HB2503 S JUD AM #1 3-2
The Committee on the Judiciary moved to amend the bill by striking out everything after the enacting clause and inserting in lieu thereof the following:
ARTICLE 4. COURT ACTIONS.
Procedures in Cases of Child Neglect or Abuse.
§49-4-601. Petition to court when child believed neglected or abused; venue; notice; right to counsel; continuing legal education; findings; proceedings; procedure.
(a) Petitioner and venue. ─ If the department or a reputable person believes that a child is neglected or abused, the department or the person may present a petition setting forth the facts to the circuit court in the county in which the child resides, or if the petition is being brought by the department, in the county in which the custodial respondent or other named party abuser resides, or in which the abuse or neglect occurred, or to the judge of the court in vacation. Under no circumstance may a party file a petition in more than one county based on the same set of facts.
(b) Contents of Petition. ─ The petition
shall be verified by the oath of some credible person having knowledge of the
facts. The petition shall allege specific conduct including time and place, how
the conduct comes within the statutory definition of neglect or abuse with
thereto to the statute, any supportive services
provided by the department to remedy the alleged circumstances, and the relief
sought. Each petition shall name as a party each parent, guardian, custodian,
other person standing in loco parentis of or to the child
allegedly neglected or abused and state with specificity whether each parent,
guardian, custodian, or person standing in loco parentis is
alleged to have abused or neglected the child.
(c) Court action upon filing of petition. ─ Upon filing of the petition, the court shall set a time and place for a hearing and shall appoint counsel for the child. When there is an order for temporary custody pursuant to this article, the preliminary hearing shall be held within 10 days of the order continuing or transferring custody, unless a continuance for a reasonable time is granted to a date certain, for good cause shown.
(d) Department action upon filing of the petition. ─ At the time of the institution of any proceeding under this article, the department shall provide supportive services in an effort to remedy circumstances detrimental to a child.
(e) Notice of hearing. ─
(1) The petition and notice of the hearing shall be served
upon both parents and any other guardian, custodian, or person
standing in loco parentis, giving to
the parents or
custodian those persons at least five days' actual notice of a
preliminary hearing and at least ten days' notice of any other hearing.
(2) Notice shall be given to the department, any foster or pre-adoptive parent, and any relative providing care for the child.
(3) In cases where personal service within West Virginia
cannot be obtained after due diligence upon any parent or other custodian, a
copy of the petition and notice of the hearing shall be mailed to the person by
certified mail, addressee only, return receipt requested, to the last known address
of the person. If the person signs the certificate, service
shall be is
complete and the certificate shall be filed as proof of the service with
the clerk of the circuit court.
(4) If service cannot be obtained by personal service or by certified mail, notice shall be by publication as a Class II legal advertisement in compliance with §59-3-1 et seq. of this code.
(5) A notice of hearing shall specify the time and
the hearing hearings, the right to counsel of the child,
and parents, or and other guardians, custodians,
at every stage of the proceedings, and other persons standing in
loco parentis with the child and the fact that the proceedings can
result in the permanent termination of the parental rights.
(6) Failure to object to defects in the petition and notice may not be construed as a waiver.
(f) Right to counsel. ─
(1) In any proceeding under this article, the child, his
or her parents, and his or her legally established custodian or other persons
standing in loco parentis to him or her has the right to be represented
by counsel at every stage of the proceedings and shall be informed by the court
of their right to be so represented and that if they cannot pay for the
services of counsel, that counsel will be appointed.
(1) In any proceeding under this article, the child shall have counsel to represent his or her interests at all stages of the proceedings.
(2) Counsel shall be appointed in the initial order. For
parents, legal guardians, and other persons standing in loco parentis,
the representation may only continue after the first appearance the parent or
other persons standing in loco parentis cannot pay for the services of
(2) The court’s initial order shall appoint counsel for the child and for any parent, guardian, custodian, or other person standing in loco parentis with the child if such person is without retained counsel.
3) Counsel for other parties shall only be appointed upon
request for appointment of counsel. If the requesting parties have not retained
counsel and cannot pay for the services of counsel, the court shall, by order
entered of record, appoint an attorney or attorneys to represent the other party
or parties and so inform the parties.
(3) The court shall, at the initial hearing in the matter, determine whether persons other than the child for whom counsel has been appointed:
(A) Have retained counsel; and
(B) Are financially able to retain counsel.
(4) A parent, guardian, custodian, or other person standing in loco parentis with the child who is alleged to have neglected or abused the child and who has not retained counsel and is financially unable to retain counsel beyond the initial hearing, shall be afforded appointed counsel at every stage of the proceedings.
(5) A parent, guardian, custodian, or other person standing in loco parentis with the child who is not alleged to have abused or neglected the child, has not retained counsel and who is financially unable to retain counsel, may request the court to continue to have appointed counsel. The court shall, upon a finding that the interests of justice will be served, afford that person appointed counsel at every stage of the proceedings.
