Senate Bill No. 345
(By Senators Manchin and Oliverio)
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[Introduced February 14, 1995; referred to the Committee
on the Judiciary.]
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A BILL to amend and reenact sections six and six-a, article
five-a, chapter forty-nine of the code of West Virginia, one
thousand nine hundred thirty-one, as amended; and to amend
and reenact sections two, four, five, six and seven, article
five-b of said chapter, all relating to changing the
authority for juvenile detention centers from the department
of health and human resources to the department of military
affairs and public safety.
Be it enacted by the Legislature of West Virginia:
That sections six and six-a, article five-a, chapter
forty-nine of the code of West Virginia, one thousand nine
hundred thirty-one, as amended, be amended and reenacted; and
that sections two, four, five, six and seven, article five-b of said chapter be amended and reenacted, all to read as follows:
ARTICLE 5A. JUVENILE REFEREE SYSTEM.
§49-5A-6. Assistance of department of military affairs and
public safety.
(a) Effective on the passage of this amendment to this
section, the authority for regional juvenile detention centers is
transferred from the department of health and human resources to
the department of military affairs and public safety.
(b) With the approval of the commissioner of welfare the
department of welfare secretary of military affairs and public
safety, the department of military affairs and public safety is
authorized to assign the necessary personnel and provide adequate
space for the support and operation of any facility not a jail
providing for the detention of children as provided in this
article, subject to and not inconsistent with the appropriation
and availability of funds.
§49-5A-6a. State plan for predisposition detention of juveniles.
(a) The secretary of the department of health and human
resources department of military affairs and public safety and
the legislative commission on juvenile law shall develop a
comprehensive plan to maintain and improve a unified state system
of predispositional detention for juveniles. The secretary and the commission plan shall consider recommendations from the
division of corrections, the governor's committee on crime,
delinquency and correction, the juvenile justice committee, the
state board of education, detention center personnel, juvenile
probation officers of the department of health and human
resources or the department of military affairs and public safety
and judicial and law-enforcement officials from throughout the
state.
The principal purpose of the plan shall be, through
statements of policy and program goals, to provide for the
effective and efficient use of juvenile detention facilities
licensed or operated by local units of government and the state,
including those operated regionally by the department of health
and human resources military affairs and public safety.
(b) The plan shall identify operational problems of secure
detention centers, including, but not limited to, overcrowding,
security and violence within centers, difficulties in moving
juveniles through the centers within required time periods,
health needs, educational needs, transportation problems, staff
turnover and morale and other perceived problem areas. The plan
shall further provide recommendations directed to alleviate the
problems.
(c) The plan shall include, but not be limited to,
statements of policies and goals in the following areas:
(1) Licensing of secure detention centers;
(2) Criteria for placing juveniles in detention;
(3) Alternatives to secure detention;
(4) Allocation of fiscal resources to the costs of secure
detention facilities;
(5) Information and referral services; and
(6) Educational regulations developed and approved by the
West Virginia board of education.
(d) The legislative commission on juvenile law, or a
designated subcommittee or task force thereof, shall act in a
continuing capacity as an oversight committee, and shall assist
the secretary of the department of health and human resources in
the periodic review and update of the state plan for the
predisposition detention of juveniles.
ARTICLE 5B. WEST VIRGINIA JUVENILE OFFENDER REHABILITATION ACT.
§49-5B-2. Purpose and intent.
It is the purpose and intent of the Legislature to provide
for the creation of all reasonable means and methods that can be
established by a humane and enlightened state, solicitous of the
welfare of its children, for the prevention of delinquency and for the care and rehabilitation of delinquent children. It is
further the intent of the Legislature that this state, through
the department of welfare military affairs and public safety,
establish, maintain, and continuously refine and develop, a
balanced and comprehensive state program for children who are
potentially delinquent or are delinquent, other than those
children committed to the care and custody of the department of
corrections.
