COMMITTEE SUBSTITUTE
FOR
H. B. 2500
(By Delegates Thompson, Ryan, J. Martin,
Stalnaker, Tillis, Amores and Pulliam)
(Originating in the House Committee on the Judiciary)
[January 30, 1996]
A BILL to repeal sections one-a and one-b, article five, chapter
forty-nine of the code of West Virginia, one thousand nine
hundred thirty-one, as amended; to amend and reenact sections
one, two, ten, seventeen and eighteen of said article; and to
further amend said article by adding thereto two new sections,
designated sections nineteen and twenty, all relating to
juvenile proceedings; definitions which are used in this
article; jurisdiction of courts in juvenile proceedings;
constitutional guarantees for juveniles; hearings, evidence
and transcripts of juvenile proceedings; waiver and transfer
of juvenile proceedings from the juvenile jurisdiction to the
criminal jurisdiction of the courts; confidentiality of
juvenile records; expungement of juvenile records; prohibiting
discrimination against persons who have been involved in
juvenile proceedings; juvenile after-care plans; and criminal
penalties.
Be it enacted by the Legislature of West Virginia:
That sections one-a and one-b, article five, chapter forty-
nine of the code of West Virginia, one thousand nine hundred
thirty-one, as amended, be repealed; that sections one, two, ten,
seventeen and eighteen of said article be amended and reenacted;
and that said article be further amended by adding two new
sections, designated sections nineteen and twenty, all to read as
follows:
ARTICLE 5. JUVENILE PROCEEDINGS.
§49-5-1. Definitions.
(a) As used in this article, the term "adult" means a person
who is at least eighteen years of age.
(b) As used in this article, the term "child" means a person
who has not attained the age of eighteen years, or a person who is
otherwise subject to the juvenile jurisdiction of a court pursuant
to this article.
(c) As used in this article, the term "extrajudicial
statement" means any utterance, written or oral, which was made
outside of court.
(d) As used in this article, the term "juvenile" shall have
the same meaning as the term "child."
(e) As used in this article, the term "res gestae" means a
spontaneous declaration made by a person immediately after an event
and before the person has had an opportunity to conjure a
falsehood.
(f) As used in this article, the term "violation of a traffic
law of West Virginia" means a violation of any provision of chapters seventeen-a, seventeen-b, seventeen-c or seventeen-d of
this code except a violation of chapter seventeen-c, article four,
sections one and two (hit and run) or of chapter seventeen-c,
article five, sections one (negligent homicide), two (driving under
the influence of alcohol, controlled substances or drugs) or three
(reckless driving).
§49-5-2. Juvenile jurisdiction of circuit courts, magistrate
courts and municipal courts; constitutional guarantees;
hearings; evidence and transcripts.
(a) The circuit court
of the county shall have original
jurisdiction
in of proceedings brought under this article.
(b) If during a criminal proceeding
against a person in any
court, it
shall be is ascertained or
shall appear appears that the
person defendant is under the age of nineteen years and was under
the age of eighteen years at the time of the alleged offense, the
matter shall be immediately certified to the juvenile jurisdiction
of the circuit court
, and the. The circuit court shall assume
jurisdiction of the case in the same manner as cases
which are
originally instituted in the circuit court by petition
: Provided,
That for violation of a traffic law of West Virginia
(c) Notwithstanding any other provision of this article,
magistrate Magistrate courts shall have concurrent
juvenile
jurisdiction with the circuit court
, and persons under the age of
eighteen years for a violation of a traffic law of West Virginia or
for any violation of chapter twenty of this code. Juveniles shall
be liable for punishment for
violation violations of such
traffic laws in the same manner as adults except that magistrate courts
shall have no jurisdiction to impose a sentence of
confinement
incarceration for the violation of
traffic laws. such laws.
As used in this section, "violation of a traffic law of West
Virginia" means violation of any law contained in chapters
seventeen-a, seventeen-b, seventeen-c and seventeen-d of this code
except sections one and two, article four (hit and run) and
sections one (negligent homicide), two (driving under influence of
alcohol, controlled substances or drugs) and four (reckless
driving), article five, chapter seventeen-c of this code.
(d) Notwithstanding any other provision of this article,
municipal courts shall have concurrent juvenile jurisdiction with
the circuit court for a violation of any municipal ordinance
regulating traffic or for any municipal curfew ordinance which is
enforceable. Municipal courts may impose the same punishment for
such violations as a circuit court exercising its juvenile
jurisdiction could properly impose, except that municipal courts
shall have no jurisdiction to impose a sentence of incarceration
for the violation of such laws.
