This page is http://www.geocities.com/family_rights_wv/example_motions.html
Disclaimer

"Because the swing of every pendulum brings with it potential adverse consequences, it is important to emphasize that in the area of child abuse, as with the investigation and prosecution of all crimes, the state is constrained by the substantive and procedural guarantees of the Constitution. The fact that the suspected crime may be heinous - whether it involves children or adults - does not provide cause for the state to ignore the rights of the accused or any other parties. Otherwise, serious injustices may result. In cases of alleged child abuse, governmental failure to abide by constitutional constraints may have deleterious long-term consequences for the child and, indeed, for the entire family. Ill-considered and improper governmental action may create significant injury where no problem of any kind previously existed." Syl. Pt. 3, WALLIS v. SPENCER , 202 F.3d 1126 (9th Cir. 2000) case clip modified from CPSWATCH.COM
Caselaws are on http://www.geocities.com/family_rights_wv/caselaws and in http://groups.yahoo.com/group/family_rights_wv/

Example letter of dismissal to an attorney

Use forms at Circuit Clerk's office whenever possible

A basic explanation/example of Motion to Appoint Attorney

A More detailed Example of Motion to Appoint a new attorney

Right to an Attorney

West Virginia Primary Resources: Rules of Procedures of Child Abuse and Neglect Proceedings, Rules of Civil Procedures, West Virginia Codes, Rules of Professional Conduct (attorneys are supposed to follow, etc.

Basic Motion to Appoint Attorney

More detailed example of a Motion to Appoint Attorney

Attach Evidence to Motions, as well as a Certificate of Service, Verification Statement and Notice of Hearing to Motions.
Comments in parenthesis and brackets must be modified to suit your case or removed as necessary.

A Sworn Affidavit form for West Virginia


Primary Resources:
West Virginia Code (WVC) http://129.71.164.29/WVCODE/masterfrm3Banner.cfm Chapter 49 Child Welfare
Rules of Procedures for Child Abuse and Neglect Proceedings PDF format http://www.state.wv.us/wvsca/Rules/abuseand.pdf
Rules of Procedures for Child Abuse and Neglect Proceedings HMTL format http://www.state.wv.us/wvsca/rules/abuse.htm WV Rules of Civil Procedures http://www.state.wv.us/wvsca/rules/contents.htm
Rules of Civil Procedures III. PLEADINGS AND MOTIONS. http://www.state.wv.us/wvsca/rules/civilproc/III.htm
WV State Bar, Rules of Professional Conduct (for lawyers) http://www.wvbar.org/BARINFO/rulesprofconduct/index.htm
According to West Virginia Rules of Professional Behavior Rule 1.1 the Respondent is entitled to competent legal representation ; according to Rule 1.2 (a) the Respondent's attorney shall abide by a client's decisions concerning the objectives of representation and shall consult with the client as to the means by which they are to be pursued; According to Rule 1.3. Diligence. A lawyer shall act with reasonable diligence and promptness in representing a client; According to Rule 1.4. Communication. (a) A lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information; and According to Rule1.4 (b) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.

RIGHT TO AN ATTORNEY "AT EVERY STAGE OF THE PROCEEDINGS"
§49-6-2. Petition to court when child believed neglected or abused--Right to counsel; improvement period; hearing; priority of proceeding; transcript.

1. In any proceeding under the provisions of this article, the child, his or her parents, and his or her legally established custodian or other persons standing in loco parentis to him, such persons other than the child being hereinafter referred to as other party or parties , shall have the right to be represented by counsel at every stage of the proceedings and shall be informed by the court of their right to be so represented and that if they cannot pay for the services of counsel, that counsel will be appointed. If the other parties have not retained counsel and the other parties cannot pay for the services of counsel, the court shall, by order entered of record, at least ten days prior to the date set for hearing, appoint an attorney or attorneys to represent the other party or parties and so inform the parties. Under no circumstances may the same attorney represent both the child and the other party or parties, nor shall the same attorney represent both parents or custodians. However, one attorney may represent both parents or custodians where both parents or guardians consent to this representation after the attorney fully discloses to the client the possible conflict, and where the attorney assures the court that she or he is able to represent each client without impairing her or his professional judgment; however, if more than one child from a family is involved in the proceeding, one attorney may represent all the children. The court may allow to each attorney so appointed a fee in the same amount which appointed counsel can receive in felony cases. Any attorney appointed pursuant to this section shall by the first day of July, one thousand nine hundred ninety-three, and three hours per year each year thereafter, receive a minimum of three hours of continuing legal education training on representation of children, child abuse and neglect: Provided, That where no attorney who has completed this training is available for such appointment, the court shall appoint a competent attorney with demonstrated knowledge of child welfare law to represent the child. Any attorney appointed pursuant to this section shall perform all duties required as an attorney licensed to practice law in the state of West Virginia.
   

