West Virginia Judiciary

Rules of Procedure for Child Abuse and Neglect Proceedings

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Rules 26 through 53

 

Table of Contents Full Table of Contents
  1. Stipulated adjudication, uncontested petitions, contents of written reports and admissions
  2. Findings; adjudication order
  3. Disposition report by Department – The child's case plan; contents of the child's case plan
  4. Notice of the child's case plan
  5. Exchange of information before disposition hearing
  6. Notice of disposition hearing
  7. Time of disposition hearing
  8. Stipulated disposition, contents of stipulation, voluntariness
  9. Rulings on objections to the child's case plan
  10. Uncontested termination of parental rights and contested termination and contests to the case plan
  11. Findings; disposition order
    1. Permanency hearing
  12. Improvement period; status conference
  13. Hearing after improvement period; final disposition
  14. Permanent placement review
  15. Permanent placement review reports
  16. Permanent review conference
  17. Findings at permanent placement review; order
  18. Time for permanent placement
  19. Foster care review
  20. Review following permanent placement; reporting permanent placement changes
  21. Modification or supplementation of court order; stipulations
  22. Status conference
  23. Separate hearing on issue of paternity
  24. Accelerated appeal for child abuse and neglect and termination of parental rights cases
  25. Stays on appeal
  26. Multidisciplinary treatment teams
  27. Court-appointed special advocate (CASA) representative
  28. Case status reporting
  29. Transitioning Adults

Stipulated adjudications, uncontested petitions, contents of written reports and admissions
  1. Required information. — Any stipulated or uncontested adjudication shall include the following information:
    1. Agreed upon facts supporting court involvement regarding the respondent's(s') problems, conduct, or condition; and
    2. A statement of respondent's problems or deficiencies to be addressed at the final disposition.
  2. Voluntariness of consent. — Before accepting a stipulated or uncontested adjudication, the court shall determine that the parties understand the content and consequences of the admission or stipulation, the parties voluntarily consent, and that the stipulation or uncontested adjudication meets the purposes of these rules and controlling statute and is in the best interests of the child.
  3. Contents of written reports. — The court may take judicial notice of written reports which constitute public records and, when so admitted into evidence, give thereto such weight as may be appropriate. Any party may request the opportunity to be heard with respect to such reports under Rule 201(e) of the Rules of Evidence. Reasonable efforts should be made by parties and the court to inform all parties and all other persons entitled to notice and the right to be heard of the intention to submit or consider such reports to the end that those parties and other persons desiring to be heard with respect thereto may adequately prepare.
  4. Effect of admissions by respondents. — Admissions by a respondent properly contained in an answer and any written stipulations made by a respondent may be admitted into evidence at any stage of the proceedings and given such weight by the court as may be appropriate if the court finds that such admissions or stipulations are reliable. If the reliability of such admissions or stipulations is challenged for fraud, duress or other like cause, the court shall determine the issues thus drawn on the record. Extra judicial admissions by a respondent shall be admitted into evidence under any circumstances permitted by the rules of evidence.

Findings; adjudication order

At the conclusion of the adjudicatory hearing, the court shall make findings of fact and conclusions of law, in writing or on the record, as to whether the child is abused and/or neglected in accordance with W. Va. Code § 49-4-601(i). The court shall enter an order of adjudication, including findings of fact and conclusions of law, within ten (10) days of the conclusion of the hearing, and the parties and all other persons entitled to notice and the right to be heard shall be given notice of the entry of this order.


