Rule 1. Scope of child abuse and neglect rules.
These rules set forth procedures for circuit courts in child abuse and neglect proceedings instituted pursuant to W. Va. Code § 49-6-1, et seq. If these rules conflict with other rules or statutes, these rules shall apply.
Rule 2. Purposes of child abuse and neglect rules; construction and enforcement.
These rules shall be liberally construed to achieve safe, stable, secure permanent homes for abused and/or neglected children and fairness to all litigants. These rules are not to be applied or enforced in any manner which will endanger or harm a child. These rules are designed to accomplish the following purposes:
(a) To provide fair, timely and efficient disposition of cases involving suspected child abuse or neglect;
(b) To provide for judicial oversight of case planning;
(c) To ensure a coordinated decision-making process;
(d) To reduce unnecessary delays in court proceedings through strengthened court case management; and
(e) To encourage the involvement of all parties, including children, in the litigation as well as the involvement of all community agencies and resource personnel providing services to any party.
Rule 3. Definitions.
As used in these rules, these terms are defined as follows:
(a) "Adjudicatory hearing" shall mean the hearing contemplated by W. Va. Code § 49-6-2 to determine whether a child has been abused and/or neglected as alleged in the petition;
(b) "CASA" shall mean Court-Appointed Special Advocate as set forth in Rule 52;
(c) "Child's case plan" shall mean the plan prepared by the Department pursuant to W. Va. Code § 49-6-5 following an adjudication by the court that the child is an abused and/or neglected child;
(d) "Civil petition" shall mean the petition instituting child abuse and/or neglect proceedings under W. Va. Code § 49-6-1;
(e) "Civil protection proceedings" shall mean proceedings instituted by the filing of a civil petition under W. Va. Code § 49-6-1;
(f) "Department" shall mean the West Virginia Department of Health and Human Resources and any subdivision or any successor or assignee designated by law carrying out the statutory functions of the Department or agency thereof involved in the investigation, adjudication, or dispositional aspects of child abuse and/or neglect proceedings under W. Va. Code § 49-6-1, et seq.;
(g) “Preliminary hearing” shall mean the hearing contemplated by W.Va. Code § 49-6-3(b) that is held within ten days of service of the petition when the court finds that the petition alleges facts demonstrating the existence of imminent danger to the child, whether or not the court has ordered immediate transfer of custody of the child to the Department or a responsible person. The hearing is held for the purpose of determining (1) whether there is reasonable cause to believe that the child is in imminent danger; (2) whether continuation in the home is contrary to the welfare of the child, setting forth the reasons; (3) whether the Department made reasonable efforts to preserve the family and to prevent the child’s removal from his or her home or whether an emergency situation made such efforts unreasonable or impossible; and (4) whether efforts should be made by the Department to facilitate the child’s return, and if so, what efforts should be made;
(h) “Permanency hearing” shall mean the hearing contemplated by W.Va. Code § 49-6-8 to determine the permanency plan for the child. The hearing shall be conducted in accordance with Rule 36a;
(i) "Disposition hearing" shall mean the hearing contemplated by W. Va. Code § 49-6-5 that is held after a child has been adjudged to be abused and/or neglected, at which the court reviews the child and family case plan filed by the Department and determines the appropriate disposition of the case and permanency plan for the family;
(j) "Family Case Plan" shall mean the plan prepared by the Department pursuant to W. Va. Code §§ 49-6-2(b), 49-6D-3 and 49-6-12 following the grant of an improvement period;
(k) "Guardian ad Litem" means the attorney appointed to represent the child;
(l)"Parent" or "parents" means the child's natural parent(s), custodian(s), or legal guardian(s);
(m) "Parties" means the petitioner, the respondent or respondents, and the child or children;
(n) "Permanent placement" of a child shall mean:
(1) The petition has been dismissed and the child has been returned to the home or to a relative with no custodial supervision by the Department;
(2) The child has been placed in the permanent custody of a non-abusive parent; or
(3) A permanent out-of-home placement of the child has been achieved following entry of a final disposition order. A permanent out-of-home placement has been achieved only when the child has been adopted, placed in a legal guardianship, placed in another planned permanent living arrangement (APPLA), or emancipated; and
(o) "Persons entitled to notice and the right to be heard" are persons other than parties who include the CASA when appointed, foster parents, preadoptive parents, or custodial relatives providing care for the child.
Rule 3a. Pre-Petition Investigations.