(e) A juvenile may be brought before the circuit court for
proceedings under this article only by the following means:
(1) By a juvenile petition requesting that the juvenile be
adjudged neglected or delinquent;
(2) By certification or transfer to the juvenile jurisdiction
of the circuit court from the criminal jurisdiction of the circuit
court, from any foreign court, or from any magistrate court or municipal court in West Virginia; or
(3) By a warrant, capias or attachment which charges a
juvenile with an act of delinquency, is issued by a judge, referee
or magistrate, and is returnable to the circuit court.
(f) If a juvenile commits an act which would be a crime if
committed by an adult, and the juvenile is adjudged a delinquent
for such act, the jurisdiction of the court which adjudged the
juvenile a delinquent shall continue until the juvenile becomes
twenty-one years of age. The court shall have the same power over
the person that it had before he or she became an adult, and shall
have the further power to sentence the person to a term of
incarceration which cannot exceed six months. This authority shall
not preclude the court from exercising criminal jurisdiction over
the person if he or she violates the law after becoming an adult or
if the proceedings have been transferred to the court's criminal
jurisdiction pursuant to section ten of this article.
(b) Any child (g) A juvenile shall be entitled to be admitted
to bail or recognizance in the same manner as
a person over the
age of eighteen years an adult and shall have the protection
guaranteed by article III of the
constitution of West Virginia
Constitution.
(c) The child (h) A juvenile shall have the right to be
effectively represented by counsel at all stages of proceedings
under the provisions of this article. If the
child, parent
juvenile or the juvenile's parents or custodian executes an
affidavit showing that
he the juvenile cannot
pay for afford an attorney
appointed by the court or referee, the court shall appoint
counsel, to be paid as provided for in an attorney, who will be
paid in accordance with article twenty-one, chapter twenty-nine of
this code.
(d)(i) In all proceedings under this article, the
child
juvenile shall
be afforded have a meaningful opportunity to be
heard
,. including This includes the opportunity to testify and to
present and cross-examine witnesses.
In all such proceedings the
The general public shall be excluded
from all such proceedings
except persons whose presence is requested by
a child or respondent
the parties and other persons
whom the
circuit court
finds to have
determines have a legitimate interest in the proceedings.
(j) At all adjudicatory hearings held under this article,
all procedural rights afforded to adults in criminal proceedings
shall be applicable unless specifically provided otherwise in this
chapter.
(k) Except as herein modified, at At all adjudicatory hearings
held under this article, the rules of evidence applicable in
criminal cases shall apply, including the rule against written
reports based upon hearsay.
Unless otherwise specifically provided in this chapter, all
procedural rights afforded adults in criminal proceedings shall be
applicable.
Extrajudicial statements, other than res gestae by a child
under sixteen years of age but above the age of thirteen to law-
enforcement officers or while in custody, shall not be admissible unless made in the presence of the child's counsel or made in the
presence of and with the consent of the child's parent or custodian
who has been fully informed regarding the child's right to a prompt
detention hearing, his right to counsel including appointed counsel
if he cannot afford counsel, and his privilege against self-
incrimination.
(l) Extrajudicial statements, other than res gestae, which
were made by a juvenile under fourteen years of age to law-
enforcement officials or while in custody shall not be admissible
unless such statements were made in the presence of the juvenile's
counsel. Extrajudicial statements, other than res gestae, which
were made by a juvenile who is at least fourteen years of age to
law-enforcement officials or while in custody shall not be
admissible unless such statements were made in the presence of the
juvenile's counsel or in the presence of, and with the consent of,
the juvenile's parent or custodian who has been fully informed
regarding the juvenile's right to a prompt detention hearing, the
juvenile's right to counsel, including appointed counsel if the
juvenile cannot afford counsel, and the juvenile's privilege
against self-incrimination.
(m) A transcript or recording shall be made of all transfer,
adjudicatory and dispositional hearings. At the conclusion of any
hearing, the
circuit court shall make findings of fact and
conclusions of law,
and the same both of which shall appear
of on
the record.
(e) The court reporter shall furnish a transcript of
the
relevant proceedings
at no charge to any indigent
child juvenile who seeks review of any proceeding under this article if
an affidavit is filed stating that
neither the juvenile nor the
juvenile's parents or custodian have the ability to pay for the
transcript. the child and his parent or custodian are unable to
pay therefor.
