ENROLLED
H. B. 2873
(By Delegates Amores, Givens, Buchanan, Coleman, Johnson,
Smirl, L. White)
[Passed April 12, 1997; in effect ninety days from passage.]
AN ACT to repeal section five, article one, chapter forty-nine
of the code of West Virginia, one thousand nine hundred
thirty-one, as amended; to repeal section three, article
five-b of said chapter; to amend and reenact sections two
and four, article one of said chapter; to amend and reenact
sections three, eight, nine, eleven, thirteen and sixteen,
article five of said chapter; to further amend said article
by adding thereto two new sections, designated sections
eight-a and eleven-a; and to amend and reenact sections two,
four, five, six and seven, article five-b of said chapter,
all relating to decriminalizing status offenses and
providing that no juvenile shall be confined in a facility
for adult offenders.
Be it enacted by the Legislature of West Virginia:
That section five, article one, chapter forty-nine of the
code of West Virginia, one thousand nine hundred thirty-one, as
amended, be repealed; that section three, article five-b of said chapter be repealed; that sections two and four, article one of said chapter be amended and reenacted; that sections three,
eight, nine, eleven, thirteen and sixteen, article five of said
chapter be amended and reenacted; that said article be further
amended by adding thereto two new sections, designated sections
eight-a and eleven-a; and that sections two, four, five, six and
seven, article five-b of said chapter be amended and reenacted,
all to read as follows:
ARTICLE 1. Purposes; Definitions.
§49-1-2. "Juvenile" or "Child" defined.
As used in this chapter, "juvenile" or "child" means any
person under eighteen years of age. Once a juvenile or child is
transferred to a court with criminal jurisdiction pursuant to
section ten, article five of this chapter, he or she nevertheless
remains a juvenile or child for the purposes of the applicability
of the provisions of this chapter with the exception of sections
one through seventeen of article five of this chapter, unless
otherwise stated therein.
§49-1-4. Other definitions.
As used in this chapter:
(1) "Child welfare agency" means any agency or facility
maintained by the state or any county or municipality thereof, or
any agency or facility maintained by an individual, firm,
corporation, association or organization, public or private, to
receive children for care and maintenance or for placement in
residential care facilities;
(2) "Community based," when referring to a facility,
program, or service, means located near the juvenile's home or
family and involving community participation in planning, operation, and evaluation, and which may include, but is not
limited to, medical, educational, vocational, social and
psychological guidance, training, special education, counseling,
alcoholism and any treatment, and other rehabilitation services;
(3) "Court"" means the circuit court of the county with
jurisdiction of the case or the judge thereof in vacation unless
otherwise specifically provided;
(4) "Custodian" means a person who has or shares actual
physical possession or care and custody of a child, regardless of
whether such person has been granted custody of the child by any
contract, agreement or legal proceedings;
(5) "Department" or "state department" means the state
department of health and human resources;
(6) "Division of juvenile services" means the division
within the department of military affairs and public safety
pursuant to article five-e of this chapter;
(7) "Guardian" means a person who has care and custody of a
child as a result of any contract, agreement or legal proceeding;
(8) "Juvenile delinquent" means a juvenile who has been
adjudicated as one who commits an act which would be a crime
under state law or a municipal ordinance if committed by an
adult;
(9) "Non-secure facility" means any public or private
residential facility not characterized by construction fixtures
designed to physically restrict the movements and activities of
individuals held in lawful custody in such facility and which
provides its residents access to the surrounding community with
supervision;
(10) "Referee" means a juvenile referee appointed pursuant
to section one, article five-a of this chapter, except that in
any county which does not have a juvenile referee the judge or
judges of the circuit court may designate one or more magistrates
of the county to perform the functions and duties which may be
performed by a referee under this chapter;
(11) "Secretary" means the secretary of health and human
resources;
(12) "Secure facility" means any public or private
residential facility which includes construction fixtures
designed to physically restrict the movements and activities of
juveniles or other individuals held in lawful custody in such
facility;
(13) "Staff-secure facility" means any public or private
residential facility characterized by staff restrictions of the
movements and activities of individuals held in lawful custody in
such facility and which limits its residents' access to the
surrounding community, but is not characterized by construction
fixtures designed to physically restrict the movements and
activities of residents;
(14) "Status offender" means a juvenile who has been
adjudicated as one:
(A) Who habitually and continually refuses to respond to the
lawful supervision by his or her parents, guardian or legal
custodian such that the child's behavior substantially endangers
the health, safety, or welfare of the juvenile or any other
person;
(B) Who has left the care of his or her parents, guardian or custodian without the consent of such person or without good
cause;
(C) Who is habitually absent from school without good cause;
or
(D) Who violates any West Virginia municipal, county, or
state law regarding use of alcoholic beverages by minors;
(15) "Valid court order" means a court order given to a
juvenile who was brought before the court and made subject to
such order, and who received, before the issuance of such order,
the full due process
rights guaranteed to such juvenile by the
constitutions of the United States and the state of West
Virginia.
