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.