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Engrossed Version Senate Bill 557 History

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Key: Green = existing Code. Red = new code to be enacted
ENGROSSED


Senate Bill No. 557

(By Senators Wiedebusch, Wooton, Walker, Jackson, Buckalew, Scott, Boley, Bowman, Bailey, Ball, White, Plymale and Minear)

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[Originating in the Committee on Government Organization;

reported April 2, 1997.]

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A BILL to amend and reenact section one, article one, chapter forty-nine of the code of West Virginia, one thousand nine hundred thirty-one, as amended; to amend and reenact section sixteen, article two of said chapter; to amend and reenact sections thirteen and sixteen-a, article five of said chapter; to further amend said article by adding thereto a new section, designated section thirteen-e; to amend and reenact sections six and six-a, article five-a of said chapter; to amend and reenact sections two and four, article five-b of said chapter; and to further amend said chapter by adding thereto a new article, designated article five-e, all relating to juvenile justice reform; transferring certain functions to the division of juvenile services within the department of military affairs and public safety; disposition; comprehensive plan for juveniles; juvenile facility rules; juvenile referee system assistance; predisposition detention of juveniles; juvenile offender rehabilitation; creating the division of juvenile services within the department of military affairs and public safety; duties and responsibilities of the division of juvenile services; study to establish a facility for housing juveniles who have been transferred to adult criminal jurisdiction; and legislative rules for specialized training for juvenile corrections officers and detention center employees.

Be it enacted by the Legislature of West Virginia:
That section one, article one, chapter forty-nine of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be amended and reenacted; that section sixteen, article two of said chapter be amended and reenacted; that sections thirteen, thirteen- c and sixteen-a
, article five of said chapter be amended and reenacted; that sections six and six-a, article five-a of said chapter be amended and reenacted; that sections two and four, article five-b of said chapter be amended and reenacted; and that said chapter be amended by adding thereto a new article, designated article five-e, all to read as follows:
CHAPTER 49. CHILD WELFARE.

ARTICLE 1. PURPOSES; DEFINITIONS.
§49-1-1. Purpose.


(a) The purpose of this chapter is to provide a comprehensive system of child welfare throughout the state which will assure to each child such care and guidance, preferably in his or her home, and will serve the spiritual, emotional, mental and physical welfare of the child; preserve and strengthen the child's family ties whenever possible with recognition of the fundamental rights of parenthood and with recognition of the state's responsibility to assist the family in providing necessary education and training and to reduce the rate of juvenile delinquency and to provide a system for the rehabilitation or detention of juvenile delinquents and the protection of 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 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.
(b) The child welfare service of the state shall be administered by the state department of welfare
health and human resources and the division of juvenile services of the department of military affairs and public safety.
The state department of welfare 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
ARTICLE 2. STATE RESPONSIBILITIES FOR THE PROTECTION AND CARE OF CHILDREN.

§49-2-16. State responsibility for child care.

The
division of juvenile services of the department of military affairs and public safety is hereby authorized and empowered to operate and maintain centers for juveniles needing detention pending disposition by a court having juvenile jurisdiction or temporary care following such court action.
The state department of health and human resources is hereby authorized and empowered 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 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 exercising juvenile jurisdiction. The department of human services or any county office of such 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.

The department of human services shall provide care in special boarding homes for children
needing detention pending disposition by a court having juvenile jurisdiction or temporary care following such court action.
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; 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 has made reasonable efforts to reunify the family and/or provide a plan for the permanent placement of the child.
ARTICLE 5. JUVENILE PROCEEDINGS.

