2006 Code of Virginia § 16.1-278.3 - Relief of care and custody

16.1-278.3. Relief of care and custody.

A. Within seventy-five days of a hearing on a petition for relief of the careand custody of any child pursuant to 16.1-277.02 at which the court found(i) good cause for the petitioner's desire to be relieved of a child's careand custody or (ii) that permanent relief of custody and termination ofresidual parental rights is in the best interest of the child, adispositional hearing shall be held, if a final order disposing of the matterwas not entered at the conclusion of the hearing on the petition heldpursuant to 16.1-277.02.

B. Notice of the dispositional hearing shall be provided to the localdepartment of social services, the guardian ad litem for the child, the childif he is at least twelve years of age, and the child's parents, custodian orother person standing in loco parentis. However, if a parent's residualparental rights were terminated at the hearing on the petition held pursuantto 16.1-277.02, no such notice of the hearing pursuant to this sectionshall be provided to the parent. The hearing shall be held and adispositional order may be entered, although a parent, guardian, legalcustodian or person standing in loco parentis fails to appear and is notrepresented by counsel, provided personal or substituted service was made onthe person, or the court determines that the person cannot be found, afterreasonable effort, or in the case of a person who is without theCommonwealth, the person cannot be found or his post office address cannot beascertained after reasonable effort. However, in the case of a hearing togrant a petition for permanent relief of custody and terminate a parent'sresidual parental rights, notice to the parent whose rights may be affectedshall be provided in accordance with the provisions of 16.1-263 and16.1-264.

C. The court may make any of the orders of disposition permitted in a caseinvolving an abused or neglected child pursuant to 16.1-278.2. Any suchorder transferring legal custody of the child shall be made in accordancewith the provisions of subdivision A 5 of 16.1-278.2 and shall be subjectto the provisions of subsection D1 of this section. This order shall include,but need not be limited to, the following findings: (i) that there is no lessdrastic alternative to granting the requested relief; and (ii) thatreasonable efforts have been made to prevent removal and that continuedplacement in the home would be contrary to the welfare of the child, if theorder transfers legal custody of the child to a local board of socialservices. Any preliminary protective orders entered on behalf of the childshall be reviewed at the dispositional hearing and may be incorporated, asappropriate, in the dispositional order. If the child has been placed infoster care, at the dispositional hearing the court shall review the fostercare plan for the child filed by the local board of social services or childwelfare agency in accordance with 16.1-281.

D. If the parent or other custodian seeks to be relieved permanently of thecare and custody of any child and the court finds by clear and convincingevidence that termination of the parent's parental rights is in the bestinterest of the child, the court may terminate the parental rights of thatparent. If the remaining parent has not petitioned for permanent relief ofthe care and custody of the child, the remaining parent's parental rights maybe terminated in accordance with the provisions of 16.1-283. 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. Proceedings under this sectionshall be advanced on the docket so as to provide for their earliestpracticable disposition.

D1. Any order transferring custody of the child to a relative or otherinterested individual pursuant to subsection C or 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, after aninvestigation as directed by the court, (i) is found by the court to bewilling and qualified to receive and care for the child; (ii) is willing tohave a positive, continuous relationship with the child; (iii) is committedto providing a permanent, suitable home for the child; and (iv) is willingand has the ability to protect the child from abuse and neglect; and theorder shall so state. The court's order transferring custody to a relative orother interested individual should further provide for, as appropriate, anyterms or conditions which would promote the child's interest and welfare;ongoing provision of social services to the child and the child's custodian;and court 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.

F. A dispositional order entered pursuant to this section is a final orderfrom which an appeal may be taken in accordance with 16.1-296.

(1991, c. 534; 1999, c. 889; 2000, c. 385.)