ARTICLE 5. JUVENILE PROCEEDINGS.
§49-5-3. Noncustodial counseling of a child.
The court at any time, or the department or other official
upon a request from a parent, guardian, or custodian, may,
without institution of proceedings under this article, refer a
juvenile alleged to be delinquent or a status offender to a
counselor at the department or a community mental health center,
or other professional counselor in the community. In the event
the juvenile refuses to respond to such reference the department
may serve a notice by first-class mail or personal service of
process upon the juvenile, setting forth the facts and stating
that the department will seek a noncustodial order from the court
directing the juvenile to submit to counseling. The notice shall
set forth the time and place for the hearing on the matter.
The court or referee after hearing may direct the juvenile to
participate in a noncustodial period of counseling not to exceed six months. Upon recommendation of the department, and with the
consent of the juvenile's parent, custodian, or guardian, the
court or referee may also allow the participation of such parent,
custodian, or guardian in said counseling. No information
obtained as the result of such counseling shall be admissible in
a subsequent proceeding under this article.
§49-5-8. Taking a juvenile into custody.
(a) In proceedings instituted by the filing of a juvenile
petition the circuit court may enter an order directing that a
juvenile be taken into custody only if one of the following
conditions exist: (1) The petition shows that grounds exist for
the arrest of an adult in identical circumstances; (2) the
health, safety and welfare of the juvenile demand such custody;
(3) the juvenile is a fugitive from a lawful custody or
commitment order of a juvenile court; or (4) the juvenile is an
alleged delinquent and has a record of willful failure to appear
at juvenile proceedings, and custody is necessary to assure his
or her presence before the court. A detention hearing pursuant
to section eight-a of this article shall be held without delay by
the judge, juvenile referee or magistrate authorized to conduct
such hearing, and in no event shall the delay exceed the next
day, and such juvenile shall be released on recognizance to his
or her parent, guardian or custodian unless findings are made as
specified in subsection (a) of section eight-a of this article.
(b) Absent a warrant or court order, a juvenile may be taken
into custody by a law-enforcement official only if one of the
following conditions exist: (1) Grounds exist for the arrest of
an adult in identical circumstances; (2) emergency conditions exist which in the judgment of the officer pose imminent danger
to the health, safety and welfare of the juvenile; (3) the
official has reasonable grounds to believe that the juvenile has
left the care of his or her parents, guardian or custodian
without the consent of such person, and the health, safety and
welfare of the juvenile is endangered; (4) the juvenile is a
fugitive from a lawful custody or commitment order of a juvenile
court; or (5) the official has reasonable grounds to believe the
juvenile to have been driving a motor vehicle with any amount of
alcohol in his or her blood.
(c) Upon taking a juvenile into custody, with or without a
warrant or court order, the official shall:
(1) Immediately notify the juvenile's parent, guardian,
custodian or, if the parent, guardian or custodian cannot be
located, a close relative;
(2) Release the juvenile into the custody of his or her
parent, guardian or custodian unless the circumstances warrant
otherwise:
Provided, That an alleged status offender shall not be
detained in a secure facility in any case and in a staff-secure
facility only if:
(A) Circumstances present an immediate threat of serious
bodily harm to the juvenile if released;
(B) No responsible adult can be found into whose custody the
juvenile can be delivered:
Provided, That each day the juvenile
is detained, a written record must be made of all attempts to
locate such responsible adult and, after the initial detention,
a lawyer shall be appointed to represent the juvenile by the end
of the next calendar day;
(3) Refer the matter to the prosecuting attorney,
department or probation officer for proceedings under this
article; and
((4) If a juvenile is being held in custody absent a warrant
or court order, cause a warrant or order, as the case may be, to
be immediately issued authorizing the detention of such juvenile.
