COMMITTEE SUBSTITUTE
FOR
Senate Bill No. 27
(By Senators Tomblin, Mr. President, and Boley,
By Request of the Executive)
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[Originating in the Committee on the Judiciary;
reported February 14, 1995.]
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A BILL to amend and reenact sections ten, thirteen and
eighteen, article five, chapter forty-nine of the code of
West Virginia, one thousand nine hundred thirty-one, as
amended, relating to transfer of juvenile proceedings
from the juvenile jurisdiction to the criminal
jurisdiction of the courts; the sentencing of juveniles
tried as adults; criteria for disposition; and the
formulation of after-care plans for juveniles.
Be it enacted by the Legislature of West Virginia:
That sections ten, thirteen and eighteen, article five,
chapter forty-nine of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be amended and reenacted
to read as follows:
ARTICLE 5. JUVENILE PROCEEDINGS.
§49-5-10. Waiver and transfer of jurisdiction.
(a) Upon written motion of the prosecuting attorney filed
at least eight days prior to the adjudicatory hearing and with
reasonable notice to the child, the parents, guardians or
custodians of the child and the child's counsel, the court
shall conduct a hearing to determine if juvenile jurisdiction
should be waived and the proceeding should be transferred to
the criminal jurisdiction of the court. Any motion filed in
accordance with this section shall state, with particularity,
the grounds for the requested transfer, including the grounds
relied upon set forth in subsections (d) or (e) of this
section, and the burden shall be upon the state to establish
such grounds by clear and convincing proof. Any hearing held
under the provisions of this section shall be held within
seven days of the filing of the motion for transfer unless it
is continued for good cause.
(b) No inquiry relative to admission or denial of the
allegations of the charge or the demand for jury trial shall be made by or before the court until a decision shall have
been made relative to whether the proceeding is to be
transferred to criminal jurisdiction.
(c) The court shall transfer a juvenile proceeding to
criminal jurisdiction if a child who has attained the age of
sixteen years shall make a demand on the record to be
transferred to the criminal jurisdiction of the court. Such
cases may then be referred to a magistrate for trial if
otherwise cognizable by a magistrate.
(d) The court shall transfer a juvenile proceeding to
criminal jurisdiction if there is probable cause to believe
that the child has committed the crime of treason under
section one, article one, chapter sixty-one of this code; the
crime of murder under sections one, two and three, article two
of said chapter; the crime of robbery involving the use or
presenting of firearms or other deadly weapons under section
twelve of said article; the crime of kidnapping under section
fourteen-a of said article; the crime of first degree arson
under section one, article three of said chapter; or the crime
of sexual assault in the first degree under section three,
article eight-b of said chapter.
(e) The court may, only upon consideration of the child's
age, mental and physical condition, maturity, emotional
attitude, home or family environment, school experience and
similar personal factors, transfer a juvenile proceeding to
criminal jurisdiction if there is probable cause to believe
that:
(1) A child has committed an offense of violence to the
person which would be a felony if committed by an adult; or
(2) A child has committed an offense which would be a
felony if committed by an adult:
Provided, That such child
has been previously adjudged delinquent for an offense which
would be a felony if the child were an adult; or
(3) A child has committed a violation of the provisions
of section four hundred one, article four, chapter sixty-a of
this code which would be a felony if the child were an adult
involving the manufacture, delivery or possession with the
intent to deliver a narcotic drug. For purposes of this
subdivision, the term "narcotic drug" shall have the same
definition as that set forth in section one hundred one,
article one of said chapter.
(f) If, after a hearing, the court directs the transfer of any juvenile proceeding to criminal jurisdiction, it shall
state on the record the findings of fact and conclusions of
law upon which its decision is based or shall incorporate such
findings of fact and conclusions of law in its order directing
transfer.
(g) The child shall have the right to directly appeal an
order of transfer to the supreme court of appeals of the state
of West Virginia:
Provided, That notice of intent to appeal
and a request for transcript be filed within ten days from the
date of the entry of any such order and the petition for
appeal shall be presented to the supreme court of appeals
within forty-five days from the entry of such order and that,
in default thereof, the right of appeal and the right to
object to such order of transfer shall be waived and may not
thereafter be asserted. The provisions of article five,
chapter fifty-eight of this code pertaining to the appeals of
judgments in civil actions shall apply to appeals under this
chapter except as herein modified. The judge of the circuit
court may, prior to the expiration of such period of forty-
five days, by appropriate order, extend and reextend such
period for such additional period or periods, not to exceed a total extension of sixty days, as in his opinion may be
necessary for preparation of the transcript:
Provided,
however, That the request for such transcript was made by the
party seeking appeal within ten days of entry of such order of
transfer. In the event any such notice of intent to appeal
and request for transcript be timely filed, proceedings in
criminal court shall be stayed upon motion of the defendant
pending final action of the supreme court of appeals thereon.
§49-5-13. Disposition; appeal.
(a) In aid of disposition, the juvenile probation officer
or state department worker assigned to the court shall, upon
request of the court, make an investigation of the environment
of the child and the alternative dispositions possible. The
court, upon its own motion, or upon request of counsel, may
order a psychological examination of the child. The report of
such examination and other investigative and social reports
shall not be made available to the court until after the
adjudicatory hearing. Unless waived, copies of the report
shall be provided to counsel for the petitioner and counsel
for the child no later than seventy-two hours prior to the
dispositional hearing.
