2006 Code of Virginia § 16.1-277.01 - (Effective until July 1, 2007 - see note) Approval of entrustment agreement

16.1-277.01. (Effective until July 1, 2007 - see note) Approval ofentrustment agreement.

A. In any case in which a child has been entrusted pursuant to 63.2-903 or 63.2-1817 to the local board of social services or to a child welfareagency, a petition for approval of the entrustment agreement by the board oragency:

1. Shall be filed within a reasonable period of time, no later thaneighty-nine days after the execution of an entrustment agreement for lessthan ninety days, if the child is not returned to the caretaker from whom hewas entrusted within that period;

2. Shall be filed within a reasonable period of time, not to exceed thirtydays after the execution of an entrustment agreement for ninety days orlonger or for an unspecified period of time, if such entrustment agreementdoes not provide for the termination of all parental rights andresponsibilities with respect to the child; and

3. May be filed in the case of a permanent entrustment agreement whichprovides for the termination of all parental rights and responsibilities withrespect to the child.

The board or agency shall file a foster care plan pursuant to 16.1-281 tobe heard with any petition for approval of an entrustment agreement.

B. Upon the filing of a petition for approval of an entrustment agreementpursuant to subsection A of 16.1-241, the court shall appoint a guardian adlitem to represent the child in accordance with the provisions of 16.1-266,and shall schedule the matter for a hearing to be held as follows: withinforty-five days of the filing of a petition pursuant to subdivision A 1, A 2or A 3 of this section, except where an order of publication has been orderedby the court, in which case the hearing shall be held within seventy-fivedays of the filing of the petition. The court shall provide notice of thehearing and a copy of the petition to the following, each of whom shall be aparty entitled to participate in the proceeding:

1. The local board of social services or child welfare agency;

2. The child, if he is twelve years of age or older;

3. The guardian ad litem for the child; and

4. The child's parents, guardian, legal custodian or other person standing inloco parentis to the child. No such notification shall be required, however,if the judge certifies on the record that the identity of the parent orguardian is not reasonably ascertainable. An affidavit of the mother that theidentity of the father is not reasonably ascertainable shall be sufficientevidence of this fact, provided there is no other evidence before the courtwhich would refute such an affidavit. The hearing shall be held and an ordermay be entered, although a parent, guardian, legal custodian or personstanding in loco parentis fails to appear and is not represented by counsel,provided personal or substituted service was made on the person, or the courtdetermines that such person cannot be found, after reasonable effort, or inthe case of a person who is without the Commonwealth, the person cannot befound or his post office address cannot be ascertained after reasonableeffort. However, when a petition seeks approval of a permanent entrustmentagreement which provides for the termination of all parental rights andresponsibilities with respect to the child, a summons shall be served uponthe parent or parents and the other parties specified in 16.1-263. Thesummons or notice of hearing shall clearly state the consequences of atermination of residual parental rights. Service shall be made pursuant to 16.1-264. The remaining parent's parental rights may be terminated eventhough that parent has not entered into an entrustment agreement if the courtfinds, based upon clear and convincing evidence, that it is in the bestinterest of the child and that (i) the identity of the parent is notreasonably ascertainable; (ii) the identity and whereabouts of the parent areknown or reasonably ascertainable, and the parent is personally served withnotice of the termination proceeding pursuant to 8.01-296 or 8.01-320;(iii) the whereabouts of the parent are not reasonably ascertainable and theparent is given notice of the termination proceedings by certified orregistered mail to the last known address and such parent fails to object tothe proceedings within twenty-one days of the mailing of such notice; or (iv)the whereabouts of the parent are not reasonably ascertainable and the parentis given notice of the termination proceedings through an order ofpublication pursuant to 8.01-316 and 8.01-317, and such parent fails toobject to the proceedings.

C. At the hearing held pursuant to this section, the court shall hearevidence on the petition filed and shall review the foster care plan for thechild filed by the local board or child welfare agency in accordance with 16.1-281.

D. At the conclusion of the hearing, the court shall make a finding, basedupon a preponderance of the evidence, whether approval of the entrustmentagreement is in the best interest of the child. However, if the petitionseeks approval of a permanent entrustment agreement which provides for thetermination of all parental rights and responsibilities with respect to thechild, the court shall make a finding, based upon clear and convincingevidence, whether termination of parental rights is in the best interest ofthe child. If the court makes either of these findings, the court may makeany of the orders of disposition permitted in a case involving an abused orneglected child pursuant to 16.1-278.2. Any such order transferring legalcustody of the child shall be made in accordance with the provisions ofsubdivision A 5 of 16.1-278.2 and shall be subject to the provisions ofsubsection D1 of this section. This order shall include, but need not belimited to, the following findings: (i) that there is no less drasticalternative to granting the requested relief; and (ii) that reasonableefforts have been made to prevent removal and that continued placement in thehome would be contrary to the welfare of the child, if the order transferslegal custody of the child to a local board of social services.

