Senate Bill No. 536
(By Senators Tomblin, Mr. President, and Sprouse,
By Request of the Executive)
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[Introduced February 15, 1999;
referred to the Committee on the Judiciary.]
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A BILL to amend and reenact sections one and four, article one,
chapter forty-nine of the code of West Virginia, one
thousand nine hundred thirty-one, as amended; to amend and
reenact sections three, five, thirteen and sixteen, article
two of said chapter; to amend and reenact section three,
article two-b of said chapter; to amend and reenact sections
seven, eight, eight-a, nine, thirteen, thirteen-a, fourteen
and twenty, article five of said chapter; to further amend
said article by adding thereto a new section, designated
section sixteen-b; to amend and reenact section two, article
five-a of said chapter; to amend and reenact sections two,
four and six, article five-b of said chapter; to amend and
reenact sections one and three, article five-d of said
chapter; to amend and reenact sections one, two and three,
article five-e of said chapter; and to amend and reenact sections one, five and twenty-eight, article seven of said
chapter, all relating to child welfare and the
responsibilities and duties of state agencies and courts in
that regard; obtaining, extending and improving residential
and community-based services for children adjudged to be
juvenile delinquents; providing definitions; setting forth
responsibilities of the division of juvenile services;
providing for the evaluation of juveniles committed to the
custody of the division of juvenile services; providing that
the division of juvenile services has authority over every
juvenile in its custody; duties of the division of juvenile
services; voluntary placement agreements; exempting juvenile
correction and detention facilities operated or regulated by
the division of juvenile services from licensure,
certification, approval and registration requirements of the
department of health and human services; juvenile
proceedings; notification of division of juvenile services
of all juvenile proceedings; requiring detention order to
confine a juvenile in a secure facility; detention hearings;
providing that in cases where a juvenile is an alleged
delinquent the circuit court may order a juvenile detained
in the custody of the division of juvenile services pending
further proceedings by the court; prohibiting juveniles
charged solely with a status offense from placement in a secure facility; establishing schedules; appeal; costs;
providing that the juvenile multidisciplinary team determine
the appropriate restrictive classification for juveniles;
reports; legislative rule; rule governing classification of
juvenile delinquents and transportation of juveniles; after- care plans; notice; providing for individualized program of
rehabilitation; requiring the division of juvenile services
to develop multidisciplinary teams similar to the
multidisciplinary teams used by the department of health and
human services; providing that the policy of the state of
West Virginia with respect to juveniles is that the division
of juvenile services is the sole entity of the state
authorized to accept custody of children who have been
adjudicated delinquent; requiring the division of juvenile
services develop and provide specialized training and
education programs for juvenile correction officers and
juvenile facilities staff; permitting exchange of juvenile
records between the department of health and human resources
and the division of juvenile services; providing that the
division of juvenile services may use the services of child
support enforcement division; requiring that the department
of health and human resources and the division of juvenile
services enter into an inter-agency agreement with respect
to the transfer of responsibilities for accused and adjudicated delinquents to the division of juvenile
services; setting forth time deadline for the agreement; and
providing the division of juvenile services with the
authority to institute actions at law.
Be it enacted by the Legislature of West Virginia:
That sections one and four, article one, chapter forty-nine
of the code of West Virginia, one thousand nine hundred thirty- one, as amended, be amended and reenacted; that sections three,
five, thirteen and sixteen, article two of said chapter be
amended and reenacted; that section three, article two-b of said
chapter be amended and reenacted; that sections seven, eight,
eight-a, nine, thirteen, thirteen-a, fourteen and twenty, article
five of said chapter be amended and reenacted; that said article
be further amended by adding thereto a new section, designated
section sixteen-b; that section two, article five-a of said
chapter be amended and reenacted; that sections two, four and
six, article five-b of said chapter be amended and reenacted;
that sections one and three, article five-d of said chapter be
amended and reenacted; that sections one, two and three, article
five-e of said chapter be amended and reenacted; and that
sections one, five and twenty-eight, article seven of said
chapter be amended and reenacted, all to read as follows:
ARTICLE 1. PURPOSES; DEFINITIONS.
§49-1-1. Purpose.
(a) The purpose of this chapter is to provide a system of
child welfare for the children of this state that has goals to:
(1) Assure each child care, safety and guidance;
(2) Serve the mental and physical welfare of the child;
(3) Preserve and strengthen the child's family ties;
(4) Recognize the fundamental rights of children and
parents;
(5) Adopt procedures and establish programs that are
family-focused rather than focused on specific family members,
except where the best interests of the child or the safety of the
community are at risk;
(6) Involve the child and his or her family or caregiver in
the planning and delivery of programs and services;
(7) Provide services that are community-based, in the least
restrictive settings that are consonant with the needs and
potentials of the child and his or her family;
(8) Provide for early identification of the problems of
children and their families, and respond appropriately with
measures and services to prevent abuse and neglect or
delinquency;
(9) Provide a system for the rehabilitation
or and detention
of juvenile delinquents; and
(10) Protect the welfare of the general public.
(b) In pursuit of these goals it is the intention of the Legislature to provide for removing the child from the custody of
parents only when the child's welfare or the safety and
protection of the public cannot be adequately safeguarded without
removal; and, when the child has to be removed from his or her
family, to secure for the child custody, care and discipline
consistent with the child's best interests and other goals herein
set out. It is further the intention of the Legislature to
require that any reunification, permanency or preplacement
preventative services address the safety of the child.
(b) (c) The child welfare service of the state shall be
administered by the
state department of health and human
resources and the division of juvenile services of the department
of military affairs and public safety.
(1) The
state department of health and human resources is
designated as the agency to cooperate with the United States
department of health and human services and United States
department of justice in
obtaining, extending and improving child
welfare services
for abused and neglected children and children
alleged to be or adjudged as status offenders, to comply with
regulations thereof, and to receive and expend federal funds for
these services.
(2) The division of juvenile services of the department of
military affairs and public safety is designated as the agency to
cooperate with the United States department of health and human services and United States department of justice in
obtaining,
extending and improving residential and community-based services
for children alleged to be or adjudged juvenile delinquents,
operating, maintaining and improving juvenile correction
facilities and centers for the predispositional detention of
children, to comply with regulations thereof, and to receive and
expend federal funds for these services.
§49-1-4. Other definitions.