(a) Administrative Order Regarding Investigation. Upon receiving a written referral from a family court pursuant to Rule 48 of the Rules of Practice and Procedure for Family Courts, a circuit court shall forthwith cause to be entered and served an administrative order in the name of and regarding the affected child or children directing the Department to submit to the court an investigation report or appear before the court in not more than 45 days, at a scheduled hearing, to show cause why the Department's investigation report has not been submitted to the circuit court and referring family court. If a circuit court, based upon a review of the written referral from family court, determines that the allegations or other information present reason to believe a child may be in imminent danger, the circuit court may shorten the time for the Department to act upon the referral and appear before the circuit court. The scheduled hearing may be mooted by the Department's earlier submission of the investigation report or, in the alternative, the filing of an abuse and neglect petition under Chapter 49 of the West Virginia Code relating to the matters which were the subject of the family court referral and circuit court administrative order. The duties of the Department under this rule shall be in addition to the Department's obligations pursuant to W. Va. Code § 49-6A-2a regarding notification of disposition to persons mandated to report suspected child abuse and neglect.
(b) Mandamus Relief. Following review of an investigation report in which the Department concludes that a civil petition is unnecessary, if the circuit court believes that the information in the family court's written referral and the Department's investigation report, considered together, suggest circumstances upon which the Department would have a duty to file a civil petition, the court shall treat the written referral as a petition for a writ of mandamus in the name of and regarding the affected child or children. A show-cause order shall issue by the court setting a prompt hearing to determine whether the respondent Department has a duty to file a civil petition under the particular circumstances set forth in the written referral and investigation report. If it is determined by the court that the Department has a nondiscretionary duty pursuant to W. Va. Code § 49-6-5b to file a petition seeking to terminate parental rights, the Department shall be directed by writ to file such petition within a time period set by the court. If it is determined that the circumstances bring the filing decision within the Department's discretionary authority, no such writ shall issue unless the court specifically finds aggravated circumstances, consistent with the meaning and usage of that term in W. Va. Code § 49-6-3(d)(1), and that the Department acted arbitrarily and capriciously in the exercise of its discretion.
(c) Service and Notice. Orders and other documents issued pursuant to this rule shall be served on the Department by mail or facsimile transmission directed to the Department's local child protective services office. Copies of such orders shall also be delivered to the prosecuting attorney.
(d) Confidentiality. All orders and other documents pertaining to matters arising under this rule, and docket entries regarding the same, shall be treated as confidential records concerning a child consistent with W. Va. Code § 49-7-1; and any hearings conducted pursuant to this rule may be attended by those persons provided notice under subsection (c) above, but shall be closed to the general public except that persons whom the circuit court determines have a legitimate interest in the proceedings may attend. If the case in family court that gave rise to the referral to the Department was a domestic violence proceeding, staff from any involved licensed family protection program is entitled access to circuit court proceedings under this rule to the same extent such access is afforded under statutes and rules pertaining to domestic violence proceedings.
(e) Transfer of Administrative Proceedings. Within 10 days following service of an administrative order issued by a circuit court pursuant to subdivision (a), the Department may file a motion with the issuing court seeking transfer of the administrative proceedings to the circuit court of another county based upon reasons relating to a more appropriate venue for the administrative proceedings and any abuse and neglect case which may result from such proceedings. Unless the court finds the basis for the motion to be clearly unreasonable under the particular circumstances presented, the administrative proceedings shall be transferred as requested. If the administrative proceedings are transferred, the Department’s obligations pursuant to W. Va. Code § 49-6A-2a and Rule 48(c) of the Rules of Practice and Procedure for Family Court regarding the investigation and providing a copy of any investigative report remain applicable to the referring family court. The circuit clerk shall send certified copies of the order granting or denying the transfer motion to the referring family court and the prosecuting attorney. If the order grants the motion, certified copies shall also be sent to the circuit court and prosecuting attorney in the county where the administrative proceeding is transferred.
Rule 4. Transfer and consolidation.
A circuit court before which a civil petition is filed pursuant to W. Va. Code § 49-6- 1, et seq., may order any other proceeding pending before another circuit court, family court, or magistrate court which arises out of the same facts alleged in the civil petition or involves the question of whether such abuse and neglect occurred transferred to the court where the civil petition is pending and may consolidate such proceedings, except criminal and delinquency proceedings, all in accordance with Rule 42 of the Rules of Civil Procedure and W. Va. Code § 56-9-1.
Rule 4a. Venue.
Pursuant to W.Va. Code §49-6-1(a), the Department and/or a reputable person may file a petition to initiate a civil protection proceeding in the circuit court in the county where the child resides. If the Department is a petitioner, the petition may also be filed where the alleged abuse and/or neglect occurred, where the custodial respondent or one of the other respondents resides, or to the judge of the court in vacation. Under no circumstances may a party file a petition in more than one county based on the same set of facts.
