ENROLLED
COMMITTEE SUBSTITUTE
FOR
SENATE BILL NO. 27
(By Senators Tomblin, Mr. President, and Boley, By
Request of the Executive)
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[Passed March 4, 1995; in effect ninety days from passage.]
__________
AN ACT to amend and reenact 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, all relating
to the jurisdiction of courts over persons under eighteen
years of age generally; 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 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-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 section 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) By 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 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), (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
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 shall transfer a juvenile proceeding to
criminal jurisdiction if there is 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 of said chapter; the
crime of robbery involving the use or presenting of firearms or
other deadly weapons under section twelve of said article; and
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; or
(2) 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 felony if
the child were an adult; or
(3) 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.
(e) The court may transfer a juvenile proceeding to
criminal jurisdiction if there is probable cause to believe
that the child would otherwise satisfy the provisions of
subdivision (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 the
child would otherwise satisfy the provisions of subdivision (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, used
or presented a firearm or other deadly weapon during the
commission of a felony; or
(4) The 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.
(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.
(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.
(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 court may, within forty-five days of
the entry of the order of transfer, by appropriate order,
extend and re-extend the period in which to file the petition
for appeal for such additional time, not to exceed a total
extension of sixty days, as in the court's 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
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, in electing from
the following alternatives, consider the best interests of the
child and the welfare of the public:
(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 of this code, 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 the best interests of the child or
the welfare of the public require it, and upon an adjudication
of delinquency pursuant to subdivision (1), section four,
article one of this chapter, the court may commit the child to
an industrial home, correctional institution for children, or
other appropriate facility for the treatment, instruction and
rehabilitation of juveniles: Provided, That the court
maintains discretion to consider alternative sentencing
arrangements. Commitments shall not exceed the maximum term
for which an adult could have been sentenced for the same
offense. 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
subdivision (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 subdivision.
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 this 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, if a child charged with delinquency under this
chapter is transferred to adult jurisdiction and there tried
and convicted, the court may 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
consider the best interests of the child and the welfare of the
public.
§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 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 subdivision (5) of said section
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 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.
§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, 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) The court may also, by written order pursuant to a
written petition, permit disclosure when:
(A) A court having juvenile jurisdiction has the child
before it in a juvenile proceeding;
(B) A court exercising criminal jurisdiction over the
child requests such records for the purpose of a presentence
report or other dispositional proceeding;
(C) The child or counsel for the child requests disclosure
or inspection of such records;
(D) The officials of public institutions to which a child
is committed require such records for transfer, parole or
discharge considerations; or
(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 child convicted under the criminal
jurisdiction of the court pursuant to subdivision (1),
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 (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 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 said subsection (a)
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 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.