of neglect or abuse can be substantially corrected," the court may not order an improvement period. In re Darla B., 331 S.E.2d 868 (W. Va. 1985).
PERMANENT PLACEMENT

If the court orders termination of parental or custodial rights, the court will continue to monitor the placement of the child until permanent placement is achieved. RPCANP Rule 39. The permanent placement of the child must be achieved within 18 months, unless the court finds that extraordinary reasons exist to justify the delay. RPCANPRule 43. A finding of extraordinary reasons must be made by the court on the record. Any appointed CASA representative should remain involved until permanent placement is achieved. RPCANP Rule 52(f).
1. Permanent Placement Plan
  
  The court will receive a permanent placement plan from the Department within 90 days from the termination order. RPCANP Rule 41(b). The placement plan will also be submitted to the guardian ad litem or the child’s attorney. The plan will include the following:
  1. The Department’s progress toward arranging for adoption, legal guardianship, or permanent placement with a relatve;
  2. A schedule of steps to be taken to arrange for an adoption of the child;
  3. Barriers to preventing placement in an adoptive home or with a legal guardian and how they may be overcome; and
  4. Whether an adoption or legal guardianship subsidy is needed and the amount of the subsidy.
2. Permanent Placement Review Conferences
  
  Hearings shall be held every three months until permanent placement is achieved to monitor the implementation of the court ordered placement plan. RPCANP Rule 41(a). The MDT shall attend the conference and report on the progress and development of the case. Matters considered at the conferences include:
  1. The extent to which problems that have given rise to the child abuse or neglect proceedings have been remedied;
  2. Services or assistance provided to the family since the last hearing, or services and review conferences needed in the future;
  3. Compliance by the abusing adult and the department with the case plan and previous court orders and recommendations;
  4. Any recommended changes in court orders;
  5. The ability and extent the abusing adult contributes financially to the placement of the child;
  6. The appropriateness of the current placement of the child and whether it is it is the most family-like setting;
  7. A summary of visitation and any recommended changes;
  8. How the child’s special need were or were not met while in placement;
  9. The location of siblings and the steps being taken to unite them;
  10. Any recommendation or discussion of the child’s return home, placement for adoption, other permanent placement, and concurrent alternative permanency plans; and
  11. Determination of reasonable effort for reunification or permanent placement.
  RPCANP Rule 41(a)
  
  All parties shall receive 15 days notice of the permanent placement review hearings; however, the parties whose parental rights have been terminated shall not receive notice, nor participate in the hearings. RPCANP Rule 39(c).
3. Summaries Pursuant to Various Recommendations
  
  During the permanent placement review conferences, the MDT should make recommendations regarding future placement issues for the child. Below are some of the information that should accompany various recommendations proposed at the review conferences:
  1. If a return to the home is recommended: (a) necessary steps to make return possible and to minimize the disruptive effects of a return; (b) the dangers that may face the child after a return; and (c) reunification services necessary to minimize danger to the child.
  2. If return to the home is not recommended: (a) the steps needed to effectuate the termination of parental rights; (b) the time needed to achieve such measures.
  1. If neither return nor placement for adoption is recommended: (a) a discussion of guardianship or permanent custody with a responsible individual including: (i) rights and responsibilities of the biological parents and the custodial parents or guardians, and(ii) a time table for the awarding of permanent custody; (b) a discussion of permanently placing the child in foster care, including: (i) a proposed time table, (ii)terms of the foster care agreement, and (iii) and the continuing rights of the biological parents.
  2. If continued foster care is recommended: an explanation of why this continues to be appropriate for the child.

If placement in a group home or institution is recommended: (a) why treatment outside a family setting is necessary, including expert diagnoses and recommendations; (b) why less restrictive, family settings are not practical; (c) why placement with specially trained foster parents is not practical;
If emancipation is recommended for children over 16 years old: (a) why foster care is no longer appropriate; (b) the skills needed by the child to prepare for adulthood; and (c) a description of the ongoing support and services to be provided by the department. RPCANP Rule 41.