Disposition report by Department – The Child's case plan; contents of the child's case plan
  1. The Department shall prepare a child's case plan as required by W. Va. Code §§ 49-4-408 and 49-4-604, in the format approved by the Supreme Court of Appeals of West Virginia and the Department. If parental rights have not been terminated, the plan should include, where applicable, the requirements of the family case plan. Parents, children capable of expressing their preferences, foster parents or relative caregivers, and members of the multidisciplinary treatment team should be included in the case plan development. The case plan should include, but need not be limited to, the following:
    1. A statement of the changes needed to correct the problems necessitating Department intervention, with timetables for accomplishing them;
    2. A description of services for the child, parents, and foster parents or relative caregivers that will assist the family in remedying the identified problems, including an explanation of the appropriateness, availability of suggested services, and reasonable accommodations in accordance with the Americans with Disabilities Act of 1990, 42 U.S.C. §12101, et seq., to parents with disabilities in order to allow them meaningful access to reunification and family preservation services;
    3. A description of behavioral changes that must be evidenced by the respondents to correct the identified problems;
    4. The permanency plan and concurrent plan for the child, which are designed to achieve timely permanency for the child in the least restrictive setting available. Unless reasonable efforts to prevent removal or to preserve the family are not required, documentation must be provided to show reasonable efforts to prevent removal or to ensure reunification within the time frames set in the plan, as well as reasonable efforts to work toward the concurrent plan, which may be adoption, minor guardianship, another planned permanent living arrangement (APPLA), or emancipation; and
    5. When the child's permanency plan is APPLA, the Department shall document the efforts to place the child permanently with a parent, relative, or in a guardianship or adoptive placement and the steps taken to ensure that the foster family follows the "reasonable and prudent parent standard" to allow the child regular opportunities to engage in age - or developmentally - appropriate normal childhood activities.
  2. When the child has been in emergency protective care or temporary custody during the proceedings or the Department's recommendation includes placement of the child away from home, the report also shall include the following:
    1. A description of the efforts made by the Department to prevent the need for placement or the circumstances which made the offer of such efforts an unviable option; and
    2. A description of the efforts since placement to reunify the family, including services which were offered or provided or the reasons why such efforts would be unavailing or not in the best interest of the child.
  3. When the Department's recommendation includes placement of the child away from home, whether temporarily or permanently, the report also shall include the following:
    1. An explanation why the child cannot be protected from the identified problems in the home even with the provision of services or why placement in the home is not in the best interest of the child;
    2. Identification of relatives or friends who were contacted about providing a suitable and safe permanent placement for the child;
    3. A description of the recommended placement or type of home or institutional placement in which the child is to be placed, including its distance from the child's home and whether or not it is the least restrictive (most family-like) one available and including a discussion of the appropriateness of the placement and how the agency which is responsible for the child plans to assure that the child receives proper care and that services are provided to the parents, child, and foster parents in order to improve the conditions in the parent's/respondent's home, facilitate return of the child to his or her own home or the permanent placement of the child;
    4. Assurances that the placement of the child takes into account the appropriateness of the current education setting and the proximity to the school in which the child is enrolled at the time of placement; that the Department has coordinated with appropriate local education agencies to ensure that the child remains enrolled in the school in which the child was enrolled at the time of placement, including provision for reasonable travel; and if remaining in the same school is not in the child's best interest, that the Department and local education agencies have provided immediate and appropriate enrollment in a new school, with all of the education records of the child provided to the school.
    5. A suggested visitation plan including an explanation of any conditions to be placed on the visits;
    6. A statement of the child's special needs and the ways they should be met while in placement, including a plan for how the child will have regular opportunities to engage in age - or developmentally - appropriate normal childhood activities;
    7. The location of any siblings and, if siblings are separated, a statement of the reasons for the separation and the steps required to unite them as quickly as possible and to maintain regular contact during the separation if it is in each child's best interest;
    8. For children aged 14 or older, the plan should specify services aimed at transitioning the child into adulthood. When a child turns 17, or as soon as a child aged 17 comes into a case, the Department must immediately provide the child with assistance and support in developing a transition plan that is personalized at the direction of the child. The plan must include specific options on housing, health insurance, education, local opportunities for mentors, continuing support services, work force support, and employment services, and the plan should be as detailed as the child may elect. In addition to these requirements, when a child with special needs turns 17, or as soon as a child aged 17 with special needs comes into a case, he or she is entitled to the appointment of a Department adult services worker to the multidisciplinary treatment team and coordination between the multidisciplinary treatment team and other transition planning teams, such as special education individualized education planning (IEP) teams;
    9. The ability of the parent(s) to contribute financially to placement; and
    10. The current address and telephone number of the parties or a statement why such information is not provided.
  4. When the Department's recommendation is for termination of parental rights, the report shall include those items set forth in subsections (b) and (c) above and also the following:
    1. A description of the efforts made by the Department to prevent the need for placement or the circumstances which made the offer of such efforts an unviable option;
    2. A description of the efforts since placement to reunify the family, including services which were offered or provided or the reasons why such efforts would be unavailing; and
    3. Any objections by any party to the contents of the child's case plan may be raised at the disposition hearing.

Notice of the child's case plan

Copies of the child's case plan shall be provided to the parties, their counsel, and persons entitled to notice and the right to be heard, at least five (5) judicial days prior to the disposition hearing.


Exchange of information before disposition hearing

At least five (5) judicial days prior to the disposition hearing, each party shall provide the other parties, persons entitled to notice and the right to be heard, and the court a list of possible witnesses, with a brief summary of the testimony to be presented at the disposition hearing, and a list of issues of law and fact. Parties shall have a continuing obligation to update information until the time of the disposition hearing.


Notice of disposition hearing

Notice of the date, time, and place of the disposition hearing shall be given to all parties, their counsel, and persons entitled to notice and the right to be heard.


