WEST virginia legislature

2021 regular session

Introduced

Senate Bill 414

By Senator Smith

[Introduced February 23, 2021; referred
to the Committee the Judiciary]

A BILL to amend and reenact §49-4-605 of the Code of West Virginia, 1931, as amended, relating to termination of parental rights in certain cases; and requiring the Department of Health and Human Resources to file a petition to terminate parental rights when a parent has, on two separate occasions, had their child removed from their care and determined by a court to have subjected that child to abuse or neglect.

Be it enacted by the Legislature of West Virginia:

ARTICLE 4. COURT ACTIONS.

§49-4-605. When department efforts to terminate parental rights are required.

(a) Except as provided in subsection (b) of this section, the department shall file or join in a petition or otherwise seek a ruling in any pending proceeding to terminate parental rights:

(1) If a child has been in foster care for 15 of the most recent 22 months as determined by the earlier of the date of the first judicial finding that the child is subjected to abuse or neglect or the date which is 60 days after the child is removed from the home;

(2) If a court has determined the child is abandoned, tortured, sexually abused, or chronically abused;

(3) If a court has determined the parent has committed murder or voluntary manslaughter of another of his or her children, another child in the household, or the other parent of his or her children; has attempted or conspired to commit murder or voluntary manslaughter or has been an accessory before or after the fact of either crime; has committed unlawful or malicious wounding resulting in serious bodily injury to the child or to another of his or her children, another child in the household or to the other parent of his or her children; has committed sexual assault or sexual abuse of the child, the child’s other parent, guardian or custodian, another child of the parent or any other child residing in the same household or under the temporary or permanent custody of the parent; or the parental rights of the parent to another child have been terminated involuntarily; or

(4) If a parent whose child has been removed from the parent’s care, custody, and control by an order of removal voluntarily fails to have contact or attempt to have contact with the child for a period of 18 consecutive months: Provided, That failure to have, or attempt to have, contact due to being incarcerated, being in a medical or drug treatment or recovery facility, or being on active military duty shall not be considered voluntary behavior; or

(5) If a child has been removed from the parent’s care, custody, and control and the court has made judicial findings that the child has been subjected to abuse or neglect on two or more occasions.

(b) The department may determine not to file a petition to terminate parental rights when:

(1) At the option of the department, the child has been placed permanently with a relative by court order;

(2) The department has documented in the case plan made available for court review a compelling reason, including, but not limited to, the child’s age and preference regarding termination or the child’s placement in custody of the department based on any proceedings initiated under part seven of this article, that filing the petition would not be in the best interests of the child; or

(3) The department has not provided, when reasonable efforts to return a child to the family are required, the services to the child’s family as the department deems necessary for the safe return of the child to the home.

NOTE: The purpose of this bill is to require the department to file a petition to terminate parental rights when a parent whose child has been removed from their care and determined by a court to have subjected that child to abuse or neglect on two or more separate occasions.

Strike-throughs indicate language that would be stricken from a heading or the present law and underscoring indicates new language that would be added.