As used in this chapter:
(1) "Child welfare agency" means any agency or facility
maintained by the state or any county or municipality thereof, or
any agency or facility maintained by an individual, firm,
corporation, association or organization, public or private, to
receive children for care and maintenance or for placement in
residential care facilities, or any facility that provides care
for unmarried mothers and their children;
(2) "Community based," when referring to a facility,
program, or service, means located near the juvenile's home or
family and involving community participation in planning,
operation, and evaluation, and which may include, but is not
limited to, medical, educational, vocational, social and
psychological guidance, training, special education, counseling,
alcoholism and any treatment, and other rehabilitation services;
(3) "Court" means the circuit court of the county with jurisdiction of the case or the judge thereof in vacation unless
otherwise specifically provided;
(4) "Custodian" means a person who has or shares actual
physical possession or care and custody of a child, regardless of
whether such person has been granted custody of the child by any
contract, agreement or legal proceedings;
(5) "Department" or "state department" means the state
department of health and human resources;
(6) "Director" means the director of the division of
juvenile services;
(6) (7) "Division
of juvenile services" means the division
of juvenile services within the department of military affairs
and public safety pursuant to article five-e of this chapter;
(8) "Division multidisciplinary team" means a group of
professionals and paraprofessionals representing a variety of
disciplines who interact and coordinate their efforts to meet
with, diagnose and treat children alleged to be or adjudged
juvenile delinquents. Multidisciplinary teams may include, but
are not limited to, educators, medical, child care and law- enforcement personnel, social workers, psychologists and
psychiatrists. Their goal is to pool their respective skills in
order to formulate accurate diagnoses and to provide
comprehensive coordinated placement, detention or treatment of
the children with continuity and follow-up for both parents and children;
(7) (9) "Guardian" means a person who has care and custody
of a child as a result of any contract, agreement or legal
proceeding;
(8) (10) "Juvenile delinquent" means a juvenile who has been
adjudicated as one who commits an act which would be a crime
under state law or a municipal ordinance if committed by an
adult;
(11) "Juvenile facility" means any secure, staff-secure or
nonsecure, public or private institution, center, home, halfway
house or other such residence for treatment, instruction and
rehabilitation of juveniles.
(9) (
12) "Nonsecure facility" means any public or private
residential facility not characterized by construction fixtures
designed to physically restrict the movements and activities of
individuals held in lawful custody in such facility and which
provides its residents access to the surrounding community with
supervision;
(10) (13) "Referee" means a juvenile referee appointed
pursuant to section one, article five-a of this chapter, except
that in any county which does not have a juvenile referee the
judge or judges of the circuit court may designate one or more
magistrates of the county to perform the functions and duties
which may be performed by a referee under this chapter;
(14) Restrictiveness classification" means the
classification given to a juvenile by the division of juvenile
services and the division multidisciplinary team considering the
age of the juvenile, the nature of the offense or offenses
charged, the history of the juvenile, any mental or physical
disability of the juvenile, risks to the juvenile and to the
public safety, the need for supervision, security, or restraints
and other factors;
(11) (15) "Secretary" means the secretary of health and
human resources;
(12) (16) "Secure facility" means any public or private
residential facility which includes construction fixtures
designed to physically restrict the movements and activities of
juveniles or other individuals held in lawful custody in such
facility;
(17) "Security level" means the classification level of a
juvenile facility or other placement, as determined by the
director based upon the facility's capacity to provide services
consistent with the restrictiveness classifications of juveniles.
(13) (
18) "Staff-secure facility" means any public or
private residential facility characterized by staff restrictions
of the movements and activities of individuals held in lawful
custody in such facility and which limits its residents' access
to the surrounding community, but is not characterized by construction fixtures designed to physically restrict the
movements and activities of residents;
(14) (19) "Status offender" means a juvenile who has been
adjudicated as one:
(A) Who habitually and continually refuses to respond to the
lawful supervision by his or her parents, guardian or legal
custodian such that the child's behavior substantially endangers
the health, safety, or welfare of the juvenile or any other
person;
(B) Who has left the care of his or her parents, guardian or
custodian without the consent of such person or without good
cause;
(C) Who is habitually absent from school without good cause;
or
(D) Who violates any West Virginia municipal, county, or
state law regarding use of alcoholic beverages by minors;
(15) (20) "Valid court order" means a court order given to
a juvenile who was brought before the court and made subject to
such order, and who received, before the issuance of such order,
the full due process
rights guaranteed to such juvenile by the
constitutions of the United States and the state of West
Virginia.
ARTICLE 2. STATE RESPONSIBILITIES FOR THE PROTECTION AND CARE OF
CHILDREN.
§49-2-3. Development of standards of child care.
(a) The state department shall be responsible for the
development of desirable standards,
programs, facilities and
services for the care of
abused or neglected children
and
children alleged to be or adjudged as status offenders. To this
end, it shall cooperate with, advise and assist all child welfare
agencies, including state institutions, which care for
abused,
neglected,
delinquent, or mentally or physically handicapped
children,
or children alleged to be or adjudged as status
offenders, and shall supervise all such agencies. The
department, in cooperation
with the state department of health
and with child welfare agencies, shall formulate and make
available standards of child care and services for children, to
which all child welfare agencies must conform.
(b) The division of juvenile services shall be responsible
for the development of desirable standards, programs, facilities
and services for the care of children alleged to be or adjudged
juvenile delinquents pursuant to the provisions of this chapter
and chapter twenty-eight of this code. The division shall
cooperate with, advise and assist all child welfare agencies,
including state institutions, which care for children alleged to
be or adjudged as juvenile delinquents.
§49-2-5. Same -- Supervision, records and reports.
(a) In order to improve standards of child care, the state department
and the division of juvenile services hall cooperate
with the governing boards of child welfare agencies, assist the
staffs of such agencies through advice on progressive methods and
procedures of child care and improvement of the service rendered,
and assist in the development of community plans of child care.
(b) The state department of health
or the division of
juvenile services, or
its their duly authorized
agent agents, may
visit any child welfare agency to advise the agency on matters
affecting the health of children and to inspect the sanitation of
the buildings used for their care.
(c) Each child welfare agency shall keep such records
regarding each child under its control and care as the state
department
or division may prescribe, and shall report to the
department
or the division, whenever requested, such facts as may
be required with reference to such children, upon
blanks forms
furnished by the department
or the division.
(d) All records regarding children and all facts learned
about children and their parents or relatives shall be regarded
as confidential and shall be properly safeguarded by the agency,
and the state department
and the division of juvenile services,
as provided by section one, article seven of this chapter.
§49-2-13. Parole or reclassification of certain children by
division of juvenile services.
(a) Children Juveniles paroled from
state institutions and homes for juveniles juvenile facilities shall be paroled to the
state department division of juvenile services. Thereafter,
unless the court which committed the
child juvenile otherwise
provides, the
state department division shall, notwithstanding
any other provision of this code, have supervisory control over
every
child juvenile so paroled, and shall have authority to
revoke the parole or to discharge the
child juvenile from parole.
