COMMITTEE SUBSTITUTE
FOR
H. B. 2043
(By Mr. Speaker, Mr. Chambers, and Delegate Ashley)
[By Request of the Executive]
(Originating in the House Committee on the Judiciary)
[February 15, 1995]
A BILL to amend and reenact sections two, ten, thirteen, fourteen,
sixteen, seventeen, eighteen, article five, chapter forty-nine
of the code of West Virginia, one thousand nine hundred
thirty-one, as amended, all relating to the continuing
jurisdiction of juvenile courts; the transfer of juvenile
proceedings from juvenile jurisdiction to criminal
jurisdiction of the courts; the commitment of juveniles upon
disposition; the modification of dispositional orders; the
transfer of juveniles from a secure facility to a penitentiary
once the age of eighteen years is attained; the expungement of
juvenile records; and the formulation of after-care plans for
juveniles.
Be it enacted by the Legislature of West Virginia:
That sections two, ten, thirteen, fourteen, sixteen, seventeen
and eighteen, article five, chapter forty-nine of the code of West
Virginia, one thousand nine hundred thirty-one, as amended, be
amended and reenacted, all to read as follows:
ARTICLE 5. JUVENILE PROCEEDINGS.
§49-5-2. Continuing jurisdiction of court.
As used in this article, a "child" shall include a person
under the age of eighteen years or a person subject to the juvenile
jurisdiction of the court pursuant to this section. If a child
sixteen years of age or older commits an act which if committed by
an adult would be a crime and for such act is adjudged delinquent,
the jurisdiction of the court shall continue until the child
becomes twenty twenty-one years of age with the same power over the
child that the court had prior to the child's becoming an adult,
and the further power to sentence such person to not more than six
months in jail if the offender is over the age of eighteen years.
This shall not preclude the exercise of criminal jurisdiction where
the proceedings have been transferred to the criminal jurisdiction
of the court pursuant to subsection ten of this article, or in case
the offender, after becoming an adult, commits a violation of law.
A child may be brought before the circuit court for proceedings
under this article by the following means and no others:
(a) By juvenile petition praying that the child be adjudged
neglected or delinquent;
(b) Certification or transfer to the juvenile jurisdiction of
the circuit court, from the criminal jurisdiction of such court,
from any foreign court or any court of this state before which such
child is brought charged with the commission of a crime, as
provided in section one, one-a or one-b of this article;
(c) By warrant, capias or attachment issued by a judge, referee or magistrate returnable to the circuit court, charging a
child with an act of delinquency.
§49-5-10. Waiver and transfer of jurisdiction.
(a) Upon written motion of the prosecuting attorney filed at
least eight days prior to the adjudicatory hearing and with
reasonable notice to the child, the parents, guardians, or
custodians of the child, and the child's counsel, the court shall
conduct a hearing to determine if juvenile jurisdiction should or
must be waived and the proceeding should be transferred to the
criminal jurisdiction of the court. Any motion filed in accordance
with this section shall state, with particularity, the grounds for
the requested transfer, including the grounds relied upon set forth
in subsection submsections (d), (e), (f) and (g) of this section,
and the burden shall be upon the state to establish such grounds by
clear and convincing proof. Any hearing held under the provisions
of this section shall be held within seven days of the filing of
the motion for transfer unless it is continued for good cause.
(b) No inquiry relative to admission or denial of the
allegations of the charge or the demand for jury trial shall be
made by or before the court until a decision shall have been made
relative to whether the proceeding is to be transferred to criminal
jurisdiction.
(c) The court shall transfer a juvenile proceeding to criminal
jurisdiction if a child who has attained the age of sixteen
fourteen years shall make a demand on the record to be transferred
to the criminal jurisdiction of the court. Such cases may then be referred to a magistrate for trial, if otherwise cognizable by a
magistrate.