(4) (6) Under no circumstances may the same
attorney represent both the child and another party the other party
or parties., nor may the The same attorney may not represent both
parents or custodians more than one parent or custodian: However,
Provided, That one attorney may represent both parents or
custodians where both parents or guardians custodians consent to
this representation after the attorney fully discloses to the client the
possible conflict and where the attorney assures advises the
court that she or he is able to represent each client without impairing her or
his professional judgment. ; however, if If more than one child
from a family is involved in the proceeding, one attorney may represent all the
children. (5) (7) A parent who is a co-petitioner is
entitled to his or her own attorney.
(8) The court may allow to each attorney
appointed pursuant to this section a fee in the same amount which
appointed counsel can receive in felony cases. (6) (9) The court shall, sua sponte
or upon motion, appoint counsel to any unrepresented party if, at any stage of
the proceedings, the court determines doing so is necessary to satisfy the
requirements of fundamental fairness.
(g) Continuing education for counsel. ─ Any attorney representing a party under this article shall receive a minimum of eight hours of continuing legal education training per reporting period on child abuse and neglect procedure and practice. In addition to this requirement, any attorney appointed to represent a child must first complete training on representation of children that is approved by the administrative office of the Supreme Court of Appeals. The Supreme Court of Appeals shall develop procedures for approval and certification of training required under this section. Where no attorney has completed the training required by this subsection, the court shall appoint a competent attorney with demonstrated knowledge of child welfare law to represent the parent or child. Any attorney appointed pursuant to this section shall perform all duties required of an attorney licensed to practice law in the State of West Virginia.
(h) Right to be heard. ─ In any proceeding pursuant to this article, the party or parties having custodial or other parental rights or responsibilities to the child shall be afforded a meaningful opportunity to be heard, including the opportunity to testify and to present and cross-examine witnesses. Foster parents, pre-adoptive parents, and relative caregivers shall also have a meaningful opportunity to be heard.
(i) Findings of the court. ─ Where relevant, the court shall consider the efforts of the department to remedy the alleged circumstances. At the conclusion of the adjudicatory hearing, the court shall make a determination based upon the evidence and shall make findings of fact and conclusions of law as to whether the child is abused or neglected and whether the respondent is abusing, neglecting, or, if applicable, a battered parent, all of which shall be incorporated into the order of the court. The findings must be based upon conditions existing at the time of the filing of the petition and proven by clear and convincing evidence.
(j) Priority of proceedings. ─ Any petition filed and any proceeding held under this article shall, to the extent practicable, be given priority over any other civil action before the court, except proceedings under §48-27-309 of this code and actions in which trial is in progress. Any petition filed under this article shall be docketed immediately upon filing. Any hearing to be held at the end of an improvement period and any other hearing to be held during any proceedings under this article shall be held as nearly as practicable on successive days and, with respect to the hearing to be held at the end of an improvement period, shall be held as close in time as possible after the end of the improvement period and shall be held within 30 days of the termination of the improvement period.
(k) Procedural safeguards. ─ The petition may
not be taken as confessed. A transcript or recording shall be made of all
proceedings unless waived by all parties to the proceeding. The rules of
shall apply. Following the court's determination, it shall be
inquired of ask the parents or custodians whether or not appeal is
desired and the response transcribed. A negative response may not be construed
as a waiver. The evidence shall be transcribed and made available to the
parties or their counsel as soon as practicable, if the same transcript
is required for purposes of further proceedings. If an indigent person
intends to pursue further proceedings, the court reporter shall furnish a
transcript of the hearing without cost to the indigent person if an affidavit
is filed stating that he or she cannot pay for the transcript therefor.
§49-4-722. Conviction for offense while in custody.
(a) Notwithstanding any other
provision of law to the contrary, any person who is 18 years of age or older
who is convicted as an adult of an offense that he or she committed while in
the custody of the
Division Bureau of Juvenile Services and who
is therefor sentenced for the conviction to a regional jail or
state correctional facility for the offense may not be returned to the custody
of the division bureau upon the completion of his or her adult
(b) Upon the incarceration in a regional jail or state correctional facility of any person 18 years of age or older who remains subject to the juvenile jurisdiction of the circuit court for crimes committed in a juvenile facility, the Bureau of Juvenile Services shall provide written notification to both the circuit court with juvenile jurisdiction over the person and the judicial authority in the county where the criminal charges are pending that the person is being detained, remains in the jurisdiction of a circuit court, and is pending a sentence as an adult offender. Prior to the imposition of a sentence on the criminal charges, the juvenile facility in which the adult crime occurred shall inform the judicial authority in the county with jurisdiction over the criminal offense which circuit court has juvenile jurisdiction over the person. The judicial authority in the county with jurisdiction over the criminal offense shall then notify the circuit court with juvenile jurisdiction over the person. The person may not be released from custody on the criminal offense until the judicial authority in the county where the criminal charges are pending has been notified by the circuit court with juvenile jurisdiction over the person that it has conducted the hearing required in §49-4-722(c) of this code.
(b)(c) Prior to
completion of the adult sentence specified in subsection (a) of this section,
the circuit court having jurisdiction over the underlying juvenile matter shall
conduct a hearing to determine whether the person who has turned 18 years of
age shall remain in the regional jail during pendency of the underlying
juvenile matter or if another disposition or pretrial placement is appropriate
and available: Provided, That the court may not remand a child who reached the
age of 18 years to a juvenile facility or placement during the pendency of the
underlying juvenile matter.