Upon the revocation of any parole and the return of the parolee
to the institution from which he
or she was paroled, all
authority over the parolee, originally vested in such
institution, shall again become operative.
(b) Juveniles committed to the division of juvenile services
may be reevaluated, reclassified and transferred by the director
of the division of juvenile services pursuant to rules developed
and promulgated by the division. Notwithstanding any other
provision of this code, the director shall have supervisory
control over every juvenile in the division's custody, and shall
have authority, without further court order, to decrease the
restrictiveness classification of the juvenile and transfer the
juvenile to other facilities with the same or lower security
classification, and to thereafter reinstate the original
restrictiveness classification, as the director determines is
necessary. The director may discharge from custody any juvenile
placed in the custody of the division, if not inconsistent with the period of custody prescribed by the committing court's order.
§49-2-16. State responsibility for child care.
(a) The division of juvenile services of the department of
military affairs and public safety is hereby authorized and
empowered to:
(1) Provide a system of rehabilitative services for
juveniles alleged to be or adjudged juvenile delinquents who are
committed to the custody of the division;
(2) Operate and maintain centers for juveniles needing
detention pending disposition by a court having juvenile
jurisdiction or temporary care detention following such court
action;
(3) Develop, operate, fund, maintain and expand, subject to
and not inconsistent with the appropriation and availability of
funds, regional detention programs and facilities, consistent
with legislative recommendations, federal and state guidelines,
needs assessments of juvenile detention services, and other
factors as determined by the director;
(4) Develop plans, subject to and not inconsistent with the
appropriation and availability of funds, for regional
coordination and delivery of rehabilitative services for alleged
and adjudged juvenile delinquents;
(5) Establish security level classifications for all
juvenile facilities based upon the type of facility, the security of the facility, restraints, supervision, services offered and
other such factors;
(6) Establish restrictiveness categories for alleged or
adjudged juvenile delinquents in order to determine the security
level most appropriate for the juvenile and make recommendations
to the court, which classification shall consider the age of the
juvenile, the nature of the offense or offenses charged, the
history of the juvenile, any mental or physical disability of the
juvenile, risks to the juvenile and to the public safety, the
need for supervision, security or restraints and other factors;
(7) Provide education, training and certification for all
juvenile correction officers, facility staff and all division
personnel who come into contact with juveniles; and
(8) Perform such other duties as required by this chapter
and chapter twenty-eight of this code.
(b) The state department of health and human resources is
hereby authorized and empowered to:
(1) Provide care, support and protective services for
children who are handicapped by dependency, abuse, neglect,
single parent status, mental or physical disability, who are
alleged to be or adjudged as status offenders, or who for other
reasons are in need of public service; Such department is also
hereby authorized and empowered
(2) In its discretion, to accept children for care from their parent or parents, guardian, custodian or relatives; and to
(3) Accept the custody of children committed to its care by
courts; The department of human services or any county office of
such department is also hereby authorized and empowered and
(4) In its discretion, to accept temporary custody of
children for care from any law-enforcement officer in an
emergency situation.
(c) Voluntary placement agreements made subject to paragraph
(2), subsection (b) of this section shall be subject to the
following procedural requirements:
(1) Within ninety days of the date of the signatures to a
voluntary placement agreement, after receipt of physical custody,
the state department of health and human resources shall file
with the court a petition for review of the placement, stating
the child's situation and the circumstance that gives rise to the
voluntary placement. If the department intends to extend the
voluntary placement agreement, the department shall file with the
court a copy of the child's case plan.
(2) The court shall appoint an attorney for the child, who
shall also receive a copy of the case plan.
(3) The court shall schedule a hearing and shall give notice
of the time and place and right to be present at such hearing to:
The child's attorney; the child, if twelve years of age or older;
the child's parents or guardians; the child's foster parents; any preadoptive parent or relative providing care for the child; and
any other such persons as the court may in its discretion direct.
The child's presence at such hearing may be waived by the child's
attorney at the request of the child or if the child would suffer
emotional harm.
(4) At the conclusion of the proceedings, but no later than
ninety days after the date of the signatures to the voluntary
placement agreement, the court shall enter an order determining:
(A) Whether or not continuation of the voluntary placement
is in the best interests of the child;
(B) Specifying under what conditions the child's placement
shall continue; and
(C) Specifying whether or not the department is required to
and has made reasonable efforts to preserve and to reunify the
family, as set forth in subsection (d), section three, article
six of this chapter and/ or provide a plan for the permanent
placement of the child.
ARTICLE 2B. DUTIES OF COMMISSIONER OF HUMAN SERVICES FOR CHILD
WELFARE.
§49-2B-3. Licensure, certification, approval and registration
requirements.
(b) Any residential child care facility, day care center or
any child placing agency operated by the state shall obtain
approval of its operations from the commissioner. Such
facilities and placing agencies shall maintain the same standards
of care applicable to licensed facilities, centers or placing
agencies of the same category.
(c) Any family day care facility which operates in this
state, including family day care facilities approved by the
department for receipt of funding, shall obtain a statement of
certification from the department.
(d) Every family day care home which operates in this state,
including family day care homes approved by the department for
receipt of funding, shall obtain a certificate of registration
from the department.
(e) This section does not apply to:
(1) A kindergarten, preschool or school education program
which is operated by a public school or which is accredited by
the state department of education, or any other kindergarten,
preschool or school programs which operate with sessions not
exceeding four hours per day for any child;
(2) An individual or facility which offers occasional care
of children for brief periods while parents are shopping,
engaging in recreational activities, attending religious services or engaging in other business or personal affairs;
(3) Summer recreation camps operated for children attending
sessions for periods not exceeding thirty days;
(4) Hospitals or other medical facilities which are
primarily used for temporary residential care of children for
treatment, convalescence or testing; or
(5) Persons providing family day care solely for children
related to them; or
(6) Juvenile correctional and detention facilities operated
or regulated by the division of juvenile services.
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) (b) 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 such 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) (c) 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) (b) 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 have fifteen days after the
date of mailing to appear or answer.
(c) (d) 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) (e) 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) and (c) 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) (f) The clerk of the court shall promptly notify the
department of health and human resources division of juvenile
services of all proceedings under this article in which a child
is accused of being a juvenile delinquent, and shall promptly
notify the department of health and human resources of all
proceedings under this article in which a child is accused of being a status offender.
§49-5-8. Taking a juvenile into custody.
