ENGROSSED

COMMITTEE SUBSTITUTE

FOR

H. B. 2402


(By Delegates Amores, Hunt, Farris and Seacrist)

(Originating in the House Committee on the Judiciary)

[February 24, 1995]


A BILL to amend and reenact section thirteen-b, article five, chapter forty-nine of the code of West Virginia, one thousand nine hundred thirty-one, as amended; and to amend and reenact section two, article seven-a, chapter fifty-five of said code, all relating to the liability of parents for the acts of their children generally; parental liability for restitution that a juvenile is ordered to make but does not make; parental liability for willful, malicious or criminal acts of children; increasing the liability of parents.

Be it enacted by the Legislature of West Virginia:
That section thirteen-b, article five, chapter forty-nine of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be amended and reenacted; and that section two, article seven-a, chapter fifty-five of said code be amended and reenacted, all to read as follows:
ARTICLE 5. JUVENILE PROCEEDINGS.
§49-5-13b. Authority of the courts to order fines; revocation
of vehicle privileges and restitution.
(a) In addition to the methods of disposition provided in
section thirteen of this article, the court may enter an order imposing one or more of the following penalties, conditions and limitations:
(1) Impose a fine not to exceed one hundred dollars upon such child;
(2) Require the child to make restitution or reparation to the aggrieved party or parties for actual damages or loss caused by the offense for which the child was found to be delinquent, or if the child does not make full restitution, require the custodial parent or parents, as defined in section two, article seven-a, chapter fifty-five, of the child to make partial or full restitution to the victim to the extent the child fails to make full restitution;
(3) Require the child to participate in a public service project under such conditions as the court prescribes, including participation in the litter control program established pursuant to the authority of section twenty-five, article seven, chapter twenty of this code;
(4) When the child is fifteen years of age or younger and has been adjudged delinquent, the court may order that the child is not eligible to be issued a junior probationary operator's license or when the child is between the ages of sixteen and eighteen years and has been adjudged delinquent, the court may order that the child is not eligible to operate a motor vehicle in this state, and any junior or probationary operator's license shall be surrendered to the court. Such child's driving privileges shall be suspended for a period not to exceed two years, and the clerk of the court shall notify the commissioner of the department of motor vehicles of such order.
(b) Nothing herein stated shall limit the discretion of the court in disposing of a juvenile case: Provided, That the juvenile shall not be denied probation or any other disposition pursuant to this article because the juvenile is financially unable to pay a fine or make restitution or reparation: Provided, however, That all penalties, conditions and limitations imposed under this section shall be based upon a consideration by the court of the seriousness of the offense, the child's ability to pay, and a program of rehabilitation consistent with the best interests of the child.
(c) Notwithstanding any other provisions of this code to the contrary, in the event a child charged with delinquency under this chapter is transferred to adult jurisdiction and there convicted, the court may nevertheless, in lieu of sentencing such person as an adult, make its disposition in accordance with this section.
ARTICLE 7A. LIABILITY OF PARENTS.
§55-7A-2. Parental liability for willful, malicious or criminal acts of children.

The custodial parent or parents of any minor child shall be personally liable in an amount not to exceed twenty-five hundred five thousand dollars for damages which are the proximate result of any one or a combination of the following acts of such the minor child:
(a) The malicious and willful injury to the person of another; or
(b) The malicious and willful injury or damage to the property of another, whether such the property be real, personal or mixed; or
(c) The malicious and willful setting fire to a forest or wooded area belonging to another; or
(d) The willful taking, stealing and carrying away of the property of another, with the intent to permanently deprive the owner of possession.
For purposes of this section, "custodial parent or parents" shall mean the parent or parents with whom the minor child is living, or a divorced or separated parent who does not have legal custody but who is exercising supervisory control over the minor child at the time of the minor child's act.
Persons entitled to recover damages under this article shall include, but not be limited to, the state of West Virginia, any municipal corporation, county commission and board of education, or other political subdivision of this state, or any person or organization of any kind or character. The action may be brought in magistrate or other another court of competent jurisdiction. Recovery hereunder shall be limited to the actual damages based upon direct out-of-pocket loss, taxable court costs, and interest from date of judgment. The right of action and remedy granted herein shall be in addition to and not exclusive of any rights of action and remedies therefor against a parent or parents for the tortious acts of his or their children heretofore existing under the provisions of any law, statutory or otherwise, or now so existing independently of the provisions of this article.
The provisions of this article shall be applicable to causes of action arising on and after the effective date of reenactment of this article. Causes of actions arising before the effective date of reenactment of this article and proceedings thereon shall be governed by the previously enacted provisions of this article in force at the time such the cause arose.