§49-5-10. W
aiver 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 exten
sion of
sixty days, as in the court's opinion may be
necessary for prepara
tion 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.
§49-5-17. Expungement of records; exceptions; no discrimination.
(a) One year after
th
e
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 pen
ding 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.
§ 49-5-17. Confidentiality of juvenile records.
(a) Records of a juvenile proceeding conducted under this
chapter are not public records, and therefore they shall not be
disclosed to anyone unless disclosure is otherwise authorized by
this section.
(b) Notwithstanding the provisions of subsection (a) of this
section, a copy of a juvenile's records shall automatically be
disclosed to certain school officials, subject to the following
terms and conditions:
(1) Only certain types of juvenile records shall be
disclosed. These include and are limited to cases in which:
(A) the juvenile has been charged with an offense which would
be a crime if it was committed by an adult; and
(i) the offense involves violence against another person;
(ii) the offense involves possession of a dangerous or deadly
weapon; or
(iii) the offense involves possession or delivery of a
controlled substance as that term is defined in chapter 60A-1-
101(d) of this code; and
(B) the juvenile case has proceeded to a point where one or
more of the following has occurred:
(i) a judge, magistrate or referee has determined that there is probable cause to believe that the juvenile committed the
offense as charged;
(ii) a judge, magistrate or referee has placed the juvenile on
probation for the offense;
(iii) a judge, magistrate or referee has placed the juvenile
into an improvement period in accordance with section nine, article
five, chapter forty-nine of this code; or
(iv) some other type of disposition has been made of the case
other than dismissal.
(2) The circuit court for each judicial circuit in West
Virginia shall designate one person to supervise the disclosure of
juvenile records to certain school officials.
(3) If the juvenile attends a West Virginia public school,
the person designated by the circuit court shall automatically
disclose all records of a juvenile case to the county
superintendent of schools in the county in which the juvenile
attends school. The person designated by the circuit court shall
also automatically disclose all records of a juvenile case to the
principal of the school which the juvenile attends.
(4) If the juvenile attends a private school in West
Virginia, the person designated by the circuit court shall
determine the identity of the highest ranking person at that
school, and shall automatically disclose all records of a
juvenile's case to that person.
(5) If the juvenile does not attend school at the time the
juvenile's case is pending, the person designated by the circuit court shall not transmit the juvenile's records to any school.
However, the person designated by the circuit court shall transmit
the juvenile's records to any school in West Virginia which the
juvenile subsequently attends.
(6) The person designated by the circuit court shall not
automatically transmit juvenile records to a school which is not
located in West Virginia. Instead, the person designated by the
circuit court shall contact the out-of-state school, inform it that
juvenile records exist, and make an inquiry regarding whether the
laws of that state permit the disclosure of juvenile records. If
so, the person designated by the circuit court shall consult with
the circuit judge who presided over the case to determine whether
the juvenile records should be disclosed to the out-of-state
school. The circuit judge shall have discretion in determining
whether to disclose the juvenile records, and shall consider
whether the other state's law regarding disclosure provides for
sufficient confidentiality of juvenile records, using this section
as a guide. If the circuit judge orders the juvenile records to be
disclosed, they shall be disclosed in accordance with the
provisions of subdivision (7) of this subsection.
(7) The person designated by the circuit court shall transmit
the juvenile's records to the appropriate school official under
cover of a letter emphasizing the confidentiality of such records
and directing the official to consult this section of the code. A
copy of this section of the code shall be transmitted with the
juvenile's records and cover letter.
(8) Juvenile records must be treated as absolutely
confidential by the school official to whom they are transmitted,
and nothing contained within the juvenile's records shall be noted
on the juvenile's permanent educational record. The juvenile
records are to be maintained in a secure location and are not to be
copied under any circumstances. However, the principal of a school
to whom the records are transmitted shall have the duty to disclose
the contents of those records to any teacher who teaches a class in
which the subject juvenile is enrolled and to the regular driver of
a school bus in which the subject juvenile is regularly transported
to or from school. Furthermore, any school official to whom the
juvenile's records are transmitted may disclose the contents of
such records to any adult within the school system who, in the
discretion of the school official, has the need to be aware of the
contents of those records.
(9) If for any reason a juvenile ceases to attend a school
which possesses that juvenile's records, the appropriate official
at that school shall seal the records and return them to the
circuit court which sent them to that school. If the juvenile has
changed schools for any reason, the former school shall inform the
circuit court of the name and location of the new school which the
juvenile attends or will be attending. If the new school is
located within West Virginia, the person designated by the circuit
court shall forward the juvenile's records to the juvenile's new
school in the same manner as provided in subdivision (7) of this
subsection. If the new school is not located within West Virginia, the person designated by the circuit court shall handle the
juvenile records in accordance with subdivision (6) of this
subsection.
