ENGROSSED
COMMITTEE SUBSTITUTE
FOR
Senate Bill No. 536
(By Senators Tomblin, Mr. President, and Sprouse,
By Request of the Executive)
____________
[Originating in the Committee on the Judiciary;
reported March 3, 1999.]
____________
A BILL to repeal article ten, chapter forty-nine of the code of
West Virginia, one thousand nine hundred thirty-one, as
amended; to amend and reenact section one, article one of said
chapter; to amend and reenact section sixteen, article two of
said chapter; to amend and reenact sections eight, eight-a,
thirteen, thirteen-e and fourteen, article five of said
chapter; to amend and reenact section six-a, article five-a of
said chapter; to amend and reenact section four, article five- b of said chapter; to amend and reeanact sections one, three,
four, five and six, article five-e; and to amend and reenact
sections one and twenty-nine, article seven of said chapter,
all relating to the state's system of child welfare and
juvenile justice; stating purpose; defining certain responsibilities and duties of state agencies and courts;
providing for proposal of a joint plan to the designated
legislative task force for juvenile oversight by the
department of health and human resources and the division of
juvenile services regarding a coordinated system of child
welfare and juvenile justice and requiring regular reports as
its progress before completion; clarifying provisions relating
to juvenile proceedings; requiring court order for secure
detention of alleged juvenile delinquent; specifying
requirements for and priorities of comprehensive state plan
for secure predispositional detention of juveniles; requiring
regular reports and annual updates of the plan to designated
legislative oversight committee; authorizing director of the
division of juvenile services to seek modification of
dispositional order; mandating certain cooperative
arrangements or agreements between the division and the
department; redesignating the former Kanawha home for children
as the south central regional juvenile detention center;
eliminating obsolete language regarding the Ohio county jail;
specifying requirements relating to the medical and other care
or treatment of juveniles committed to the division's custody;
providing for confidentiality of records; directing the
development of certain uniform court orders; and repealing
article establishing child placement alternatives corporation.
Be it enacted by the Legislature of West Virginia:
That article ten, chapter forty-nine of the code of West
Virginia, one thousand nine hundred thirty-one, as amended, be
repealed; that section one, article one of said chapter be amended
and reenacted; that section sixteen, article two of said chapter be
amended and reenacted; that sections eight, eight-a, thirteen,
thirteen-e and fourteen, article five of said chapter be amended
and reenacted; that section six-a, article five-a of said chapter
be amended and reenacted; that section four, article five-b of said
chapter be amended and reenacted; that sections one, three, four,
five and six, article five-e of said chapter be amended and
reenacted; and that sections one and twenty-nine, 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
coordinated
system of child welfare
and juvenile justice 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 detention of
juvenile delinquents; and of status offenders and juvenile
delinquents;
(10)
Provide a system for the secure detention of certain
juveniles alleged or adjudicated delinquent;
(11) Provide a system for the secure incarceration of
juveniles adjudicated delinquent and committed to the custody of
the director of the division of juvenile services; and
(10) (12) Protect the welfare of the general public.
In pursuit of these goals it is the intention of the
Legislature to provide for removing the child from the custody of
his or her 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) The child welfare service of the state shall be
administered by the
state department of health and human resources.
and the The division of juvenile services of the department of
military affairs and public safety
shall administer the state's
secure predispositional juvenile detention system and the juvenile
corrections system.
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 extending and improving child welfare
services, to comply with regulations thereof, and to receive and
expend federal funds for these services. 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 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.
(c) The department of health and human resources and the
division of juvenile services shall present a joint plan for a
coordinated system of child welfare and juvenile justice, including specific provisions for juveniles who have been accused of an act
of delinquency through the filing of a formal petition pursuant to
section seven, article five of this chapter, to the designated
legislative task force for juvenile oversight on or before the
first day of September, one thousand nine hundred ninety-nine. The
department and division shall report regularly during the interim
task force before completion of the plan to advise the Legislature
as to progress of the plan's development.
ARTICLE 2. STATE RESPONSIBILITIES FOR THE PROTECTION AND CARE OF
CHILDREN.
§49-2-16. State responsibility for juveniles committed to the care
and custody of the state.