Order

Within 10 days after the court holds a permanent placement review conference, the court shall enter an order stating whether permanent placement has been achieved. RPCANP Rule 42(a). The court shall include findings of fact and conclusions of law supporting its determination. If the court finds that permanent placement has not been achieved, the court shall include in the order the issues discussed at the review conference, including the following:
1. Changes in the child’s case plan the court deems necessary to achieve permanent placement, with accompanying findings of fact;
2. Changes in visitation and other parental involvement;
3. Changes to be provided to the parties and the child;
4. Restraining orders controlling the conduct of parties likely to frustrate the order;
5. Additional action to be taken by parties involved in order to achieve permanent placement; and
6. Findings as to whether the Department has made reasonable efforts to finalize the permanency plan in effect. (See Overview Section XV. Contrary-To-Welfare And Reasonable Efforts Findings.)
7. A date and time for the next permanent placement review conference.
If the court issues an order that permanent placement has been achieved, the case may be dismissed from the docket. RPCANP Rule 42(b), (c).

APPEAL

After the circuit court makes an adjudication at the adjudicatory hearing, the court shall inquire whether the parents or custodians wish to appeal the decision. W. Va. Code § 49-6-2(e). The court should transcribe the response by the parents; however, a negative response will not constitute a waiver of the right to appeal if the parents later change their mind. The court shall transcribe the evidence and made available to the parties as soon as practicable. The appeal may pertain to the court’s determination of child abuse or neglect, or to the termination of parental rights in an accelerated appeal. The party may appeal under accelerated procedures within 60 days of the judgment. RPCANP Rule 49. The Supreme Court of Appeals will give priority to all child abuse and neglect appeals.
TRANSCRIPTS