If the juvenile has been found to be not guilty of an offense
for which records were previously forwarded to the juvenile's
school on the basis of a finding of probable cause, the circuit
court shall not forward those records to the juvenile's new school.
However, this shall not affect records related to other prior or
future offenses. If the juvenile has graduated or quit school, or
will otherwise not be attending another school, the circuit court
shall retain the juvenile's records and handle them as otherwise
provided in this article.
(10) Under no circumstances shall one school transmit a
juvenile's records to another school.
(11) Under no circumstances shall juvenile records be
automatically transmitted to a college, university or other post-
secondary school.
(12) No one shall suffer any penalty, civil or criminal, for
accidentally or negligently attributing certain juvenile records to
the wrong person. However, such person shall have the affirmative
duty to promptly correct any mistake that he or she has made in
disclosing juvenile records when the mistake is brought to his or
her attention. A person who intentionally attributes false
information to a certain person shall be subjected to both criminal
and civil penalties, in accordance with subsection (d) of this
section.
(13) If a judge, magistrate or referee has determined that
there is probable cause to believe that a juvenile has committed an
offense but there has been no final adjudication of the charge, the
records which are transmitted by the circuit court shall be
accompanied by a notice which clearly states in bold print that
there has been no determination of delinquency and that our legal
system requires a presumption of innocence.
(c) Notwithstanding the provisions of subsection (a) of this
section, juvenile records may be disclosed, subject to the
following terms and conditions:
(1) If a juvenile case is transferred to the criminal
jurisdiction of the circuit court, the juvenile records of that
particular case may be disclosed if the juvenile who is transferred
fails to timely file an appeal of the transfer order; files a
timely appeal of the transfer order but the Supreme Court of
Appeals of West Virginia refuses to hear the appeal; or files a
timely appeal of the transfer order which is affirmed by the
Supreme Court of Appeals of West Virginia. All records of the case
shall be open to public inspection following any of these
occurrences. These records shall be handled pursuant to all of the
same strictures, guidelines and requirements of law which exist
regarding disclosure of records for adults.
(2) Upon a written petition and pursuant to a written order,
the circuit court may permit disclosure of juvenile records to:
(A) A court which has juvenile jurisdiction and has the
juvenile before it in a juvenile proceeding;
(B) A court exercising criminal jurisdiction over the
juvenile which requests such records for the purpose of a
presentence report or disposition proceeding;
(C) The juvenile, the juvenile's parents or legal guardian,
or the juvenile's counsel;
(D) The officials of a public institution to which the
juvenile is committed if they require such records for transfer,
parole or discharge; or
(E) A person who is conducting research. However, juvenile
records shall be disclosed for research purposes only upon the
condition that information which would identify the subject
juvenile or the juvenile's family shall not be disclosed.
(d) 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, incarcerated not more than six
months, or be both fined and incarcerated. Furthermore, a violator
of this section shall be liable for damages in the amount of three
hundred dollars or the actual amount of damages, whichever is
greater.
§49-5-18. Expungement of juvenile records.
(a) One year after the
child's juvenile's eighteenth
birthday, or one year after personal or juvenile jurisdiction
shall have has terminated, whichever is later, the records of a
juvenile proceeding conducted under this chapter, including
but not
limited to law-enforcement files and records,
fingerprints,
physical evidence and all other records pertaining to said proceeding shall be expunged by operation of law.
When (b) To expunge juvenile records
are expunged, they shall
be returned to the
circuit court in which the case was pending and
be kept in a separate confidential file
. The records shall be
physically marked to show that they 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 shall be securely sealed
and filed 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. the juvenile.
(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(c) Expunged records cannot be opened except upon
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:(d)
Expungement of juvenile records has the legal effect of
extinguishing the offense as if it never occurred.
(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(e) The records of a juvenile
convicted under the criminal jurisdiction of the
circuit court
pursuant to subdivision (1), subsection (d), section ten of this
article shall
not be expunged.
(g)(f) 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
incarcerated not more than six months, or
both such fine and
imprisonment, and be both fined and incarcerated. Furthermore, a
violator of this section shall be liable for damages in the amount
of three hundred dollars or
the actual
amount of damages, whichever
is greater.
§ 49-5-19. Discrimination prohibited.