(a) The division of juvenile services
of the department of
military affairs and public safety is hereby authorized,
and
empowered
and directed to operate and maintain
centers secure
facilities for juveniles
needing detention ordered by the court to
be securely detained pending disposition by a court having juvenile
jurisdiction,
or temporary care following such court action
or
pending trial as an adult after transfer to the criminal
jurisdiction of the court or while awaiting transfer after being
convicted as an adult. The division of juvenile services is
further authorized, empowered and directed to operate and maintain
secure correctional facilities for juveniles who have been
adjudicated delinquent or tried as an adult and convicted and who have been committed by the court to the division or director's
custody.
(b) The department of health and human resources is hereby
authorized,
and empowered
and directed to provide care, support and
protective services for children who are handicapped by dependency,
neglect, single parent status, mental or physical disability, or
who for other reasons are in need of public service.
Such The
department is also hereby authorized and empowered in its
discretion to accept children for care from their parent or
parents, guardian, custodian or relatives and to accept the custody
of children committed to its care by courts. The department of
health and human resources or any county office of
such the
department is also hereby authorized and empowered in its
discretion to accept temporary custody of children for care from
any law-enforcement officer in an emergency situation.
(c) 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. The court shall appoint an
attorney for the child, who shall also receive a copy of the case
plan. 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. 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
whether or not continuation of the voluntary placement is in the
best interests of the child; specifying under what conditions the
child's placement shall continue; and 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 5. JUVENILE PROCEEDINGS.
§49-5-8. Taking a juvenile into custody.
(a) In proceedings formally 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 exists: (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. A
detention hearing pursuant to section eight-a of this article shall
be held 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) Absent a court order, a juvenile may be taken into custody
by a law-enforcement official only if one of the following
conditions exists: (1) Grounds exist for the arrest of an adult in
identical circumstances; (2) emergency conditions exist which, in
the judgment of the officer
or 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) 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
the conditions set forth in
(A) or (B) as follows are met, in which case the official shall
make appropriate arrangements for the juvenile to be detained as
provided:
(A)
(i) If circumstances present an immediate threat of serious
bodily harm to the juvenile if
he or she is released;
or (B) (ii)
If no responsible adult can be found into whose custody the
juvenile can be delivered,
the official shall arrange for the
juvenile to be detained in a nonsecure or staff-secure facility:
Provided, That
for each day the juvenile is detained, a written
record
must shall be made of all attempts to locate
such a
responsible adult
to accept custody of the juvenile; or
(C) (B) If the juvenile has been taken into custody for an
alleged act of delinquency for which secure detention is
permissible,
the official may arrange for the juvenile to be
detained in a secure facility: Provided, That if the juvenile was
taken into custody under order of the court, the order shall direct
that the juvenile be securely detained: Provided, however, That, if the juvenile was taken into custody without a court order, a
detention hearing pursuant to section eight-a of this article shall
be held without delay.
(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 the juvenile
to be detained
but only in a nonsecure or staff-secure facility;
or
(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) In the event that a juvenile is delivered into the
physical custody of a
sheriff or director of a law enforcement or
detention facility
official, the
sheriff or director official 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 a
sheriff's or detention center director's law enforcement or
detention facility official's custody, that official 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
ordered securely detained after a 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 may 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. 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 is whether the juvenile should 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, custodians or an appropriate agency; however, if
warranted, the court may require bail, except that bail may be
denied in any case where bail could be denied if the accused were
an adult
or the court may order that the juvenile be securely
detained pending further court proceedings, in accordance with
paragraph (B), subdivision (2), subsection (b) of this section.
(b) The court shall:
(1) Immediately notify the juvenile's parent, guardian or
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
the conditions set forth in
(A) or (B) as follows are met, in which case the court shall issue
the appropriate order:
(A)
(i) If circumstances present an immediate threat of serious
bodily harm to the juvenile if
he or she is released;
or (B) (ii)
If no responsible adult can be found into whose custody the
juvenile can be delivered,
the court shall order the juvenile to be
detained in a nonsecure or staff-secure facility:
Provided, That
for each day the juvenile is detained, a written record
must shall
be made of all attempts to locate
such a responsible adult
to
accept custody of the juvenile; or
(C) (B) If the juvenile is charged with an act of delinquency for which secure detention is permissible,
the court may commit the
juvenile to the legal custody of the director of the division of
juvenile services and order that the juvenile be detained in a
secure facility pending further court proceedings;
and or
(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 the legal custody of the department
of health and human resources pending further proceedings by the
court.