West Virginia Code § 49-6-2(e) provides for a transcript to be furnished for indigent persons without cost. (See also: W. Va. Code § 51-7-8). Rule 6 of the Manual for Official Court Reporters of the W. Va. Judiciary (Administrative Office of the W. Va. Supreme Court of Appeals), promulgated October 30, 1984, amended October 18, 1996 ("Official Court Reporter Manual"), states: Transcripts of less than 100 pages in length requested by an indigent party for purposes of appealing a determination in a civil abuse and neglect proceeding will be produced by the court reporter in accordance with the provisions of this Section governing production of transcripts in civil appeals.
WEST VIRGINIA CODE SECTIONS
1. Abuse and Neglect Definitions
  1. Principal Definitions. West Virginia Code § 49-1-3 sets forth comprehensive definitions that pertain to all child abuse and neglect proceedings under Chapter 49 of the Code.
2. Responsible Agencies, Officers and Persons
  1. Identification. West Virginia Code § 49-1-4 generally identifies the agencies, officers and persons involved in child abuse and neglect proceedings. Additionally, the "Multidisciplinary Team" is identified by the definition set forth in West Virginia Code§ 49-1-3(g).
  2. State Department Responsibilities for Protection and Care of Children. West Virginia Code § 49-2-1 et seq. sets forth the responsibilities of the State Department (Human Services) for the care of abused and neglected children who are committed to its care for custody or guardianship. Care may be provided through: 1) Foster Homes; 2) Licensed Child Welfare Agencies; 3) State Institutions. West Virginia Code § 49-2-16 specifies the State Department's responsibilities for child custody and care upon voluntary parental or guardian placement, from courts exercising juvenile jurisdiction and from law-enforcement officers in emergency situations.
  3. Duties of State Department Regarding Licensing for Child Welfare Agencies. West Virginia Code § 49-2B-1 et seq. specifies the responsibilities of the State Department for the licensing, approving and registering of child care facilities and child welfare agencies in the State. Applicable State regulations include Title 78, Series 2-- "Minimum Licensing Requirements for Child Placing Agencies in West Virginia" and Title 78, Series 3-- "Minimum Licensing Requirements for Group Residential Facilities in West Virginia."
  4. Duties of Prosecuting Attorneys. West Virginia Code § 49-6-10 specifies the duties of every prosecuting attorney with respect to child abuse and neglect, including: i) fully and promptly cooperate with persons seeking relief in suspected instances; ii) promptly prepare requested applications and petitions for relief; iii) investigate reported cases for possible criminal activity and report to the grand jury at least annually in this regard. Any disputes arising between a prosecuting attorney and the Department regarding proposed actionbelieved by either the prosecutor or the Department to place a child at imminent risk are subject to the mediation provisions set forth in W. Va. Code § 49-6-10a. The prosecuting attorney shall provide legal services as the Department may require. West Virginia Code § 49-7-26. Additionally, under West Virginia Code § 49-5D-2(a), it is the duty of every prosecuting attorney to establish a Multidisciplinary investigative team for their county, which shall be responsible for coordinating and cooperating in the investigation of all civil and criminal allegations of child abuse and neglect. In this regard, also see West Virginia Code § 7-4-5, mandating that each county prosecutor establish a multidisciplinary investigative team by no later than January 1, 1995.
  5. Duties of Multidisciplinary Treatment Teams. Under West Virginia Code § 49-5D-3, the State Department must establish a Multidisciplinary Team Process in every county (or contiguous counties), which shall be responsible for assessing, planning and implementing comprehensive, individualized service plans for children who are victims of abuse and neglect. Each treatment team shall be directed by the child's or family's case manager, and include the child's custodial parent(s)/guardian(s), other immediate family members, the attorney(s) of the parent(s) if assigned by the court, the child if over 12 years of age or if the team members find the child's participation appropriate, the guardian ad litem, the prosecuting attorney (or designee), and any other agency or person who may contribute to the team's efforts. Pursuant to West Virginia Code § 49-5D-4, each team director must keep records of attendance and case discussions for each meeting.
  6. Duties of Child Protective Services. Under West Virginia Code § 49-6A-9, the State Department shall maintain a Child Protective Services Office for every county or locale, which shall be responsible for: i) investigating all reports of child abuse or neglect pursuant to the time standards and investigatory procedures specified in this statute; ii) providing, directing or coordinating appropriate and timely delivery of services to any child suspected or known to be abused or neglected (and services to the child's family); and, iii) initiating appropriate legal proceedings. (See also West Virginia Code § 49-6-3(c) relating to emergency custody by child protective service workers.) In 1994, the Legislature passed West Virginia Code § 49-6-1a, directed toward the goal of increasing the number of child protective service case workers.
  7. Duties of Prosecutor's Advisory Council. In 1994, under West Virginia Code § 7-4-4, the Legislature created the Prosecutor's Advisory Council. This Council is composed of all county prosecuting attorneys (or a designated member of their staff), and is charged with the following duties: i) provide advice, assistance training and leadership for prosecution of criminal and civil cases involving child abuse or neglect; and ii) provide advice and assistance to the State Department in the implementation of the multidisciplinary planning process under West Virginia Code § 49-5D-1 et seq.
  8. Persons under Mandatory Duty to Report Suspected Abuse or Neglect. West Virginia Code § 49-6A-2 requires medical and mental health professionals, school personnel, social workers, child care workers, clergy, law-enforcement officers and judicial officers to report any suspected child abuse or neglect.
3. Education and Training Obligations
  
  Various statutory provisions mandate specific education or training for those persons most involved with prevention and intervention in situations of child abuse and neglect. West Virginia Code § 1 -5-15c (County boards of education to provide pupils, parents and school personnel with training programs in prevention of child abuse and neglect); West Virginia Code § 48-2A-13 (Mandatory education of family violence for judges, magistrates and family law masters); West Virginia Code § 48-2A-9(i) (Mandatory training for law-enforcement officers relating to response to calls involving family violence); West Virginia Code § 49-6-2(a) (Mandatory continuing legal education training for lawyers involved with representation in child abuse and neglect proceedings); West Virginia Code § 61-8-9a (Curriculum on parenting skills to avoid child abuse required for secondary-level grades in all State schools).
4. Medical and Mental Examinations
  