(a) In proceedings instituted by the filing of a juvenile
petition, the circuit court, a juvenile referee or a magistrate
may issue an order directing that a juvenile be taken into
custody before adjudication only upon a showing of probable cause
to believe that one of the following conditions exist:
(1) The petition shows that grounds exist for the arrest of
an adult in identical circumstances;
(2) The health, safety and welfare of the juvenile demand
such custody;
(3) The juvenile is a fugitive from a lawful custody or
commitment order of a juvenile court; or
(4) The juvenile is alleged to be a juvenile delinquent with
a record of willful failure to appear at juvenile proceedings,
and custody is necessary to assure his or her presence before the
court.
(b) A detention hearing pursuant to section eight-a of this
article shall be held without delay by the judge, juvenile
referee or magistrate authorized to conduct such hearings without
unnecessary delay and in no event may any delay exceed the next
day.
(b) (c) Absent court order, a juvenile may be taken into
custody by a law-enforcement official only if one of the following conditions exist:
(1) Grounds exist for the arrest of an adult in identical
circumstances;
(2) Emergency conditions exist which, in the judgment of the
officer official, pose imminent danger to the health, safety and
welfare of the juvenile;
(3) The official has reasonable grounds to believe that the
juvenile has left the care of his or her parents, guardian or
custodian without the consent of such person, and the health,
safety and welfare of the juvenile is endangered;
(4) The juvenile is a fugitive from a lawful custody or
commitment order of a juvenile court; or
(5) The official has reasonable grounds to believe the
juvenile to have been driving a motor vehicle with any amount of
alcohol in his or her blood.
(c) (d) Upon taking a juvenile into custody, with or without
a court order, the official shall:
(1) Immediately notify the juvenile's parent, guardian,
custodian or, if the parent, guardian or custodian cannot be
located, a close relative;
(2) Release the juvenile into the custody of his or her
parent, guardian or custodian unless:
(A) Circumstances present an immediate threat of serious
bodily harm to the juvenile if released;
(B) No responsible adult can be found into whose custody the
juvenile can be delivered: Provided, That each day the juvenile
is detained, a daily written record must shall be made of all
attempts to locate such a responsible adult; or
(C) The juvenile has been taken into custody for an alleged
act of delinquency for which secure detention is permissible:
Provided, That a juvenile may not be detained in a secure
facility without a detention order entered pursuant to section
eight-a of this article.
(3) If the juvenile is an alleged status offender,
immediately notify the department of health and human resources,
and if the circumstances of either paragraph (A) or (B),
subdivision (2) of this subsection exist and the requirements
therein are met, the official may detain shall arrange for
placement of the juvenile, but only in a nonsecure or
staff-secure facility, until a detention hearing can be held;
(4) Take the juvenile without unnecessary delay before a
juvenile referee or judge of the circuit court for a detention
hearing pursuant to section eight-a of this article: Provided,
That if no judge or juvenile referee is then available in the
county, the official shall take the juvenile without unnecessary
delay before any magistrate then available in the county for the
sole purpose of conducting such a detention hearing. In no event
may any delay in presenting the juvenile for a detention hearing exceed the next day after he or she is taken into custody.
(d) (e) In the event that a juvenile is delivered into the
custody of a sheriff or the director of a detention facility
law-enforcement official, such official sheriff or director shall
immediately notify the court or juvenile referee. The sheriff or
director official shall immediately provide to every juvenile who
is delivered into his or her custody a written statement
explaining the juvenile's right to a prompt detention hearing,
his or her right to counsel, including appointed counsel if he or
she cannot afford counsel, and his or her privilege against
self-incrimination. In all cases when a juvenile is delivered
into the custody of a law-enforcement official, a sheriff's or
detention center director's custody that official he or she shall
release the juvenile to his or her parent, guardian or custodian
by the end of the next day, unless the juvenile has been placed
in detention after hearing conducted pursuant to section eight-a
of this article.
§49-5-8a. Detention hearing; counsel.
(a) The judge, juvenile referee or magistrate shall inform
the juvenile of his or her right to remain silent, that any
statement may be used against him or her and of his or her right
to counsel, and no interrogation shall be made without the
presence of a parent or counsel. If the juvenile or his or her
parent, guardian or custodian has not retained counsel, counsel shall be appointed as soon as practicable.
(b) The referee, judge or magistrate shall hear testimony
concerning the circumstances for taking the juvenile into custody
and the possible need for detention in accordance with section
two, article five-a of this chapter. The sole mandatory issue at
the detention hearing shall be whether the juvenile shall be
detained pending further court proceedings. The court shall, if
the health, safety and welfare of the juvenile will not be
endangered thereby, release the juvenile on recognizance to his
or her parents, or custodians: or an appropriate agency;
however, Provided, That if warranted, the court may require bail:
except Provided, however, That bail may be denied in any case
where bail could be denied if the accused were an adult.
(c) The court During the detention hearing the referee,
judge or magistrate shall:
(2) Release the juvenile into the custody of his or her
parent, guardian or custodian unless:
(A) Circumstances present an immediate threat of serious
bodily harm to the juvenile if released;
(B) No responsible adult can be found into whose custody the
juvenile can be delivered: Provided, That each day the juvenile is detained, a daily written record must shall be made of all
attempts to locate such a responsible adult; or
(C) The juvenile is charged with an act of delinquency for
which secure detention is permissible; and
(3) If the juvenile is an alleged status offender,
immediately notify the department of health and human resources,
and, if the circumstances of either paragraph (A) or (B),
subdivision (2) of this subsection exist and the requirements
therein are met, the court may order the juvenile detained, but
only in a nonsecure or staff-secure facility. Any juvenile
detained pursuant to this subdivision shall be placed in into the
legal custody of the department of health and human resources
pending further proceedings by the court; and
(4) If the juvenile is an alleged juvenile delinquent,
immediately notify the division of juvenile services, and the
court may order the juvenile detained in the custody of the
division pending further proceedings by the court.
(d) Under no circumstance may a juvenile charged solely with
a status offense be placed in a secure facility.
(b) (e) The judge of the circuit court or the juvenile
referee may, in conjunction with the detention hearing, conduct
a preliminary hearing pursuant to section nine, of this article:
five of this chapter Provided, That all parties are prepared to
proceed and the juvenile has counsel during such hearing.
§49-5-9. Preliminary hearing; counsel; improvement period.
(a) Following the filing of a juvenile petition, unless a
preliminary hearing has previously been held in conjunction with
a detention hearing with respect to the same charge contained in
the petition, the circuit court or referee shall hold a
preliminary hearing. In the event that the juvenile is being
securely detained, the hearing shall be held within ten days of
the time the juvenile is placed in detention unless good cause is
shown for a continuance. If no preliminary hearing is held
within ten days of the time the juvenile is placed in detention,
the juvenile shall be released on recognizance unless the hearing
has been continued for good cause. If the judge is in another
county in the circuit, the hearing may be conducted in that other
county. The preliminary hearing may be waived by the juvenile,
upon advice of counsel.
