§49-6-9 Custody in emergency situations. - West Virginia Statutes

§49-6-9. Custody in emergency situations.
(a) A child believed to be a neglected child or an abused child may be taken into custody without the court order otherwise required by section three of this article by a law-enforcement officer (1) if the child is abandoned as defined in subsection (g) of this section, or (2) if such officer determines that the child is in a condition requiring emergency medical treatment by a physician and the child's parents, parent, guardian or custodian refuses to permit such treatment, or is unavailable for consent. A child who suffers from a condition requiring emergency medical treatment, whose parents, parent, guardian or custodian refuses to permit the providing of such emergency medical treatment, may be retained in a hospital by a physician against the will of such parents, parent, guardian or custodian, as provided in subsection (c) of this section.

(b) A child taken into protective custody as abandoned under the provisions of this section may be housed by the state department or in any authorized child shelter facility. The authority to hold such child in protective custody as abandoned, absent a petition and proper order granting temporary custody pursuant to section three of this article, shall terminate by operation of law upon the happening of either of the following events, whichever shall first occur: (1) the expiration of ninety-six hours from the time the child is initially taken into protective custody, or (2) the expiration of the circumstances which initially warranted the determination of abandonment. No child may be considered abandoned and custody withheld from such child's parents, parent, guardian or custodian presenting themselves, himself or herself in a fit and proper condition and requesting physical custody of such child. No child may be removed from a place of residence as abandoned under this section until after (1) all reasonable efforts to make inquiries and arrangements with neighbors, relatives and friends have been exhausted; or if no such arrangements can be made, (2) the state department may place in the residence a home services worker with the child for a period of not less than twelve hours to await the return of such child's parents, parent, guardian or custodian. Prior to taking a child into protective custody as abandoned at a place at or near the residence of such child, the law-enforcement officer shall post a typed or legibly handwritten notice at the place the child is found, informing the parents, parent, guardian or custodian that the child was taken by a law-enforcement officer, the name, address and office telephone number of the officer, the place and telephone number where information can continuously be obtained as to the child's whereabouts, and if known, the worker for the state department having responsibility for the child.

(c) A child taken into protective custody pursuant to the provisions of this section for emergency medical treatment may be held in a hospital under the care of a physician against the will of such child's parents, parent, guardian or custodian for a period not to exceed ninety-six hours. The parents, parent, guardian or custodian may not be denied the right to see or visit with such child in a hospital. The authority to retain a child in protective custody in a hospital as requiring emergency medical treatment shall terminate by operation of law upon the happening of either of the following events, whichever shall first occur: (1) when the condition, in the opinion of the physician, no longer required emergency hospitalization, or (2) upon the expiration of ninety-six hours from the initiation of custody, unless within such time, a petition is presented and a proper order obtained from the circuit court.

(d) Prior to assuming custody of a child from a law-enforcement officer, pursuant to the provisions of this section, a physician or worker from the state department shall require a typed or legibly handwritten statement from such officer identifying such officer's name, address and office telephone number and specifying all the facts upon which the decision to take the child into protective custody was based, and the date, time and place of the taking.

(e) Any worker for the state department assuming custody of a child pursuant to the provisions of this section shall immediately notify the parents, parent, guardian or custodian of the child of the taking of such custody and the reasons therefor, if the whereabouts of the parents, parent, guardian or custodian are known or can be discovered with due diligence; and if not, notice and explanation shall be given to the child's closest relative, if his or her whereabouts are known or can be discovered with due diligence within a reasonable time. An inquiry shall be made of relatives and neighbors, and if a relative or appropriate neighbor is willing to assume custody of such child, such child shall temporarily be placed in such custody.

(f) No child shall be taken into custody under circumstances not justified by this section or pursuant to section three of this article without appropriate process. Any retention of a child or order for retention of a child not complying with the time limits and other requirements specified in this article shall be void by operation of law.

(g) As used in this section:

(1) "Abandoned" means to be without supervision or shelter for an unreasonable period of time in light of the child's age and the ability to care for himself or herself in circumstances presenting an immediate threat of serious harm to such child;

(2) A "law-enforcement officer" means a law-enforcement officer of the department of public safety, a municipality or county sheriff's department;

(3) A "condition requiring emergency medical treatment" means a condition which, if left untreated for a period of a few hours, may result in permanent physical damage; such a condition includes, but is not limited to, profuse or arterial bleeding, dislocation or fracture, unconsciousness and evidence of ingestion of significant amounts of a poisonous substance.