  West Virginia Code § 49-6-4 specifies the procedure and conditions for court-ordered mental and medical examinations of a child or other parties in abuse and neglect proceedings.
  1. At any time during the proceedings, the court, attorney for child or attorney for other parties may move for an examination by a physician, psychologist or psychiatrist, and require testimony from such expert.
  2. The court can not terminate parental/custodial rights solely for refusal to submit to an examination, or hold such person in contempt.
  3. The court's order of examination shall provide for payment of the expert and the State will be responsible for payment if the child or parent is indigent.
  4. No evidence acquired as the result of such examination of any parent/custodian may be used against such person in subsequent criminal proceedings.
  5. Subsection (b) of this statute allows any person with authority to file an abuse or neglect petition to apply to the circuit judge or juvenile referee for a medical examination in advance of institution of an abuse or neglect proceeding if there is probable cause to believe evidence of abuse or neglect may be found by such examination.
  6. The court may order parties to undergo examinations by experts who are not physicians, psychologists, or psychiatrists and may enter a protective order with regard to W. Va. Code § 57-2-3. In re Daniel D., 211 W. Va. 79, 562 S.E.2d 147 (2002).
5. Criminal Offenses Involving Abuse and Neglect of Children
  
  Beyond the protections afforded generally to all persons under the criminal statutes, various provisions are specifically designed to deter and punish offenses against children, and provide special protection to child-victims of crimes.
  1. West Virginia Code § 61-8D-1 et seq. defines the various conduct generally constituting criminal offenses of child abuse and neglect. Additional specific criminal offenses involving abuse or neglect of children are principally found in West Virginia Code § 61-8C-1 et seq. (Filming of Sexually Explicit Conduct of Minors) and West Virginia Code § 49-7-7 (Contributing to Delinquency or Neglect of a Child).
  2. A number of statues provide specific protections for child-victims relating to the investigation, trial, sentencing and release of persons charged and convicted of criminal offenses against children. West Virginia Code §§ 61-8-13; 61-8B-14; and 61-8C-5 (Limits on interviews of children 11 years old or less); West Virginia Code § 62-6B-1 et seq. (Closed-circuit television testimony of child victims testifying in criminal matters involving charges of sexual assault/abuse); West Virginia Code § 61-11A-3(d) (Victim impact statement in a presentence report involving an offense against a child may include a statement from a therapist providing treatment to the child-victim as to recommendations regarding the effect that possible disposition may have on child); West Virginia Code § 61-11A-8(Notification to child-victim's parent upon release of convicted person from correctional facility); West Virginia Code § 62-1C-17a (Bail in situations of child abuse); West Virginia Code § 62-1C-17c (Bail in cases of crimes between family or household members); West Virginia Code § 62-11A-1(8) (Protections afforded children from those convicted of child offenses who are granted work-release privileges); West Virginia Code §§ 62-12-7 & 7a (Pre-sentence investigations and reports involving offenses against children); West Virginia Code § 62-12-9(a)(4) (Protections afforded children from those convicted of child offenses who are released on probation); West Virginia Code § 62-12-17(4) (Protections afforded children from those convicted of child offenses who are released on parole); and West Virginia Code § 15-2C-2 (Relating to Central Abuse Registry identifying persons convicted of crimes involving abuse and neglect).
  3. Various statutory provisions also mandate that upon a conviction of person for a crime against a child, when the person has any custodial, visitation or other parental rights to the child, the court shall make a finding that the convicted person is an "abusing parent" within the meaning of the abuse and neglect provisions of Chapter 49 of the Code. West Virginia Code § 61-8-12(e) (Incest); West Virginia Code § 61-8B-11a (Sexual Offenses); West Virginia Code § 61-8D-9 (Child Abuse); see also West Virginia Code § 49-6-11.
6. Cases of Controlling General Principles
  1. In re Renae Ebony W., 452 S.E. 2d 737 (1994) (Workman, J.). Central issue involves pre-adjudicatory improvement periods in abuse and neglect cases, and when such improvement periods should include physical custody of the child in-home or, alternatively, out-of-home placement during the improvement period. Reversing a circuit court decision that ratified emergency removal of a child from the custody of her parents, but returned the child to those parents for a 3-month improvement period, the Court held that where a child is initially removed from the custody of his or her parents pursuant to West Virginia Code § 49-6-3, and where such emergency removal is ratified upon a finding of imminent danger, a child shall remain in the temporary legal and physical custody of the State or some responsible relative and out of the allegedly abusive home during the improvement period until the circumstances which constitute an imminent danger cease to exist or until the alleged abuser has been precluded from residing in or visiting the home.