(d) The court may, shall upon consideration of the child's
mental and physical condition, maturity, emotional attitude, home
or family environment, school experience and similar personal
factors, transfer a juvenile proceeding to criminal jurisdiction if
there is a probable cause to believe that:
(1) The child is at least fourteen years of age and has
committed the crime of treason under section one, article one,
chapter sixty-one of this code; the crime of murder under sections
one, two and three, article two, chapter sixty-one of this code;
the crime of robbery involving the use or presenting of firearms or
other deadly weapons the crime of robbery or the attempt to commit
robbery by partial strangulation or suffocation, or by striking or
beating or other violence to the person causing injury, or by
threat or presenting of firearms or other deadly weapons under
section twelve, article two, chapter sixty-one of this code; and
the crime of kidnapping under section fourteen-a, article two,
chapter sixty-one of this code; the crime of first degree arson
under section one, article three, chapter sixty-one of this code;
or charging the crime of sexual assault in the first degree under
section three, article eight-b, chapter sixty-one of this code, and
in such case, the existence of such probable cause shall be
sufficient grounds for transfer without further inquiry; or
(2) A The child is at least fourteen years of age and has
committed an offense of violence to the person which would be a felony if the child were an adult: Provided, That the child has
been previously adjudged delinquent for the commission of an
offense of violence to the person which would be a violent felony
if the child were an adult; or
(3) A The child is at least fourteen years of age and has
committed an offense which would be a felony if the child were an
adult: Provided, That the child has been twice previously adjudged
delinquent for the commission of an offense which would be a felony
if the child were an adult; or.
(4) A child, sixteen years of age or over, has committed an
offense of violence to the person which would be a felony if
committed by an adult; or
(5) A child, sixteen years of age or over, has committed an
offense which would be a felony if committed by an adult:
Provided, That such child has been previously adjudged delinquent
for an offense which would be a felony if the child were an adult.
(e) The court may transfer a juvenile proceeding to criminal
jurisdiction if there is probable cause to believe that:
(1) The child would otherwise satisfy the provisions of
subdivisions (1), subsection (d) of this section, but who is
younger than fourteen years of age.
(f) The court may, upon consideration of the child's mental
and physical condition, maturity, emotional attitude, home or
family environment, school experience and similar personal factors,
transfer a juvenile proceeding to criminal jurisdiction if there is
probable cause to believe that:
(1) The child would otherwise satisfy the provisions of
subdivisions (2) or (3), subsection (d) of this section, but who is
younger than fourteen years of age.
(g) The court may, upon consideration of the child's mental
and physical condition, maturity, emotional attitude, home or
family environment, school experience and similar personal factors,
transfer a juvenile proceeding to criminal jurisdiction if there is
probable cause to believe that:
(1) The child who is at least fourteen years of age has
committed an offense of violence to the person which would be a
felony if the child were an adult; or
(2) The child who is at least fourteen years of age has
committed an offense which would be a felony if the child were an
adult: Provided, That the child has been previously adjudged
delinquent for the commission of a crime which would be a felony if
the child were an adult; or
(3) The child who is at least fourteen years of age has
committed the crime of committing a felony involving the use or
presentation of a firearm or other deadly weapon under section
twelve-a, article two, chapter sixty-one of this code.
(h) For purposes of this section the term "offense of
violence" means an offense which involves the use or threatened use
of physical force against a person.
(e)(i) If, after a hearing, the court directs the transfer of
any juvenile proceeding to criminal jurisdiction, it shall state on
the record the findings of fact and conclusions of law upon which its decision is based or shall incorporate such findings of fact
and conclusions of law in its order directing transfer.
(f)(j)The child shall have the right to directly appeal an
order of transfer to the supreme court of appeals of the state of
West Virginia: Provided, That notice of intent to appeal and a
request for transcript be filed within ten days from the date of
the entry of any such order and the petition for appeal shall be
presented to the supreme court of appeals within forty-five days
from the entry of such order, and that, in default thereof, the
right of appeal and the right to object to such order of transfer
shall be waived and may not thereafter be asserted. The
provisions of article five, chapter fifty-eight of this code
pertaining to the appeals of judgments in civil actions shall apply
to appeals under this chapter except as herein modified. The
judge of the circuit court may, prior to the expiration of such
period of forty-five days after the entry of the order of transfer,
by appropriate order, extend and re-extend such the period in which
to file the petition for appeal for such additional period or
periods time, not to exceed a total extension of sixty days, as in
his the judge's opinion may be necessary for preparation of the
transcript: Provided, That the request for such transcript was
made by the party seeking appeal within ten days of entry of such
order of transfer. In the event any such notice of intent to
appeal and request for transcript be timely filed, proceedings in
criminal court shall be stayed upon motion of the defendant pending
final action of the supreme court of appeals thereon.
§49-5-13. Disposition; appeal.
