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.