ENGROSSED
COMMITTEE SUBSTITUTE
FOR
Senate Bill No. 364
(By Senators Prezioso, Unger, Rowe, Kessler, Helmick, Caldwell,
Plymale, Sharpe, Ross, Dempsey, Love, Hunter, Sprouse, Minard,
Jenkins, Fanning, White, McCabe, Bowman, Minear and Tomblin, Mr.
President)
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[Originating in the Committee on the Judiciary;
reported February 19, 2003.]
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A BILL to amend and reenact sections seven and twenty-one, article
five, chapter forty-nine of the code of West Virginia, one
thousand nine hundred thirty-one, as amended; to further amend
said article by adding thereto a new section, designated
section sixteen-b; to amend and reenact section three, article
five-d of said chapter; and to further amend said article by
adding thereto two new sections, designated sections three-a
and eight, all relating to child welfare and juvenile justice
generally; requiring notice of certain proceedings to the
department of health and human resources and the division of
juvenile services for purposes of multidisciplinary hearings;
providing for greater involvement of multidisciplinary teams
in juvenile and abuse and neglect proceedings; providing that quarterly judicial reviews be continued while child remains in
custody; exceptions to meeting requirement; providing for when
offenses are committed while in custody; providing for
recommended court orders; requiring that recommended service
plans be considered; requiring written findings when order
deviates from treatment team's recommended plan; and affording
multidisciplinary treatment team notice and opportunity to
present evidence.
Be it enacted by the Legislature of West Virginia:
That sections seven and twenty-one, article five, chapter
forty-nine of the code of West Virginia, one thousand nine hundred
thirty-one, as amended, be amended and reenacted; that said article
be further amended by adding thereto a new section, designated
section sixteen-b; that section three, article five-d of said
chapter be amended and reenacted; and that said article be further
amended by adding thereto two new sections, designated sections
three-a and eight, all to read as follows:
ARTICLE 5. JUVENILE PROCEEDINGS.
§49-5-7. Institution of proceedings by petition; notice to
juvenile and parents; subpoena.
(a) (1) A petition alleging that a juvenile is a status
offender or a juvenile delinquent may be filed by a person who has
knowledge of or information concerning the facts alleged. The
petition shall be verified by the petitioner, shall set forth the
name and address of the juvenile's parents, guardians or custodians, if known to the petitioner, and shall be filed in the
circuit court in the county where the alleged status offense or act
of delinquency occurred:
Provided, That any proceeding under this
chapter may be removed, for good cause shown, in accordance with
the provisions of section one, article nine, chapter fifty-six of
this code. The petition shall contain specific allegations of the
conduct and facts upon which the petition is based, including the
approximate time and place of the alleged conduct; a statement of
the right to have counsel appointed and consult with counsel at
every stage of the proceedings; and the relief sought.
(2) Upon the filing of the petition, the court shall set a
time and place for a preliminary hearing as provided in section
nine of this article and may appoint counsel. A copy of the
petition and summons may be served upon the respondent juvenile by
first class mail or personal service of process. If a juvenile
does not appear in response to a summons served by mail, no further
proceeding may be held until the juvenile is served a copy of the
petition and summons by personal service of process. If a juvenile
fails to appear in response to a summons served in person upon him
or her, an order of arrest may be issued by the court for that
reason alone.
(b) The parents, guardians or custodians shall be named in the
petition as respondents and shall be served with notice of the
proceedings in the same manner as provided in subsection (a) of
this section for service upon the juvenile and required to appear
with the juvenile at the time and place set for the proceedings unless such respondent cannot be found after diligent search. If
any such respondent cannot be found after diligent search, the
court may proceed without further requirement of notice:
Provided,
That the court may order service by first class mail to the last
known address of such respondent. The respondent shall be afforded
fifteen days after the date of mailing to appear or answer.
(c) The court or referee may order the issuance of a subpoena
against the person having custody and control of the juvenile
ordering him or her to bring the juvenile before the court or
referee.
(d) When any case of a juvenile charged with the commission of
a crime is certified or transferred to the circuit court, the court
or referee shall forthwith cause the juvenile and his or her
parents, guardians or custodians to be served with a petition as
provided in subsections (a) and (b) of this section. In the event
the juvenile is in custody, the petition shall be served upon the
juvenile within ninety-six hours of the time custody began and if
the petition is not served within that time, the juvenile shall be
released forthwith.
(e) The clerk of the court shall promptly notify the
local
office of the department of health and human resources of all
proceedings under this article,
which shall then be responsible for
convening and directing the multidisciplinary treatment planning
process in accordance with the provisions of section three, article
five-d of this chapter: Provided, That in status offense or
delinquency cases where a case manager has not been assigned, the juvenile probation officer shall be responsible for notifying the
local office of the department of health and human services which
will assign a case manager who will initiate assessment and be
responsible for convening and directing the multidisciplinary
treatment planning process.
§49-5-16b. Conviction for offense while in custody.
Notwithstanding any other provision of law to the contrary,
any person who is eighteen years of age or older who is convicted
as an adult of an offense that he or she committed while in the
custody of the division of juvenile services and who is therefor
sentenced to a regional jail or state correctional facility for
said offense may not be returned to the custody of the division
upon the completion of his or her adult sentence until a hearing is
held before the court which committed the person to the custody of
the division of juvenile services at which hearing the division may
present any objections it may have to return the person to its
custody. If the division does object and the court overrules the
division's objections, it shall make specific written findings as
to its rationale for overruling the objections:
Provided, That no
person who is eighteen years of age or older who is convicted as an
adult of a felony crime of violence against the person while in the
custody of the division of juvenile services be returned to the
custody of the division of juvenile services upon completion of his
or her adult sentence.