(b) At the preliminary hearing, the court or referee shall:
(1) If the juvenile is not represented by counsel, inform the
juvenile and his or her parents, guardian or custodian or any
other person standing in loco parentis to him or her of the
juvenile's right to be represented at all stages of proceedings
under this article and the right to have counsel appointed;
(2) Appoint counsel by order entered of record, if counsel
has not already been retained, appointed or knowingly waived;
(3) Determine after hearing if there is probable cause to believe that the juvenile is a status offender or a juvenile
delinquent. If probable cause is not found, the juvenile, if in
detention, shall be released and the proceedings dismissed. If
probable cause is found, the case shall proceed to adjudication;
At this hearing or as soon thereafter as is practicable, the date
for the adjudicatory hearing shall be set to give the juvenile,
and the juvenile's parents and attorney at least ten days'
notice, unless notice is waived by all parties
(4) Establish a date for the adjudicatory hearing, if
applicable, with the juvenile, the juvenile's parents and
attorney and the division multidisciplinary team being given at
least ten days' notice of the hearing, unless notice is waived by
all parties;
(4) (5) Determine whether the juvenile should be released to
his or her parent, guardian, or custodian, released on bail, or
placed in detention or custody. In lieu of placing the juvenile
in a detention facility when If the juvenile is accused of an
act of delinquency, the court or referee may place the juvenile
in the temporary legal and/or physical custody of the department
division of juvenile services. If the juvenile is accused of a
status offense, the court or referee may place the juvenile in
the temporary legal and physical custody of the department of
health and human resources. A juvenile may not be placed in the
custody of the division of juvenile services as a result of an alleged status offense; a juvenile may not be placed in the
custody of the department of health and human resources as a
result of an allegation of delinquency. If the juvenile is
securely detained, the detention may not continue longer than
thirty days without commencement of the adjudicatory hearing
unless good cause for a continuance be shown by either party or,
if a jury trial be demanded, no longer than the next regular term
of said court: Provided, That a juvenile who is alleged to be a
status offender may not be placed in a secure detention facility;
and
(5) (6) Inform the juvenile of the right to demand a jury
trial.
(b) (c) The juvenile may move to be allowed an improvement
period for a period not to exceed one year. If the court or
referee is satisfied that the best interest of the juvenile is
likely to be served by an improvement period, the court or
referee may delay the adjudicatory hearing and allow a
noncustodial improvement period upon terms calculated to serve
the rehabilitative needs of the juvenile. At the conclusion of
the improvement period, the court or referee shall dismiss the
proceeding if the terms have been fulfilled; otherwise, the court
or referee shall proceed to the adjudicatory stage. A motion for
an improvement period may not be construed as an admission or be
used as evidence.
§49-5-13. Disposition of juvenile delinquents; appeal.
(a) In aid of disposition of juvenile delinquents, the
juvenile probation officer assigned to the court and the division
multidisciplinary team shall, upon request of the court, make an
investigation of the environment of the juvenile and the
alternative dispositions possible. The court, upon its own
motion, or upon request of counsel, may order a psychological
examination of the juvenile. 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 juvenile 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
juvenile and the welfare of the public:
(1) Dismiss the petition;
(2) Refer the juvenile and the juvenile's parent or
custodian to a community agency for needed assistance and dismiss
the petition;
(3) Upon a finding that the juvenile is in need of extra-parental supervision: (A) Place the juvenile under the
supervision of a probation officer of the court or of the court
of the county where the juvenile has his or her usual place of
abode or other person while leaving the juvenile in custody of
his or her parent or custodian; and (B) prescribe a program of
treatment or therapy or limit the juvenile'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: Provided, That if the court chooses a
disposition in a delinquency proceeding other than commitment to
the custody of the division of juvenile services, any costs
incurred as a result of the disposition shall not be borne by the
division of juvenile services or the state, but such costs may be
borne by the committing county;
(4) Upon a finding that a parent or custodian is not willing
or able to take custody of the juvenile, that a juvenile 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 juvenile, or that the best interests
of the juvenile or the welfare of the public require it, the
court may place the juvenile in temporary foster care or
temporarily commit the juvenile to the department, the custody of the division of juvenile services. or a child welfare agency
The court order shall state that continuation in the home is
contrary to the best interest of the juvenile and why; and
whether or not the department division made a reasonable effort
to prevent the placement or that the emergency situation made
such efforts unreasonable or impossible; and provide that the
division place the juvenile in an appropriate available facility
with a security level designated by the court pursuant to the
recommendations of the division and the division
multidisciplinary team. Commitments shall not exceed the maximum
term for which an adult could have been sentenced for the same
offense. Whenever the court transfers custody of a youth
juvenile to the division of human juvenile 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 rules promulgated by
the supreme court of appeals; or
(5) Upon a finding that the best interests of the juvenile
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 juvenile to an
industrial home, correctional institution for juveniles, 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 juvenile 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
(6) (5) 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 juvenile to a
mental health facility in accordance with the juvenile's
treatment plan; the director of the mental health facility may
release a juvenile 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 juvenile and why; and
whether or not the state department the division made a
reasonable effort to prevent the placement or that the emergency
situation made such efforts unreasonable or impossible.
(c) The disposition of the juvenile shall not be affected by
the fact that the juvenile 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 the court shall inquire of the respondent juvenile whether or not an
appeal is desired and the response shall be transcribed by the
court reporter; a negative response shall not be construed as a
waiver. The evidence shall be transcribed as soon as practicable
and made available to the juvenile 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 juvenile 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.
§49-5-13a. Examination, diagnosis and classification; period of
custody.
(a) As a part of the dispositional proceeding for a juvenile
who has been adjudicated delinquent, the court may, upon its own
motion, or upon request of counsel, order the juvenile to be
delivered into the custody of the director of the division of
juvenile services, who shall cause the juvenile to be transferred
to a juvenile diagnostic center for a an evaluation period not to
exceed thirty days.
(b) During this the evaluation period, the juvenile shall
undergo psychological examination, diagnosis, classification, and
a complete medical examination and shall at all times be kept apart from the general juvenile inmate population in the
director's custody. The division multidisciplinary team shall
determine the appropriate restrictiveness classification for the
juvenile pursuant to rules developed and promulgated by the
division and shall make recommendations to the court as to the
disposition of the child.
(c) Not later than thirty days after commitment pursuant to
this section the juvenile shall be remanded and delivered to the
custody of the director, an appropriate agency or any other
person that or remanded to the custody of his or her parent,
guardian or custodian, as the court by its order directs.