(b) (c) 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:
Provided, That all parties are prepared to proceed and the juvenile
has counsel during such hearing.
§49-5-13. Disposition of juvenile delinquents; appeal.
(a) In aid of disposition of juvenile delinquents, the
juvenile probation officer assigned to the court 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;
(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, the court may place the juvenile in
temporary foster care or temporarily commit the juvenile to the
department
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 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
division of human services department, 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 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 the custody of the director of the division of juvenile services for placement in a juvenile correctional 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
and any such maximum allowable sentence to be served in a
juvenile correctional facility may take into account any time
served by the juvenile in a detention center pending adjudication,
disposition or transfer. 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) 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 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 of the
respondent whether or not appeal is desired and the response the
court shall inquire whether the juvenile wishes to appeal and the
response shall be 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 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.
§49-5-13e. Comprehensive plan for juveniles.
(a) The division of juvenile services
within the department of
military affairs and public safety shall develop
and annually
update a comprehensive plan to establish a unified state system for
social and rehabilitative programming and treatment of juveniles
who are detained or incarcerated in predispositional detention centers and in juvenile correction facilities and a comprehensive
plan for regional juvenile detention facilities and programs.
These plans
and updates are to be submitted to the West Virginia
Legislature no later than the first day of January
each year.
one
thousand nine hundred ninety-eight.
(b) The comprehensive plan for regional detention programs and
facilities shall be based on
a needs assessment of juvenile (i) the
need for secure juvenile detention services
in a given county or
region; (ii) transportation costs associated with transferring
juveniles to or from court appearances or other facilities; (iii)
the proximity and availability of necessary services and amenities;
and (iv) other appropriate factors. The comprehensive plan may and
may locate all propose locating newly constructed detention
facilities on or near a
planned or existing regional jail facility,
with common facilities and administration as permitted by federal
law:
Provided, That, except for plans existing on the effective
date of this provision for newly constructed facilities or major
renovation projects in Boone County, Hampshire County and Upshur
County, the comprehensive plan for detention facilities and the
allocation of available funding for capital expenditures shall
establish the following priorities in the order provided:
(1) Replacement with appropriate new construction of the
former Kanawha home for children, which has been redesignated as
the south central regional juvenile detention center, at an appropriate site within Kanawha County, with the same or a larger
licensed capacity;
(2) Establishment of one or more adequate and appropriate
facilities to house juveniles who have been transferred from the
juvenile jurisdiction of the court to the criminal jurisdiction of
the court for trial as an adult and who are awaiting trial,
sentencing or transfer to another facility.
(3) Repair, renovation, expansion and/or replacement of the
existing state-owned juvenile detention facilities in Parkersburg,
Wood County, Princeton, Mercer County and Martinsburg, Berkeley
County, and the juvenile correctional facility at Davis, Randolph
County; and
(4) New construction of additional facilities or major
renovation projects of exisitng or newly acquired facilities, as
certified to and approved by the joint committee on government and
finance.
§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 director of 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 that if the last dispositional order was
within the previous six months the court may deny a request for
review. 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. 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. No
child shall
juvenile may 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) (c) 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.
ARTICLE 5A. JUVENILE REFEREE SYSTEM.
§49-5A-6a. State plan for predispositional detention centers for juveniles.
(a) The division of juvenile services of the department of
military affairs and public safety shall develop a comprehensive
plan to maintain and improve a unified state system of regional
predispositional detention centers for juveniles. The plan shall
be predicated upon the maximum utilization of existing resources,
facilities and procedures and shall take into consideration
consider recommendations from the
department of health and human
resources, the regional jail and correctional facility authority,
the division of corrections, the governor's committee on crime,
delinquency and correction,
the supreme court of appeals, the state
board of education, detention center personnel, juvenile probation
officers and judicial and law-enforcement officials from throughout
the state.
The principal purpose of the plan shall be, through
the
setting of capital funding priorities and the statements of policy
and program goals, to provide
first for the effective and efficient
use of
existing regional juvenile detention facilities
and the
prudent allocation of resources for any future expansion or
addition.
(b) The plan shall identify operational problems of secure
detention centers, including, but not limited to, overcrowding,
security and violence within centers, difficulties in moving juveniles through the centers within required time periods, health
needs, educational needs, transportation problems, staff turnover
and morale and other perceived problem areas. The plan shall
further provide recommendations directed to alleviate the problems.