Time of disposition hearing
  1. Time frame. — The disposition hearing shall commence within forty-five (45) days of the entry of the final adjudicatory order unless an improvement period is granted pursuant to W. Va. Code § 49-4-610(2) and then no later than thirty (30) days after the end of the improvement period.
  2. Accelerated disposition hearing. — The disposition hearing immediately may follow the adjudication hearing if:
    1. All the parties agree;
    2. A child's case plan meeting the requirements of W. Va. Code §§ 49-4-408 and 49-4-604 was completed and provided to the court or the party or the parties have waived the requirement that the child's case plan be submitted prior to disposition; and
    3. Notice of the disposition hearing was provided to or waived by all parties as required by these Rules.

Stipulated disposition, contents of stipulation, voluntariness
  1. Required information. — Unless otherwise ordered by the court, any stipulated or uncontested disposition shall include the following information:
    1. The legal custody and placement of the child;
    2. The changes needed to end the court's involvement;
    3. Services to be provided to the child and family;
    4. The terms and conditions of the family case plan, unless the stipulated disposition terminates parental rights or places the child in legal guardianship or permanent foster care;
    5. The schedule of multidisciplinary treatment team meetings and permanent placement review conferences, including the first date and time of each;
    6. Restraining orders controlling the conduct of any party who is likely to frustrate the dispositional order;
    7. If a child is to be placed away from home, the proposed stipulated disposition shall also address:
      1. The type of placement;
      2. Terms of visitation and other parental involvement, including information about the child to be provided to the parents;
      3. Steps to meet the child's special needs while in placement; and
      4. If the child is separated from siblings, steps to unite them and/or to maintain regular contact during the separation;
    8. Any other aspect of the case plan the parties want included in the court's order.
    9. A stipulated disposition involving a temporary out-of-house placement cannot be permitted beyond the time allowable by statute for an improvement period.
  2. Voluntariness of consent. — Before determining whether or not to accept a stipulation of disposition, the court shall determine that the parties and persons entitled to notice and the right to be heard, understand the contents of the stipulation and its consequences, and that the parties voluntarily consent to its terms. The court must ultimately decide whether the stipulation of disposition meets the purposes of these rules, controlling statutes and is in the best interests of the child. The court shall hear any objection to the stipulation of disposition made by any party or persons entitled to notice and the right to be heard. The stipulations shall be specifically incorporated in their entirety into the court’s order reflecting disposition of the case.

Rulings on objections to the child's case plan

If objections to the child's case plan are raised at the disposition hearing, the court shall enter an order:

  1. Approving the plan;
  2. Ordering compliance with all or part of the plan;
  3. Modifying the plan in accordance with the evidence presented at the hearing; or
  4. Rejecting the plan and ordering the Department to submit a revised plan with thirty (30) days. If the court rejects the child's case plan, the court shall schedule another disposition hearing within forty-five (45) days.

Uncontested termination of parental rights and contested termination and contests to the case plan
  1. Uncontested termination of parental rights. — If a parent voluntarily relinquishes parental rights or fails to contest termination of parental rights, the court shall make the following inquiry at the disposition hearing:
    1. If the parent is present at the hearing but fails to contest termination of parental rights, the court shall determine whether the parent fully understands the consequences of a termination of parental rights, is aware of possible less drastic alternatives than termination, and was informed of the right to a hearing and to representation by counsel.
    2. If the parent is not present in court and has not relinquished parental rights but has failed to contest the termination, the petitioner shall make a prima facie ("on its face")showing that there is a legal basis for the termination of parental rights and the court shall determine whether the parent was given proper notice of the proceedings.
    3. If the parent is present in court and voluntarily has signed a relinquishment of parental rights, the court shall determine whether the parent fully understands the consequences of a termination of parental rights, is aware of possible less drastic alternatives than termination, and was informed of the right to a hearing and to representation by counsel.
    4. If the parent is not present in court but has signed a relinquishment of parental rights, the court shall determine whether there was compliance with all state law requirements regarding a written voluntary relinquishment of parental rights and whether the parent was thoroughly advised of and understood the consequences of a termination of parental rights, is aware of possible less drastic alternatives than termination, and was informed of the right to a hearing and to representation by counsel.
  2. Contested terminations and contests to case plan.
    1. When termination of parental rights is sought and resisted, the court shall hold an evidentiary hearing on the issues thus made, including the issues specified by statute and make such findings with respect thereto as the evidence shall justify. Upon making such findings, the court shall then determine if the case plan or plans before the court require amendment by reason of the findings of the court and require such modification of the plan or plans as may be appropriate.
    2. The guardian ad litem for the children, the respondents and their counsel, and persons entitled to notice and the right to be heard, shall advise at the dispositional hearing and, where termination is sought after the court's findings on the factual issues surrounding termination are announced, whether any such persons seek a modification of the child's case plan as submitted or desire to offer a substitute child's case plan for consideration by the court. The court shall require any proposed modifications or substitute plans to be promptly laid before the court and take such action, including the receipt of evidence with respect thereto, as the circumstances shall require. It shall be the duty of all the parties to the proceeding and their counsel to co-operate with the court in making this information available to the court as early as possible. It shall also be appropriate for the court to require alternative provisions of a case plan to be submitted prior to the taking of evidence in a dispositional hearing to suit alternative possible findings of the court after evidence is taken on any contested issues. Except as to the establishment of grounds for termination and the establishment of other necessary facts, dispositional hearings are not intended to be confrontational hearings; rather such are concerned with the best interests of the abused or neglected children involved.