Suggestions:
Check with Circuit Clerk to see if there are forms available to use for whatever it is you want to do. If forms are available, use the County's forms. If no forms are available, try using other motions as examplesand modify them to suit your purposes. Type up your motions to look like the motions used in your courtfile. You can obtain your case name, case number, etc. from your court documents.

A basic explanation/example of Motion to Appoint Attorney

A More detailed Example of Motion to Appoint a new attorney







Comes now, ____________________, Pro Se, biological mother of ( enter Child's name or initials as appearing in the court documents ) the above-named minor child, Respondent in the above-entitled proceeding and hereinafter referred to as Respondent, pursuant to West Virginia Code (WVC) §49-6-2 hereby moves this Court to appoint an attorney to represent the Respondent's interests in the above-named child abuse and neglect proceeding for the following reasons:

[ List Reasons. State that you've dismissed your attorney, date of dismissal, attach letter of dismissal as evidence. ]

[ List Reasons why you dismissed your attorney (Look at Rules of Professional Conduct) ]

[ Relief Requested: Request that the Court appoint you another attorney (look at WVC §49-6-2 ). If you know of one or two attorneys in mind for a replacement attorney, list them in order of preference. ]

________________________________________________________________
[ Sign on line above] Date
[ type your full name, address, telephone number, FAX (if applicable) ]


[Attach Evidence, Certificate of Service , Verification statement (if necessary) and Notice of Hearing ]

[see more detailed example of motion to appoint attorney below]

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Comes now, ____________________, Pro Se, biological mother of (Child's name or initials as appearing in the court documents ) the above-named minor child, Respondent in the above-entitled proceeding and hereinafter referred to as Respondent, pursuant to West Virginia Code (WVC) §49-6-2 hereby moves this Court to appoint an attorney to represent the Respondent's interests in the above-named child abuse and neglect proceeding for the following reasons:

[Enter reasons such as:]
1. The Respondent has dismissed her current attorney, (attorney's name),.on (date). (See Exhibit #______)
[assign an exhibit number to a copy of the letter in which you dismissed your attorney and attach as evidence to this motion]

2. The Respondent has dismissed Attorney (name) for the following reasons:

[See rules of professional conduct above, list the reasons you dismissed the attorney and the reasons you believe the attorney failed to meet the Rules of Professional conduct while representing you, such as: ]
i. Failure to abide by Respondent's decisions;
(a.) According the West Virginia Rule of Professional Conduct Rule 1.2(a) the Respondent's attorney "...shall abide by a client's decisions concerning the objectives of representation and shall consult with the client as to the means by which they are to be pursued." The Respondent informed Attorney (name) that the Respondent was Not Guilty of the allegations lodged against her and instructed (attorney's name) to enter a plea of Not Guilty. In spite of this,Mr. (attorney's name) entered a plea of Guilty instead.
(b.) Continue to list reasons under the various catagories.
ii. Lack of diligence and promptness; [Rule 1.3]
(a.) According the West Virginia Rule of Professional Conduct Rule 1.3, "A lawyer shall act with reasonable diligence and promptness in representing a client." Attorney (Name) has failed to act with reasonable dilligence and promptness by failing to respond to the Respondent's requests that he subpoena evidence pertaining to the Respondent's innocence of these allegations such as ( Child's educational and medical records; other proof of innocence); Attorney (Name) has failed to respond to the Respondent's requests to be supplied copies of the casefile and Child Protective Services (CPS) files; Attorney (Name) has failed to etc.
iii. Failure or refusal to communicate; [Rule 1.4]
(a.) According the West Virginia Rule of Professional Conduct (a) A lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information." The Respondent attempted to arrange appointments with Attorney (name) on numerous occasions prior to the hearing of ( date ) by leaving telphone messages with (attorney's secretary/paralegal) and by letter dated ___________ in order to discuss the Responent's defense regarding the above-named case to no avail. (See Exhibit #______)
[attach letter written to lawyer trying to arrange an appointment ]
(b.) Attorney (Name) failed to explain to the Respondent the basic procedures of the child abuse and neglect case or the Respondent's legal options. When the Respondent reiterated that she was Not Guilty of the allegations lodged against her, Attorney (Name) simply told the Respondent
that "It's easy to prove (Failure to Protect, other allegations ).
iv. [Continue listing the most important pertinent reasons, state that you came to the conclusion Attorney (Name) cannot properly represent you in this matter.]