Rule 5. Contemporaneous civil, criminal, and other proceedings.
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.
Rule 6. Maintaining case on court docket.
Each civil child abuse and neglect proceeding shall be maintained on the circuit court's docket until permanent placement of the child has been achieved. The court retains exclusive jurisdiction over placement of the child while the case is pending, as well as over any subsequent requests for modification, including, but not limited to, changes in permanent placement or visitation, except that (1) if the petition is dismissed for failure to state a claim under Chapter 49 of the W. Va. Code, or (2) if the petition is dismissed, and the child is thereby ordered placed in the legal and physical custody of both of his/her cohabitating parents without any visitation or child support provisions, then any future child custody, visitation, and/or child support proceedings between the parents may be brought in family court. However, should allegations of child abuse and/or neglect arise in the family court proceedings, then the matter shall proceed in compliance with Rule 3a.
Rule 6a. Confidentiality of Proceedings and Records; Access by Family Court.
(a) Hearings and Reviews. Attendance at all proceedings brought pursuant to W. Va. Code § 49-6-1, et seq. shall be limited to the parties, counsel, persons entitled to notice and the right to be heard, witnesses while testifying, multidisciplinary treatment team members, and other persons whom the circuit court determines have a legitimate interest in the proceedings.
(b) Court Records. All records and information maintained by the courts in child abuse and neglect proceedings shall be kept confidential except as otherwise provided in W. Va. Code, Chapter 49 and this rule. In the interest of assuring that any determination made in proceedings before a family court arising under W. Va. Code, Chapter 48, or W. Va. Code § 44-10-3, does not contravene any determination made by a circuit court in a related prior or pending child abuse and neglect case arising under W. Va. Code, Chapter 49, family courts and staff shall have access to all circuit court orders and case indexes in this State in all such related Chapter 49 proceedings.
Rule 7. Time Computation; extensions of time and continuances.
Time frames prescribed in these rules shall be computed in accord with Rule 6(a) of the W.Va. Rules of Civil Procedure.
Except as provided for in Rule 5, extensions of time and continuances beyond the times specified in these rules or by other applicable law shall be granted only for good cause, regardless of whether the parties are in agreement. If a continuance is granted in accordance with this rule, the court shall set forth in a written order its reasons for finding good cause.
Rule 8. Testimony of children; inclusion of children in hearings and multidisciplinary treatment team meetings.
(a) Restrictions on the testimony of children. – Notwithstanding any limitation on the ability to testify imposed by this rule, all children remain competent to testify in any proceeding before the court as determined by the Rules of Evidence and the Rules of Civil Procedure. However, there shall be a rebuttable presumption that the potential psychological harm to the child outweighs the necessity of the child's testimony and the court shall exclude this testimony if the potential psychological harm to the child outweighs the necessity of the child's testimony. Further, the court may exclude the child's testimony if (A) the equivalent evidence can be procured through other reasonable efforts; (B) the child's testimony is not more probative on the issue than the other forms of evidence presented; and (C) the general purposes of these rules and the interest of justice will best be served by the exclusion of the child's testimony.
(b) Procedure for taking testimony from children. – The court may conduct in camera interviews of a minor child, outside the presence of the parent(s). The parties' attorneys shall be allowed to attend such interviews, except when the court determines that the presence of attorneys will be especially intimidating to the child witness. When attorneys are not allowed to be present for in camera interviews of a child, the court shall, unless otherwise agreed by the parties, have the interview electronically or stenographically recorded and make the recording available to the attorneys before the evidentiary hearing resumes. Under exceptional circumstances, the court may elect not to make the recording available to the attorneys but must place the basis for a finding of exceptional circumstances on the record. Under these exceptional circumstances, the recording only will be available for review by the Supreme Court of Appeals. When attorneys are present for an in camera interview of a child, the court may, before the interview, require the attorneys to submit questions for the court to ask the child witness rather than allow the attorneys to question the child directly, and the court may require the attorney to sit in an unobtrusive manner during the in camera interview. Whether or not the parties’ attorneys are permitted to attend the in camera interview, they may submit interview questions and/or topics for consideration by the court.
(c) Sealing of child’s testimony. -- If an interview was recorded and disclosed to the attorneys, the record of the child's testimony thereafter shall be sealed and shall not be opened unless:
(1) Ordered by the court for good cause shown; or
(2) For purposes of appeal.