(a) In aid of disposition, the juvenile probation officer or
state department worker assigned to the court shall, upon request
of the court, make an investigation of the environment of the child
and the alternative dispositions possible. The court, upon its own
motion, or upon request of counsel, may order a psychological
examination of the child. 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 child 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 give precedence to consider the
least restrictive of the following alternatives consistent with as
well as the best interests and welfare of the public and of the
child:
(1) Dismiss the petition;
(2) Refer the child and the child's parent or custodian to a
community agency for needed assistance and dismiss the petition;
(3) Upon a finding that the child is in need of extra-parental
supervision: (A) Place the child under the supervision of a
probation officer of the court or of the court of the county where
the child has his or her usual place of abode, or other person while leaving the child in custody of his or her parent or
custodian; and (B) prescribe a program of treatment or therapy or
limit the child'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, 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 child, that a child 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 child, the court may place the child in temporary
foster care or temporarily commit the child to the state department
or a child welfare agency. The court order shall state that
continuation in the home is contrary to the best interest of the
child 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. Whenever
the court transfers custody of a youth to the department 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 no less restrictive alternative would
accomplish the requisite rehabilitation of the child be consistent
with the best interests and welfare of the public and of the child, and upon an adjudication of delinquency pursuant to subdivision
subsection (1), section four, article one of this chapter, commit
the child to an industrial home, or correctional institution for
children, or other appropriate facility for the treatment,
instruction and rehabilitation of juveniles: Provided, That
persons under the age of eighteen years may not be committed to
such a facility housing persons over the age of eighteen:
Provided, however, That the court maintains discretion to consider
alternate sentencing arrangements including but not limited to
weekend detention. Commitments shall not exceed the maximum term
for which an adult could have been sentenced for the same offense,
with discretion as to discharge to rest with the director of the
institution, who may release the child 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 child 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;
(6) Upon an adjudication of delinquency pursuant to subsection
(3) or (4), section four, article one of this chapter, and upon a
finding that the child is so totally unmanageable, ungovernable and
antisocial that the child is amenable to no treatment or restraint
short of incarceration, commit the child to a rehabilitative
facility devoted exclusively to the custody and rehabilitation of
children adjudicated delinquent pursuant to said subsection (3) or
(4). Commitments shall not exceed the maximum period of one year with discretion as to discharge to rest with the director of the
institution, who may release the child and return him or her to the
court for further disposition. The order shall state that
continuation in the home is contrary to the best interests of the
child 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
(7) After a hearing conducted under the procedures set out in
subsections (c) and (d), section four, article five, chapter
twenty-seven of the code, commit the child to a mental health
facility in accordance with the child's treatment plan; the
director may release a child 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 child 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 child shall not be affected by the
fact that the child 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 child 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, in the event if a child charged with delinquency under
this chapter is transferred to adult jurisdiction and there tried
and convicted, the court may nevertheless, in lieu of sentencing
such person as an adult, make its disposition in accordance with
this section in lieu of sentencing such person as an adult.
§49-5-14. Modification of dispositional orders.
(a) A dispositional order of the court may be modified:
(1) Upon the motion of the probation officer, a state
department official or prosecuting attorney; or
(2) Upon the request of the child or a child's parent or
custodian who alleges a change of circumstances relating to
disposition of the child.
Upon such a motion or request, the court shall conduct a
review proceeding, except that if the last dispositional order was
within the previous six months the court may deny a request for
review. Notice in writing of a review proceeding shall be given
to the child, the child's parent or custodian and all counsel not
less than seventy-two hours prior to the proceeding. The court
shall review the performance of the child, the child's parent or
custodian, the child's social worker and other persons providing
assistance to the child or child's family. If the motion or
request for review of disposition is based upon an alleged
violation of a court order, the court may modify the dispositional order to a more restrictive alternative if it finds clear and
convincing proof of substantial violation. In the absence of such
proof, the court may decline to modify the dispositional order or
may modify the order to one of the less restrictive alternatives
set forth in section thirteen of this article. No child shall be
required to seek a modification order as provided in this section
in order to exercise his right to seek release by habeas corpus.
(b) In a hearing for modification of a dispositional order, or
in any other dispositional hearing, the court shall give precedence
to consider the least restrictive alternative consistent with as
well as the best interests and welfare of the public and the child:
Provided, That a less restrictive alternative need not be ordered
merely because such less restrictive alternative has not been
previously utilized with respect to the particular child who is the
subject of the proceeding.
§49-5-16. Committing children to jail and detention facilities;
standards.
