ENGROSSED
COMMITTEE SUBSTITUTE
FOR
Senate Bill No. 27
(By Senators Tomblin, Mr. President, and Boley,
By Request of the Executive)
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[Originating in the Committee on the Judiciary;
reported February 14, 1995.]
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A BILL to amend and reenact sections ten, thirteen and eighteen, article five, chapter forty-nine of the code of West Virginia, one thousand nine hundred thirty-one, as amended, relating to transfer of juvenile proceedings from the juvenile jurisdiction to the criminal jurisdiction of the courts; the sentencing of juveniles tried as adults; criteria for disposition; and the formulation of after-care plans for juveniles.

Be it enacted by the Legislature of West Virginia:
That sections ten, thirteen 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 to read as follows:
ARTICLE 5. JUVENILE PROCEEDINGS.

§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 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 subsections (d) or (e) 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 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 shall transfer a juvenile proceeding to criminal jurisdiction if there is probable cause to believe that the child 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 of said chapter; the crime of robbery involving the use or presenting of firearms or other deadly weapons under section twelve of said article; the crime of kidnapping under section fourteen-a of said article; the crime of first degree arson under section one, article three of said chapter; or the crime of sexual assault in the first degree under section three, article eight-b of said chapter.
(e) The court may, only upon consideration of the child's age, 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) A child has committed an offense of violence to the person which would be a felony if committed by an adult; or
(2) A child 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; or
(3) A child has committed a violation of the provisions of section four hundred one, article four, chapter sixty-a of this code which would be a felony if the child were an adult involving the manufacture, delivery or possession with the intent to deliver a narcotic drug. For purposes of this subdivision, the term "narcotic drug" shall have the same definition as that set forth in section one hundred one, article one of said chapter.
(f) 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.
(g) 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, by appropriate order, extend and reextend such period for such additional period or periods, not to exceed a total extension of sixty days, as in his opinion may be necessary for preparation of the transcript: Provided, however, 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 the best interests of the child and the safety of the public in choosing from the following alternatives:
(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;
(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 the child's best interests and the safety of the public requires incarceration of the child, and upon an adjudication of delinquency pursuant to subdivision (1), section four, article one of this chapter, commit the child to an industrial home or correctional institution for children. 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 circumstances 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 and ungovernable that the child is amenable to no treatment or restraint short of incarceration, commit the child to a rehabilitative facility. Commitments shall not exceed one year unless the court determines, after hearing evidence on the matter, that the child's best interests require a longer period of commitment. 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 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.

§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 (5), (6) or (7), 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; (4) the prosecuting attorney of the county in which the original commitment proceedings were held; and (5) the principal of the school which the child will attend.
(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 said subsection 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 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 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 that after-care is no longer needed.