The effect of the court's order approving a permanent entrustment agreementis to terminate an entrusting parent's residual parental rights. Any orderterminating parental rights shall be accompanied by an order (i) continuingor granting custody to a local board of social services or to a licensedchild-placing agency or (ii) granting custody or guardianship to a relativeor other interested individual. Such an order continuing or granting custodyto a local board of social services or to a licensed child-placing agencyshall indicate whether that board or agency shall have the authority to placethe child for adoption and consent thereto. A final order terminatingparental rights pursuant to this section renders the approved entrustmentagreement irrevocable. Such order may be appealed in accordance with theprovisions of 16.1-296.

D1. Any order transferring custody of the child to a relative or otherinterested individual pursuant to subsection D of this section shall beentered only upon a finding, based upon a preponderance of the evidence, thatthe relative or other interested individual is one who (i) after aninvestigation as directed by the court, is found by the court to be willingand qualified to receive and care for the child; (ii) is willing to have apositive, continuous relationship with the child; (iii) is committed toproviding a permanent, suitable home for the child; and (iv) is willing andhas the ability to protect the child from abuse and neglect; and the ordershall so state. The court's order transferring custody to a relative or otherinterested individual should further provide for, as appropriate, any termsand conditions which would promote the child's interest and welfare; ongoingprovision of social services to the child and the child's custodian; andcourt review of the child's placement.

E. The local board or licensed child-placing agency to which authority isgiven to place the child for adoption and consent thereto after an orderterminating parental rights is entered pursuant to this section shall file awritten Adoption Progress Report with the juvenile court on the progressbeing made to place the child in an adoptive home. The report shall be filedwith the court every six months from the date of the final order terminatingparental rights until a final order of adoption is entered on behalf of thechild in the circuit court. At the conclusion of the hearing at whichtermination of parental rights is ordered and authority is given to the localboard or licensed child-placing agency to place the child for adoption, thejuvenile court shall schedule a date by which the board or agency shall filethe first Adoption Progress Report required by this section. A copy of theAdoption Progress Report shall be sent by the court to the guardian ad litemfor the child. The court may schedule a hearing on the report with or withoutthe request of a party.

(1999, c. 889; 2000, c. 385.)

16.1-277.01. (Effective July 1, 2007) Approval of entrustment agreement.

A. In any case in which a child has been entrusted pursuant to 63.2-903 or 63.2-1817 to the local board of social services or to a child welfareagency, a petition for approval of the entrustment agreement by the board oragency:

1. Shall be filed within a reasonable period of time, no later thaneighty-nine days after the execution of an entrustment agreement for lessthan ninety days, if the child is not returned to the caretaker from whom hewas entrusted within that period;

2. Shall be filed within a reasonable period of time, not to exceed thirtydays after the execution of an entrustment agreement for ninety days orlonger or for an unspecified period of time, if such entrustment agreementdoes not provide for the termination of all parental rights andresponsibilities with respect to the child; and

3. May be filed in the case of a permanent entrustment agreement whichprovides for the termination of all parental rights and responsibilities withrespect to the child.

The board or agency shall file a foster care plan pursuant to 16.1-281 tobe heard with any petition for approval of an entrustment agreement.

B. Upon the filing of a petition for approval of an entrustment agreementpursuant to subsection A of 16.1-241, the court shall appoint a guardian adlitem to represent the child in accordance with the provisions of 16.1-266,and shall schedule the matter for a hearing to be held as follows: withinforty-five days of the filing of a petition pursuant to subdivision A 1, A 2or A 3 of this section, except where an order of publication has been orderedby the court, in which case the hearing shall be held within seventy-fivedays of the filing of the petition. The court shall provide notice of thehearing and a copy of the petition to the following, each of whom shall be aparty entitled to participate in the proceeding:

1. The local board of social services or child welfare agency;

2. The child, if he is twelve years of age or older;

3. The guardian ad litem for the child; and

4. The child's parents, guardian, legal custodian or other person standing inloco parentis to the child. No such notification shall be required, however,if the judge certifies on the record that the identity of the parent orguardian is not reasonably ascertainable. A birth father shall be givennotice of the proceedings if he is an acknowledged father pursuant to 20-49.1, adjudicated pursuant to 20-49.8, or presumed pursuant to 63.2-1202, or has registered with the Putative Father Registry pursuantArticle 7 ( 63.2-1249 et seq.). An affidavit of the mother that the identityof the father is not reasonably ascertainable shall be sufficient evidence ofthis fact, provided there is no other evidence before the court which wouldrefute such an affidavit. Failure to register with the Putative FatherRegistry pursuant to Article 7 ( 63.2-1249 et seq.) of Chapter 12 of Title63.2 shall be evidence that the identity of the father is not reasonablyascertainable. The hearing shall be held and an order may be entered,although a parent, guardian, legal custodian or person standing in locoparentis fails to appear and is not represented by counsel, provided personalor substituted service was made on the person, or the court determines thatsuch person cannot be found, after reasonable effort, or in the case of aperson who is without the Commonwealth, the person cannot be found or hispost office address cannot be ascertained after reasonable effort. However,when a petition seeks approval of a permanent entrustment agreement whichprovides for the termination of all parental rights and responsibilities withrespect to the child, a summons shall be served upon the parent or parentsand the other parties specified in 16.1-263. The summons or notice ofhearing shall clearly state the consequences of a termination of residualparental rights. Service shall be made pursuant to 16.1-264. The remainingparent's parental rights may be terminated even though that parent has notentered into an entrustment agreement if the court finds, based upon clearand convincing evidence, that it is in the best interest of the child andthat (i) the identity of the parent is not reasonably ascertainable; (ii) theidentity and whereabouts of the parent are known or reasonably ascertainable,and the parent is personally served with notice of the termination proceedingpursuant to 8.01-296 or 8.01-320; (iii) the whereabouts of the parent arenot reasonably ascertainable and the parent is given notice of thetermination proceedings by certified or registered mail to the last knownaddress and such parent fails to object to the proceedings within 15 days ofthe mailing of such notice; or (iv) the whereabouts of the parent are notreasonably ascertainable and the parent is given notice of the terminationproceedings through an order of publication pursuant to 8.01-316 and8.01-317, and such parent fails to object to the proceedings.

C. At the hearing held pursuant to this section, the court shall hearevidence on the petition filed and shall review the foster care plan for thechild filed by the local board or child welfare agency in accordance with 16.1-281.

D. At the conclusion of the hearing, the court shall make a finding, basedupon a preponderance of the evidence, whether approval of the entrustmentagreement is in the best interest of the child. However, if the petitionseeks approval of a permanent entrustment agreement which provides for thetermination of all parental rights and responsibilities with respect to thechild, the court shall make a finding, based upon clear and convincingevidence, whether termination of parental rights is in the best interest ofthe child. If the court makes either of these findings, the court may makeany of the orders of disposition permitted in a case involving an abused orneglected child pursuant to 16.1-278.2. Any such order transferring legalcustody of the child shall be made in accordance with the provisions ofsubdivision A 5 of 16.1-278.2 and shall be subject to the provisions ofsubsection D1 of this section. This order shall include, but need not belimited to, the following findings: (i) that there is no less drasticalternative to granting the requested relief; and (ii) that reasonableefforts have been made to prevent removal and that continued placement in thehome would be contrary to the welfare of the child, if the order transferslegal custody of the child to a local board of social services.

The effect of the court's order approving a permanent entrustment agreementis to terminate an entrusting parent's residual parental rights. Any orderterminating parental rights shall be accompanied by an order (i) continuingor granting custody to a local board of social services or to a licensedchild-placing agency or (ii) granting custody or guardianship to a relativeor other interested individual. Such an order continuing or granting custodyto a local board of social services or to a licensed child-placing agencyshall indicate whether that board or agency shall have the authority to placethe child for adoption and consent thereto. A final order terminatingparental rights pursuant to this section renders the approved entrustmentagreement irrevocable. Such order may be appealed in accordance with theprovisions of 16.1-296.

D1. Any order transferring custody of the child to a relative or otherinterested individual pursuant to subsection D of this section shall beentered only upon a finding, based upon a preponderance of the evidence, thatthe relative or other interested individual is one who (i) after aninvestigation as directed by the court, is found by the court to be willingand qualified to receive and care for the child; (ii) is willing to have apositive, continuous relationship with the child; (iii) is committed toproviding a permanent, suitable home for the child; and (iv) is willing andhas the ability to protect the child from abuse and neglect; and the ordershall so state. The court's order transferring custody to a relative or otherinterested individual should further provide for, as appropriate, any termsand conditions which would promote the child's interest and welfare; ongoingprovision of social services to the child and the child's custodian; andcourt review of the child's placement.

E. The local board or licensed child-placing agency to which authority isgiven to place the child for adoption and consent thereto after an orderterminating parental rights is entered pursuant to this section shall file awritten Adoption Progress Report with the juvenile court on the progressbeing made to place the child in an adoptive home. The report shall be filedwith the court every six months from the date of the final order terminatingparental rights until a final order of adoption is entered on behalf of thechild in the circuit court. At the conclusion of the hearing at whichtermination of parental rights is ordered and authority is given to the localboard or licensed child-placing agency to place the child for adoption, thejuvenile court shall schedule a date by which the board or agency shall filethe first Adoption Progress Report required by this section. A copy of theAdoption Progress Report shall be sent by the court to the guardian ad litemfor the child. The court may schedule a hearing on the report with or withoutthe request of a party.

(1999, c. 889; 2000, c. 385; 2006, c. 825.)