(d) Within ten days after the end of the examination,
diagnosis and classification, the director of the division of
juvenile services shall make or cause to be made a report to the
court containing the results, findings, conclusions and
recommendations of the director with respect to that juvenile.
The report shall include the restrictiveness classification of
the juvenile, together with the recommended disposition. In the
event the division's recommendations include commitment to the
custody of the division, the report shall contain the security
level of the facility to which the juvenile should be initially
committed.
§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, the division of juvenile services 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.
(b) Upon such a motion or request, the court shall conduct
a review proceeding: except Provided, That if the last
dispositional order was within the previous six months the court
may deny a request for review.
(c) 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.
(d) 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: Provided, That nothing in this section shall preclude the director of the division of juvenile services from
transferring a juvenile to a less restrictive setting pursuant to
rules developed and promulgated by the division.
(e) No child shall be required to seek a modification order
as provided in this section in order to exercise his or her right
to seek release by habeas corpus.
(b) (f) 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.
§49-5-16b. Rules governing classification of juvenile
delinquents, facilities, transportation and
transfers.
The director of the division of juvenile services within the
department of military affairs and public safety shall propose
legislative rules for promulgation in accordance with the
provisions of chapter twenty-nine-a of this code regarding the
restrictiveness classification of juvenile delinquents; the
security level classification of juvenile detention facilities,
juvenile corrections facilities or any other facilities in which
juveniles may be housed, detained or committed; the
transportation of juveniles by the division; the transfer of
juveniles from or between levels of facilities; and other such
matters that affect the operation of the division pursuant to the requirements of this code.
§49-5-20. After-care plans.
(6) or (7) of
subsection (b), section thirteen of this article, the director of
the institution or facility shall forward a copy of the
juvenile's proposed after-care plan to the division of juvenile
services and to the circuit court which committed the juvenile.
A copy of the plan shall also be sent to: (1) The juvenile's
parents or legal guardian; (2) the juvenile's lawyer; (3) the
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 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 education, counseling and treatment which the juvenile
received while at the institution or facility, and it shall also
propose a plan for education, counseling and treatment for the
juvenile upon the juvenile's discharge. The plan shall also
contain a description of any problems the juvenile has, including
the source of those problems, and it shall propose a manner for addressing those problems upon discharge.
(c) Within twenty-one days of receiving the plan, the
juvenile's probation officer or community mental health center
professional shall 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 upon the plan to the circuit
court which committed the juvenile. Any person who submits
comments upon the plan shall send a copy of those comments to
every other person who received a copy of the plan.
(d) Within twenty-one days of receiving the plan, the
division, the juvenile's probation officer, or community mental
health center professional shall contact all persons,
organizations and agencies which are to be involved in executing
the plan to determine whether 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 any comments or
objections.
(f) If no adverse comments or objections are submitted, a
hearing need not be held. In that case, the circuit court shall
consider the plan as submitted and shall, within forty-five days
of receiving the plan, issue an order which adopts the plan as
submitted.
(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 juvenile and shall
also be in conformity with West Virginia's interest in youth as
embodied in subsection (b), section thirteen of this article.
(h) The circuit court which committed the juvenile shall
appoint the juvenile's probation officer or community mental
health center professional to act as supervisor of the plan. The
supervisor shall report the juvenile's progress under the plan to
the circuit court every sixty days, or until the circuit court
determines that no report or no further care is necessary.
ARTICLE 5A. JUVENILE REFEREE SYSTEM.
§49-5A-2. Investigation and release of child taken into custody;
detention hearings.
(a) A child juvenile who has been arrested or who under color of law is taken into the custody of any officer or employee
of the state or any political subdivision thereof shall be
forthwith afforded a hearing pursuant to the provisions of
article five of this chapter to ascertain if such child juvenile
shall be further detained. In connection with any such hearing,
the provisions of article five of this chapter shall apply. It
shall be the duty of The judge or referee to shall avoid
incarceration of such child juvenile in any jail. Unless the
circumstances of the case otherwise require, taking into account
the welfare of the child juvenile as well as the interest of
society, such child juvenile shall be released forthwith into the
custody of his or her parent or parents, relative, custodian or
other responsible adult or agency.
(b) The clerk of the court or juvenile referee shall
immediately notify the division of juvenile services when a
juvenile is arrested or taken into custody and charged with an
act of delinquency.
(c) The clerk of the court or juvenile referee shall
immediately notify the department of health and human resources
when a juvenile is arrested or taken into custody and charged
with a status offense.
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
status offenses and for the care and rehabilitation of juvenile
delinquents and status offenders. It is further the intent of
the Legislature that this state, through the department of health
and human resources and the division of juvenile services of the
department of military affairs and public safety, establish,
maintain and continuously refine and develop, a balanced and
comprehensive state program for juveniles who are potentially
delinquent, or are status offenders in the custody of the
department, or juvenile delinquents in the care or custody of the
department division.
§49-5B-4. Responsibilities of the department of health and human
resources and division of juvenile services of the department of military affairs and public safety.
(a) The department of health and human resources and the
division of juvenile services of the department of military
affairs and public safety are 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 and status offenses, 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 and status offenses 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 or her
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 status
offenders, juvenile 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
encourage status offenders, juvenile delinquents, and 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 shall
establish, within the funds available, an individualized program
of rehabilitation for each status offender referred to the
department; and the division of juvenile services shall
establish, within the funds available, an individualized program
of rehabilitation for each alleged juvenile delinquent referred
to the department division after being allowed an improvement
period by the juvenile court; and for each adjudicated juvenile
delinquent who, after adjudication, is referred to the department division for investigation or treatment or whose custody is
vested in the department division. 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 juvenile. For alleged juvenile
delinquents and status offenders, such individualized program of
rehabilitation shall be furnished to the juvenile court and shall
be available to counsel for the juvenile; it may be modified from
time to time at the direction of the department, division or by
order of the juvenile court. The department may develop an
individualized program of rehabilitation for any juvenile
referred for noncustodial counseling under section five three,
article three five of this chapter, for any juvenile receiving
counsel and advice under section three-a, article five of this
chapter, or for any other juvenile upon the request of a public
or private agency.
(c) The department of health and human resources and the
division of juvenile services of the department of military
affairs and public safety are 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.
(d) The division shall develop a plan to utilize technology, including satellite tele-lessons to connect interactive
classrooms, to provide educational programming for juveniles who
are being taught in institutional settings.
§49-5B-6. Enforcement of legal custody.