  2. Alonzo v. Jacqueline F., 191 W. Va. 248, 445 S.E.2d 189 (1994) (Miller, J.). Rejecting an attempt by a mother to place her child for adoption against the wishes of the State Department during the course of abuse and neglect proceedings, the Court held that where an abuse and neglect petition has been filed against a parent, such parent may not confer rights upon a third party by executing a consent-to-adopt during the pendency of the proceedings.
  3. SER S.C. v. Lewis-Chafin, 191 W. Va. 184, 444 S.E.2d 62 (1994) (McHugh, J.). In a proceeding upon a petition for Writ of Mandamus and Writ of Habeas Corpus, the State Department was ordered to comply with various statutory provisions regarding the protection of children, the Court held: (1) whether or not a court orders immediate transfer of custody pursuant to West Virginia Code § 49-6-3(a), if the court finds there is imminent danger to a child, it may schedule a preliminary hearing; (2) the court may order that a child be placed in the temporary custody of the State Department or some other person for a period of 60 days if the court finds, following the preliminary hearing, that no alternative less drastic will adequately protect the child; (3) if, in addition to finding no less drastic alternative, the court finds, upon the preliminary hearing, that the child has been abused or neglected, then the court and State Department, no later than 60 days after the temporary custody placement, must proceed with disposition in compliance with West Virginia Code § 49-6-5; (4) pursuant to West Virginia Code § 49-6-5(a), the State Department must, in conjunction with parental rights termination proceedings, file with the court a copy of the child's case plan, including the permanency plan; (5) the court must proceed to disposition, pursuant to West Virginia Code § 49-6-5(a), including possible temporary placement with the State Department if the parents are unwilling or unable to adequately care for the child; (6) if the child has not been placed in permanent foster care, in an adoptive home, or with the natural parent, within one year of receipt of physical custody by the State Department, pursuant to West Virginia Code § 49-6-8(a), the State Department shall file with the court a petition for review, a report detailing efforts to find a permanent placement, and a copy of the child's case plan, all upon which the court shall conduct a hearing to determine whether and what circumstances custody shall continue with the State Department, to determine what efforts are necessary to provide the child with a permanent home, and enter an appropriate order in accordance with the best interest of the child; (7) the court shall retain jurisdiction as long as the child remains in temporary foster care; and (8) the State Department must file a report with the court, pursuant to West Virginia Code § 49-6-8(d), where any child in its temporary or permanent receives more than three placements in one calendar year, which report must be filed no later than 30 days after the third placement.
  4. In re Jeffrey R.L., 190 W. Va. 24, 435 S.E.2d 162 (1993) (McHugh, J.). The guardian ad litem appointed to represent the infant for purposes of appeal sought review of an order of the circuit court which ordered physical custody of the infant to his mother following extended proceedings over allegations of abuse where it was shown that the infant had clearly been abused, but neither parent admitted the abuse, accused the other parent, or accused any person with access to the infant. The Court, on appeal, terminated parental rights holding that: (1) parental rights may be terminated where there is clear and convincing evidence of serious physical abuse while in the custody of the parents if there is no reasonable likelihood that the conditions which resulted in abuse can be substantially corrected because the abuser has not been identified and that the parents, even in the face of knowledge of abuse, have taken no action to identify the abuser; (2) every child in an abuse and neglect case has a right to effective assistance of counsel, which includes the presence of counsel at every stage of the proceeding and an independent investigation of the facts; and (3) an attorney who is appointed as guardian ad litem for a child in an abuse and neglect proceeding should follow the guidelines detailed and adopted as an appendix to this decision.