Findings; disposition order
  1. Findings of fact and conclusions of law; time frame. — At the conclusion of the disposition hearing, the court shall make findings of fact and conclusions of law, in writing or on the record, as to the appropriate disposition in accordance with the provisions of W. Va. Code § 49-4-604. The court shall enter a disposition order, including findings of fact and conclusions of law, within ten (10) days of the conclusion of the hearing.
  2. Permanent placement review conference. — In the disposition order the court also shall state the date and time of the first permanent placement review conference required under these rules.
  3. Contents of disposition order. — The court also may include in the disposition order the following information:
    1. Terms of visitation;
    2. Services to be provided to the child and family;
    3. Restraining orders controlling the conduct of any party who is likely to frustrate the disposition order;
    4. Actions to be taken by the parent(s) to correct the identified problems;
    5. Conditions regarding the child's placement, including steps to meet the child's special needs while in placement;
    6. If the child is separated from siblings, steps to unite them and/or to maintain regular contact during the separation if it is in the best interest of each child; and
    7. Terms and conditions of the family case plan or the child's case plan.
  4. Notice of permanency hearing. — If a permanency hearing must be conducted pursuant to W. Va. Code § 49-4-608, then the disposition order shall state the date and time of the permanency hearing.
  5. Interaction with administrative processes of the Department. — The court has exclusive jurisdiction to determine the permanent placement of a child. Placement of a child shall not be disrupted or delayed by any administrative process of the Department, including an adoption review committee or grievance procedure.

Permanency hearing
  1. If the court finds any hearing that the Department is not required to make reasonable efforts to preserve the family, then a permanency hearing must be held within 30 days following entry of the order so finding. The purpose of the permanency hearing is to determine the appropriate permanent placement and plan for the child. All parties, counsel, and persons entitled to notice and the right to be heard, shall be given notice of this hearing at least 5 judicial days in advance thereof.
  2. If the Court finds, at any stage of the proceeding, that reasonable efforts must be made by the Department to preserve the family or any part of it, then a permanency hearing must be conducted within one year from the date the child entered foster care which shall be deemed to be the earlier of the following:
    1. The date of the first judicial finding that the child has been subjected to child abuse or neglect; or
    2. The date that is 60 days after the date on which the child is removed from the home.
  3. In accordance with Rules 39 to 42, the court shall conduct permanent placement review conferences at least every three months thereafter to determine if the Department has made reasonable efforts to finalize the permanency plan for the child.

Improvement period; status conference

If an improvement period is ordered following the final adjudicatory hearing or as an alternative disposition pursuant to W. Va. Code §§ 49-4-604(d) and 49-4-610(2) or (3), the court shall order the Department to submit a family case plan within thirty (30) days of such order containing the information required by W. Va. Code §§ 49-4-408 and 49-4-604. The family case plan shall be formulated with the assistance of all parties, counsel and the multidisciplinary treatment team. Reasonable efforts to place a child for adoption or with a legal guardian or other permanent placement may be made at the same time. In accord with W. Va. Code § 49-4-610(2) and (3), 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 progress in the improvement period within sixty (60) days of the order granting the improvement period. The court shall thereafter convene a status conference at least once every three months for the duration of each improvement period, with notice given to any party and persons entitled to notice and the right to be heard. 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 the CASA representative provided that such reports or statements are given to all parties.


Hearing after improvement period; final disposition

No later than thirty (30) days after the end of the alternative disposition improvement period, the court shall hold a hearing to determine the final disposition of the case, including whether the conditions of abuse and/or neglect have been adequately improved in accordance with W. Va. Code § 49-4-604(d). Any party and persons entitled to notice and the right to be heard shall receive notice of the hearing. The court also shall determine the necessary disposition consistent with the best interests of the child. Within ten (10) days of the conclusion of the hearing, the court shall enter a final disposition order in accordance with the provisions of Rule 37.