The department of health and human resources and the
division of juvenile services shall have authority to require any
juvenile committed to its legal custody to remain at and to
return to the residence to which the juvenile is assigned by the
department, by the division or by the juvenile court. In aid of
such authority, and Upon the request of a designated employee
of the department or division, any police officer, sheriff,
deputy sheriff, or juvenile court probation officer is authorized
to take any such juvenile into custody and return such juvenile
to his or her place of residence or into the custody of a
designated employee of the department or division.
ARTICLE 5D. MULTIDISCIPLINARY TEAMS.
§49-5D-1. Purpose; additional cases and teams.
(a) The purpose of this article is to provide a system for
evaluation of and coordinated service delivery for children who
may be victims of abuse or neglect and children juveniles
undergoing certain status offense and delinquency proceedings.
It is the further purpose of this article to establish, as a
complement to other programs of the department of health and
human resources and the division of juvenile services within the department of military affairs and public safety, a
multidisciplinary screening, advisory and planning system to
assist courts in facilitating permanency planning, following the
initiation of judicial proceedings, to recommend alternatives and
to coordinate evaluations and in-community services. It is the
further purpose of this article to ensure that children are safe
from abuse and neglect and to coordinate investigation of alleged
child abuse offenses and competent criminal prosecution of
offenders to ensure that safety, as determined appropriate by the
prosecuting attorney.
(b) Nothing in this article precludes any multidisciplinary
team from considering any case upon the consent of the members of
the team.
§49-5D-3. Multidisciplinary treatment planning process.
(a) (1) On or before the first day of January, one two
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 and the director of
the division of juvenile services 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 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 section s 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 section thirteen of said article.
(1) The department of health and human resources shall
establish a department multidisciplinary treatment planning
process and treatment team that shall assess, plan and implement
a comprehensive, individualized service plan for children who are
alleged to be or adjudged as status offenders or who are victims
of abuse or neglect and their families when a judicial proceeding
has been initiated.
(2) The division of juvenile services shall establish a
division multidisciplinary treatment planning process and
treatment team that shall assess, develop and implement a
comprehensive, individualized service plan for juveniles involved
in delinquency proceedings, including determining a
restrictiveness classification for the juvenile, a recommended
security level of the facility to which the juvenile may be committed, and perform such other duties as may be required by
this chapter or by the court.
(b) Each treatment team shall be convened and directed by
the child's or family's case manager. The treatment team shall
consist of:
(1) The child's custodial parent(s) or guardian(s);
(2) Other immediate family members;
(3) The attorney(s) representing the parent(s) of the child,
if assigned by a judge of the circuit court;
(4) The child, if the child is over the age of twelve: and
Provided, That if the child's participation is otherwise
appropriate, the a child if under the age of twelve may
participate as a member of the treatment team when the team
determines that the child's participation is appropriate;
(6) The prosecuting attorney or his or her designee; and
(7) A representative from the department or the division, as
the case may require; and
(8) Any other agency, person or professional who may
contribute to the team's efforts to assist the child and family.
(c) The treatment team shall coordinate their 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.
ARTICLE 5E. DIVISION OF JUVENILE SERVICES.
§49-5E-1. Policy.
It is the policy of the state to provide a continuum of care
for its children who have been charged with an offense which
would be a crime if committed by an adult and taken into custody.
It is further the policy of the state to ensure the safe and
efficient custody of a detained child through the entire juvenile
justice process, and that this can best be accomplished by the
state by and through a single division within the department of
military affairs and public safety. It is further the policy of
the state that the division of juvenile services of the
department of military affairs and public safety shall be the
sole entity of the state authorized to accept custody of children who are committed to the custody of the state because of an
allegation or adjudication of delinquency.
§49-5E-2. Division created; transfer of functions; employment of
comprehensive strategy.
There is hereby created the division of juvenile services
within the department of military affairs and public safety. The
director shall be appointed by the governor with the advise and
consent of the Senate, and shall be responsible for the control
and supervision of each of its offices. The director may appoint
deputy directors and assign them duties as may be necessary for
the efficient management and operation of the division.
The division of juvenile services shall consist of two
three subdivisions:
(1) The office of juvenile detention, which shall assume
responsibility for operating and maintaining centers for the
predispositional detention of juveniles, including juveniles who
have been transferred to adult criminal jurisdiction under
section ten, article five of this chapter and juveniles who are
awaiting transfer to a juvenile corrections facility; and
(2) The office of juvenile corrections, which shall assume
responsibility for operating and maintaining juvenile corrections
facilities; and
(3) The office of alternative services, which shall assume
responsibility for the provision of services to all juveniles who are committed to the custody of the division, but not detained in
a secure facility.
§49-5E-3. Transfer of functions; duties and powers; employment
of comprehensive strategy.
(a) The division of juvenile services shall assume the
following duties performed by the department of health and human
resources as to juveniles in detention facilities or juvenile
corrections facilities and juveniles alleged or adjudged to be
juvenile delinquents:
(1) Cooperating with the United States department of justice
in operating, maintaining and improving juvenile correction
facilities and predispositional detention centers, complying with
regulations thereof, and receiving and expending federal funds
for the services, as set forth in section one, article one of
this chapter;
(2) Providing care for children juvenile delinquents needing
detention or supervision pending disposition by a court having
juvenile jurisdiction, or temporary care following such court
action disposition as set forth in section sixteen, article two
of this chapter;
(3) Assigning the necessary personnel and providing adequate
space for the support and operation of any facility providing for
the detention of children committed to the care of the division
of juvenile services, as set forth in section six, article five-a of this chapter;
(4) Proposing rules which outline policies and procedures
governing the operation of correctional, detention and other
facilities in its division wherein juveniles may be housed, as
set forth in section sections sixteen-a and sixteen-b, article
five of this chapter;
(5) Assigning the necessary personnel and providing adequate
space for the support and operation of its facilities, as set
forth in section six, article five-a of this chapter;
(6) Developing a comprehensive plan to maintain and improve
a unified state system of predispositional detention centers for
juveniles, as set forth in section six-a, article five-a of this
chapter;
(7) Working in cooperation with the department of health and
human resources in establishing, maintaining, and continuously
refining and developing a balanced and comprehensive state
program for children who are alleged or adjudged delinquent, as
set forth in section two, article six-b five-b of this chapter;
(8) In cooperation with the department of health and human
resources, establishing programs and services, within available
funds, 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, as set forth in
section four, article five-b of this chapter; and
(9) Develop and provide specialized education, training and
certification programs for juvenile correction officers, facility
staff members and other personnel of the division that meet the
standards of the office of juvenile justice and delinquency
prevention of the United States department of justice, office of
justice programs, and other such programs as the director may
consider appropriate.
