Child Abuse and Neglect under West Virginia Law

Last Updated On: 8/21/2017 12:09:02 PM

What is child abuse under West Virginia law?

Child abuse means that a child’s health and well-being is being harmed or threatened.  Under West Virginia law (W.Va. Code § 49-1-201), a child’s health and well-being can be threatened in a few ways:

  • Actual or attempted intentional infliction of physical or mental injury upon the child or any child in the home;
  • Sexual abuse or exploitation of the child;
  • The sale or attempted sale of the child; or
  • Domestic violence.

What is neglect under West Virginia law?

Neglect means that a child’s physical or mental health is harmed or threatened by a parent’s failure, refusal, or inability to provide:

  • Food,
  • Clothing,
  • Shelter,
  • Supervision,
  • Medical care, or
  • Education.

Neglect can also be a result of the child being without these basic necessities because of the absence of the parent (W.Va. Code § 49-1-201).

Who investigates child abuse and neglect in West Virginia?

In West Virginia, Child Protective Services (CPS), which is under the Department of Health and Human Resources (DHHR), investigates possible child abuse and neglect.

How are abuse and neglect cases handled in court?

Circuit Courts Judges are the judges in West Virginia that hear child abuse and neglect cases. If a Family Court Judge learns about possible abuse and neglect, the Family Court Judge must order the DHHR to investigate. If DHHR finds that there is abuse and neglect, DHHR will notify the Circuit Court Judge, who will hear the case.

How can you report suspected child abuse and neglect?

Call the DHHR’s Centralized Intake for Abuse and Neglect at 1-800-352-6513. This hotline is open 24 hours a day and 7 days a week. The names of people who call to report are kept confidential. You can also report child abuse and neglect to your local police department.

When can CPS remove children from the home?

If CPS believes a child is in danger, CPS may take emergency custody of the child before an emergency abuse and neglect petition is filed with a court. CPS must then immediately go to a Circuit Court judge or Magistrate Court judge and ask for an order for emergency custody. If CPS receives this order, CPS must file an abuse and neglect petition within 48 hours.

What is a petition?

A petition is a legal document that describes the abuse and neglect that supposedly took place. The county prosecutor usually files an abuse and neglect petition in front of the Circuit Court Judge on behalf of the DHHR. However, if DHHR or the prosecutor refuse to bring an abuse and neglect petition, any person who believes abuse and neglect took place can file an abuse and neglect petition in Circuit Court.

What is an initial order?

An initial order is the first order from the Circuit Court Judge in an abuse and neglect case. An initial order from the judge may or may not give temporary custody of the child to the DHHR. The initial order also appoints lawyers for the child and the parents. The order may also appoint a volunteer who helps look at what will be best for the child called a CASA or Court Appointed Special Advocate.

What is a preliminary hearing?

During a preliminary hearing, the judge decides if the child needs to be removed from the home. If emergency custody was ordered before the preliminary hearing, the judge will decide if it should continue. West Virginia law tries to keep brothers and sisters together if the judge decides that DHHR should keep custody of the children.

Who is the respondent in an abuse and neglect case?

The respondent in the abuse and neglect case is the adult who supposedly abused or neglected the children. If only one parent supposedly abused the children, the other parent can be a respondent if they knew about the abuse and could have stopped it. If one of the parents was also a victim of abuse, that parent should notify CPS and their court appointed lawyer so that the judge will know.

What is an improvement period?

An improvement period is the time frame the judge gives the respondent to correct issues of abuse and neglect. DHHR keeps track of and reports on the respondent’s progress during the improvement period. If a respondent does not follow the judge’s rules for the improvement period, the judge may cut it short.

Typical rules for an improvement period can be:

  • Being financially stable;
  • Having a stable place to live;
  • Having a psychological evaluation and following what is recommended;
  • Getting treatment for drug or alcohol abuse;
  • Staying drug or alcohol free;
  • Going to parenting classes;
  • Going to supervised or unsupervised visits with the child; and
  • Going to MDT meetings.

What is an MDT?

MDT stands for multidisciplinary treatment team. MDT is both the name of the group of people who meet and the name of the meeting that takes place. The MDT develops, carries out, and monitors a service plan for the family to correct the problems that led to abuse and neglect. The MDT also sends written reports to the judge. The MDT will meet at least once every 3 months until the Judge decides where the child should be permanently placed.

Who goes to an MDT?

  • The DHHR worker;
  • The prosecuting attorney;
  • The child’s parents or guardians;
  • The adult respondents (if they are not parents or guardians);
  • Any co-petitioner;
  • The lawyers for the respondents;
  • The Guardian Ad Litem (children’s lawyer)
  • The CASA;
  • Anyone who is providing services to the respondents to help them deal with the issues that led to abuse and neglect;
  • Appropriate school officials;
  • The foster parents or custodial relatives; and
  • The child (if old enough and appropriate).

When does the judge give a respondent an improvement period?

A judge may give a respondent an improvement period before an abuse and neglect adjudicatory hearing, after an abuse and neglect adjudicatory hearing, or as part of the order in an abuse and neglect adjudicatory hearing. To get an improvement period, the respondent must admit there is a problem and make efforts to correct the problem. DHHR will develop a family case plan if the respondent gets an improvement period.

What is a family case plan?