(d) A child subject to a case may attend all or portions of hearings, unless the court deems such attendance inappropriate, and may attend all or portions of multidisciplinary treatment team meetings, unless the multidisciplinary treatment team deems such participation inappropriate. Consideration shall be given to the child’s preferences and developmental maturity.
Rule 9. Use of closed circuit television testimony.
(a) In any case governed by these rules in which a child eleven (11) years old or less is to be a witness, the court, upon order of its own or upon motion of a party, may permit the child witness to testify through live, one-way, closed-circuit television whereby there shall be no transmission into the room from which the child witness is testifying.
(b) In any case in which a child over the age of eleven (11) years is to be a witness, the court, upon order of its own or upon motion of a party, and upon a finding of good cause, shall permit the child witness to testify through live, one-way, closed-circuit television whereby there shall be no transmission into the room from which the child witness is testifying.
(c) The testimony of the child witness shall be taken in any room, separate and apart from the courtroom, from which testimony of the child witness can be transmitted to the courtroom by means of live, one-way, closed-circuit television. The testimony shall be deemed as given in open court.
(d) The judge, the attorneys for the parties, and any other person the court permits for the purpose of providing support for the child in order to promote the ability of the child to testify shall be present in the testimonial room at all times during the testimony of the child witness. The judge may permit liberal consultation between counsel and the parties by adjournment, electronic means, or otherwise.
(e) The image and voice of the child witness, as well as the image of all other persons present in the testimony room, other than the operator, shall be transmitted live by means of live, one-way, closed-circuit television in the courtroom. The courtroom shall be equipped with monitors sufficient to permit the parties to observe the demeanor of the child witness during his or her testimony.
(f) The operator shall place herself or himself and the closed-circuit television equipment in a position that permits the entire testimony of the child witness to be transmitted to the courtroom.
(g) The child witness shall testify under oath, and the examination and cross-examination of the child witness shall, in all other respects, be conducted in the same manner as if the child witness testified in the courtroom.
(h) When the testimony of the child witness is transmitted from the testimonial room into the courtroom, the court stenographer shall record the testimony in the same manner as if the child witness testified in the courtroom.
(i) Under all circumstances, the image of the child witness transmitted shall include the entirety of his or her person ordinarily subject to observation by the human eye, subject to such limitations as may be unavoidable by reason of standard courtroom furnishings.
(j) Should it be required, for the purposes of identification that the person to be identified and the child witness be present in the courtroom at the same time, the court shall ensure that this meeting takes place after the child witness has completed his or her testimony; and this confrontation shall, to the extent possible, be accomplished in a manner that is nonthreatening to the child witness.
Rule 10. Discovery.
(a) The attorney for the child shall have access to the file kept by the Department and the file kept by the attorney for the petitioner, including all information set forth in W. Va. Code § 49-7-1 and the attorney may make such use thereof as may be appropriate to the case, subject to such limitations as the order of the court shall require;
(b) Unless otherwise ordered by the court pursuant to Rule 12, within three (3) days of the filing of the petition, the attorney for the petitioner shall provide to counsel for the respondent(s) or to the respondent(s) personally, if not represented by counsel, the attorney for the child, and all other persons entitled to notice and the opportunity to be heard, the following information, as is within the possession, custody, or control of the attorney for the petitioner, the existence of which is known, or by some exercise of due diligence may become known, to the attorney for the petitioner:
(1) Any relevant written or recorded statements made by the respondents (or any one of them), or copies thereof, and the substance of any oral statements which the petitioner intends to offer in evidence at the trial made by the respondents (or any one of them);
(2) Copies of the respondent's(s') prior criminal records, if any;
(3) Copies of books, papers, documents, photographs, tangible objects, buildings, or places which are material to the preparation of the respondent's(s') case or are intended for use by the attorney for the petitioner as evidence in chief at the trial or were obtained from or belonging to the respondent(s);
(4) Copies of results or reports of physical and/or mental examinations, if any, and copies of scientific tests and/or experiments, if any, which are material to the preparation of the respondent's(s') case or are intended for use by the attorney for the petitioner as evidence in chief at the trial; and
(5) A written list of names and addresses of all witnesses whom the attorney for the petitioner intends to call in the presentation of the case-in-chief, together with any record of prior convictions of any such witnesses;
(c) Not less than five (5) days prior to any hearing wherein the respondent(s) intend(s) to introduce evidence, the respondent(s) shall provide to the attorney for the petitioner, the attorney for the child, and all other persons entitled to notice and the right to be heard, the following information:
(1) Copies of books, papers, documents, photographs, tangible objects, buildings, or places which are within the possession, custody, or control of the respondent(s) and which the respondent(s) intend(s) to introduce as evidence in chief at the trial;
(2) Copies of any results and reports of physical and/or mental examinations, if any, and copies of scientific tests and/or experiments, if any, made in connection with the particular case, if any of such copies are within the possession or control of the respondent(s), which the respondent(s) intend(s) to introduce as evidence in chief at the trial or which were prepared by a witness whom the respondent(s) intend(s) to call at the trial when the results and/or reports relate to his or her testimony; and
(3) A written list of the names and addresses of the witnesses the respondent(s) intend(s) to call in the presentation of the case-in-chief.