(c) The plan shall include, but not be limited to, statements
of policies and goals in the following areas:
(1) Licensing of secure detention centers;
(2) Criteria for placing juveniles in detention;
(3) Alternatives to secure detention;
(4) Allocation of fiscal resources to the costs of secure
detention facilities;
(5) Information and referral services; and
(6) Educational regulations developed and approved by the West
Virginia board of education.
(d) The
Legislature president of the Senate and the speaker of
the House of Delegates shall designate a committee or task force
thereof, to act in a continuing capacity as an oversight committee,
and which shall assist the director of the division of juvenile
services
within the department of military affairs and public
safety in the
development, periodic review and update of the state
plan for the predispositional detention centers for juveniles.
To
this end, the director shall make regular reports to the designated
legislative oversight body during the interim period and
immediately before any regular session of the Legislature, which
reports shall include any recommendations for legislative enactment, together with drafts of any proposed legislation
necessary to effectuate those recommendations.
ARTICLE 5B. WEST VIRGINIA JUVENILE OFFENDER REHABILITATION ACT.
§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
jointly establish, and shall
establish, subject to the limits of funds available or otherwise
appropriated therefor, programs and services designed to prevent
juvenile delinquency, to divert juveniles from the juvenile justice
system, to provide community-based alternatives to juvenile
detention and correctional facilities and to encourage a diversity
of alternatives within the
child welfare and juvenile justice
system. The development, maintenance and expansion of programs and
services may include, but not be limited to, the following:
(1) Community-based programs and services for the prevention
and treatment of juvenile delinquency through the development of
foster-care and shelter-care homes, group homes, halfway houses,
homemaker and home health services, twenty-four hour intake
screening, volunteer and crisis home programs, day treatment and
any other designated community-based diagnostic, treatment or
rehabilitative service;
(2) Community-based programs and services to work with parents
and other family members to maintain and strengthen the family unit
so that the juvenile may be retained in his home;
(3) Youth service bureaus and other community-based programs
to divert youth from the juvenile court or to support, counsel, or
provide work and recreational opportunities for 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 affected 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 to each alleged juvenile delinquent referred to the department
after being allowed an improvement period by the juvenile court,
and for each adjudicated juvenile delinquent who, after
adjudication, is referred to the department for investigation or
treatment or whose custody is vested in the department. Such
individualized program of rehabilitation shall take into account
the programs and services to be provided by other public or private
agencies or personnel which are available in the community to deal
with the circumstances of the particular 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 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, article three 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
and directed to enter into
cooperative arrangements and agreements with
each other and with
private agencies or with agencies of the state and its political
subdivisions to
effectuate the purpose of this article fulfill
their respective duties under this article and chapter.
ARTICLE 5E. DIVISION OF JUVENILE SERVICES.
§49-5E-1. Policy.
It is the policy of the state to provide a
coordinated
continuum of care for its children who have been charged with an
offense which would be a crime if committed by an adult,
and
whether they are taken into custody
and securely detained or
released pending adjudication by the court. It is further the
policy of the state to ensure the safe and efficient custody of a
securely 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 providing for cooperation and coordination
between the agencies of government which are charged with
responsibilities for the children of the state. Accordingly,
whenever any juvenile is ordered by the court to be transferred
from the custody of one of these agencies into the custody of the
other, the department of health and human resources and the
division of juvenile services shall cooperate with each other to
the maximum extent necessary in order to ease the child's transition and to reduce unnecessary cost, duplication and delay.
§49-5E-3. Transfer of functions; duties and powers; employment of
comprehensive strategy.
The division of juvenile services shall assume the following
duties
previously performed by
the department of health and human
resources as to juveniles in detention facilities or juvenile
corrections facilities:
(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 needing
secure detention
pending disposition by a court having juvenile jurisdiction or
temporary care following such court action, 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
secure 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
securely
housed, as set forth in section sixteen-a, 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
regional predispositional detention centers
for juveniles, as set
forth in
section thirteen-e, article five and
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 have been adjudicated delinquent, as set forth
in section two, article six-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.
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.
§49-5E-4. Transfer to the division of juvenile services and
redesignation of Kanawha home for children as the south
central regional juvenile detention center.