(b) The department of health and human resources and the
division of juvenile services shall develop a comprehensive plan
and formal interagency agreement to complete the transfer of
duties as required by this section, to ensure that the streams of
state and federal funding for services, personnel and
administrative support for alleged or adjudged juvenile
delinquents are maintained and transferred to the division, and
to facilitate the transfer of information about all alleged or
adjudged juvenile delinquents in state custody to the division ,
all to be completed no later than the first day of July, two
thousand.
(c) Working in collaboration with the department of health
and human resources, the division of juvenile services shall
employ a comprehensive strategy for the social and rehabilitative
programming and treatment of juveniles consistent with the principles adopted by the office of juvenile justice and
delinquency prevention of the office of justice programs of the
United States department of justice.
(d) In addition to the duties assumed from the department of
health and human resources and those required by the provisions
of chapter twenty-eight of this code, the division of juvenile
services shall assume custody of all juveniles alleged or
adjudged to be juvenile delinquents who are committed to the
custody of the state by the courts. The division shall develop
plans and programs for such juveniles, including, but not limited
to, the assessment, evaluation, classification, care, housing,
transportation, detention, confinement, parole, and case- coordination of juveniles and the development, classification,
operation, expansion, funding, administration, maintenance and
control of all state facilities or centers in which such
juveniles are detained, housed or confined.
(e) The director of the division of juvenile services shall
propose legislative rules for promulgation pursuant to the
provisions of chapter twenty-nine-a of this code that encompass
the policies and procedures required by subsection (c) herein.
ARTICLE 7. GENERAL PROVISIONS.
§49-7-1. Confidentiality of records.
(a) Except as otherwise provided in this chapter, all
records and information concerning a child or juvenile which are maintained by the state department or division, as defined in
section four, article one of this chapter, a child agency or
facility, court of law-enforcement agency shall be kept
confidential and shall not be released or disclosed to anyone,
including any federal or state agency.
(b) Notwithstanding the provisions of subsection (a) of this
section or any other provision of this code to the contrary,
records concerning a child or juvenile, except adoption records,
juvenile court records and records disclosing the identity of a
person making a complaint of child abuse or neglect shall be made
available:
(1) Where otherwise authorized by this chapter;
(2) To:
(A) The child;
(B) A parent whose parental rights have not been terminated;
or
(C) The attorney of the child or parent;
(3) With the written consent of the child or of someone
authorized to act on the child's behalf; or
(4) Pursuant to a subpoena or an order of a court of record.
however, a subpoena for such records may be quashed by a court
for good cause
(c) In addition to those persons or entities to whom
information may be disclosed under subsection (b) of this section, information related to child abuse or neglect
proceedings, except information relating to the identity of the
person reporting or making a complaint of child abuse or neglect,
shall be made available, upon request, to:
(1) Federal, state or local government entities, or any
agent of such entities, including law-enforcement agencies and
prosecuting attorneys, having a need for such information in
order to carry out its responsibilities under law to protect
children from abuse and neglect;
(2) The child fatality review team;
(3) Child abuse citizen review panels;
(4) Multidisciplinary investigative and treatment teams; or
(5) A grand jury, circuit court or family law master, upon
a finding that information in the records is necessary for the
determination of an issue before the grand jury, circuit court or
family law master.
(d) In the event of a child fatality or near fatality due to
child abuse and neglect, information relating to such fatality or
near fatality, shall be made public by the department of health
and human resources and to the entities described in subsection
(c) of this section, all under the circumstances described in
that subsection: Provided, That information released by the
department of health and human resources pursuant to this
subsection shall not include the identity of a person reporting or making a complaint of child abuse or neglect. For purposes of
this subsection, "near fatality" means any medical condition of
the child which is certified by the attending physician to be
life-threatening.
(e) Except in juvenile proceedings which are transferred to
criminal proceedings, law-enforcement records and files
concerning a child or juvenile shall be kept separate from the
records and files of adults and not included within the court
files. Law-enforcement records and files concerning a child or
juvenile shall only be open to inspection pursuant to the
provisions of sections seventeen and eighteen, article five of
this chapter.
(f) Any person who willfully violates the provisions of this
section is guilty of a misdemeanor and, upon conviction thereof,
shall be fined not more than one thousand dollars, or confined in
the county or regional jail for not more than six months, or be
both fined and confined. A person convicted of violating the
provisions of this section shall also be liable for damages in
the amount of three hundred dollars or actual damages, whichever
is greater.
(g) Notwithstanding the provisions of subsection (a) of this
section, or any other provision of this code to the contrary,
records and other information concerning a juvenile may be
exchanged between the department and the division as is necessary to assist in effectuating their rights and responsibilities
pursuant to this code.
(g) (h) Notwithstanding the provision s of this section, or
any other provision of this code to the contrary, the name and
identity of any juvenile adjudicated or convicted of a violent or
felonious crime shall be made available to the public.
§49-7-5. Support of child placed in home or institution or under
guardianship.
(a) If it appears upon the hearing of a petition under this
chapter that a person legally liable for the support of the child
is able to contribute to the support of such child, the court or
judge shall order the person to pay the state department,
division of juvenile services, institution, organization, or
private person to whom the child was committed, a reasonable sum
from time to time for the support, maintenance, and education of
the child.
(b) The court or judge may require the person liable for the
support to give reasonable security for payment. Upon failure to
give security or to pay, the court or judge may enforce obedience
by proceeding as for contempt of court. The court or judge may,
on application, and on such notice as the court or judge may
direct, from time to time, make such alterations in the allowance
as shall appear reasonable and proper.
(c) Any department, division, or agency entitled to receive support payments pursuant to an order entered under this section
may employ the services of the child support enforcement division
to enforce such payment through proceedings authorized by article
forty-eight-a of this chapter.
§49-7-28. Proceeding by the state agencies.
The state department of welfare department of health and
human resources and the division of juvenile services shall have
the authority to institute, in the name of the state, proceedings
incident to the performance of its their respective duties under
the provisions of this chapter.
NOTE: The purpose of this bill is to establish the
responsibility of the Division of Juvenile Services for juveniles
accused of and convicted of crimes. The bill gives the Division
of Juvenile Services authority over all juveniles placed in its
custody, including the authority to place juveniles in facilities
in accordance with a classification system.
The bill also mandates DHHR and the Division of Juvenile
Services to enter into an inter-agency agreement to facilitate
the transfer of responsibilities for juveniles to the Division of
Juvenile Services.
Strike-throughs indicate language that would be stricken
from the code, and underscoring indicates new language that would
be added.
§49-5-16b is new; therefore, strike-throughs and
underscoring have been omitted.
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