West Virginia Code 49-2-128 – Reasonable and prudent foster parent standard
(a) As used in this section, the following terms have the following meanings:
Terms Used In West Virginia Code 49-2-128
- Caregiver: means any person who is at least eighteen years of age and:
(A) Is related by blood, marriage or adoption to the minor, but who is not the legal custodian or guardian of the minor. See West Virginia Code 49-1-204
- child: means an individual who meets one of the following conditions:
(A) Is under thirteen years of age. See West Virginia Code 49-1-202
- Facility: means a place or residence, including personnel, structures, grounds, and equipment used for the care of a child or children on a residential or other basis for any number of hours a day in any shelter or structure maintained for that purpose. See West Virginia Code 49-1-206
- Foster parent: means a person with whom the department has placed a child and who has been certified by the department, a child placing agency, or another agent of the department to provide foster care. See West Virginia Code 49-1-206
- Kinship parent: means a person with whom the department has placed a child to provide a kinship placement. See West Virginia Code 49-1-206
- Parent: means an individual defined as a parent by law or on the basis of a biological relationship, marriage to a person with a biological relationship, legal adoption or other recognized grounds. See West Virginia Code 49-1-204
- Tort: A civil wrong or breach of a duty to another person, as outlined by law. A very common tort is negligent operation of a motor vehicle that results in property damage and personal injury in an automobile accident.
“Age-appropriate” means activities or items that are generally accepted as suitable for children of the same chronological age or level of maturity. Age-appropriateness is based on the development of cognitive, emotional, physical, and behavioral capacity that is typical for an age or age group.
“Caregiver” means a foster parent, kinship parent, or a designated official in a residential treatment facility.
“Reasonable and prudent foster parent standard” means the standard characterized parental decisions that maintain the child‘s health, safety, and best interests, while at the same time encouraging the child’s emotional and developmental growth, that a caregiver shall use when determining whether to allow a child to participate in extracurricular, enrichment, and social activities.
(b) Each child who comes into care under this chapter is entitled to participate in age-appropriate extracurricular, enrichment, and social activities.
(c) Caregivers shall use a reasonable and prudent foster parent standard in determining whether to give permission for a child in out-of-home care to participate in extracurricular, enrichment, and social activities. When using the reasonable and prudent foster parent standard, the caregiver shall consider:
(1) The child’s age, maturity, and developmental level, to maintain the overall health and safety of the child;
(2) The potential risk factors and the appropriateness of the extracurricular, enrichment, and social activity;
(3) The best interest of the child based on information known to the caregiver;
(4) The importance of encouraging the child’s emotional and developmental growth;
(5) The importance of providing the child with the most family-like living experience possible; and
(6) The behavioral history of the child and the child’s ability to safely participate in the proposed activity, as with any other child.
(d) Child placing agencies and residential treatment facilities shall have policies consistent with this section and shall promote and protect the ability of children to participate in age-appropriate extracurricular, enrichment, and social activities.
(e) A foster or kinship parent may use persons to care for or babysit for the child or permit overnight stays outside of the home using the reasonable and prudent foster parent standard.
(f) There is a rebuttable presumption that a caregiver has acted as a reasonable and prudent foster parent.
(g) A caregiver is not liable for harm caused to a child in his or her care who participates in an activity approved by the caregiver, provided that the caregiver has acted as a reasonable and prudent foster parent, unless the foster parent commits an act or omission that is an intentional tort or conduct that is willful, wanton, grossly negligent, reckless, or criminal.