(d) The disclosure provided for in this rule is not intended to limit the amount or nature of disclosure in these cases. This rule merely establishes the minimum amount of disclosure required.
(e) If, prior to or during any hearing, a party discovers additional evidence or material that should have been disclosed, that party shall promptly notify all other parties and their counsel, persons entitled to notice and the right to be heard, and the court of the existence of the additional evidence or material.
Rule 11. Motion to compel, limit, or deny discovery.
(a) Any party receiving a written request to make information, documents, records, or evidence available for inspection, testing, copying, or photographing shall, within two (2) days, excluding weekends and holidays, comply with the request or provide a written explanation of the reasons for noncompliance to the parties and the court;
(b) A party whose request for discovery is not fully complied with may file a motion for an order compelling discovery. A motion to compel discovery shall set forth the request for discovery, describe why the items or information sought are discoverable, and specify how the request was not in compliance;
(c) A party receiving a discovery request may file a motion to deny discovery or permit a limited response. The motion shall set forth the request for discovery and set forth reasons why the discovery should be denied or the response should be permitted to be limited or subject to conditions; and
(d) The court shall hear and rule on a discovery motion within seven (7) days after it is filed. Among other things, the court may:
(1) Grant the requested discovery and specify the time within which it must be provided;
(2) Order reciprocal discovery;
(3) Order appropriate sanctions for any clear misuse of discovery or arbitrary delay or refusal to comply with a discovery request; and
(4) Deny, limit, or set conditions on the requested discovery.
Rule 12. Judicial management of discovery.
(a) Upon its own motion or upon the request of a party, the court may limit discovery methods and specify its overall timing and sequence provided that each party shall be allowed a reasonable opportunity to obtain information needed for the preparation of his or her case.
(b) Any party moving for a continuance on the ground that discovery is likely to delay a hearing set by the court shall promptly send written notice to the court stating the need for the discovery and the extent of the likely delay.
Rule 13. Preservation of records and exhibits.
The proceedings shall be recorded and transcripts produced according to the provisions of W. Va. Code § 49-6-2(c) and -2(e). Exhibits admitted into evidence shall be retained by the court for two (2) years or until dismissal of the proceedings from the court's docket, whichever occurs later, unless preservation of the exhibit is impractical or the parties agree that it is no longer necessary.
Rule 14. Telephone or video conferences.
The court may hear motions and conduct conferences relating to discovery, service of process, or case scheduling by telephone or video conference call. By agreement of the parties or motion filed in accord with Rule 17(c), the court may hear testimony by telephone or video conference call.
Rule 15. Visitation and other communication with child.
If at any time the court orders a child removed from the custody of his or her parent(s) and placed in the custody of the Department or of some other responsible person, the court may make such provision for reasonable visitation, telephone or video calls, letters, email, or other communication as is consistent with the child's well-being and best interests. The court shall assure that any supervised visitation shall occur in surroundings and in a safe place, dignified, and suitable for visitation, taking into account the child's age and condition. The person requesting visitation shall set forth his or her relationship to the child and the degree of personal contact previously existing with the child. In determining the appropriateness of granting visitation rights to the person seeking visitation, the court shall consider whether or not the granting of visitation would interfere with the child's case plan and the overall effect granting or denying visitation will have on the child's best interests. The visitation order of the circuit court shall be enforceable upon entry unless a stay of execution of said order is issued by the circuit court or the Supreme Court of Appeals. The effect of entry of an order of termination of parental rights shall be, inter alia, to prohibit all contact and visitation between the child who is the subject of the petition and the parent who is the subject of the order and the respective grandparents, 1 unless the Court finds the child consents and it is in the best interest of the child to retain a right of visitation. Visitation between the child and his siblings shall continue, and a plan for regular contact between siblings, where they are not placed together, shall be incorporated into the permanent plan for the child whenever possible, unless the court finds it is not in the best interest of both the child and his siblings to retain a right of visitation.
Rule 16. Emergency custody.
