H. B. 2728
(By Delegates Jenkins, Amores, Hunt and Seacrist)
[Introduced February 24, 1995; referred to the
Committee on the Judiciary.]
A BILL to amend and reenact section thirteen, article five,
chapter forty-nine of the code of West Virginia, one
thousand nine hundred thirty-one, as amended, relating to
disposition of juvenile proceedings; eliminating the
requirement that the court give precedence to the least
restrictive alternative when sentencing a juvenile offender;
appeal.
Be it enacted by the Legislature of West Virginia:
That section thirteen, article five, chapter forty-nine of
the code of West Virginia, one thousand nine hundred thirty-one,
as amended, be amended and reenacted to read as follows:
ARTICLE 5. JUVENILE PROCEEDINGS.
§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 juvenile and the alternative dispositions possible. The
court, upon its own motion, or upon request of counsel, may order
a psychological examination of the child juvenile. The report of
such the examination and other investigative and social reports
shall may 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 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 is not be limited to the
relief sought in the petition. and, shall give precedence to the least restrictive of the following alternatives The court shall,
in its discretion, order relief consistent with the best
interests and welfare of the public and the child juvenile, and
select from the following sentencing alternatives:
(1) Dismiss the petition;
(2) Refer the child juvenile and the child's juvenile's
parent or custodian to a community agency for needed assistance
and dismiss the petition;
(3) Suspend the juvenile's driving privileges or junior
operator eligibility, or order the juvenile to pay a fine, make
restitution or reparation or participate in a public service
project, consistent with the provisions in section thirteen-b of
this article.
(3) (4) Upon a finding that the child juvenile is in need of
extra-parental supervision: (A) Place the child juvenile under
the supervision of a probation officer of the court or of the
court of the county where the child juvenile has his or her usual
place of abode, or other person while leaving the child juvenile in custody of his or her parent or custodian; and (B) prescribe
a program of treatment or therapy or limit the child's juvenile's
activities under terms which are reasonable and within the
child's juvenile's ability to perform, including participation in
the litter control program established pursuant to section
twenty-five, article seven, chapter twenty;
(4) (5) Upon a finding that a parent or custodian is not
willing or able to take custody of the child juvenile, that a
child juvenile is not willing to reside in the custody of his or
her parent or custodian, or that a parent or custodian cannot
provide the necessary supervision and care of the child juvenile,
the court may place the child juvenile in temporary foster care
or temporarily commit the child juvenile 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 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. Whenever the court transfers custody of a youth juvenile to the
department of human services, health and human resources, 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) (6) Upon a finding that no less restrictive alternative
would accomplish the requisite rehabilitation of the child, and
Upon an adjudication of delinquency pursuant to subdivision (1),
section four, article one of this chapter, commit the child
juvenile to an industrial home or correctional institution for
children. Commitments shall may 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 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
child 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;
(6) (7) 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 juvenile is so totally
unmanageable, ungovernable and antisocial that the child juvenile
is amenable to no treatment or restraint short of incarceration,
commit the child juvenile to a rehabilitative facility devoted
exclusively to the custody and rehabilitation of children
juveniles adjudicated delinquent pursuant to said subsection (3)
or (4). Commitments shall may 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 juvenile
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 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
(7) (8) 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 juvenile to a
mental health facility in accordance with the child's juvenile's
treatment plan; the director may release a child 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 child 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 child shall juvenile may not be
affected by the fact that the child 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 may not be construed as a
waiver. The evidence shall be transcribed as soon as practicable
and made available to the child juvenile or his or her counsel,
if the same evidence is requested for purposes of further
proceedings. A judge The court may grant a stay of execution
pending further proceedings.
(e) Notwithstanding any other provision of this code to the
contrary, in the event a child juvenile 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 the juvenile as an adult, make its
disposition in accordance with this section.
NOTE: The purpose of this bill is to eliminate the
requirement that the court give precedence to the least
restrictive alternative when sentencing a juvenile offender. It
also gives reference to a companion section of this article which
is intended to be read in conjunction with this section, but was
a different bill passed during the same session as the most
recent amendment to this section, and as a result was not made a
part of this section.
Strike-throughs indicate language that would be stricken from the present law, and underscoring indicates new language
that would be added.