(a) "Kanawha home for children" means the county home for the
detention of juvenile delinquents or children charged with
delinquency as established by the county commission of Kanawha
County pursuant to the provisions of a local bill, House Bill No.
141, enacted by the Legislature on the fourteenth day of February,
one thousand nine hundred fifty-five, as set forth in the Acts of
the West Virginia Legislature, Regular Session, 1955, ch. 185.
(c) On and after the effective date of the amendment to this
section, enacted during the regular session of the Legislature, one
thousand nine hundred ninety-nine, the Kanawha home for children
shall be designated and referred to as the "south central regional
juvenile detention center" and any reference in this code to the
Kanawha home for children shall thereafter be construed to refer to
the south central regional juvenile detention center.
(b) (c) After the effective date of the amendment to this section, enacted during the regular session of the Legislature, one
thousand nine hundred ninety-eight, the division of juvenile
services shall assume all responsibility for funding, operating,
maintaining, administering and managing the
former Kanawha home for
children. To this end, the director of the division of juvenile
services may enter into a lease agreement with the Kanawha county
commission, for the premises and all improvements, appurtenances,
equipment and furnishings on the premises constituting the
former
Kanawha home for children, and may operate, manage and maintain the
facility as one of the several centers under the supervision and
control of the division which provide secure 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.
§49-5E-5. Rules for specialized training for juvenile corrections
officers and detention center employees.
(a) On or before the first day of December, one thousand nine
hundred ninety-seven, the division of juvenile services shall
conduct a study of the appropriateness and cost of renovating the
Ohio County jail or other facilities to house juveniles who have
been transferred to adult criminal jurisdiction and/or who are
awaiting post-sentencing transfer to a correctional facility.
(b) The division of juvenile services shall propose
legislative rules to be promulgated by the Legislature according to
the provisions of chapter twenty-nine-a of this code, to require
juvenile corrections officers and detention center employees to
complete specialized training and certification. The training
programs shall meet the standards of those offered or endorsed by
the office of juvenile justice and delinquency prevention of the
office of justice programs of the United States department of
justice.
§49-5E-6. Medical and other treatment of juveniles in custody of
the division; coordination of care and claims processing and
administration by the department; authorization of certain
cooperative agreements.
(a) Notwithstanding any other provision of law to the
contrary, the director, or his or her designee, is hereby
authorized to consent to the medical
or other treatment of any
juvenile in the legal or physical custody of the director or the
division.
(b) In providing or arranging for the necessary medical and
other care and treatment of juveniles committed to the division's
custody, the director shall utilize service providers who provide
the same or similar services to juveniles under existing contracts
with the department of health and human resources. In order to
obtain the most advantageous reimbursement rates, to capitalize on an economy of scale and to avoid duplicative systems and
procedures, the department shall coordinate such care and treatment
and shall administer and process all claims for medical or other
treatment of juveniles committed to the division's custody.
(c) For purposes of implementing the mandates of this section,
the director is hereby authorized and directed to enter into any
necessary agreements with the department of health and human
resources. Any such agreement shall specify, at a minimum, for the
direct and incidental costs associated with such care and treatment
to be paid by the division of juvenile services.
ARTICLE 7. GENERAL PROVISIONS.
§49-7-1. Confidentiality of records.
(a) Except as otherwise provided in this chapter
or by order
of the court, all records and information concerning a child or
juvenile which are maintained by the
division of juvenile services,
the state department
of health and human resources,
as defined in
section four, article one of this chapter, a child agency or
facility, court or 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 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 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.
§49-7-29. General provisions to read uniform court orders
regarding custody; promulgation of rules.
The supreme court shall, in consultation with the department
of health and human resources
and the division of juvenile
services, develop and cause to be implemented, as soon as
practicable but no later than the first day of September, one
thousand nine hundred
ninety-two ninety-nine, forms for court
orders which are consistent with the provision of chapter forty- nine of this code,
including provisions for authorizing disclosure
and transfer of juvenile records between agencies while requiring
maintenance of confidentiality, as well as the provisions of Title
l42 U.S.C. Section 620, et seq., and Title 42 U.S.C. Section 670, et seq., relating to the promulgation of uniform court orders for
placement of minor children and the regulations promulgated
thereunder, for
the use in the magistrate and circuit courts of the
state.
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