(a) Emergency custody pending filing of petition. – Proceedings for emergency custody of a child before a petition is filed and without a court order shall be governed by the provisions of W. Va. Code §§ 49-6-3(c) and 49-6-9.
(b) Continuation or transfer of emergency custody upon filing of petition. – Proceedings for continuation of or temporary transfer of emergency custody at the time the petition is filed shall be governed by the provisions of W. Va. Code § 49-6-3(a).
(c) Transfer of custody following filing of petition. – If at any time during the pendency of abuse and/or neglect proceedings, the court determines the child is in imminent danger as defined by W. Va. Code § 49-1-3(7), the court may order the child placed into the custody of the Department or a responsible person in accordance with the provisions of W. Va. Code § 49-6-3(b). If custody has been taken pursuant to this provision after the conclusion of the final adjudicatory hearing, custody of the child may continue in the Department or a responsible person pending conclusion of the final disposition hearing.
(d) Requirement of hearing on emergency custody taken during the pendency of child abuse and neglect proceeding. – Regardless of whether the court has previously granted the Department legal custody of a child, if the Department takes physical custody of a child during the pendency of a child abuse and neglect case (also known as removing the child) due to a change in circumstances and without a court order issued at the time of the removal, the Department must immediately notify the court, and a hearing shall take place within 10 days to determine if (1) there is imminent danger to the physical well-being of the child and (2) there is no reasonably available alternative to removal of the child.
(e) Findings in removal order. – An order removing a child from his or her home and placing the child in the custody of the Department must state (1) that there is reasonable cause to believe that the child is in imminent danger; (2) that continuation in the home is contrary to the welfare of the child, setting forth the reasons; (3) whether the Department made reasonable efforts to preserve the family and to prevent the child’s removal from his or her home or that an emergency situation made such efforts unreasonable or impossible; and (4) whether efforts should be made by the Department to facilitate the child’s return, and if so, what efforts should be made.
Rule 16a. Required Entry of Support Orders.
(a) Entry of Support Orders. - Every order in a child abuse and neglect proceeding that alters the custodial and decision-making responsibility for a child and/or commits the child to the custody of the Department of Health and Human Resources must impose a support obligation upon one or both parents for the support, maintenance and education of the child.
(b) Use of Guidelines. Any order establishing a child support obligation in an abuse and neglect proceeding must use the Guidelines for Child Support Awards found in W. Va. Code § 48-13-101, et seq. The Guidelines may be disregarded, or the calculation of an award under the Guidelines may be adjusted, only if the court makes specific findings that use of the Guidelines is inappropriate.
(c) Modifications. Any order establishing a child support obligation in a child abuse and neglect proceeding may be modified by the court upon motion of any party. An order granting modification of a support obligation must use the Guidelines for Child Support Awards found in W. Va. Code § 48-13-101, et seq.
(d) Transfer to family court prohibited. No portion of a child abuse and neglect proceeding may be transferred or remanded to a family court for assessment of a child support obligation.
Rule 17. Pleadings allowed, Form of motions and other papers.
(a)Pleadings. - There shall be a verified petition and a verified answer. Upon mutual consent of the co-petitioners, the verified petition may have co-petitioners, in which case each petitioner must indicate which allegation(s) he/she verifies in the petition. If one of the petitioners is a parent, then that parent shall be appointed counsel pursuant to W. Va. Code § 49-6-3, separate from the prosecuting attorney. The Department, a parent, or reputable person may move to be joined as a co-petitioner after the filing of the initial petition. No other pleading shall be allowed except by permission of the court. The petition shall not be taken as confessed. Other than in a criminal prosecution for false swearing, evidence shall not be given against an accused of any statement made by him in any pleadings filed pursuant to these rules.
(b) Verified answer. – Each respondent shall file and serve a verified answer upon the petitioner or counsel therefor and all other persons entitled to notice and the right to be heard no later than 10 days after being served with the notice and petition required by law except that a respondent served by publication or other substituted service shall file and serve such answer within the time prescribed by such substituted service. The child or children are not required to file or serve an answer.
Each answer shall admit or controvert the allegations of the petition, state the relationship of the child or children to the respondent and respond to such other matters as are alleged therein.
No preliminary hearing need be continued because an answer has not been served nor shall any appearance at a preliminary hearing or the service or contents of any answer filed prevent a respondent from raising in the answer or by timely motion any issue formerly raised by special appearance or by a pleading filed before an answer.