  5. State v. James R., 188 W. Va. 44, 422 S.E.2d 521 (1992) (Brotherton, J.). Applying West Virginia Code § 49-6-4(a), the Court held that evidence acquired from a parent or custodian as the result of medical or mental examinations performed in the course of abuse and neglect proceedings may not be used in any subsequent criminal proceedings against such parent or other custodian.
  6. In re Carlita B., 185 W. Va. 613, 408 S.E.2d 365 (1991) (Workman, J.). In an appeal from an order of the circuit court terminating a mother's parental rights to her daughter, the appellant-mother contended that the circuit court erred in terminating her parental rights because the State Department and assigned case worker failed to make reasonable efforts to reunify the family and failed to develop a realistic case plan, and further contended that the circuit court erred in finding the appellant incapable of exercising proper parenting skills and in finding that the appellant abused her children other than the child that was the subject of this proceeding, because such other conduct was not relevant to this proceeding. Affirming the termination of parental rights, the Court held: (1) the status and progress of all child neglect and abuse cases should be closely monitored by appropriate administrative systems developed within the judiciary; (2) the formulation of improvement periods and development of family case plans must be a consolidated, multidisciplinary effort among the court system, the parents, the attorneys, the social service agencies, and any other persons involved in assisting the family; (3) child abuse and neglect cases should receive high priority in the judicial system as directed under West Virginia Code § 49-6-2(d); and, (4) in parental rights termination cases introduction of evidence of prior acts of neglect or abuse toward children in general to show a neglectful or abusive disposition toward children does not violate West Virginia Rules of Evidence, Rule 404(b).
  7. James M. v. Maynard, 185 W. Va. 648, 408 S.E.2d 400 (1991) (Workman, J.). Granting a Writ of Prohibition overturning the award of an improvement period to the father of four sons, the Court held: (1) abandonment of a child by a parent(s) constitutes compelling circumstances sufficient to justify the denial of an improvement period; (2) whenever possible, a change in custody of children should be accomplished gradually in order to foster emotional adjustment to the change and maintain as much stability as possible in the children's lives; (3) in cases of termination of parental rights, the circuit court should consider whether continued association with siblings in other placements is in the child's best interests, and if so, the court should enter an appropriate order to preserve the rights of siblings to continued contact; and (4) the duties of a guardian ad litem in abuse and neglect proceedings do not end until the child is placed in a permanent home.
  8. In re Scottie D., 185 W. Va. 191, 406 S.E.2d 214 (1991) (McHugh, J.). In an appeal by the guardian ad litem for the involved children, upon the circuit court's refusal to terminate the parental rights of the father after the children were abused by their mother, the Court held that: (1) where one parent knowingly refrained from intervening to prevent the abuse of a child by the other parent or where one parent supports the other parent's version of how a child's injuries occurred despite the clear and convincing medical evidence to the contrary, termination of the non-participating parent's rights is proper; and (2) a guardian ad litem appointed to protect the interests of a child in a parental rights termination case has a duty to appeal any decision which, in the guardian's reasonable judgment, is contrary to the best interests of the child.
  9. In re Jonathan P., 182 W. Va. 302, 387 S.E.2d 537 (1989) (Miller, J.). In an appeal by a mother whose parental rights were terminated upon evidence that she inappropriately fed her 6-month old child and slept with him in a car in sub-freezing weather, all despite offers of assistance from the State Department, the Court held: (1) West Virginia Code § 49-6-3 permits the immediate temporary custody of a child by the State Department where there exists an imminent danger to the physical well-being of the child and there are no reasonably available alternatives to the removal of the child; (2) a request for a pre-adjudicatory improvement period under West Virginia Code § 49-6-2(b) must be made prior to final hearing; and (3) termination of parental rights may be employed without the use of intervening less restrictive alternatives when there is no reasonable likelihood that conditions of neglect or abuse can be substantially corrected.
