(a)Removal by family court to circuit court of infant guardianship cases involving child abuse and neglect. – If a family court learns that the basis, in whole or part, of a petition for infant guardianship brought pursuant to W.Va. Code §§ 44-10-3, is an allegation of child abuse and neglect as defined in W.Va. Code §§ 49-1-3, then the family court before whom the guardianship proceeding is pending shall remove the case to the circuit court for hearing. Should the family court learn of such allegations of child abuse and neglect during the hearing, then the family court shall continue the hearing, subject to an appropriate temporary guardianship order, and remove the case to the circuit court for hearing to be conducted within 10 days, for determination of all issues. Once removed, the case (or any portion) shall not be remanded to family court. At the circuit court hearing, allegations of child abuse and neglect must be proven by clear and convincing evidence. Immediately upon removal, the circuit clerk shall forthwith send the removal notice to the circuit court. Upon receipt of the removal notice, the circuit court shall forthwith cause notice to be served in accordance with W. Va. Code §§ 44-10-3 and to the Department of Health and Human Resources who shall be served with notice of the petition, including a copy of the petition, and of the final hearing to be conducted before the circuit court. Such notice to the Department of Health and Human Resources shall constitute a report by the family and circuit courts pursuant to W. Va. Code §§ 49-6A-2. (b)Investigation of Abuse and Neglect. – Upon removal of the infant guardianship petition, the circuit court may utilize the investigative and mandamus process and related procedures set forth in Rule 3 a of the Rules of Procedure for Child Abuse and Neglect Proceedings if the court deems it necessary or appropriate under the circumstances presented. The circuit court shall allow the petitioner for infant guardianship to appear as a co-petitioner on the petition filed by the Department of Health and Human Services pursuant to W. Va. Code §§ 49-6-1, et seq., if both so agree. Nothing herein shall be construed as either a requirement that the petitioner for infant guardianship be a co-petitioner under W. Va. Code §§ 49-6-1, et seq., or a prohibition against the filing of a W. Va. Code §§ 49-6-1, et seq., petition by the petitioner for infant guardianship should the Department show cause why it will not file such a petition.
W. Va. R. Prac. & P. Fam. Ct. 48a
Amended by order entered and effective November 7, 2007.