§49-5-13. Disposition; appeal.
(a) In aid of disposition, the juvenile probation officer assigned to the court shall, upon request of the court, make an investigation of the environment of the child and the alternative dispositions possible. The court, upon its own motion, or upon request of counsel, may order a psychological examination of the child. The report of such examination and other investigative and social reports shall not be made available to the court until after the adjudicatory hearing. Unless waived, copies of the report shall be provided to counsel for the petitioner and counsel for the child no later than seventy-two hours prior to the dispositional hearing.
(b) Following the adjudication, the court shall conduct the dispositional proceeding, giving all parties an opportunity to be heard. In disposition the court shall not be limited to the relief sought in the petition and shall, in electing from the following alternatives, consider the best interests of the child and the welfare of the public:
(1) Dismiss the petition;
(2) Refer the child and the child's parent or custodian to a community agency for needed assistance and dismiss the petition;
(3) Upon a finding that the child is in need of extra-parental supervision: (A) Place the child under the supervision of a probation officer of the court or of the court of the county where the child has his or her usual place of abode or other person while leaving the child in custody of his or her parent or custodian; and (B) prescribe a program of treatment or therapy or limit the child's activities under terms which are reasonable and within the child's ability to perform, 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 child, that a child is not willing to reside in the custody of his parent or custodian, or that a parent or custodian cannot provide the necessary supervision and care of the child, the court may place the child in temporary foster care or temporarily commit the child to the state department of health and human resources or division of juvenile services within the department of military affairs and public safety or a child welfare agency. The court order shall state that continuation in the home is contrary to the best interest of the child and why; and whether or not the state department made a reasonable effort to prevent the placement or that the emergency situation made such efforts unreasonable or impossible. Whenever the court transfers custody of a youth to the department of human services, an appropriate order of financial support by the parents or guardians shall be entered in accordance with section five, article seven of this chapter and guidelines promulgated by the supreme court of appeals;
(5) Upon a finding that the best interests of the child 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 child to an industrial home, correctional institution for children, 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 child and why; and whether or not the state department made a reasonable effort to prevent the placement or that the emergency situation made such efforts unreasonable or impossible;
(6) Upon an adjudication of delinquency pursuant to subdivision (3) or (4), section four, article one of this chapter, and upon a finding that the child is so totally unmanageable, ungovernable and antisocial that the child is amenable to no treatment or restraint short of incarceration, commit the child to a rehabilitative facility devoted exclusively to the custody and rehabilitation of children adjudicated delinquent pursuant to said subdivision. Commitments shall not exceed the maximum period of one year with discretion as to discharge to rest with the director of the institution, who may release the child 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 child and why; and whether or not the state department made a reasonable effort to prevent the placement or that the emergency situation made such efforts unreasonable or impossible; or
(7) After a hearing conducted under the procedures set out in subsections (c) and (d), section four, article five, chapter twenty-seven of this code, commit the child to a mental health facility in accordance with the child's treatment plan; the director may release a child and return him to the court for further disposition. The order shall state that continuation in the home is contrary to the best interests of the child and why; and whether or not the state department made a reasonable effort to prevent the placement or that the emergency situation made such efforts unreasonable or impossible.
(c) The disposition of the child shall not be affected by the fact that the child demanded a trial by jury or made a plea of denial. Any dispositional order is subject to appeal to the supreme court of appeals.
(d) Following disposition, it shall be inquired of the respondent whether or not appeal is desired and the response transcribed; a negative response shall not be construed as a waiver. The evidence shall be transcribed as soon as practicable and made available to the child or his or her counsel, if the same is requested for purposes of further proceedings. A judge may grant a stay of execution pending further proceedings.
(e) Notwithstanding any other provision of this code to the contrary, if a child 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.
The division of juvenile services within the department of military affairs and public safety shall develop a comprehensive plan to establish a unified state system for social and rehabilitative programming and treatment of juveniles in predispositional detention centers and in juvenile correction facilities and a comprehensive plan for regional juvenile detention facilities and programs. These plans are to be submitted to the West Virginia legislature no later than the first day of January, one thousand nine hundred ninety-eight.
The comprehensive plan for regional detention programs and facilities shall be based on a needs assessment of juvenile detention services and shall locate all newly constructed detention facilities on or near a regional jail facility, with common facilities and administration as permitted by federal law.
§49-5-16a. Rules and regulations governing juvenile facilities.