(a) A child under eighteen years of age shall not be committed
to a jail or police station, except that any child over fourteen
years of age who has been committed to an industrial home or
correctional institution may be held in the juvenile department of
a jail while awaiting transportation to the institution for a
period not to exceed ninety-six hours, and a child over fourteen
years of age who is charged with a crime which would be a violent
an offense of violence which would be a felony if committed by an
adult, may, upon an order of the circuit court, be housed in a juvenile detention portion of a county facility, but not within
sight of adult prisoners. A child charged with or found to be
delinquent solely under subdivision (3), (4) or (5), section four,
article one of this chapter, shall not be housed in a detention or
other facility wherein persons are detained for criminal offenses
or for delinquency involving offenses which would be crimes if
committed by an adult: Provided, That a child who is adjudicated
delinquent under subsection (5), section four, article one of this
chapter and who has violated an order of probation or a contempt
order arising out of a proceeding wherein the child was adjudicated
delinquent for an offense which would be a crime if committed by an
adult may not be housed in a detention or other facility wherein
persons are detained who have not been adjudicated delinquent for
such offenses.
(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 commissioner of the department of corrections and 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.
(c) Notwithstanding the provisions of subsection (b) of this
section, the court shall not reconsider or modify the sentence of
a child who has been convicted under the adult jurisdiction of the
court for the reason that the child has attained the age of
eighteen, nineteen, twenty or twenty-one years and may be or is to
be transferred to a penitentiary.
§49-5-17. Expungement of records; exceptions; no discrimination.
(a) One year after the child's eighteenth birthday, or one
year after personal or juvenile jurisdiction shall have terminated,
whichever is later, the records of a juvenile proceeding conducted
under this chapter, including law- enforcement files and records,
fingerprints, physical evidence and all other records pertaining to
said proceeding shall be expunged by operation of law. When
records are expunged, they shall be returned to the court in which
the case was pending and kept in a separate confidential file and
not opened except upon order of the court.
(b) Expungement shall be accomplished by physically marking
the records to show that such records have been expunged, and by
the secure sealing and filing of said records in such a manner that
no one can determine the identity of said juvenile except as
provided in subsection (d) of this section. Expungement shall have
the legal effect as if the offense never occurred.
(c) The child's counsel, parent, guardian or custodian, the
court, law-enforcement agencies and other public and private agencies, in response to a request for record information, shall
reply that juvenile records are not public records and are
available only by order of the circuit court in which the case was
pending.
(d) Notwithstanding this or any other provision of this code
to the contrary, juvenile records and law-enforcement records shall
not be disclosed or made available for inspection, except that the
court may, by written order pursuant to a written petition, permit
disclosure or inspection when:
(d) Notwithstanding this or any other provision of this code
to the contrary, after the effective date of the reenactment of
this section juvenile records and law-enforcement records shall not
be disclosed or made available for inspection except as follows:
(1) If a juvenile case is transferred to the criminal
jurisdiction of the court, and upon the happening of any of the
following:
(A) The failure of the juvenile transferred to timely file an
appeal of the order of transfer; or
(B) The refusal of the supreme court of appeals to hear the
petition of the juvenile appealing the order of transfer; or
(C) The affirming of the order of transfer by the supreme
court of appeals, then all records of the case generated thereafter
shall be open to public inspection, under all of the same
structures and guidelines and requirements of law as exist
regarding records for the prosecution of adults.
(2) If a juvenile is adjudicated delinquent for an offense of violence which would be a felony if the juvenile were an adult,
committed by the juvenile when the juvenile was fourteen years of
age or older, and upon the happening of any of the following:
(A) The failure of a juvenile to timely file an appeal of the
order of adjudication; or
(B) The refusal of the supreme court of appeals to hear the
petition of the juvenile appealing the adjudication; or
(C) The affirming of the adjudication by the supreme court of
appeals, then the order of the adjudication and the dispositional
order shall be subject to public inspection, notwithstanding the
fact that such documents may identify the name of the juvenile, the
name of the juvenile's parents, guardians or custodians, the
offense(s) for which the juvenile shall have been adjudicated
delinquent, the times, dates and places of the commission of such
offenses, the disposition ordered by the court, or such other
information as might reasonably be expected to be included in such
orders.
(3) The court may also, by written order pursuant to a
written petition, permit disclosure when:
(1)(A) A court having juvenile jurisdiction has the child
before it in a juvenile proceeding;
(2)(B) A court exercising criminal jurisdiction over the
child requests such records for the purpose of a presentence report
or other dispositional proceeding;
(3)(C) The child or counsel for the child requests disclosure
or inspection of such records;
(4)(D) The officials of public institutions to which a child
is committed require such records for transfer, parole or discharge
considerations; or
(5)(E) A person doing research requests disclosure, on the
condition that information which would identify the child or family
involved in the proceeding shall not be divulged.