An alleged status offender detained pursuant to paragraphs
(A) and (B) of subdivision (2) herein shall be placed in the
custody of the department.
(d) If an alleged status offender is taken into custody
pursuant to this section, the department shall be immediately
notified. Such child shall be placed in the custody of the
department and shall not be confined in a secure facility.
(e) In the event that a child is delivered into the custody
of a sheriff or director of a detention facility, such sheriff or
director shall immediately notify the court or referee. Said
sheriff or director shall immediately provide to every child who
is delivered into his or her custody a written statement
explaining the child's right to a prompt detention hearing, his
or her right to counsel including appointed counsel if he cannot
afford counsel and his or her privilege against self- incrimination. In all cases when a child is delivered into
custody, the child shall be released to his or her parent,
guardian or custodian by the end of the next day, after being
delivered into such custody, unless the child has been placed in
detention pursuant to section eight-a of this article.
(f) A child in custody must immediately be taken before a
referee or judge of the circuit court and in no event shall a delay exceed the next day:
Provided, That if there be no judge
or referee then available in the county, then such child shall be
taken immediately before any magistrate in the county for the
sole purpose of holding a detention hearing.
§49-5-8a. Detention hearing; counsel.
(a) The judge, referee or magistrate shall inform the
juvenile of his or her right to remain silent, that any statement
may be used against him or her and of his or her right to
counsel, and no interrogation shall be made without the presence
of a parent or counsel. If the juvenile or his or her parent,
guardian or custodian has not retained counsel, counsel shall be
appointed as soon as practicable. The referee, judge or
magistrate shall hear testimony concerning the circumstances for
taking the juvenile into custody and the possible need for
detention in accordance with section two, article five-a of this
chapter. The sole mandatory issue at the detention hearing shall
be whether the juvenile shall be detained pending further court
proceedings. The court shall, if advisable, and if the health,
safety and welfare of the juvenile will not be endangered
thereby, release the juvenile on recognizance to his or her
parents, custodians or an appropriate agency; however, if
warranted, the court may require bail, except that bail may be
denied in any case where bail could be denied if the accused were
an adult.
(b) The judge of the circuit court or referee may, in
conjunction with the detention hearing, conduct a preliminary
hearing pursuant to section nine, article five of this chapter:
Provided, That all parties are prepared to proceed and the juvenile has counsel during such hearing.
§49-5-9. Preliminary hearing; counsel; improvement period.
(a) Following the filing of a juvenile petition, unless a
preliminary hearing has previously been held in conjunction with
a detention hearing with respect to the same charge contained in
the petition, the circuit court or referee shall hold a
preliminary hearing. In the event that the juvenile is in
custody, such hearing shall be held within ten days of the time
the juvenile is taken into custody unless good cause be shown for
a continuance. If no preliminary hearing is held within ten
days of the time the juvenile is taken into custody, the juvenile
shall be released on recognizance unless the hearing has been
continued for good cause. If the judge is in another county in
the circuit, the hearing may be conducted in such other county.
The preliminary hearing may be waived by the juvenile, upon
advice of his counsel. At the hearing, the court or referee
shall:
(1) If the juvenile is not represented by counsel, inform
the juvenile and his parents, guardian or custodian or any other
person standing in loco parentis to him of the juvenile's right
to be represented at all stages of proceedings under this article
and the right to have counsel appointed.
(2) Appoint counsel by order entered of record, if counsel
has not already been retained, appointed or knowingly waived.
(3) Determine after hearing if there is probable cause to
believe that the juvenile is a status offender or a juvenile
delinquent. If probable cause is not found, the juvenile, if in
detention, shall be released and the proceedings dismissed. If probable cause is found, the case shall proceed to adjudication.
At the hearing or as soon thereafter as is practicable, the date
for the adjudicatory hearing shall be set to give the juvenile,
the juvenile's parents and attorney at least ten days' notice,
unless notice is waived by all parties.
(4) In lieu of placing the childjuvenile in a detention facility
when bond is not provided, the court may place the juvenile in
the temporary custody of the department pursuant to section
sixteen, article two of this chapter or may place the juvenile,
if the juvenile is an alleged delinquent, in the custody of a
probation officer.