DHHR staff prepare a family case plan with the help of the lawyers and the MDT. The case plan lists changes that must happen and services that will be provided to the family to help correct the problems. The case plan also includes a description of how the respondents must change their behavior. The long term or permanency plan for the child is also included. The overall goal of the abuse and neglect process is to correct problems so the family can be reunified or if that is not possible, to find a safe and loving place for the child to grow up.

What is an adjudicatory hearing?

At the adjudicatory hearing, the prosecutor, the respondents’ lawyers, and the children’s lawyers present evidence to support or to defend against the abuse and neglect claims set forth in the petition. The judge decides at the end of the hearing if the child is abused and neglected. There may be more hearings after the adjudicatory hearing if the Judge orders an improvement plan for the respondents to see if they can deal with the issues that led to abuse and neglect.

What is a dispositional hearing?

A dispositional hearing is a final hearing in an abuse and neglect case. During this hearing, the judge must choose the least restrictive action to take on the case. This starts with dismissing the petition if the judge feels it is safe to reunite the family. The judge may cut off or terminate the parents’ rights if the evidence shows that the abuse and neglect was severe and/ or if the respondents cannot change the issues that led to the abuse and neglect. If a parent’s rights are terminated, the person no longer has legal status as the child’s parent.

What is a permanency hearing?

This hearing takes places only if the parent’s rights have been cut off. The judge determines what needs to be done to give the child a permanent home. There is a preference to place the child in a foster or adoptive home with his or her brothers and sisters.

What standard determines how decisions are made in abuse and neglect cases?

The legal standard for abuse and neglect cases is clear and convincing evidence. This means the judge needs to see stronger evidence than the evidence required for family court hearings, but the judge does not need to see evidence that is as strong as the evidence needed in a criminal hearing. The judge always makes decisions based on the best interests of the child. 

What will happen to brothers and sisters if more than one child is removed from the home?

West Virginia law requires brothers and sisters to be placed together if possible. If brothers and sisters are separated, DHHR must give reasons to the judge for separating the children. The law says that brothers and sisters who are in foster care should be permanently placed together if possible.

Who gets appointed a lawyer? 

The child, his or her parents, and his or her legal custodians have the right to a lawyer. The judge will appoint lawyers in the judge’s first order in an abuse and neglect case. The lawyer can continue on the case if the person they were appointed for does not have enough money to pay for a lawyer. The same lawyer can never represent both the parents and the child.

What is a co-petitioner?

A co-petitioner is a person who files an abuse or neglect petition along with the prosecuting attorney. A co-petitioner is often a parent who has not abused the child, and who has been a victim of domestic violence. Because the parent was a victim, he or she could not stop the child abuse and neglect. When a co-petitioner is a parent, the judge will appoint him or her a lawyer separate from the prosecutor.

What is CASA?

CASA stands for Court Appointed Special Advocate. A CASA is a trained volunteer who advocates for the best interests of the child.

The CASA:

  • Gathers information by talking to witnesses and reviewing records;
  • Monitors the judge’s orders and case plans; and
  • Makes written reports to the judge and recommends what is best for the child.

What is a GAL?

GAL stands for guardian ad litem. Guardian ad litem is a lawyer who represents the child and the child’s best interests.

The GAL:

  • Meets with the child;
  • Meets with the social worker and the child’s teachers;
  • Works with service providers and the CASA volunteer;
  • Investigates the case;
  • Goes on home visits;
  • Represents the child at hearings and MDTs;
  • Helps develop and monitor improvement periods; and
  • Sends a written report to the judge with recommendations for the child’s best interest.

How can you get involved in an abuse and neglect case if you are a relative of the child?

If you would like to foster or adopt a child who is in an abuse and neglect case, you should contact DHHR and speak to the case worker as soon as possible. It is important to contact them early on if you want DHHR and the judge to place the child with you. DHHR will place the child with relatives if it is safe and appropriate. Even if the child is not placed with you, you should stay in contact with the DHHR worker throughout the process. The DHHR worker needs to know if anything happens with the child or the parent. Read the article on Child Abuse and Neglect: How Can Relatives Become Involved to Help The Child for more information.

Does DHHR try to place child with relatives in abuse and neglect cases?

Yes, the DHHR must search for possible relatives who are interested in taking the child and would be a good, safe placement. If a relative placement is not possible, DHHR looks for someone who is not a relative but has a bond with the child.

What are the requirements to become a foster care provider?

If you are a relative who wants custody of a child, you can apply to get PRIDE training to be a foster parent. DHHR will do a general walkthrough of your home. If DHHR decides your home is safe and appropriate, DHHR can then place the child in the home. Next, the Homefinding Unit will do a background and criminal records check on you. If you pass these checks, DHHR will certify you as a foster parent and you can get financial help in caring for the child.

What is the PRIDE program?

PRIDE stands for Parent Resources for Information, Development, and Education. PRIDE training teaches foster and adoptive parents skills and prepares them for the challenges of fostering or adopting a child.

Who should call Legal Aid?

If you are a relative or non-custodial parent of a child who is in an abuse and neglect case and have questions, or if you are a neighbor who witnessed child abuse and neglect and have questions, you can contact Legal Aid to apply for help.

Helpful Links for Additional Information

WV DHHR Bureau for Children and Families

The Time is Now video - West Virginia Supreme Court of Appeals

This is general legal information. For guidance about your situation, talk to a lawyer.