Rule 23a - Children and incapacitated family or household members as parties(a)Individuals filing on behalf of a person in need of protection. If an adult family or household member is filing on behalf of a child or physically or mentally incapacitated family or household member and not requesting protection for himself or herself, then the petitioner shall be the child or physically or mentally incapacitated family or household member in need of protection. The adult family or household member shall be recognized on the petition as the parent/guardian or next friend. The adult family or household member shall attend any hearing scheduled to protect the interest of the child or physically or mentally incapacitated family or household member. (b)Child as a petitioner. An individual under 18 years of age may file a domestic violence petition on his or her own behalf without a parent/guardian or next friend. If a child files a petition without a parent/guardian or next friend, the magistrate shall immediately appoint a guardian ad litem to protect the interest of the child: and this appointment shall be made even if an emergency protective order is denied since that denial may be appealed. The magistrate may also appoint a guardian ad litem in cases in which a child files a petition with a parent/guardian or next friend. (1)Magistrate court proceeding. If the child is the petitioner, and the respondent is a parent or household member, making it unsafe for the child to return to his or her residence, the magistrate shall immediately appoint a guardian ad litem for the child. If the magistrate has reasonable cause to suspect that the child is abused or neglected or observes the child being subjected to conditions that are likely to result in abuse or neglect, the magistrate shall immediately make a child abuse and neglect referral to Child Protective Services of the Department of Health and Human Resources. Further, if the magistrate is unable to locate a responsible and appropriate family member or adult into whose custody the child can be delivered, the magistrate shall notify Child Protective Services of the Department of Health and Human Resources, which shall immediately respond to assist the magistrate in identifying a responsible and appropriate family member or adult into whose custody the child can be delivered and, if determined by the Department to be necessary, take emergency custody and/or file a petition in accordance with West Virginia Code § 49-6-3. (2)Family court hearing. The family court at the final hearing shall ensure that the child or incapacitated adult has a parent/guardian, next friend, and/or guardian ad litem representing his or her interests prior to conducting an evidentiary hearing. If the child or incapacitated adult is not properly represented, the family court shall continue the hearing, provide for the safety of the child or incapacitated adult and appoint a guardian ad litem to represent the child or incapacitated adult. If the family court finds that the child cannot return to his or her residence because there exists imminent danger to the physical well-being of the child, as defined in W.Va. Code § 49-1-3(g), and no responsible and appropriate family member or adult can be found into whose custody the child can be delivered, the court shall immediately notify Child Protective Services of the Department of Health and Human Resources. Upon notification, Child Protective Services shall immediately respond and assist the family court in locating a responsible and appropriate family member or adult into whose custody the child can be delivered and, if determined by the Department to be necessary, take emergency custody and/or file a petition in accordance with West Virginia Code § 49-6-3. (c)Child as a respondent. An individual under 18 years of age may be made a respondent in a domestic violence proceeding. The magistrate shall immediately appoint a guardian ad litem to protect the interests of the child. (1)Magistrate court proceeding. If the magistrate grants an emergency protective order against a child, and the petitioner is a parent or other household member residing with the child, then, pursuant to W.Va. Code § 48-27-403(h), the petition resulting in the emergency protective order shall also be treated as a juvenile delinquency petition under W.Va. Code § 49-5-7. The magistrate shall follow the procedures detailed in Rule 15 of the Rules of the Juvenile Procedure. (2)Family court hearing. If a child is the respondent, the petitioner is a parent or other household member residing with the child, and an emergency protective order was issued by the magistrate court, the family court entering a domestic violence protective order shall refer the issues of custody, visitation, and support to the circuit court hearing the related delinquency case. The family court retains jurisdiction to issue a domestic violence protective order to protect the safety of the parent or other household member. If the family court issuing a protective order determines during the final hearing that the issue of the child's temporary custody or placement is yet to be addressed by the circuit court in the delinquency case, that the temporary custodial arrangements with a responsible relative or other adult made at the time the emergency protective order was issued are no longer available or appropriate, that no other responsible and appropriate relative or adult can be found into whose custody the child can be delivered, and the circumstances present an imminent danger to the physical well-being of the child, as defended in W. Va. Code § 49-1-3(g), or to others if released, the court shall take one or both of the following measures based upon the circumstances presented: 1) Notify the Youth Services Division of the Department of Health and Human Resources, which shall immediately respond to assist in locating a responsible and appropriate relative or other adult into whose custody the child can be delivered; and 2) Notify the sheriff or other law-enforcement official and direct that the child be taken into custody and presented without unnecessary delay before a magistrate or circuit judge for a detention hearing pursuant to W. Va. Code § 49-5-8a. W. Va. R. Prac. & P. Dom. Viol. 23a