§49-5B-4. Responsibilities of the department of military affairs
and public safety.
(a) The department of health and human resources military
affairs and public safety is empowered to establish, and shall
establish, subject to the limits of funds available or otherwise
appropriated therefor, programs and services designed to prevent
juvenile delinquency, to divert juveniles from the juvenile
justice system, to provide community-based alternatives to
juvenile detention and correctional facilities and to encourage
a diversity of alternatives within the juvenile justice system.
The development, maintenance and expansion of programs and
services may include, but not be limited to, the following:
(1) Community-based programs and services for the prevention
and treatment of juvenile delinquency through the development of foster-care and shelter-care homes, group homes, halfway houses,
homemaker and home health services, twenty-four hour intake
screening, volunteer and crisis home programs, day treatment and
any other designated community-based diagnostic, treatment or
rehabilitative service;
(2) Community-based programs and services to work with
parents and other family members to maintain and strengthen the
family unit so that the juvenile may be retained in his home;
(3) Youth service bureaus and other community-based programs
to divert youth from the juvenile court or to support, counsel,
or provide work and recreational opportunities for delinquents
and other youth to help prevent delinquency;
(4) Projects designed to develop and implement programs
stressing advocacy activities aimed at improving services for
and protecting rights of youth impacted by the juvenile justice
system;
(5) Educational programs or supportive services designed to
keep delinquents, and to encourage other youth to remain, in
elementary and secondary schools or in alternative learning
situations;
(6) Expanded use of professional and paraprofessional
personnel and volunteers to work effectively with youth;
(7) Youth initiated programs and outreach programs designed
to assist youth who otherwise would not be reached by traditional
youth assistance programs;
(8) A statewide program designed to reduce the number of
commitments of juveniles to any form of juvenile facility as a
percentage of the state juvenile population, to increase the use
of nonsecure community-based facilities as a percentage of total
commitments to juvenile facilities and to discourage the use of
secure incarceration and detention.
(b) The department of health and human resources military
affairs and public safety shall establish, within the funds
available, an individualized program of rehabilitation for each
accused juvenile offender referred to the department after being
allowed an improvement period by the juvenile court, and for each
adjudicated juvenile offender who, after adjudication, is
referred to the department for investigation or treatment or
whose custody is vested in the department. Such individualized
program of rehabilitation shall take into account the programs
and services to be provided by other public or private agencies
or personnel which are available in the community to deal with
the circumstances of the particular child. Such individualized
program of rehabilitation shall be furnished to the juvenile court and shall be available to counsel for the child; it may be
modified from time to time at the direction of the department or
by order of the juvenile court. The department may develop an
individualized program of rehabilitation for any child referred
for noncustodial counseling under section five, article three of
this chapter, for any child receiving counsel and advice under
section three-a, article five of this chapter, or for any other
child upon the request of a public or private agency.
(c) The department of health and human resources military
affairs and public safety is authorized to enter into cooperative
arrangements and agreements with private agencies or with
agencies of the state and its political subdivisions to
effectuate the purpose of this article.
§49-5B-5. Rehabilitative facilities for status offenders.
(a) The department of welfare military affairs and public
safety shall, within the limits of state and federal funds
appropriated therefor, establish and maintain one or more
rehabilitative facilities to be used exclusively for the lawful
custody of status offenders. Each such facility shall be,
primarily, a nonsecure facility having as its primary purpose the
rehabilitation of adjudicated juvenile offenders who are status
offenders. Such facility shall not have a bed capacity for more than twenty children, and shall minimize the institutional
atmosphere and prepare the child for reintegration into the
community: Provided, That such facility may function as a
temporary residential facility for accused juvenile offenders
when the juvenile is a status offender and no final adjudication
has been made by the juvenile court: Provided, however, That a
portion of such facility may be designed and operated as a secure
facility used exclusively for status offenders whom the juvenile
court has specifically found to be so unmanageable, ungovernable
and antisocial that no other reasonable alternative exists, or
could exist, for treatment or restraint other than placement in
a secure facility. Temporary residents of the facility shall
only be placed in the secure portion of the facility by order of
the juvenile court upon a specific finding by the court that the
child is likely to injure himself or others or to run away if
placed in a less restrictive environment: Provided, That unless
the court order committing the child specifically orders that the
child not be removed from the secure portion of the facility, the
person having control of the facility shall have the authority to
permit any temporary resident to remain in the nonsecure portions
of the facility if such temporary resident demonstrates a
willingness to remain at the facility voluntarily and to conform his or her conduct to the lawful requirements established for
residents of the nonsecure portions of the facility.