If the juvenile is detained in custody, the detention shall
not continue longer than thirty days without commencement
of the
adjudicatory hearing unless good cause for a continuance be shown
by either party or, if a jury trial be demanded, no longer than
the next regular term of said court.
(5) Inform the juvenile of the right to demand a jury trial.
(b) The juvenile may move to be allowed an improvement
period for a period not to exceed one year. If the court is
satisfied that the best interest of the juvenile is likely to be
served by an improvement period, the court may delay the
adjudicatory hearing and allow a noncustodial improvement period
upon terms calculated to serve the rehabilitative needs of the
juvenile. At the conclusion of the improvement period, the court
shall dismiss the proceeding if the terms have been fulfilled;
otherwise, the court shall proceed to the adjudicatory stage. A
motion for an improvement period shall not be construed as an
admission or be used as evidence.
§49-5-11. Adjudication.
At the outset of an adjudicatory hearing, the court shall
inquire of the juvenile whether he wishes to admit or deny the
allegations in the petition. The juvenile may elect to stand
mute, in which event the court shall enter a general denial of
all allegations in the petition.
(a) If the respondent juvenile admits the allegations of the
petition, the court shall consider the admission to be proof of
the allegations if the court finds (1) the respondent fully
understands all his rights under this article, (2) the respondent
voluntarily, intelligently and knowingly admits all facts
requisite for an adjudication and (3) the respondent in his
admission has not set forth facts which constitute a defense to
the allegations.
(b) If the respondent juvenile denies the allegations, the
court shall dispose of all pretrial motions and the court or jury
shall proceed to hear evidence.
(c) If the allegations in a petition alleging that the
juvenile is delinquent are admitted or are sustained by proof
beyond a reasonable doubt, the court shall schedule the matter
for disposition pursuant to section thirteen of this article.
(d) If the allegations in a petition alleging that the
juvenile is a status offender are admitted or sustained by clear
and convincing proof, the court shall refer the juvenile to the
department of health and human resources for services, pursuant
to section eleven-a of this article.
(e) If the allegations in a petition are not sustained by
proof as provided in subsections (c) and (d) of this section, the petition shall be dismissed and the juvenile shall be discharged
if he or she is in custody.
(f) Findings of fact and conclusions of law addressed to all
allegations in the petition shall be stated on the record or
reduced to writing and filed with the record or incorporated into
the order of the court.
§49-5-11a. Status Offenders: Intervention and services by state
department; enforcement; detention; out-of-home placement; state
department custody; least restrictive alternative.
(a) Services for status offenders provided by the department
shall be consistent with the provisions of article five-b of this
chapter and shall be designed to develop skills and supports
within families and to resolve problems related to the juveniles
or conflicts within their families. Services may include, but
are not limited to, referral of juveniles and parents, guardians,
or custodians and other family members to services for
psychiatric or other medical care, or psychological, welfare,
legal, educational, or other social services, as appropriate to
the needs of the juveniles and the family.
(b) If necessary, the department may petition the circuit
court:
(1) For a valid court order, as defined in section four,
article one of this chapter, to enforce compliance with a service
plan or to restrain actions that interfere with or defeat a
service plan; or
(2) For a valid court order to place a juvenile out-of-home
in a nonsecure or staff-secure setting, and/or to place a
juvenile in custody of the department.
(c) The court shall not be limited to the relief sought in
the department's petition and shall make every effort to place
juveniles in community based facilities which are the least
restrictive alternatives appropriate to the needs of the juvenile
and the community.
§49-5-13. Disposition of juvenile delinquents; appeal.
(a) In aid of disposition of juvenile delinquents, the
juvenile probation officer assigned to the court shall, upon
request of the court, make an investigation of the environment of
the juvenile and the alternative dispositions possible. The
court, upon its own motion, or upon request of counsel, may order
a psychological examination of the juvenile. The report of such
examination and other investigative and social reports shall not
be made available to the court until after the adjudicatory
hearing. Unless waived, copies of the report shall be provided
to counsel for the petitioner and counsel for the juvenile no
later than seventy-two hours prior to the dispositional hearing.