§49-5-21. Quarterly judicial review of juvenile proceedings.
For cases under this article in which the provisions of section three, article five-d of this chapter apply, the court
wherein the juvenile proceeding is pending shall conduct regular
judicial review of the case with the multidisciplinary treatment
team and a juvenile probation officer in attendance. Such judicial
review may be conducted as often as is considered necessary by the
court, but shall be conducted at least once every three calendar
months
until the case is wholly resolved and finally dismissed from
the docket of the court as long as the child remains in the legal
or physical custody of the state.
In conducting the judicial review required by this section,
the court shall address the extent of progress in the case,
treatment and service needs, permanent placement planning for the
juvenile, any uncontested issues and any other matters that the
court considers pertinent. An order reflecting the matters
considered, any uncontested rulings and the scheduling of an
evidentiary hearing on any contested issue shall be issued by the
court within ten judicial days of the judicial review.
ARTICLE 5D. MULTIDISCIPLINARY TEAMS.
§49-5D-3. Multidisciplinary treatment planning process.
(a) (1) On or before the first day of January, one thousand
nine hundred ninety-five, a multidisciplinary treatment planning
process shall be established within each county of the state,
either separately or in conjunction with a contiguous county by the
secretary of the department with advice and assistance from the
prosecutor's advisory council as set forth in section four, article
four, chapter seven of this code.
(2) Treatment teams shall assess, plan and implement a
comprehensive, individualized service plan for children who are
victims of abuse or neglect and their families when a judicial
proceeding has been initiated involving the child or children
and
for juveniles and their families involved in status offense or
delinquency proceedings when, in a status offense proceeding, the
court refers the juvenile for services pursuant to sections eleven
and eleven-a, article five of this chapter and when, in a
delinquency proceeding, the court is considering placing the
juvenile in the department's custody
and/or placing the juvenile
out-of-home at the department's expense pursuant to
the provisions
of section thirteen of said article.
In any such status offense or
delinquency case, the juvenile probation officer shall notify the
local office of the department of health and human resources and
the division of juvenile services at least five working days before
the court proceeding in order to allow the multidisciplinary
treatment team to convene and develop a comprehensive
individualized service plan for the child: Provided, That such
notice is not required in cases where the child is already in state
custody or there exist exigent circumstances which justify taking
the child immediately into custody without a judicial proceeding.
(3) Prior to disposition, in each case in which a treatment
planning team has been convened, the team shall advise the court as
to the types of services the team has determined are needed and the
type of placement, if any, which will best serve the needs of the
child.
(b) Each treatment team shall be convened and directed by the
child's or family's case manager. The treatment team shall consist
of the child's custodial parent
(s) or parents, or guardian
(s) or
guardians, other immediate family members, the attorney
(s) or
attorneys representing the parent
(s) or parents of the child,
if
assigned by a judge of the circuit court, the child, if the child
is over the age of twelve and if the child's participation is
otherwise appropriate, the child if under the age of twelve when
the team determines that the child's participation is appropriate,
the guardian ad litem,
if any, the prosecuting attorney or his or
her designee and any other
agency, person
or professional, or an
agency representative who may
assist in providing recommendations
for the particular needs of the child and family.
The child may
participate in multidisciplinary treatment team meetings if such is
deemed appropriate by the multidisciplinary treatment team. For
purposes of delinquency proceedings, the juvenile probation officer
shall be a member of the treatment team.
(c) The treatment team shall coordinate
their its activities
and membership with local family resource networks and coordinate
with other local and regional child and family service planning
committees to assure the efficient planning and delivery of child
and family services on a local and regional level.
(d) State, county and local agencies shall provide the
multidisciplinary treatment teams with any information requested in
writing by the team as allowable by law or upon receipt of a
certified copy of the circuit court's order directing said agencies to release information in its possession relating to the child.
The team shall assure that all information received and developed
in connection with the provisions of this article remain
confidential. For purposes of this section, the term
"confidential" shall be construed in accordance with the provisions
of section one, article seven of this chapter.
§49-5D-3a. Recommendation of team to the court; hearing
requirement; required findings.
In any case in which a multidisciplinary treatment team
develops an individualized service plan for a child pursuant to the
provisions of section three of this article, the court shall review
the proposed service plan to determine if implementation of the
plan is in the child's best interests. If the court determines not
to adopt the team's recommendations, it shall, sua sponte
, schedule
and hold within ten days of such determination, and prior to the
entry of an order placing the child in the custody of the
department or in an out-of-home setting, a hearing to consider
evidence from the team as to its rationale for the proposed service
plan. If, after a hearing held pursuant to the provisions of this
section, the court does not adopt the teams's recommended service
plan, it shall make specific written findings as to why the team's
recommended service plan was not adopted.
§49-5D-8. Exemption from multidisciplinary team review for
emergency out-of-home placements.
Notwithstanding any provisions of this article to the contrary, a multidisciplinary team recommendation shall not be
required for temporary out-of-home placement of a child in an
emergency circumstance or for purposes of assessment as provided
for by the provisions of this article.
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