2006 Code of Virginia § 16.1-277.02 - Petition for relief of care and custody

16.1-277.02. Petition for relief of care and custody.

A. Requests for petitions for relief of the care and custody of a child shallbe referred initially to the local department of social services forinvestigation and the provision of services, if appropriate, in accordancewith the provisions of 63.2-319 or Chapter 15 ( 63.2-1500 et seq.) ofTitle 63.2. Upon the filing of a petition for relief of a child's care andcustody pursuant to subdivision A 4 of 16.1-241, the court shall appoint aguardian ad litem to represent the child in accordance with the provisions of 16.1-266, and shall schedule the matter for a hearing on the petition. Suchhearing on the petition may include partial or final disposition of thematter. The court shall provide notice of the hearing and a copy of thepetition to the following, each of whom shall be a party entitled toparticipate in the proceeding:

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

2. The guardian ad litem for the child;

3. The child's parents, custodian or other person standing in loco parentisto the child. No such notification shall be required, however, if the judgecertifies on the record that the identity of the parent is not reasonablyascertainable. An affidavit of the mother that the identity of the father isnot reasonably ascertainable shall be sufficient evidence of this fact,provided there is no other evidence before the court which would refute suchan affidavit. The hearing on the petition shall be held pursuant to thissection although a parent fails to appear and is not represented by counsel,provided personal or substituted service was made on the parent, 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, in the case of a hearing to grant a petition for permanentrelief of custody and terminate a parent's residual parental rights, noticeto the parent whose rights may be affected shall be provided in accordancewith the provisions of 16.1-263 and 16.1-264; and

4. The local board of social services. Upon receiving notice of the hearingpursuant to this section, the local board of social services shallinvestigate the matter and provide services, as appropriate, in accordancewith the provisions of 63.2-319 or Chapter 15 ( 63.2-1500 et seq.) ofTitle 63.2.

B. At the hearing, the local board of social services, the child, the child'sparents, guardian, legal custodian or other person standing in loco parentisand any other family or household member of the child to whom notice wasgiven shall have the right to confront and cross-examine all adversewitnesses and evidence and to present evidence on their own behalf.

C. At the conclusion of the hearing on the petition, the court shall make afinding, based upon a preponderance of the evidence, whether there is goodcause shown for the petitioner's desire to be relieved of the child's careand custody, unless the petition seeks permanent relief of custody andtermination of parental rights. If the petition seeks permanent relief ofcustody and termination of parental rights, the court shall make a finding,based upon clear and convincing evidence, whether termination of parentalrights is in the best interest of the child. If the court makes either ofthese findings, the court may enter:

1. A preliminary protective order pursuant to 16.1-253;

2. An order that requires the local board of social services to provideservices to the family as required by law;

3. An order that is consistent with any of the dispositional alternativespursuant to 16.1-278.3; or

4. Any combination of these orders.

Any such order transferring legal custody of the child shall be made inaccordance with the provisions of subdivision A 5 of 16.1-278.2 and shallbe subject to the provisions of subsection C1 of this section. This ordershall include, but need not be limited to, the following findings: (i) thatthere is no less drastic alternative to granting the requested relief; and(ii) that reasonable efforts have been made to prevent removal and thatcontinued placement in the home would be contrary to the welfare of thechild, if the order transfers legal custody of the child to a local board ofsocial services. Any order terminating residual parental rights shall beaccompanied by an order continuing or granting custody to a local board ofsocial services, to a licensed child-placing agency or the granting ofcustody or guardianship to a relative or other interested individual. Such anorder continuing or granting custody to a local board of social services orto a licensed child-placing agency shall indicate whether that board oragency shall have the authority to place the child for adoption and consentthereto.

The court shall schedule a subsequent hearing within seventy-five days of thehearing held pursuant to this section: (i) to enter a final order ofdisposition pursuant to 16.1-278.3 or (ii) if the child is placed in fostercare, for review of the foster care plan filed pursuant to 16.1-281. If aparty is required to be present at the subsequent hearing, and (i) is presentat the hearing on the petition, the party shall be given notice of the dateset for the subsequent hearing; (ii) if not present, shall be summoned asprovided in 16.1-263.

C1. Any order transferring temporary custody of the child to a relative orother interested individual pursuant to subsection C 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) is found by thecourt to be willing and qualified to receive and care for the child; (ii) iswilling to have a positive, continuous relationship with the child; and (iii)is willing and has the ability to protect the child from abuse and neglect.The court's order transferring temporary custody to a relative or otherinterested individual should further provide for compliance with anypreliminary protective order entered on behalf of the child in accordancewith the provisions of 16.1-253; and, as appropriate, ongoing provision ofsocial services to the child and the child's custodian; and court review ofthe child's placement with the relative or other individual. Any final ordertransferring custody of the child to a relative or other interestedindividual pursuant to this section shall, in addition, be entered only afteran investigation as directed by the court and upon a finding, stated in thecourt's order, that the relative or other interested individual is one whosatisfies clauses (i), (ii) and (iii) of this subsection and is committed toproviding a permanent, suitable home for the child.

D. 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.)