(b) Following the adjudication, the court shall conduct the
dispositional proceeding, giving all parties an opportunity to be
heard. In disposition the court shall not be limited to the
relief sought in the petition and shall, in electing from the
following alternatives, consider the best interests of the
juvenile and the welfare of the public:
(1) Dismiss the petition;
(2) Refer the juvenile and the juvenile's parent or
custodian to a community agency for needed assistance and dismiss
the petition;
(3) Upon a finding that the juvenile is in need of extra-parental supervision: (A) Place the juvenile under the
supervision of a probation officer of the court or of the court
of the county where the juvenile has his or her usual place of
abode or other person while leaving the juvenile in custody of
his or her parent or custodian; and (B) prescribe a program of
treatment or therapy or limit the juvenile's activities under
terms which are reasonable and within the child's ability to
perform, including participation in the litter control program
established pursuant to section twenty-five, article seven,
chapter twenty of this code, or other appropriate programs of
community service;
(4) Upon a finding that a parent or custodian is not willing
or able to take custody of the juvenile, that a juvenile is not
willing to reside in the custody of his parent or custodian, or
that a parent or custodian cannot provide the necessary
supervision and care of the juvenile, the court may place the
juvenile in temporary foster care or temporarily commit the
juvenile to the department, the division of juvenile services or
a child welfare agency. The court order shall state that
continuation in the home is contrary to the best interest of the
juvenile and why; and whether or not the department made a
reasonable effort to prevent the placement or that the emergency
situation made such efforts unreasonable or impossible. Whenever
the court transfers custody of a youth to the division of human
services, an appropriate order of financial support by the
parents or guardians shall be entered in accordance with section
five, article seven of this chapter and guidelines promulgated by
the supreme court of appeals;
(5) Upon a finding that the best interests of the juvenile
or the welfare of the public require it, and upon an adjudication
of delinquency pursuant to subdivision (1), section four, article
one of this chapter, the court may commit the juvenile to an
industrial home, correctional institution for juveniles, or other
appropriate facility for the treatment, instruction and
rehabilitation of juveniles:
Provided, That the court maintains
discretion to consider alternative sentencing arrangements.
Commitments shall not exceed the maximum term for which an adult
could have been sentenced for the same offense. The order shall
state that continuation in the home is contrary to the best
interests of the juvenile and why; and whether or not the state
department made a reasonable effort to prevent the placement or
that the emergency situation made such efforts unreasonable or
impossible;
or
(6) After a hearing conducted under the procedures set out
in subsections (c) and (d), section four, article five, chapter
twenty-seven of this code, commit the juvenile to a mental health
facility in accordance with the juvenile's treatment plan; the
director may release a juvenile and return him to the court for
further disposition. The order shall state that continuation in
the home is contrary to the best interests of the juvenile and
why; and whether or not the state department made a reasonable
effort to prevent the placement or that the emergency situation
made such efforts unreasonable or impossible.
(c) The disposition of the juvenile shall not be affected by
the fact that the juvenile demanded a trial by jury or made a plea of denial. Any dispositional order is subject to appeal to
the supreme court of appeals.
(d) Following disposition, it shall be inquired of the
respondent whether or not appeal is desired and the response
transcribed; a negative response shall not be construed as a
waiver. The evidence shall be transcribed as soon as practicable
and made available to the juvenile or his or her counsel, if the
same is requested for purposes of further proceedings. A judge
may grant a stay of execution pending further proceedings.
(e) Notwithstanding any other provision of this code to the
contrary, if a juvenile charged with delinquency under this
chapter is transferred to adult jurisdiction and there tried and
convicted, the court may make its disposition in accordance with
this section in lieu of sentencing such person as an adult.
§49-5-16.
Prohibition on committing juveniles to
adult facilities.
(a) No juvenile, including one who has been transferred to
criminal jurisdiction of the court, shall be detained or confined
in any
institution in which he or she has contact with or comes
within sight or sound of any adult persons incarcerated because
they have been convicted of a crime or are awaiting trial on
criminal charges or with the security staff (including
management) or direct-care staff of a jail or locked facility for
adults.
(b) No child who has been convicted of an offense under the
adult jurisdiction of the circuit court shall be held in custody in a penitentiary of this state:
Provided, That such child may
be transferred from a secure juvenile facility to a penitentiary
after he shall attain the age of eighteen years if, in the
judgment of the court which committed such child, such transfer
is appropriate:
Provided, however, That any other provision of
this code to the contrary notwithstanding, prior to such transfer
the child shall be returned to the sentencing court for the
purpose of reconsideration and modification of the imposed
sentence, which shall be based upon a review of all records and
relevant information relating to the child's rehabilitation since
his conviction under the adult jurisdiction of the court.