Permanent placement review
  1. Court monitoring of permanency plan. — Following entry of a permanency hearing order, the court, with the assistance of the multidisciplinary treatment team, shall continue to monitor implementation of the court-ordered permanency plan for the child.
  2. Time frame. — At least once every three months until permanent placement is achieved as defined in Rule 6, the court shall conduct a permanent placement review conference, requiring the multidisciplinary treatment team to attend and report as to progress and development in the case, for the purpose of reviewing the progress in the permanent placement of the child.
  3. Notice of hearing. — Notice of the time and place of the permanent placement review conference shall be given to counsel of record, and all other persons entitled to notice and the right to be heard at least fifteen (15) days prior to the conference unless otherwise provided by court order. Neither a party whose parental rights have been terminated by the final disposition order nor his or her attorney shall be given notice of or participate in post-disposition proceedings.
  4. Hearing. — The court shall hold a hearing in connection with such review, and shall not conduct such review by agreed order.

Permanent placement review reports

At least ten (10) days before the permanent placement review conference, the multidisciplinary treatment team and the Department shall provide to the court and to the parties progress reports describing efforts to implement the permanency plan and any obstacles to permanent placement. The court may require or accept progress reports or statements from other persons, including the parties, service providers, and the CASA representative, provided that such reports or statements are given to all parties prior to the placement review conference.


Permanent placement review conference
  1. Subjects of permanent placement review conference. — Unless otherwise provided by court order, matters to be considered at the permanent placement review conference shall include a discussion of the reasonable efforts made to secure a permanent placement, including:
    1. The extent to which problems necessitating Department intervention have been remedied and, if appropriate, the actions that should be taken by the respondent(s) to permit return of the child;
    2. Services and assistance that were offered or provided to the family since the previous hearing or permanent placement review conference; reasonable accommodations provided in accordance with the Americans with Disabilities Act of 1990, 42 U.S.C. §12101, et seq., to parents with disabilities in order to allow them meaningful access to reunification and family preservation services; and services needed in the future;
    3. Compliance by the respondent and Department with the case plan and with previous orders and recommendations of the court;
    4. Recommended changes in court orders;
    5. The ability and extent of the respondent to contribute financially to the child's placement;
    6. The appropriateness of the current placement, including its distance from the child's home and whether or not it is the least restrictive one (most family-like one) available;
    7. The appropriateness of the current educational setting and the proximity to the school in which the child is enrolled at the time of placement;
    8. The Department’s coordination with appropriate local education agencies to ensure that the child remains enrolled in the school in which the child was enrolled at the time of placement, including provision for reasonable travel, or if remaining in the same school is not in the child’s best interests, the provision of immediate and appropriate enrollment in 25 a new school, with all of the education records of the child provided to the school;
    9. A summary of visitation and any recommended changes;
    10. How the child's special needs were or were not met while in placement, including whether the child had regular opportunities to engage in age - or developmentally - appropriate normal childhood activities;
    11. The location of any siblings and the steps that have been and will be taken to unite them as quickly as possible and to maintain regular contact during the separation if it is in the best interest of each child;
    12. For children aged 14 or older, the specific services aimed at transitioning the child into adulthood. When a child turns 17, or as soon as a child aged 17 comes into a case, the Department must immediately provide the child with assistance and support in developing a transition plan that is personalized at the direction of the child. The plan must include specific options on housing, health insurance, education, local opportunities for mentors, continuing support services, work force support, and employment services, and the plan should be as detailed as the child may elect. In addition to these requirements, when a child with special needs turns 17, or as soon as a child aged 17 with special needs comes into a case, he or she is entitled to the appointment of a Department adult services worker to the multidisciplinary treatment team and coordination between the multidisciplinary treatment team and other transition planning teams, such as special education individualized education planning (IEP) teams;
    13. When the child's permanency plan is another planned permanent living arrangement (APPLA), the efforts to place the child permanently with a parent, relative, or in a guardianship or adoptive placement; the child's desired permanency outcome; and the steps taken to ensure that the foster family follows the "reasonable and prudent parent standard" to allow the child regular opportunities to engage in age - or developmentally - appropriate normal childhood activities.
    14. A recommendation and discussion regarding the child's return home either immediately or within the next six months.
      1. If return is recommended, it shall include a summary of:
        1. Necessary steps to make return possible and to minimize the disruptive effects of return;
        2. The dangers to the child after return; and
        3. Reunification services needed, including services to minimize any danger to the child after return;
      2. If return is not recommended, a recommendation and discussion regarding adoption of the child. If placement for adoption is recommended, it shall include a discussion of:
        1. The steps needed to bring about a termination of parental rights action; and
        2. The time necessary to take such steps;
      3. If neither return home nor placement for adoption is recommended, a discussion of the following shall be included:
        1. Awarding legal guardianship or permanent custody to a specific individual or individuals. If recommended, a proposed time table, recommendations concerning the rights and responsibilities the biological parent should retain, and recommendations concerning the rights and responsibilities of the guardian or custodian shall be addressed; and
        2. Placement of the child permanently in foster care with specific foster parents. If recommended, a time table and recommendations concerning the terms of the permanent foster care agreement, and court order authorizing permanent foster care, and the continuing rights and responsibilities of the biological parents shall be addressed;
      4. If continued foster care is recommended, an explanation of why it continues to be appropriate for the child;
      5. If placement in a group home or institution is recommended:
        1. An explanation of why treatment outside a family environment is necessary, including a brief summary of supporting expert diagnoses and recommendations; and
        2. A discussion of why a less restrictive, more family-like setting is not practical, including placement with specially trained foster parents;
      6. If emancipation or independent living is recommended for a child who has attained age sixteen (16) years, an explanation of why foster family care is no longer appropriate; a description of the skills needed by the child to prepare for adulthood; and a description of the ongoing support and services to be provided by the agency; and
      7. Concurrent alternative permanency plans.
      8. Any other matter relevant to implementation of the permanency plan.
  2. Post-termination placement plan. — Within ninety (90)days of the entry of the final termination order or decree for both parents, the Department responsible for placement of the child shall submit a written permanent placement plan to the court, the guardian ad litem, persons entitled to notice and the right to be heard, and other remaining parties, if any, for consideration at the permanent placement review. The plan shall include the following:
    1. A description of the Department's progress toward arranging an adoptive, legal guardianship, or permanent foster care home placement for the child;
    2. Where adoptive, legal guardians, or permanent foster care parents have not been selected, a schedule and a description of steps to be taken to place the child permanently;
    3. A discussion of any special barriers preventing placement of the child for adoption, legal guardianship, or permanent foster care and how they should be overcome; and
    4. A discussion of whether adoption and/or legal guardianship subsidy is needed and, if so, the likely amount and type of subsidy required.
    The court shall continue to conduct a permanent placement review at least every three (3) months until permanent placement is achieved. The court shall hold a hearing in connection with such review, and shall not conduct such review by agreed order. Notice of such hearing shall be given to the Department, the child through his guardian ad litem, and persons entitled to notice and the right to be heard.
  3. Stipulations. — The parties may file written stipulations as to any matters to be considered at the permanent placement review conference but such written stipulations shall not be accepted in lieu of the conducting of the permanent placement review conference.