(b) Within the funds available, rehabilitative programs and
services shall be provided by or through each such facility and
may include, but not be limited to, medical, educational,
vocational, social and psychological guidance, training,
counseling, alcoholism treatment, drug treatment and other
rehabilitative services. The department of welfare military
affairs and public safety shall provide to each child adjudicated
delinquent and committed to the facility a program of treatment
and services consistent with the individualized program of
rehabilitation developed for such child. In the case of any
other child residing at the facility, the department shall
provide such programs and services as may be proper in the
circumstances including, but not limited to, any such programs or
services directed to be provided by the court.
(c) The board of education of the county in which the
facility is located shall provide instruction for children
residing at the facility. Residents who can be permitted to do
so shall attend local schools, and instruction shall otherwise
take place at the facility.
(d) Facilities established pursuant to this section shall be structured so as to be or become community-based facilities.
§49-5B-6. Enforcement of legal custody.
The department of welfare military affairs and public safety
shall have authority to require any child committed to its legal
custody to remain at and to return to the residence to which the
child is assigned by the department or by the juvenile court. In
aid of such authority, and upon request of a designated employee
of the department, any police officer, sheriff, deputy sheriff,
member or officer of the department division of public safety or
juvenile court probation officer is authorized to take any such
child into custody and return such child to his or her place of
residence or into the custody of a designated employee of the
department of welfare military affairs and public safety.
§49-5B-7. Reporting requirements; cataloguing of services.
(a) The department of health and human resources military
affairs and public safety shall from time to time, but not less
often than annually, review its programs and services and submit
a report to the governor, the Legislature and the supreme court
of appeals, analyzing and evaluating the effectiveness of the
programs and services being carried out by the department. Such
report shall include, but not be limited to, an analysis and
evaluation of programs and services continued, established and discontinued during the period covered by the report, and shall
further describe programs and services which should be
implemented to further the purposes of this article. Such report
shall also include, but not be limited to, relevant information
concerning the number of children comprising the population of
any rehabilitative facility during the period covered by the
report, the length of residence, the nature of the problems of
each child, the child's response to programs and services and
such other information as will enable a user of the report to
ascertain the effectiveness of the facility as a rehabilitative
facility.
(b) The department of health and human resources military
affairs and public safety shall prepare a descriptive catalogue
of its juvenile programs and services available in local
communities throughout this state and shall distribute copies of
the same to every juvenile court in the state and, at the
direction of the juvenile court, such catalogue shall be
distributed to attorneys practicing before such court. Such
catalogue shall also be made available to members of the general
public upon request. The catalogue shall contain sufficient
information as to particular programs and services so as to
enable a user of the catalogue to make inquiries and referrals. The catalogue shall be constructed so as to meaningfully identify
and describe programs and services. The requirements of this
section are not satisfied by a simple listing of specific
agencies or the individuals in charge of programs at a given
time. The catalogue shall be updated and republished or
supplemented from time to time as may be required to maintain its
usefulness as a resource manual.
NOTE: The purpose of this bill is to change the authority
and responsibility for regional juvenile detention centers from
the Department of Health and Human Resources to the Department of
Military Affairs and Public Safety.
Strike-throughs indicate language that would be stricken
from the present law, and underscoring indicates new language
that would be added.