How Do I Get Custody from Abusive Parent?
Full Question:
Answer:
A parent may also have rights terminated, either by voluntary relinquishment or judicial termination. A judicial termination requires proof that the parent is unfit and/or poses a threat of harm to the child. The court may order termination of the parent-child relationship if the court finds by clear and convincing evidence that the parent engaged in conduct or knowingly placed the child with persons who engaged in conduct which endangers the physical or emotional well-being of the child, or the parent is convicted an a child abuse offense. A termination of parental rights voids any rights and obligations toward the child. The parent will no longer have rights to custody or visitation and will no longer owe a duty of support. However, it is possible that back support owed may still be collected.
The following WV statute governs the grounds for teminating parental rights involuntarily:
§ 49-6-5. Disposition of neglected or abused children.
(a) Following a determination pursuant to section two
of this article wherein the court finds a child to
be abused or neglected, the department shall file with the
court a copy of the child's case plan, including the
permanency plan for the child. The term case plan means a
written document that includes, where applicable, the
requirements of the family case plan as provided for in
section three, article six-d of this chapter and
that also includes at least the following: A description of
the type of home or institution in which the child is to be
placed, 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)
home; facilitate return of the child to his or her own home
or the permanent placement of the child; and address the
needs of the child while in foster care, including a
discussion of the appropriateness of the services that have
been provided to the child. The term "permanency plan" refers
to that part of the case plan which is designed to achieve a
permanent home for the child in the least restrictive setting
available. The plan must document efforts to ensure that the
child is returned home within approximate time lines for
reunification as set out in the plan. Reasonable efforts to
place a child for adoption or with a legal guardian may be
made at the same time reasonable efforts are made to prevent
removal or to make it possible for a child to safely return
home. If reunification is not the permanency plan for the
child, the plan must state why reunification is not
appropriate and detail the alternative placement for the
child to include approximate time lines for when such
placement is expected to become a permanent placement. This
case plan shall serve as the family case plan for parents of
abused or neglected children. Copies of the child's case plan
shall be sent to the child's attorney and parent, guardian or
custodian or their counsel at least five days prior to the
dispositional hearing. The court shall forthwith proceed to
disposition giving both the petitioner and respondents an
opportunity to be heard. The court shall give precedence to
dispositions in the following sequence:
(1) Dismiss the petition;
(2) Refer the child, the abusing parent, the battered
parent or other family members to a community agency for
needed assistance and dismiss the petition;
(3) Return the child to his or her own home under
supervision of the department;
(4) Order terms of supervision calculated to assist the
child and any abusing parent or battered parent or parents or
custodian which prescribe the manner of supervision and care
of the child and which are within the ability of any parent
or parents or custodian to perform;
(5) Upon a finding that the abusing parent or battered
parent or parents are presently unwilling or unable to
provide adequately for the child's needs, commit the child
temporarily to the custody of the state department, a
licensed private child welfare agency or a suitable person
who may be appointed guardian by the court. The court order
shall state: (A) That continuation in the home is contrary to
the best interests of the child and why; (B) whether or not
the department has made reasonable efforts, with the child's
health and safety being the paramount concern, to preserve
the family, or some portion thereof, and to prevent or
eliminate the need for removing the child from the child's
home and to make it possible for the child to safely return
home; (C) what efforts were made or that the emergency
situation made such efforts unreasonable or impossible;
and (D) the specific circumstances of the situation which made
such efforts unreasonable if services were not offered by the
department. The court order shall also determine under what
circumstances the child's commitment to the department shall
continue. Considerations pertinent to the determination
include whether the child should: (i) Be continued in foster
care for a specified period; (ii) be considered for
adoption; (iii) be considered for legal guardianship; (iv) be
considered for permanent placement with a fit and willing
relative; or (v) be placed in another planned permanent
living arrangement, but only in cases where the department
has documented to the circuit court a compelling reason for
determining that it would not be in the best interests of the
child to follow one of the options set forth in
subparagraphs (i), (ii), (iii) or (iv) of this paragraph. The
court may order services to meet the special needs of the
child. Whenever the court transfers custody of a youth to the
department, an appropriate order of financial support by the
parents or guardians shall be entered in accordance with
section five, article seven of this chapter; or
(6) Upon a finding that there is no reasonable likelihood
that the conditions of neglect or abuse can be substantially
corrected in the near future and, when necessary for the
welfare of the child, terminate the parental, custodial and
guardianship rights and responsibilities of the abusing
parent and commit the child to the permanent sole custody of
the nonabusing parent, if there be one, or, if not, to either
the permanent guardianship of the department or a licensed
child welfare agency. The court may award sole custody of the
child to a non-abusing battered parent. If the court shall so
find, then in fixing its dispositional order the court shall
consider the following factors: (A) The child's need for
continuity of care and caretakers; (B) the amount of time
required for the child to be integrated into a stable and
permanent home environment; and (C) other factors as the
court considers necessary and proper. Notwithstanding any
other provision of this article, the court shall give
consideration to the wishes of a child fourteen years of age
or older or otherwise of an age of discretion as determined
by the court regarding the permanent termination of parental
rights. No adoption of a child shall take place until all
proceedings for termination of parental rights under this
article and appeals thereof are final. In determining whether
or not parental rights should be terminated, the court shall
consider the efforts made by the department to provide
remedial and reunification services to the parent. The court
order shall state: (i) That continuation in the home is not
in the best interest of the child and why; (ii) why
reunification is not in the best interests of the child;
(iii) whether or not the department made reasonable efforts,
with the child's health and safety being the paramount
concern, to preserve the family, or some portion thereof, and
to prevent the placement or to eliminate the need for
removing the child from the child's home and to make it
possible for the child to safely return home, or that the
emergency situation made such efforts unreasonable or
impossible; and (iv) whether or not the department made
reasonable efforts to preserve and reunify the family, or
some portion thereof, including a description of what efforts
were made or that such efforts were unreasonable due to
specific circumstances.