The commissioner of corrections and the commissioner of welfare shall each director of the division of juvenile services within the department of military affairs and public safety shall prescribe written rules and regulations subject to the provisions of chapter twenty-nine-a of this code, outlining policies and procedures governing the operation of those correctional, detention, predispositional detention centers and other facilities in their respective departments wherein juveniles may be housed. Said policies and procedures shall include, but shall not be limited to, standards of cleanliness, temperature and lighting; availability of medical and dental care; provision of food, furnishings, clothing and toilet articles; supervision; procedures for enforcing rules of conduct consistent with due process of law, and visitation privileges. On and after January one, one thousand nine hundred seventy-nine, a child in custody or detention shall have, at a minimum, the following rights, and the policies prescribed shall ensure that:
(1) A child shall not be punished by physical force, deprivation of nutritious meals, deprivation of family visits or solitary confinement;
(2) A child shall have the opportunity to participate in physical exercise each day;
(3) Except for sleeping hours a child in a state facility shall not be locked alone in a room unless such child is out of control;
(4) A child shall be provided his own clothing or individualized clothing which is clean, supplied by the facility, and daily access to showers;
(5) A child shall have constant access to writing materials and may send mail without limitation, censorship or prior reading, and may receive mail without prior reading, except that mail may be opened in the child's presence, without being read, to inspect for contraband;
(6) A child may make and receive regular local phone calls without charge and long distance calls to his family without charge at least once a week, and receive visitors daily and on a regular basis;
(7) A child shall have immediate access to medical care as needed;
(8) A child in a juvenile detention facility or state institution shall be provided access to education including teaching, educational materials and books;
(9) A child shall have reasonable access to an attorney upon request; and
(10) A child shall be afforded a grievance procedure, including an appeal mechanism.
Upon admission to a jail, detention facility or institution, a child shall be furnished with a copy of the rights provided him by virtue of this section and as further prescribed by rules promulgated pursuant to this section.
ARTICLE 5A. JUVENILE REFEREE SYSTEM.

§49-5A-6. Assistance of division of juvenile services of the department of military affairs and public safety.

With the approval of the commissioner of welfare the department of welfare The division of juvenile services of the department of military affairs and public safety
is authorized to assign the necessary personnel and provide adequate space for the support and operation of any facility not a jail providing for the detention of children as provided in this article, subject to and not inconsistent with the appropriation and availability of funds.
§49-5A-6a. State plan for predisposition detention of juveniles.

(a) The secretary of the department of health and human resources and the legislative commission on juvenile law 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 for juveniles. The secretary and the commission plan shall consider recommendations from the division of corrections, the governor's committee on crime, delinquency and correction the juvenile justice committee, the state board of education, detention center personnel, juvenile probation officers of the department of health and human resources and judicial and law-enforcement officials from throughout the state.
The principal purpose of the plan shall be, through statements of policy and program goals, to provide for the effective and efficient use of regional juvenile detention facilities licensed or operated by local units of government and the state, including those operated regionally by the department of health and human resources.
(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 legislative commission on juvenile law, or a designated subcommittee legislature shall designate a committee or task force thereof, shall to act in a continuing capacity as an oversight committee, and shall assist the secretary of the department of health and human resources director of the division of juvenile services within the department of military affairs and public safety in the periodic review and update of the state plan for the predisposition detention of juveniles.
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 for the care and rehabilitation of delinquent children. It is further the intent of the Legislature that this state, through the department of welfare 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 children who are potentially delinquent or are delinquent other than those children committed to the care and custody of the department of corrections.
§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 is 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, 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 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 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 keep delinquents, and to encourage 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 resource division of juvenile services within the department of military affairs and public safety shall establish, within the funds available, an individualized program of rehabilitation for each accused juvenile offender referred to the department division after being allowed an improvement period by the juvenile court, and for each adjudicated juvenile offender 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 child. Such individualized program of rehabilitation shall be furnished to the juvenile court and shall be available to counsel for the child; it may be modified from time to time at the direction of the department division or by order of the juvenile court. The department division may develop an individualized program of rehabilitation for any child referred for noncustodial counseling under section five, article three of this chapter, for any child receiving counsel and advice under section three-a, article five of this chapter, or for any other child upon the request of a public or private agency.
(c) The department of health and human resources division of juvenile services of the department of military affairs and public safety
is 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.
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.
§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 advice 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 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.
§49-5E-3. Transfer of functions; duties and powers; employment of comprehensive strategy.

The division of juvenile services shall assume the following duties performed by the department of health and human resources in regard to the care and treatment of those children who have been committed to the care of the division of juvenile services:
(1) Cooperating with the United States department of justice in extending and improving child welfare services, 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 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 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 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 predispositional detention for juveniles, as set forth in section six-a, article five-a of this chapter;
(7) Establishing, maintaining, and continuously refining and developing a balanced and comprehensive state program for children who are delinquent, as set forth in section two, article six-b of this chapter;
(8) 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;
(9) Establishing, within available funds, an individualized program of rehabilitation for each accused juvenile referred to the division of juvenile services, and for each adjudicated juvenile who, after adjudication, is referred to the division of juvenile services for investigation or treatment or whose custody is vested in the division of juvenile services, as set forth in section four, article five-b of this chapter.
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. Adult transfer facility; 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.
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