Findings at permanent placement review; order
  1. Findings of fact and conclusions of law; time frame. — Within ten (10) days of the conclusion of the permanent placement review conference, the court shall enter an order determining whether the Department has made reasonable efforts to finalize the permanency plan for the child. The court shall also find whether permanent placement has been fully achieved within the meaning of Rule 6 and stating findings of fact and conclusions of law to support its determination.
  2. Dismissal. — If the court finds that permanent placement has been achieved, it may order the case dismissed from the docket.
  3. Continuance. — If the court finds that permanent placement has not been achieved, the court's order shall address those subjects set forth in Rule 41 as appropriate and shall state:
    1. Changes in the terms of the child's case plan it deems necessary to effect a permanent placement of the child, with supporting findings of fact;
    2. Changes in the terms of visitation and other parental involvement, if any;
    3. Changes in services to be provided the parties and the child, if any;
    4. Changes to the education plan for the child to further the child's educational stability, if any;
    5. Steps to be taken to assist a child aged 14 or older with the development of a transitional plan;
    6. Restraining orders controlling the conduct of any party who is likely to frustrate the court's orders, if any;
    7. Additional actions to be taken by the parties to achieve permanent placement; and
    8. A date and time for the next placement review conference.
    9. Findings when the permanency plane is another planned permanent living arrangement (APPLA). After asking the child for his or her desired permanency outcome, the court shall find whether APPLA is the best permanency plan for the child; review Department efforts to place the child permanently with a parent, relative, or in guardianship or adoptive placement; and find compelling reasons why it is not in the child's best interest to be placed permanently with a parent, relative, or in a guardianship or adoptive placement.

Time for permanent placement

Permanent placement of each child shall be achieved within twelve (12) months of the final disposition order, unless the court specifically finds on the record extraordinary reasons sufficient to justify the delay.