  10. In re Betty J. W., 179 W. Va. 605, 371 S.E.2d 326 (1988) (Miller, J.). In an appeal by a mother from an order terminating her parental rights to her five children, following physical abuse of the children by her husband, where the mother also contended she was a victim of physical abuse by her husband, the Court reversed the circuit court's denial of an improvement period and termination of parental rights, holding that: (1) West Virginia Code § 49-6-2(b) allows a non-custodial improvement period while the child is temporarily physically removed from the alleged abusive situation; and (2) West Virginia Code § 49-1-3(a) defines an abused child to include one whose parent knowingly allows another person to commit the abuse, and under this standard, a termination of parental rights may be upheld only where the non-abusing parent takes no action in the face of knowledge of the abuse or actually aids or protects the abusing parent. The Court remanded the case with directions for the granting of an improvement period with an appropriate family case plan.
  11. Nancy Viola R. v. Randolph W., 177 W. Va. 710, 356 S.E.2d 464 (1987) (McHugh, J.). Following the murder of a child's mother by the child's father, the child's maternal aunt appealed the circuit court's grant of custody to the guardian appointed by the child's father. The Court held that: (1) a conviction of first degree murder of a child's mother by his father, the father's prolonged incarceration for that conviction, and a history of numerous acts of violence by the father toward the mother prior to her death, are all significant factors to be considered in ascertaining the father's fitness and in determining whether his parental rights should be terminated; and (2) where parental rights of a father have been terminated because of his conviction of murder of the child's mother, permanent guardianship may be given to the State Department pursuant to West Virginia Code § 49-6-5(a)(6).
  12. Rozas v. Rozas, 176 W. Va. 235, 342 S.E.2d 201 (1986) (Neely, J.). In this modification of custody dispute in which the father sought a transfer of custody based upon allegations of the mother's physical neglect and abuse of the child, the circuit court ordered an examination of the mother pursuant to West Virginia Code § 49-6-4(a), and subsequently excluded the report based upon a conclusion that it was not competent, relevant or probative. The Court on appeal held that it was within the trial court's discretion to exclude the report, but pursuant to Rule of Evidence 706 the court below did not have the authority to abrogate each parties' right to inspect the expert's findings in the report.
  13. In re Darla B., 175 W. Va. 137, 331 S.E.2d 868 (1985) (McHugh, J.). In an appeal by both parents following the termination of their parental rights to their daughter, the Court held that: (1) a decision of a circuit court terminating parental rights will not be reversed for failure to grant an improvement period where the evidence supports a finding that the child suffered life-threatening injuries which could not have occurred in the manner testified to by the parents, and the circuit court found compelling circumstances for termination of parental rights; and (2) the granting of an improvement period, pre-adjudicatory or upon disposition, it not an alternative where a finding is made that there is no reasonable likelihood that the conditions of neglect or abuse can be substantially corrected in the near future, and compelling circumstances justify denial of such improvement period.
  14. State v. T.C., 172 W. Va. 47, 303 S.E.2d 685 (1983) (Miller, J.). In this appeal two procedural issues were addressed by the Court, wherein it was held that: (1) in child abuse and neglect hearings a court can not make any disposition until a hearing is held pursuant to West Virginia Code § 49-6-2 and a determination made whether the child is abused or neglected; and (2) although the child abuse and neglect provisions do not foreclose the ability of the parties, properly counseled, to make some voluntary dispositional plan with respect to the child or children, such arrangements must be approved by the court and cannot be done in manner to circumvent the threshold question of abuse or neglect.
CONTRARY-TO-WELFARE AND REASONABLE EFFORTS FINDINGS
1. Background
  
  The requirement that any removal of a child be based upon a judicial finding that continuation of the child in the home is contrary of the welfare of the child was the first of the existing protections afforded to children and their families by the federal foster care program. The contrary-to-welfare requirement has been in effect since the inception of the federal program in 1961. The additional requirement that states make reasonable efforts to prevent placement and reunify families was introduced into child welfare proceedings in 1980 under the Federal Adoption Assistance and Child Welfare Act. Both the contrary-to-welfare and reasonable efforts requirements have continued as core concepts in American child welfare practices. More recently, the Federal Adoption and Safe Families Act of 1997 (and implementing regulations) refined and expanded these concepts. In addition to the rea

OVERVIEW OF LAW AND PROCEDURE CHILD ABUSE AND NEGLECT PROCEEDINGS

TABLE OF CONTENTS

OVERVIEW OF LAW AND PROCEDURE
CHILD ABUSE AND NEGLECT PROCEEDINGS