3. The Respondent, as the said child's biological mother, has the right to competent legal representation according the the West Virgina Rules of Professional Conduct and according to West Virginia Code (WVC) §49-6-2 (a) has "... the right to be represented by counsel at every stage of the proceedings and shall be informed by the court of their right to be so represented and that if they cannot pay for the services of counsel, that counsel will be appointed."

4. The Respondent has filed an affidavit of indigency with the Clerk of the (enter name of County) Circuit Court and is financially eligible for a court-appointed attorney. (See Exhibit #________) [Assign an exhibit number to the copy of affidavit of indigency and attach as evidence to this motion].

THEREFORE, the Respondent requests:

I. That (Attorney Name, address, telephone numer) be appointed to represent the Respondent. Barring this;

II. That (Attorney Name #2, address, telephone number) be appointed to represent the Respondent. Barring this;

III. The Respondent requests this Court to assign a suitable attorney from (West Virginia Legal Services ) as soon as possible to represent the Respondent in this matter. (Try to specify an attorney you'd like to have and Avoid leaving it to the Judge's discretion in choosing an attorney to represent you if at all possible.)

________________________________________________
[Your Signature] Date
[Type Your Name. address, telephone number ]


[ Attach Evidence, Certificate of Service , Verification statement (if necessary) and Notice of Hearing ]

[Once a new attorney is appointed to you, it is strongly suggested that you start off DOCUMENTING everything with that attorney immediately. Always put instructions or requests in writing to attorneys. You might consider sending the new attorney a letter similar to Linda Weston's letter http://www.geocities.com/family_rights_wv/sample_letters.html outlining specifically what you expect your attorney to do and demanding that if the attorney is unwilling or unable to do so, to notify you in writing immediately.]

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STATE OF WEST VIRGINIA
COUNTY OF MINERAL., to-wit:

I, [ full name ], Pro Se, do hereby verify under penalty of perjury that the foregoing statements are true and accurate to the best of my knowledge.

__________________________________________________________________
[ type your full name, sign on line above ] Date
[ type your address, telephone number, FAX (if applicable) ]


This verification was sworn to or affirmed before me on the ______________day of _________________, 2004.

_______________________________________________________
Notary Public

My Commission expires:________________________________________

---

State of West Virginia, County of _____________

I, ___________________, Pro Se, the person making this action, mailed copies of this action to the following persons by pre-paid first class United States Mail on (date)____________________.

or

I, _________________, Pro Se, the person making this action, mailed copies of this action to the following persons by Certified Mail, Return Receipt Requested on (date____________________.

Mailed to: (Attorney Name), Attorney of Record for _______________ (such as an ex-husband's attorney)
Address: _____________________
_____________________________
WV State Bar No.______________
Phone: _______________________
FAX: _______________________

Mailed to: (Attorney Name)
Address: _____________________
_____________________________
WV State Bar No.______________
Phone: _______________________
FAX: _______________________

[Continue to list every party involved in the case such as Prosecutor, Gaurdian Ad Litem, other attorneys representing other parties involved in the case. Mail copies to each party.]

________________________________________________________________
[ type your full name, sign on line above ] Date
[ type your address, telephone number, FAX (if applicable) ]

---

Take notice this motion will be heard as soon as the Court may allow.

__________________________________________________________________
[ type your full name, sign on line above ] Date
[ type your address, telephone number, FAX (if applicable) ]

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DISCLAIMER:
I am not an attorney and this is not legal advice. This is public available information and some of my suggestions and opinions. This informaiton is being made available here for informational and educational purposes only. Only licensed attorneys may provide legal advice. When involved in serious matters such as child abuse and neglect cases, your children's best interests, safety and welfare and your parental rights are at risk. Since these are such serious matters, it is advised that you retained the best attorney that you possibly can to represent your interests. However, for those that cannot afford good legal representation and find they must represent themselves pro se or for those working to assist your attorneys or working to get you attorney to work for your defense, it is hoped that the information on this site will be useful.
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