(7) For purposes of the court's consideration of the
disposition custody of a child pursuant to the provisions of
this subsection, the department is not required to make
reasonable efforts to preserve the family if the court
determines:
(A) The parent has subjected the child, another child of
the parent, or any other child residing in the same household
or under the temporary or permanent custody of the parent to
aggravated circumstances which include, but are not limited
to, abandonment, torture, chronic abuse and sexual abuse;
(B) The parent has:
(i) Committed murder of the child's other parent, another
child of the parent or any other child residing in the same
household or under the temporary or permanent custody of the
parent;
(ii) Committed voluntary manslaughter of the child's other
parent, another child of the parent, or any other child
residing in the same household or under the temporary or
permanent custody of the parent;
(iii) Attempted or conspired to commit such a murder or
voluntary manslaughter or been an accessory before or after
the fact to either such crime; or
(iv) Committed a felonious assault that results in serious
bodily injury to the child, the child's other parent, to
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
(C) The parental rights of the parent to another child have
been terminated involuntarily.
(b) As used in this section, "no reasonable likelihood that
conditions of neglect or abuse can be substantially
corrected" shall mean that, based upon the evidence before
the court, the abusing adult or adults have demonstrated an
inadequate capacity to solve the problems of abuse or neglect
on their own or with help. Such conditions shall be
considered to exist in the following circumstances, which
shall not be exclusive:
(1) The abusing parent or parents have habitually abused or
are addicted to alcohol, controlled substances or drugs, to
the extent that proper parenting skills have been seriously
impaired and such person or persons have not responded to or
followed through the recommended and appropriate treatment
which could have improved the capacity for adequate parental
functioning;
(2) The abusing parent or parents have willfully refused or
are presently unwilling to cooperate in the development of a
reasonable family case plan designed to lead to the child's
return to their care, custody and control;
(3) The abusing parent or parents have not responded to or
followed through with a reasonable family case plan or other
rehabilitative efforts of social, medical, mental health or
other rehabilitative agencies designed to reduce or prevent
the abuse or neglect of the child, as evidenced by the
continuation or insubstantial diminution of conditions which
threatened the health, welfare or life of the child;
(4) The abusing parent or parents have abandoned the child;
(5) The abusing parent or parents have repeatedly or
seriously injured the child physically or emotionally, or
have sexually abused or sexually exploited the child, and the
degree of family stress and the potential for further abuse
and neglect are so great as to preclude the use of resources
to mitigate or resolve family problems or assist the abusing
parent or parents in fulfilling their responsibilities to the
child;
(6) The abusing parent or parents have incurred emotional
illness, mental illness or mental deficiency of such duration
or nature as to render such parent or parents incapable of
exercising proper parenting skills or sufficiently improving
the adequacy of such skills; or
(7) The battered parent's parenting skills have been
seriously impaired and said person has willfully refused or
is presently unwilling or unable to cooperate in the
development of a reasonable treatment plan or has not
adequately responded to or followed through with the
recommended and appropriate treatment plan.
(c) The court may, as an alternative disposition, allow the
parents or custodians an improvement period not to exceed six
months. During this period the court shall require the parent
to rectify the conditions upon which the determination was
based. The court may order the child to be placed with the
parents, or any person found to be a fit and proper person,
for the temporary care of the child during the period. At the
end of the period, the court shall hold a hearing to
determine whether the conditions have been adequately
improved and at the conclusion of the hearing shall make a
further dispositional order in accordance with this section.
