16.1-277.01 - Approval of entrustment agreement.
§ 16.1-277.01. Approval of entrustment agreement.
A. In any case in which a child has been entrusted pursuant to § 63.2-903 or63.2-1817 to the local board of social services or to a child welfare agency,a petition for approval of the entrustment agreement by the board or agency:
1. Shall be filed within a reasonable period of time, no later than 89 daysafter the execution of an entrustment agreement for less than 90 days, if thechild is not returned to the caretaker from whom he was entrusted within thatperiod;
2. Shall be filed within a reasonable period of time, not to exceed 30 daysafter the execution of an entrustment agreement for 90 days or longer or foran unspecified period of time, if such entrustment agreement does not providefor the termination of all parental rights and responsibilities with respectto 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: within 45days of the filing of a petition pursuant to subdivision A 1, A 2 or A 3,except where an order of publication has been ordered by the court, in whichcase the hearing shall be held within 75 days of the filing of the petition.The court shall provide notice of the hearing and a copy of the petition tothe following, each of whom shall be a party entitled to participate in theproceeding:
1. The local board of social services or child welfare agency;
2. The child, if he is 12 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 pursuant toArticle 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. This order shall include, but need not be limited to, thefollowing findings: (i) that there is no less drastic alternative to grantingthe requested relief; and (ii) that reasonable efforts have been made toprevent removal and that continued placement in the home would be contrary tothe welfare of the child, if the order transfers legal custody of the childto a local board of social services. At any time subsequent to the transferof legal custody of the child pursuant to this section, a birth parent orparents of the child and the pre-adoptive parent or parents may enter into awritten post-adoption contact and communication agreement in accordance withthe provisions of § 16.1-283.1 and Article 1.1 (§ 63.2-1220.2 et seq.) ofChapter 12 of Title 63.2. The court shall not require a written post-adoptioncontact and communication agreement as a precondition to entry of an order inany case involving the child.
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 shall be entered only upon afinding, based upon a preponderance of the evidence, that the relative orother interested individual is one who (i) after an investigation as directedby the court, is found by the court to be willing and qualified to receiveand care for the child; (ii) is willing to have a positive, continuousrelationship with the child; (iii) is committed to providing a permanent,suitable home for the child; and (iv) is willing and has the ability toprotect the child from abuse and neglect; and the order shall so state. Thecourt's order transferring custody to a relative or other interestedindividual should further provide for, as appropriate, any terms andconditions 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; 2009, cc. 98, 260; 2010, c. 331.)