(e) No individual, firm, corporation or other entity shall, on
account of a person's prior involvement in a proceeding under this
article, discriminate against any person in access to, terms of, or
conditions of employment, housing, education, credit, contractual
rights or otherwise.
(f) No records of a juvenile convicted under the criminal
jurisdiction of the court pursuant to subdivision one, subsection
(d), section ten of this article shall be expunged.
(g) Any person who willfully violates this section shall be
guilty of a misdemeanor, and, upon conviction thereof, shall be
fined not more than one thousand dollars, or confined in jail not
more than six months, or both such fine and imprisonment, and shall
be liable for damages in the amount of three hundred dollars or
actual damages, whichever is greater.
§49-5-18. After-care plans; submission to the court; comments
to be submitted; hearing on the plan and adoption
thereof.
(a) Forty-five days prior to the discharge of a child from any
institution or facility pursuant to subdivision five, six or seven,
subsection (b), section thirteen of this article, the director of such institution or facility shall have prepared and shall forward
to the committing court a copy of the child's proposed after-care
plan. Copies of the plan shall also be sent to: (1) The child's
parents, if any, or legal guardian if the child is not living with
his parents,; (2) the child's lawyer,; (3) the child's probation
officer or community mental health center professional,; and (4)
the prosecuting attorney of the county in which the original
commitment proceedings were held; and (5) the local school district
where the child will attend school.
(b) The after-care plan shall contain a detailed description of
the training, schooling, counseling and treatment received while at
the institution or facility and the same proposed for the child
upon his discharge. The plan shall describe any problems the child
may have, the source of those problems and describe how those
problems will be addressed by the after-care plan. Attached to the
plan shall be a list of the persons who are to receive copies of
this plan.
(c) Within twenty-one days of the receipt of the plan, the
child's probation officer or community mental health center
professional shall, and any other person who received a copy of the
plan pursuant to subsection (a) of this section may, submit written
comments concerning the plan to the court: Provided, That if any
person does submit comments upon the plan, he shall also send
copies of those comments to every other person who received a copy
of the plan pursuant to subsection (a) of this section from the
director.
(d) Within the twenty-one days provided in subsection (c) of
this section it shall be the responsibility and duty of the child's
probation officer or the community mental health center
professional who receives a copy of the after-care plan to contact
all other persons, organizations and agencies to be involved in
executing the plan and to determine whether such persons,
organizations and agencies are capable of and will be adequately
prepared to execute the provisions of the plan: Provided, That if
a hearing is held to discuss the plan as provided in subsection (e)
of this section, representatives of such persons, organizations or
agencies may be required to appear unless excused by the court.
(e) The judge to whom the plan was sent shall within forty-five
days of receipt of the plan schedule and hold a hearing to consider
the plan, including any comments or objections submitted in
response thereto: Provided, That if no adverse comments or
objections are submitted, a hearing need not be held. The court
shall consider the after-care plan as submitted and shall within
five days of the hearing or within forty-five days of the receipt
of the plan if no hearing is held issue an order which adopts the
plan as submitted or as modified in response to comments and
objections: Provided, however, That the plan as adopted by order
of the court shall be in the best interests of the child and be in
conformity with the state's interest in youth as embodied in
subsection (b), section thirteen of this article: Provided
further, That the court shall appoint either the child's probation
officer or a community mental health center professional to act as supervisor of the plan, which supervisor shall make a report
commenting on the progress of the child to the court every sixty
days, or until the court shall determine that no such report is
necessary, or when the court determines that after-care is no
longer needed.
NOTE: The purpose of this bill is to extend the juvenile
jurisdiction of the court to age twenty-one, to require juveniles
age 14 or older to be transferred to adult status if they have
committed a serious enumerated crime, to permit the court to
consider alternatives in arriving at a disposition in juvenile
proceedings, to eliminate the authority of the director of juvenile
correctional facilities to release an adjudicated juvenile from the
facility without approval of the court, to prohibit the
reconsideration or modification of a juvenile sentence simply
because the child has attained the age of eighteen, and to provide
certain exceptions to the expungement of juvenile records.
After-care plans for juveniles being discharged from an institution
are to be filed with the local school district where the juvenile
will attend school.