(b) Following the adjudication, the court shall conduct
the dispositional proceeding, giving all parties an
opportunity to be heard. In disposition the court shall not
be limited to the relief sought in the petition and shall give
precedence to the best interests of the child and the safety
of the public:
(1) Dismiss the petition;
(2) Refer the child and the child's parent or custodian
to a community agency for needed assistance and dismiss the
petition;
(3) Upon a finding that the child is in need of extra-
parental supervision: (A) Place the child under the
supervision of a probation officer of the court or of the
court of the county where the child has his or her usual place
of abode or other person while leaving the child in custody of
his or her parent or custodian; and (B) prescribe a program of
treatment or therapy or limit the child's activities under
terms which are reasonable and within the child's ability to
perform;
(4) Upon a finding that a parent or custodian is not
willing or able to take custody of the child, that a child is not willing to reside in the custody of his parent or
custodian or that a parent or custodian cannot provide the
necessary supervision and care of the child, the court may
place the child in temporary foster care or temporarily commit
the child to the state department or a child welfare agency.
The court order shall state that continuation in the home is
contrary to the best interest of the child and why; and
whether or not the state department made a reasonable effort
to prevent the placement or that the emergency situation made
such efforts unreasonable or impossible. Whenever the court
transfers custody of a youth to the department of human
services, an appropriate order of financial support by the
parents or guardians shall be entered in accordance with
section five, article seven of this chapter and guidelines
promulgated by the supreme court of appeals;
(5) Upon a finding that the child's best interests and
the safety of the public requires incarceration of the child,
and upon an adjudication of delinquency pursuant to
subdivision (1), section four, article one of this chapter,
commit the child to an industrial home or correctional
institution for children. Commitments shall not exceed the maximum term for which an adult could have been sentenced for
the same offense, with discretion as to discharge to rest with
the director of the institution, who may release the child and
return him to the court for further disposition. The order
shall state that continuation in the home is contrary to the
best interests of the child and why; and whether or not the
state department made a reasonable effort to prevent the
placement or that circumstances made such efforts unreasonable
or impossible;
(6) Upon an adjudication of delinquency pursuant to
subsection (3) or (4), section four, article one of this
chapter, and upon a finding that the child is so totally
unmanageable and ungovernable that the child is amenable to no
treatment or restraint short of incarceration, commit the
child to a rehabilitative facility. Commitments shall not
exceed one year unless the court determines, after hearing
evidence on the matter, that the child's best interests
require a longer period of commitment. The order shall state
that continuation in the home is contrary to the best
interests of the child and why and whether or not the state
department made a reasonable effort to prevent the placement or that the emergency situation made such efforts unreasonable
or impossible; or
(7) After a hearing conducted under the procedures set
out in subsections (c) and (d), section four, article five,
chapter twenty-seven of the code, commit the child to a mental
health facility in accordance with the child's treatment plan;
the director may release a child and return him to the court
for further disposition. The order shall state that
continuation in the home is contrary to the best interests of
the child and why; and whether or not the state department
made a reasonable effort to prevent the placement or that the
emergency situation made such efforts unreasonable or
impossible.
(c) The disposition of the child shall not be affected by
the fact that the child demanded a trial by jury or made a
plea of denial. Any dispositional order is subject to appeal
to the supreme court of appeals.
(d) Following disposition, it shall be inquired of the
respondent whether or not appeal is desired and the response
transcribed; a negative response shall not be construed as a
waiver. The evidence shall be transcribed as soon as practicable and made available to the child or his or her
counsel if the same is requested for purposes of further
proceedings. A judge may grant a stay of execution pending
further proceedings.
(e) Notwithstanding any other provision of this code to
the contrary, in the event a child charged with delinquency
under this chapter is transferred to adult jurisdiction and
there tried and convicted, the court may nevertheless, in lieu
of sentencing such person as an adult, make its disposition in
accordance with this section.
§49-5-18. After-care plans; submission to the court;comments
to be submitted; hearing on the plan andadoption thereof.
(a) Forty-five days prior to the discharge of a child
from any institution or facility pursuant to subdivision (5),
(6) or (7), subsection (b), section thirteen of this article,
the director of such institution or facility shall have
prepared and shall forward to the committing court a copy of
the child's proposed after-care plan. Copies of the plan
shall also be sent to: (1) The child's parents, if any, or
legal guardian if the child is not living with his parents;
(2) the child's lawyer; (3) the child's probation officer or community mental health center professional; (4) the
prosecuting attorney of the county in which the original
commitment proceedings were held; and (5) the principal of the
school which the child will attend.
(b) The after-care plan shall contain a detailed
description of the training, schooling, counseling and
treatment received while at the institution or facility and
the same proposed for the child upon his discharge. The plan
shall describe any problems the child may have, the source of
those problems and describe how those problems will be
addressed by the after-care plan. Attached to the plan shall
be a list of the persons who are to receive copies of this
plan.
(c) Within twenty-one days of the receipt of the plan,
the child's probation officer or community mental health
center professional shall, and any other person who received
a copy of the plan pursuant to subsection (a) of this section
may, submit written comments concerning the plan to the court:
Provided, That if any person does submit comments upon the
plan, he shall also send copies of those comments to every
other person who received a copy of the plan pursuant to said subsection from the director.
(d) Within the twenty-one days provided in subsection (c)
of this section it shall be the responsibility and duty of the
child's probation officer or the community mental health
center professional who receives a copy of the after-care plan
to contact all other persons, organizations and agencies to be
involved in executing the plan and to determine whether such
persons, organizations and agencies are capable of and will be
adequately prepared to execute the provisions of the plan:
Provided, That if a hearing is held to discuss the plan as
provided in subsection (e) of this section, representatives of
such persons, organizations or agencies may be required to
appear unless excused by the court.
(e) The judge to whom the plan was sent shall within
forty-five days of receipt of the plan 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 either the
child's probation officer or a community health center
professional to act as supervisor of the plan, which
supervisor shall make a report commenting on the progress of
the child to the court every sixty days or until the court
shall determine that no such report is necessary or that
after-care is no longer needed.