(a) Forty-five(a) No individual, firm, corporation or other
entity shall discriminate against any person in any manner due to
that person's prior involvement in a proceeding under this article.
This includes, but is not limited to, discrimination relating to
employment, housing, education, obtaining credit, and contractual
rights.
(b) 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, incarcerated not more than six
months, or be both fined and incarcerated. Furthermore, a
violator of this section shall be liable for damages in the amount
of three hundred dollars or the actual amount of damages, whichever
is greater.
§49-5-20. After-care plans.
(a) At least forty-five days prior to the discharge of a
child juvenile from any institution or facility
to which the
juvenile was committed pursuant to subdivision (5), (6) or (7)
, of
subsection (b), section thirteen of this article, the director of
such the institution or facility shall
have prepared and shall
forward to the committing court forward a copy of the
child's
juvenile's proposed after-care plan
. Copies to the circuit court
which committed the juvenile. A copy of the plan shall also be
sent to: (1)
The child's the juvenile's parents
, if any, or legal
guardian
if the child is not living with his parents; (2) the
child's; (2) the juvenile's lawyer; (3) the
child's juvenile'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. which the juvenile will
attend. The plan shall have a list of the names and addresses of
these persons attached to it.
(b) The after-care plan shall contain a detailed description
of the
training, schooling education, counseling and treatment
which the juvenile received while at the institution or facility
and the same proposed for the child upon his, and it shall also
propose a plan for education, counseling and treatment for the
juvenile upon the juvenile's discharge. The plan shall
describe
also contain a description of any problems the
child may have,
juvenile has, including 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., and it shall propose a manner for
addressing those problems upon discharge.
(c) Within twenty-one days of the receipt of the plan, the
child's(c) Within twenty-one days of receiving the plan, the
juvenile's probation officer or community mental health center
professional shall
, and any submit written comments upon the plan
to the circuit court which committed the juvenile. Any other
person who received a copy of the plan pursuant to subsection (a)
of this section may
, submit written comments
concerning upon the
plan to the
court: Provided, That if any person does submit circuit
court which committed the juvenile. Any person who submits
comments upon the plan
, he shall
also send
copies a copy 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(d) Within twenty-one days of receiving the plan, the
juvenile's probation officer or
the community mental health center
professional
who receives a copy of the after-care plan to shall contact all
other persons, organizations and agencies
which are 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 they are capable of executing their
responsibilities under the plan and to further determine whether
they are willing to execute their responsibilities under the plan.
(e) If adverse comments or objections regarding the plan are
submitted to the circuit court, it shall, within forty-five days of
receiving the plan, hold a hearing to consider the plan and the
adverse comments or objections. Any person, organization or agency
which has responsibilities in executing the plan, or their
representatives, may be required to appear
at the hearing unless
they are excused by the circuit court. Within five days of the
hearing, the circuit court shall issue an order which adopts the
plan as submitted or as modified in response to 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.
(f) If no adverse comments or objections are submitted, a
hearing need not be held.
The In that case, the circuit 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, within forty-five days of
receiving the plan, 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 .
(g) Notwithstanding the provisions of subsections (e) and (f)
of this section, the plan which is adopted by the circuit court
shall be in the best interests of the
child juvenile and
shall
also be in conformity with
the state's West Virginia's interest in
youth as embodied in subsection (b), section thirteen of this
article
: Provided further, That the court .
(h) The circuit court which committed the juvenile shall
appoint the
child's juvenile's probation officer or
a community
mental health center professional to act as supervisor of the plan
,
which. The supervisor shall
make a report
commenting on the the
juvenile's progress
of under the
child plan to the
circuit court
every sixty days, or until the
court shall determine that no such
report is necessary, or when the circuit court determines that
after no report or no further care is
no longer needed necessary.
NOTE: The primary purposes of this bill are to provide that
certain juvenile records will be automatically disclosed to certain
school officials and to clarify in section ten, article five,
chapter forty-nine that a juvenile need not be charged with more
than one of the serious crimes listed in order to be transferred to
the criminal jurisdiction of the circuit court. This bill also
reorganizes article five, chapter forty-nine, and amends this
article by including a section which defines certain terms which
are used in this article.
Strike-throughs indicate language which would be stricken from
the present law, and underscoring indicates new language which
would be added. The language in §§49-5-1 and 49-5-17, (a) and (b) is all new.
The language in §§49-5-18 and 49-5-19 was taken substantially
from the former §49-5-17. The language in §49-5-20 was contained
substantially in the former §49-5-18.