(c)Motions and other papers. – (1) An application to the court for an order shall be by motion which, unless made during a hearing or trial, shall be made in writing, shall state with particularity the grounds therefor, and shall set forth the relief or order sought. The requirement of writing is fulfilled if the motion is made in a written notice of the hearing on the motion.
(2) The rules applicable to captions and other matters of form of pleadings apply to all motions and other papers provided for by these rules.
(3) All motions shall be signed in accordance with Rule 11 of the Rules of Civil Procedure.
(4) All motions must be accompanied by or contained within a notice of hearing setting forth the date and time of hearing on the motion.
(5) At the time of first hearing, the court shall require the parents to complete financial statement forms for determination of Title IV-D eligibility, the necessary forms to be provided by the Department of Health and Human Resources, and those forms necessary to determine both indigence and/or possible child support obligations. No portion of the case may be transferred or remanded to family court for this purpose.
Rule 18. Contents of petition.
The petition shall be verified in accordance with W. Va. Code § 49-6-1 and shall include the following:
(a) Citations to statutes relied upon in requesting the intervention of the court and how the alleged misconduct or incapacity comes within the statutory definition of neglect and/or abuse;
(b) A description of all of the children in the home or in the temporary care, custody or control of the alleged offending parent(s), including name, age, sex, and current location, unless stating the location would endanger the child or seriously risk disruption of the current placement;
(c) A statement of facts justifying court intervention which is definite and particular and describes:
(1) The specific misconduct, including time and place, if known, or incapacity of the parent(s) and other person(s) responsible for the child's care; and
(2) Any supportive services provided by the Department or others to remedy the alleged circumstances.
(d) The relief sought; and
(e) Information as required by the Uniform Child Custody Jurisdiction and Enforcement Act, W. Va. Code § 48-20-101 et seq.
Rule 19. Amendments to petition.
(a) Amendments prior to adjudicatory hearing. – 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.
(b) Amendments after the adjudicatory hearing. – If new allegations arise after the final adjudicatory hearing, the allegations should be included in an amended petition rather than in a separate petition in a new civil action, and the final adjudicatory hearing shall be re-opened for the purpose of hearing evidence on the new allegations in the amended petition.
(c) Amendments based on allegations against a co-petitioner. – If allegations arise against a co-petitioner during the pendency of the case, then the petition may be amended, including a realignment of the parties.
(d) Amendments after preliminary hearing in which the Department has been given temporary custody. – 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.
Rule 20. Notice of first hearing.
The petition and notice of the first hearing shall provide at least ten (10) days notice, unless the first hearing is a preliminary hearing regarding emergency custody pursuant to W. Va. Code § 49-6-3, in which case the parties and all persons entitled to notice and the right to be heard must be provided at least five (5) days actual notice. The notice of hearing shall specify the time and place of the first hearing, the right of parties to counsel, and the fact that the proceeding can result in the permanent termination of parental, custodial or guardianship rights. The court shall send a copy of the petition and notice of first hearing to the appropriate CASA representative, if one is appointed.
Rule 21. Effect of personal service on only one parent.
The judge may permit the civil protection proceeding to go forward after one parent personally is served, if it is established on the record that there have been diligent but unsuccessful efforts to serve all other parties and requisites of W. Va. Code § 49-6-1 have been met. When a child is found in this state and is under the protection of the court and no parent or custodian has been found within this jurisdiction, the court may order service of the notice by publication and proceed with the civil protection proceeding. No adjudicatory hearing may be held until the time for answer is set forth in the order of publication shall have expired. Such a proceeding shall be effective against the interests to parents and custodians to the extent permissible under general law.
Rule 22. Preliminary hearing.
(a) Timing of preliminary hearing. – If at the time the petition was filed, the court placed or continued the child in the emergency custody of the Department or a responsible person, a preliminary hearing on emergency custody shall be initiated within ten (10) days after the continuation or transfer of custody is ordered as required by W. Va. Code § 49-6-3(a).
(b) Transfer of custody after the filing of the petition. – If the court does not transfer custody at the time the petition is filed, but believes at any time in the proceeding that the child is in imminent danger, as defined in W. Va. Code § 49-6-3(a), the court may transfer temporary custody as provided in W. Va. Code § 49-6-3(b) or Rule 16(c). If the court has continued or transferred temporary custody to the Department or a responsible person following the preliminary hearing and further amendments and additions are made to the petition or further facts are developed which support temporary custody, another preliminary hearing is not required.