Foster care review

Nothing in these rules is intended to abrogate the responsibilities of the Department and the court with regard to the foster care case review system established by W. Va. Code §§ 49-4-110 and 49-4-608. Upon the filing of a foster care case review petition by the Department, the court may schedule a foster care case review hearing at the same time as the required permanent placement review conference contemplated by these rules. Such proceedings shall be conducted in accordance with the provisions of the pertinent statute and these rules.


Review following permanent placement; reporting permanent placement changes
  1. Discontinuation of permanent placement review. — Permanent placement review shall be discontinued after permanent placement is consummated.
  2. Reporting changes in permanent placement status. — If the child is removed from an adoptive home or other permanent placement after the case has been dismissed, any party with notice thereof and the receiving agency shall promptly report the matter to the circuit court of origin, the Department, and the child's counsel, and the court shall schedule a permanent placement review conference within sixty (60) days, with notice given to any appropriate parties and persons entitled to notice and the right to be heard. The Department shall convene a multidisciplinary treatment team meeting within thirty (30) days of the receipt of notice of permanent placement disruption.

Modification or supplementation of court order; stipulations

A child, a child’s parent (whose parental rights have not been terminated), a child’s custodian, or the Department shall file a motion in the circuit court of original jurisdiction in order to modify or supplement an order of the court at any time; provided, that a dispositional order pursuant to W.Va. Code § 49-4-604(b)(6) shall not be modified after the child has been adopted, pursuant to W.Va. Code § 49-4-606. The court shall conduct a hearing and, upon a showing of a material change of circumstances, may modify or supplement the order if, by clear and convincing evidence, it is in the best interest of the child. Provided: an order of child support may be modified if, by the preponderance of the evidence, there is a substantial change in circumstances, pursuant to W.Va. Code § 48-11-105. Adequate and timely notice of any motion for modification shall be given to the child’s counsel, counsel for the child’s parent(s) (whose parental rights have not been terminated) or custodian, and to the Department, as well as to other persons entitled to notice and the right to be heard. The court may consider a stipulated modification of an order, provided that the child has not been adopted as aforesaid, if the court determines that the parties and persons entitled to notice and the right to be heard understand the contents and consequences of the stipulation and voluntarily consent to its terms, that the stipulation meets the purposes of these rules and controlling statutes, and that the stipulation is in the best interest of the child.


Status conference

The court may convene a status conference, upon its own motion or, if requested, by any party or person entitled to notice and the right to be heard, at any time during the proceedings to allow the parties, the multidisciplinary treatment team, persons entitled to notice and the right to be heard, or representatives of the Department to advise the court of pertinent developments in the case or problems which arose during the formulation and implementation of a case plan. Where it appears to the court that any such issue can not be resolved without the taking of evidence, the court may proceed to take evidence, if appropriate notice has been given in advance, or set such further hearing and require notice thereof to all remaining proper parties or persons entitled to notice and the right to be heard, as the court may be advised. Upon the taking of such evidence, the court shall make such findings in the appropriate post-dispositional order as are required to dispose of the issue thus raised.


Separate hearing on issue of paternity

If the paternity of a child is at issue at any time during these proceedings, the court may set a special hearing to determine paternity and shall notify the Bureau for Child Support Enforcement office.


Accelerated appeal for child abuse and neglect and termination of parental rights cases

Appeals of orders under W.Va. Code § 49-4-601, et seq., are governed by the Revised Rules of Appellate Procedure. Within thirty (30) days of entry of the order being appealed, the petitioner shall file a notice of appeal, including required attachments and copies, with the Office of the Clerk of the Supreme Court of Appeals of West Virginia, with service provided as prescribed by the Rules of Appellate Procedure. All parties to the proceeding in the court from which the appeal is taken, including the guardian(s) ad litem for the minor children, shall be deemed parties in the Supreme Court of Appeals, unless the appealing party indicates on the notice of appeal that one or more of the parties below has no interest in the outcome of the matter. An appeal must be perfected within sixty (60) days of entry of the order being appealed. The circuit court from which the appeal is taken or the Supreme Court of Appeals may, for good cause shown, by order entered of record, extend such period, not to exceed a total extension of two months, if the notice of appeal was properly and timely filed by the party seeking the appeal. The filing of any motion to modify an order shall not toll the time for appeal. The Supreme Court of Appeals shall give priority to appeals of child abuse and/or neglect proceedings and termination of parental rights cases and shall establish and administer an accelerated schedule in each case, to include the completion of the record, briefing, oral argument, and decision.