ARTICLE 5B. WEST VIRGINIA JUVENILE OFFENDER REHABILITATION
ACT.
§49-5B-2. Purpose and intent.
It is the purpose and intent of the Legislature to provide
for the creation of all reasonable means and methods that can be
established by a humane and enlightened state, solicitous of the
welfare of its children, for the prevention of delinquency and
for the care and rehabilitation of juvenile delinquents and
status offenders. It is further the intent of the Legislature
that this state, through the department of health and human
resources, establish, maintain, and continuously refine and
develop, a balanced and comprehensive state program for juveniles
who are potentially delinquent or are status offenders or
juvenile delinquents in the care or custody of the department.
§49-5B-4. Responsibilities of the department of health and human
resources.
(a) The department of health and human resources and the
division of juvenile services of the department of military
affairs and public safety are empowered to establish, and shall
establish, subject to the limits of funds available or otherwise
appropriated therefor, programs and services designed to prevent
juvenile delinquency, to divert juveniles from the juvenile
justice system, to provide community-based alternatives to
juvenile detention and correctional facilities and to encourage
a diversity of alternatives within the juvenile justice system.
The development, maintenance and expansion of programs and
services may include, but not be limited to, the following:
(1) Community-based programs and services for the prevention
and treatment of juvenile delinquency through the development of
foster-care and shelter-care homes, group homes, halfway houses,
homemaker and home health services, twenty-four hour intake
screening, volunteer and crisis home programs, day treatment and
any other designated community-based diagnostic, treatment or
rehabilitative service;
(2) Community-based programs and services to work with
parents and other family members to maintain and strengthen the
family unit so that the juvenile may be retained in his home;
(3) Youth service bureaus and other community-based programs
to divert youth from the juvenile court or to support, counsel,
or provide work and recreational opportunities for
status
offenders, juvenile delinquents and other youth to help prevent
delinquency;
(4) Projects designed to develop and implement programs
stressing advocacy activities aimed at improving services for and protecting rights of youth impacted by the juvenile justice
system;
(5) Educational programs or supportive services designed to
keep delinquents, and to encourage
status offenders, juvenile delinquents, and other youth
to remain in elementary and secondary schools or in alternative
learning situations;
(6) Expanded use of professional and paraprofessional
personnel and volunteers to work effectively with youth;
(7) Youth initiated programs and outreach programs designed
to assist youth who otherwise would not be reached by traditional
youth assistance programs;
(8) A statewide program designed to reduce the number of
commitments of juveniles to any form of juvenile facility as a
percentage of the state juvenile population, to increase the use
of nonsecure community-based facilities as a percentage of total
commitments to juvenile facilities and to discourage the use of
secure incarceration and detention.
(b) The department of health and human resources shall
establish, within the funds available, an individualized program
of rehabilitation for each status offender referred to the
department and to each
accused alleged juvenile
offender delinquent referred to
the department after being allowed an improvement period by the
juvenile court, and for each adjudicated juvenile
offender delinquent who,
after adjudication, is referred to the department for
investigation or treatment or whose custody is vested in the
department. Such individualized program of rehabilitation shall
take into account the programs and services to be provided by
other public or private agencies or personnel which are available in the community to deal with the circumstances of the particular
child juvenile. For
accused alleged juvenile delinquents
and status offenders,
such individualized program of rehabilitation shall be furnished
to the juvenile court and shall be available to counsel for the
child juvenile; it may be modified from time to time at the direction
of the department or by order of the juvenile court. The
department may develop an individualized program of
rehabilitation for any
child juvenile referred for noncustodial
counseling under section five, article three of this chapter, for
any
child juvenile receiving counsel and advice under section three-a,
article five of this chapter, or for any other
child juvenile upon the
request of a public or private agency.
(c) The department of health and human resources
and the
division of juvenile services of the department of military
affairs and public safety are is authorized to enter into
cooperative arrangements and agreements with private agencies or
with agencies of the state and its political subdivisions to
effectuate the purpose of this article.
§49-5B-5. Rehabilitative facilities for status offenders.