(c) Waiver or stipulation of preliminary hearing. – A preliminary hearing may be waived or stipulated if the court determines (1) that the parties and persons entitled to notice and the right to be heard understand the content and consequences of the waiver or stipulation and voluntarily consent, and (2) that the waiver or stipulation of the preliminary hearing meets the purposes of these rules and controlling statutes and is in the best interests of the child. The court shall hear any objection to the waiver or stipulation of the preliminary hearing by any party or person entitled to notice and the right to be heard. The waiver or specific stipulations shall be incorporated into the order reflecting the preliminary hearing.
Rule 23. Preadjudicatory improvement period; family case plan; status conference.
(a) Preadjudicatory improvement period. – At any time prior to the final adjudicatory hearing, including at the preliminary hearing or emergency custody proceedings, a respondent may move for a pre-adjudicatory improvement period in accordance with W. Va. Code §§ 49-6-2(b) and 49-6-12(a). If the motion is granted, the court shall order the Department to submit the family case plan within thirty (30) days of such order, which family case plan shall contain the information required by W. Va. Code § 49-6D-3. The family case plan shall be formulated with the assistance of all parties, counsel, and the multi-disciplinary treatment team. The family case plan and improvement period order should closely track one another and taken together should constitute a program designed to remedy the circumstances which led to the filing of the petition. Reasonable efforts to place a child for adoption, or with a legal guardian or other permanent placement may be made at the same time.
(b) Preadjudicatory improvement period status conferences. – For the duration of the preadjudicatory improvement period, in accordance with W. Va. Code § 49-6-12(a), the court shall convene a status conference within sixty (60) days of the granting of the improvement period or within ninety (90) days of the granting of the improvement period if the court orders the Department to submit a report as to the respondent's(s') progress in the improvement period within sixty (60) days of the order granting the improvement period. At the status conference, the multidisciplinary treatment team shall attend and report as to progress and developments in the case. The court may require or accept progress reports or statements from other persons, including the parties, service providers, and persons entitled to notice and the right to be heard, provided that such reports or statements are provided to all parties. Pursuant to W. Va. Code § 49-6-12(a), a preadjudicatory improvement period shall not exceed three months. If the respondent(s) fail to comply with the terms and conditions of the improvement period or evidence an inability to remediate the circumstances giving rise to the abuse and/or neglect, any party may file a motion to revoke the improvement period.
Rule 24. Adjudicatory prehearing conference.
(a) Adjudicatory prehearing conference. – Prior to the final adjudicatory hearing, the court may convene a prehearing conference on its own motion or upon the request of any party.
(b) Subjects of adjudicatory subjects prehearing conference. – At the adjudicatory prehearing conference, the court may:
(1) Review efforts to locate and serve all the parties;
(2) Advise unrepresented parties concerning their right to counsel and to appointed counsel, in which case the conference shall be reconvened at a later date;
(3) Determine whether the child shall be present and testify at adjudication and, if so, under what conditions;
(4) Conclude any unresolved discovery matters;
(5) Identify issues of law and fact for adjudication;
(6) Require the parties to develop a list of possible witnesses and brief summaries of their testimony;
(7) Determine the needs of out-of-town witnesses regarding scheduling; and
(8) Confirm the date and estimate the length of the adjudicatory hearing.
(c) Additional information. – The parties shall have a continuing obligation to update information provided during the adjudicatory prehearing conference. If the additional information constitutes surprise, the court shall allow the surprised party adequate time and opportunity to prepare and respond.
(d)Time frame. – The court may schedule a final prehearing conference within five (5) days of the adjudicatory hearing to determine whether the parties or other persons entitled to notice and the right to be heard have notice of the hearing, the number and identity of the witnesses that each party intends to call and the estimated length of their testimony, and any other matter which may affect the conduct of the adjudicatory hearing.
Rule 25. Time of final adjudicatory hearing.
When a child is placed in the temporary custody of the Department or a responsible person pursuant to W. Va. Code § 49-6-3(a), the final adjudicatory hearing shall commence within thirty (30) days of the temporary custody order entered following the preliminary hearing and must be given priority on the docket unless a preadjudicatory improvement period has been ordered. In all other cases, the final adjudicatory hearing shall commence within thirty (30) days of the filing of the petition or, if a preadjudicatory improvement period has been ordered, as soon as possible, but no later than sixty (60) days, after the conclusion of such preadjudicatory improvement period. Where a respondent has been served, no order adjudicating that such respondent has abused or neglected the child concerned until the time for answer for such respondent has expired and, if the answer is timely served, the respondent has been afforded at least 20 days from the date the answer was filed to prepare for adjudication or has waived such opportunity to prepare. The final adjudicatory hearing shall be conducted in accordance with the provisions of W. Va. Code § 49-6-2(c) and -2(d).