Please also see the following WV statutes to determine applicability:
§ 48-22-301. Persons whose consent or relinquishment is
required; exceptions.
(a) Subject to the limitations hereinafter set forth, consent to or
relinquishment for adoption of a minor child is required of:
(1) The parents or surviving parent, whether adult or infant, of a
marital child;
(2) The outsider father of a marital child who has been adjudicated to
be the father of the child or who has filed a paternity action which is
pending at the time of the filing of the petition for adoption;
(3) The birth mother, whether adult or infant, of a nonmarital child; and
(4) The determined father.
(b) Consent or relinquishment shall not be required of a parent or of any
other person having custody of the adoptive child:
(1) Whose parental rights have been terminated pursuant to the provisions
of article three, chapter forty-nine of this code;
(2) Whom the court finds has abandoned the child as set forth in 22-306;
or
(3) Who, in a stepparent adoption, is the birth parent or adoptive
parent of the child and is married to the petitioning adoptive parent. In
such stepparent adoption, the parent must assent to the adoption by
joining as a party to the petition for adoption.
(c) If the mother, legal father or determined father is under
disability, the court may order the adoption if it finds:
(1) The parental rights of the person are terminated, abandoned or
permanently relinquished;
(2) The person is incurably insane; or
(3) The disability arises solely because of age and an otherwise valid
consent or relinquishment has been given.
(d) If all persons entitled to parental rights of the child sought to
be adopted are deceased or have been deprived of the custody of the child
by law, then consent or relinquishment is required of the legal guardian
or of any other person having legal custody of the child at the time. If
there is no legal guardian nor any person who has legal custody of the
child, then consent or relinquishment is required from some discreet and
suitable person appointed by the court to act as the next friend of the
child in the adoption proceedings.
(e) If one of the persons entitled to parental rights of the child
sought to be adopted is deceased, only the consent or relinquishment of
the surviving person entitled to parental rights is required.
(f) If the child to be adopted is twelve years of age or over, the
consent of the child is required to be given in the presence of a judge
of a court of competent jurisdiction, unless for extraordinary cause, the
requirement of such consent is waived by the court.
(g) Any consent to adoption or relinquishment of parental rights shall
have the effect of authorizing the prospective adoptive parents or the
agency to consent to medical treatment for the child, whether or not such
authorization is expressly stated in the consent or relinquishment.
§ 49-6-2. Petition to court when child believed neglected
or abused — Right to counsel; improvement period; hearing;
priority of proceeding; transcript.
(a) In any proceeding under the provisions of this article,
the child, his or her or parents and his or her legally
established custodian or other persons standing in loco
parentis to him or her shall have the right to be represented
by counsel at every stage of the proceedings and shall be
informed by the court of their right to be so represented and
that if they cannot pay for the services of counsel, that
counsel will be appointed. Counsel of the child shall be
appointed in the initial order. If the order gives physical
custody of the child to the state, the initial order shall
appoint counsel for the parents or, if the parents are
separated or divorced, the parents or parent or other person
or persons standing in loco parentis who had physical custody
of the child for the majority of the time in the period
immediately preceding the petition: Provided, That such
representation shall only continue after the first appearance
if the parent or other persons standing in loco parentis
cannot pay for the services of counsel. Counsel for other
parties shall only be appointed upon request for appointment
of counsel. If the requesting parties have not retained
counsel and cannot pay for the services of counsel, the court
shall, by order entered of record, appoint an attorney or
attorneys to represent the other party or parties and so
inform the parties. Under no circumstances may the same
attorney represent both the child and the other party or
parties, nor shall the same attorney represent both parents
or custodians. However, one attorney may represent both
parents or custodians where both parents or guardians consent
to this representation after the attorney fully discloses to
the client the possible conflict and where the attorney
assures the court that she or he is able to represent each
client without impairing her or his professional judgment;
however, if more than one child from a family is involved in
the proceeding, one attorney may represent all the children.
A parent who has been judicially determined to be battered
shall be entitled to his or her own attorney. The court may
allow to each attorney so appointed a fee in the same amount
which appointed counsel can receive in felony cases. Any
attorney appointed pursuant to this section shall by the
first day of July, one thousand nine hundred ninety-three,
and three hours per year each year thereafter, receive a
minimum of three hours of continuing legal education training
on representation of children, child abuse and neglect:
Provided, however, That where no attorney who has completed
this training is available for such appointment, the court
shall appoint a competent attorney with demonstrated
knowledge of child welfare law to represent the child. Any
attorney appointed pursuant to this section shall perform all
duties required as an attorney licensed to practice law in
the State of West Virginia.