Stays on appeal

The filing of a petition for appeal does not operate to automatically stay the proceedings or orders of the circuit court in abuse, neglect, and/or termination of parental right cases, but the circuit court or the Supreme Court of Appeals may grant a stay upon a showing of good cause. Any party seeking a stay from the Supreme Court of Appeals pending an appeal of neglect, abuse, and/or termination of parental rights cases shall submit a written motion for the stay and a brief statement explaining the need for the stay, discussing the effect of the stay on the ability of the circuit court to plan for the child and on the best interests of the child. This rule shall not preclude any motion to the circuit court for a stay which includes a brief statement of the issues previously set forth.


Multidisciplinary treatment teams
  1. Convening of multidisciplinary treatment teams. — Within thirty (30) days after the petition is filed, the court shall cause to be convened a meeting of a multidisciplinary treatment team assigned to the case, said multidisciplinary treatment team to include those members mandated pursuant to W. Va. Code § 49-4-405, providers of services to the child and/or family, and persons entitled to notice and the right to be heard.
  2. Access to and confidentiality of information. — The multidisciplinary investigative team created pursuant to W. Va. Code § 49-4-402, and the multidisciplinary treatment team created pursuant to W. Va. Code § 49-4-403, and the community team created pursuant to W. Va. Code § 49-1-207 shall be afforded access to information in the possession of the Department and other agencies and the Department and other offices shall cooperate in the sharing of information as may be provided by W. Va. Code §§ 49-4-402 and 49-5-101, and any other relevant provisions of law. Any multidisciplinary team member who acquires confidential information shall not disclose such information except as provided by statute.
  3. Responsibilities. — The multidisciplinary treatment team shall submit written reports to the court as required by these rules or by the court, shall meet with the court at least every three months until permanency is achieved for the child, and the case is dismissed from the docket; shall be available for status conferences and hearings as required by the court; and shall not be abrogated by an adoption review committee or other administrative process of the Department.
  4. Scope of this rule. — This rule is to be construed broadly to effectuate cooperation and communication between all service providers, parties, counsel, persons entitled to notice and the right to be heard, and the court.

Court-appointed special advocate (CASA) representative
  1. Appointment of court-appointed special advocate representative. — Where a court-appointed special advocate program which is in good standing as a member of the National CASA Association and the West Virginia CASA Association is in place, the court may, after the filing of a civil petition, appoint a CASA representative to further the best interests of the child until further order of the court or until permanent placement of the child is achieved.
  2. Duties of CASA representative. — A CASA representative is to be appointed primarily in proceedings involving child abuse and/or neglect. Duties of a CASA representative include an independent gathering of information through interviews and review of records; facilitating prompt and thorough review of the case; protecting and promoting the best interests of the child; follow-up and monitoring of court orders and case plans; making a written report to the court with recommendations concerning the child's welfare; and negotiating and advocating on behalf of the child.
  3. Access to information. — The court may enter an order granting the CASA representative access to court records and confidential records of state, county, local agencies, and service providers, or the CASA representative may obtain a waiver for the release of such information from the parties as provided by W. Va. Code § 49-5-101, or in accordance with other law. If such an order is entered or such a waiver is obtained, the CASA representative shall be considered a person entitled to notice and the opportunity to be heard and shall be given notice of pleadings, court orders, hearings, and conferences and shall be allowed to attend proceedings to the extent allowed by the court. The CASA representative shall not disclose any confidential information he or she obtains expect as authorized by statute.
  4. Notification of hearings. — The CASA representative shall be notified of all hearings and changes in hearings, all status conferences, all treatment multidisciplinary team meetings, and all Department administrative reviews.
  5. Court orders. — The CASA representative shall receive copies of all court orders in the case to which he or she is appointed.
  6. Termination. — The CASA representative shall stay involved in the case until further order of the court or permanent placement of the child is achieved. The CASA representative shall have access to information in the selection process of adoptive parents, legal guardians or permanent foster care parents. The CASA representative also shall monitor and advocate for services for the permanent placement family until the final order is entered.
  7. Continued duties of the child’s attorney. — The appointment of a CASA representative shall not in any way abrogate the duties and responsibilities imposed by law on the attorney for the child. The duties and responsibilities of a child's guardian ad litem shall continue until such child has a permanent placement, and the guardian ad litem shall not be relieved of his responsibilities until such permanent placement has been achieved.

Case status reporting

To effectuate the purpose of the rules and to assist the court in complying with the duty to monitor the progress of each abuse and neglect case from filing through the child's permanent placement, the court shall promptly enter required data into the electronic child abuse and neglect database managed by the Administrator of the Supreme Court of Appeals for each abuse/neglect case commencing from the filing of the case until the child involved in the case is situated by way of unconditional permanent return to parent(s), or other permanent placement ratified by court order, or by emancipation.


Transitioning Adults

These rules of procedure pertaining to case reviews and permanency hearings apply to any "transitioning adult" as defined by W.Va. Code § 49-1-202.