(a) The department of
welfare health and human resources shall,
within the limits of state and federal funds appropriated
therefor, establish and maintain one or more rehabilitative
facilities to be used exclusively for the lawful custody of
status offenders. Each such facility shall be
primarily a nonsecure
facility having as its
primary purpose the rehabilitation of
adjudicated
juvenile offenders who are status
offenders. Such facility shall
not have a bed capacity for
not more
than twenty
children juveniles, and shall minimize the institutional
atmosphere and prepare the
child juvenile for reintegration into the community.
Provided, That such facility may function as a
temporary residential facility for accused juvenile offenders
when the juvenile is a status offender and no final adjudication
has been made by the juvenile court. Provided, however, That a portion of such facility
may be designed and operated as a secure facility used
exclusively for status offenders whom the juvenile court has
specifically found to be so unmanageable, ungovernable and
antisocial that no other reasonable alternative exists, or could
exist, for treatment or restraint other than placement in a
secure facility. Temporary residents of the facility shall only
be placed in the secure portion of the facility by order of the
juvenile court upon a specific finding by the court that the
child is likely to injure himself or others or to run away if
placed in a less restrictive environment: Provided, That unless
the court order committing the child specifically orders that the
child not be removed from the secure portion of the facility, the
person having control of the facility shall have the authority to
permit any temporary resident to remain in the nonsecure portions
of the facility if such temporary resident demonstrates a
willingness to remain at the facility voluntarily and to conform
his or her conduct to the lawful requirements established for
residents of the nonsecure portions of the facility.
(b) Within the funds available, rehabilitative programs and
services shall be provided by or through each such facility and
may include, but not be limited to, medical, educational,
vocational, social and psychological guidance, training,
counseling, alcoholism treatment, drug treatment and other
rehabilitative services. The department of
welfare health and human
resources shall provide to each
child adjudicated delinquent and status offender committed to the
facility a program of treatment and services consistent with the
individualized program of rehabilitation developed for such
child
juvenile. In the case of any other
child juvenile residing at the
facility, the department shall provide such programs and services
as may be proper in the circumstances including, but not limited
to, any such programs or services directed to be provided by the
court.
(c) The board of education of the county in which the
facility is located shall provide instruction for
children juveniles
residing at the facility. Residents who can be permitted to do
so shall attend local schools, and instruction shall otherwise
take place at the facility.
(d) Facilities established pursuant to this section shall be
structured
so as
to be or become community-based facilities.
§49-5B-6. Enforcement of legal custody.
The department of
welfare health and human resources shall have
authority to require any
child juvenile committed to its legal custody
to remain at and to return to the residence to which the
child juvenile
is assigned by the department or by the juvenile court. In aid
of such authority, and upon request of a designated employee of the department, any police officer, sheriff, deputy sheriff,
member or officer of the department of public safety or
juvenile court probation officer is authorized to take any such
child juvenile into custody and return such
child juvenile to his or her
place of residence or into the custody of a designated employee
of the department
of welfare.
§49-5B-7. Reporting requirements; cataloguing of services.
(a) The department of health and human resources shall from
time to time, but not less often than annually, review its
programs and services and submit a report to the governor, the
Legislature and the supreme court of appeals, analyzing and
evaluating the effectiveness of the programs and services being
carried out by the department. Such report shall include, but
not be limited to, an analysis and evaluation of programs and
services continued, established and discontinued during the
period covered by the report, and shall further describe programs
and services which should be implemented to further the purposes
of this article. Such report shall also include, but not be
limited to, relevant information concerning the number of
children juveniles comprising the population of any rehabilitative
facility during the period covered by the report, the length of
residence, the nature of the problems of each
child juvenile, the
child's juvenile's response to programs and services and such other
information as will enable a user of the report to ascertain the
effectiveness of the facility as a rehabilitative facility.
(b) The department of health and human resources shall
prepare a descriptive catalogue of its juvenile programs and
services available in local communities throughout this state
and shall distribute copies of the same to every juvenile court in the state and, at the direction of the juvenile court, such
catalogue shall be distributed to attorneys practicing before
such court. Such catalogue shall also be made available to
members of the general public upon request. The catalogue shall
contain sufficient information as to particular programs and
services so as to enable a user of the catalogue to make
inquiries and referrals. The catalogue shall be constructed so
as to meaningfully identify and describe programs and services.
The requirements of this section are not satisfied by a simple
listing of specific agencies or the individuals in charge of
programs at a given time. The catalogue shall be updated and
republished or supplemented from time to time as may be required
to maintain its usefulness as a resource manual.