(b) In any proceeding brought pursuant to the provisions of
this article, the court may grant any respondent an
improvement period in accord with the provisions of this
article. During such period, the court may require temporary
custody with a responsible person which has been found to be
a fit and proper person for the temporary custody of the
child or children or the state department or other agency
during the improvement period. An order granting such
improvement period shall require the department to prepare
and submit to the court a family case plan in accordance with
the provisions of section three, article six-d of
this chapter.
(c) In any proceeding pursuant to the provisions of this
article, the party or parties having custodial or other
parental rights or responsibilities to the child shall be
afforded a meaningful opportunity to be heard, including the
opportunity to testify and to present and cross-examine
witnesses. The petition shall not be taken as confessed. A
transcript or recording shall be made of all proceedings
unless waived by all parties to the proceeding. The rules of
evidence shall apply. Where relevant, the court shall
consider the efforts of the state department to remedy the
alleged circumstances. At the conclusion of the hearing, the
court shall make a determination based upon the evidence and
shall make findings of fact and conclusions of law as to
whether such child is abused or neglected and, if applicable,
whether the parent, guardian, or custodian is a battered
parent, all of which shall be incorporated into the order of
the court. The findings must be based upon conditions
existing at the time of the filing of the petition and proven
by clear and convincing proof.
(d) Any petition filed and any proceeding held under the
provisions of this article shall, to the extent practicable,
be given priority over any other civil action before the
court, except proceedings under article two-a,
chapter forty-eight of this code and actions in which trial is in
progress. Any petition filed under the provisions of this
article shall be docketed immediately upon filing. Any
hearing to be held at the end of an improvement period and
any other hearing to be held during any proceedings under
the provisions of this article shall be held as nearly as
practicable on successive days and, with respect to said
hearing to be held at the end of an improvement period,
shall be held as close in time as possible after the end
of said improvement period and shall be held within sixty
days of the termination of such improvement period.
(e) Following the court's determination, it shall be
inquired of the parents or custodians whether or not appeal
is desired and the response transcribed. A negative response
shall not be construed as a waiver. The evidence shall be
transcribed and made available to the parties or their
counsel as soon as practicable, if the same is required for
purposes of further proceedings. If an indigent person
intends to pursue further proceedings, the court reporter
shall furnish a transcript of the hearing without cost to the
indigent person if an affidavit is filed stating that he or
she cannot pay therefor.
§ 49-6-1. Petition to court when child believed neglected
or abused; notice.
(a) If the department or a reputable person believes that a
child is neglected or abused, the department or the person
may present a petition setting forth the facts to the circuit
court in the county in which the child resides, or if the
petition is being brought by the Department, in the county in
which the custodial respondent or other named party abuser
resides, or in which the abuse or neglect occurred, or to the
judge of the court in vacation. Under no circumstance may a
party file a petition in more than one county based on the
same set of facts. The petition shall be verified by the oath
of some credible person having knowledge of the facts. The
petition shall allege specific conduct including time and
place, how such conduct comes within the statutory definition
of neglect or abuse with references thereto, any supportive
services provided by the department to remedy the alleged
circumstances and the relief sought. Upon filing of the
petition, the court shall set a time and place for a hearing
and shall appoint counsel for the child. When there is an
order for temporary custody pursuant to section three
of this article, the hearing shall be held within
thirty days of the order, unless a continuance for a
reasonable time is granted to a date certain, for good cause
shown.
(b) The petition and notice of the hearing shall be served
upon both parents and any other custodian, giving to the
parents or custodian at least ten days' notice. Notice shall
also be given to the department, any foster or preadoptive
parent, and any relative providing care for the child. In
cases wherein personal service within West Virginia cannot be
obtained after due diligence upon any parent or other
custodian, a copy of the petition and notice of the hearing
shall be mailed to the person by certified mail, addressee
only, return receipt requested, to the last known address of
such person. If the person signs the certificate, service
shall be complete and the certificate shall be filed as proof
of the service with the clerk of the circuit court. If
service cannot be obtained by personal service or by
certified mail, notice shall be by publication as a Class II
legal advertisement in compliance with the provisions of
article three, chapter fifty-nine of this
code. A notice of hearing shall specify the time and place of
the hearing, the right to counsel of the child and parents or
other custodians at every stage of the proceedings and the
fact that the proceedings can result in the permanent
termination of the parental rights. Failure to object to
defects in the petition and notice shall not be construed as
a waiver.
(c) At the time of the institution of any proceeding under
this article, the department shall provide supportive
services in an effort to remedy circumstances detrimental to
a child.