ENROLLED
COMMITTEE SUBSTITUTE
FOR
Senate Bill No. 725
(Senators Wooton, Craigo, Jackson, Walker,
White, Buckalew and Scott, original sponsors)
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[Passed March 14, 1998; in effect ninety days from passage.]
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AN ACT to repeal section thirteen-c, article five, chapter forty- nine of the code of West Virginia, one thousand nine hundred
thirty-one, as amended; to amend and reenact sections one,
two, three, three-a, four, six, seven, eight, eight-a, nine,
eleven, eleven-a, twelve, thirteen-a, thirteen-d, fifteen
and sixteen-a of said article; and to further amend said
article by adding thereto a new section designated section
two-a, all relating to making technical corrections and
clarifications with regard to juvenile proceedings for
status offenses and delinquency; eliminating certain
obsolete references and provisions; providing for attendance
at juvenile proceedings by certain persons, in the
discretion of the presiding judicial officer; providing
authorization for informal resolution by prepetition
diversion; clarifying that proceedings are formally instituted by the filing with the court of a juvenile
petition; authorizing the court to require participation in
noncustodial counseling a juvenile's parent, guardian or
custodian; providing that certain examinations are
discretionary with the court; clarifying who may demand a
jury trial in a juvenile proceeding; eliminating certain
referrals to or instances of custody by juvenile probation
officers; eliminating certain obsolete provisions relating
to taking juveniles into custody by way of warrant, capias
or attachment; requiring a showing of probable cause in
certain instances; requiring certain procedures and
notifications when a juvenile is taken into custody;
requiring the department of health and human resources to
make certain reports to the court; providing for further
disposition of adjudicated status offenders beyond the
initial mandatory referral to the department of health and
human resources; providing for appeal of such orders of
further disposition; expanding and extending the teen court
program as an alternative to juvenile adjudication and/or
disposition for certain juveniles; clarifying restrictions
on the appointment of juvenile probation officers; and
requiring that the director of the division of juvenile
services propose certain legislative rules for promulgation.
Be it enacted by the Legislature of West Virginia:
That section thirteen-c, article five, chapter forty-nine of the code of West Virginia, one thousand nine hundred thirty-one,
as amended, be repealed; that sections one, two, three, three-a,
four, six, seven, eight, eight-a, nine, eleven, eleven-a, twelve,
thirteen-a, thirteen-d, fifteen and sixteen-a of said article be
amended and reenacted; and that said article be further amended
by adding thereto a new section, designated section two-a, all to
read as follows:
ARTICLE 5. JUVENILE PROCEEDINGS.
§49-5-1. Definitions.
As used in this article:
(a) "Adult" means a person who is at least eighteen years of
age.
(b) "Child" means a person who has not attained the age of
eighteen years, or a person who is otherwise subject to the
juvenile jurisdiction of a court pursuant to this article.
(c) "Extrajudicial statement" means any utterance, written
or oral, which was made outside of court.
(d) "Juvenile" has the same meaning as the term "child".
(e) "Res gestae" means a spontaneous declaration made by a
person immediately after an event and before the person has had
an opportunity to conjure a falsehood.
(f) "Violation of a traffic law of West Virginia" means a
violation of any provision of chapter seventeen-a, seventeen-b,
seventeen-c or seventeen-d of this code except a violation of
section one or two, article four, chapter seventeen-c of this code (hit and run) or of section one, article five of said
chapter (negligent homicide), section two of said article
(driving under the influence of alcohol, controlled substances or
drugs) or section three of said article (reckless driving).
§49-5-2. Juvenile jurisdiction of circuit courts, magistrate
courts and municipal courts; constitutional guarantees;
hearings; evidence and transcripts.
(a) The circuit court has original jurisdiction of
proceedings brought under this article.
(b) If during a criminal proceeding in any court it is
ascertained or appears that the defendant is under the age of
nineteen years and was under the age of eighteen years at the
time of the alleged offense, the matter shall be immediately
certified to the juvenile jurisdiction of the circuit court. The
circuit court shall assume jurisdiction of the case in the same
manner as cases which are originally instituted in the circuit
court by petition.
(c) Notwithstanding any other provision of this article,
magistrate courts have concurrent juvenile jurisdiction with the
circuit court for a violation of a traffic law of West Virginia
or for any violation of chapter twenty of this code. Juveniles
are liable for punishment for violations of these laws in the
same manner as adults except that magistrate courts have no
jurisdiction to impose a sentence of incarceration for the
violation of these laws.
(d) Notwithstanding any other provision of this article,
municipal courts have concurrent juvenile jurisdiction with the
circuit court for a violation of any municipal ordinance
regulating traffic or for any municipal curfew ordinance which is
enforceable. Municipal courts may impose the same punishment for
these violations as a circuit court exercising its juvenile
jurisdiction could properly impose, except that municipal courts
have no jurisdiction to impose a sentence of incarceration for
the violation of these laws.
(e) A juvenile may be brought before the circuit court for
proceedings under this article only by the following means:
(1) By a juvenile petition requesting that the juvenile be
adjudicated as a status offender or a juvenile delinquent; or
(2) By certification or transfer to the juvenile
jurisdiction of the circuit court from the criminal jurisdiction
of the circuit court, from any foreign court, or from any
magistrate court or municipal court in West Virginia.
(f) If a juvenile commits an act which would be a crime if
committed by an adult, and the juvenile is adjudicated delinquent
for that act, the jurisdiction of the court which adjudged the
juvenile delinquent continues until the juvenile becomes twenty- one years of age. The court has the same power over that person
that it had before he or she became an adult, and has the further
power to sentence that person to a term of incarceration:
Provided, That any such term of incarceration may not exceed six months. This authority does not preclude the court from
exercising criminal jurisdiction over that person if he or she
violates the law after becoming an adult or if the proceedings
have been transferred to the court's criminal jurisdiction
pursuant to section ten of this article.
(g) A juvenile is entitled to be admitted to bail or
recognizance in the same manner as an adult and shall be afforded
the protection guaranteed by Article III of the West Virginia
constitution.
(h) A juvenile has the right to be effectively represented
by counsel at all stages of proceedings under the provisions of
this article. If the juvenile or the juvenile's parent or
custodian executes an affidavit showing that the juvenile cannot
afford an attorney, the court shall appoint an attorney, who
shall be paid in accordance with article twenty-one, chapter
twenty-nine of this code.
(i) In all proceedings under this article, the juvenile
shall be afforded a meaningful opportunity to be heard. This
includes the opportunity to testify and to present and cross- examine witnesses. The general public shall be excluded from all
proceedings under this article except that persons whose presence
is requested by the parties and other persons whom the circuit
court determines have a legitimate interest in the proceedings
may attend:
Provided, That in cases in which a juvenile is
accused of committing what would be a felony if the juvenile were an adult, an alleged victim or his or her representative may
attend any related juvenile proceedings, at the discretion of the
presiding judicial officer:
Provided,
however, That in any case
in which the alleged victim is a juvenile, he or she may be
accompanied by his or her parents or representative, at the
discretion of the presiding judicial officer.
(j) At all adjudicatory hearings held under this article,
all procedural rights afforded to adults in criminal proceedings
shall be afforded the juvenile unless specifically provided
otherwise in this chapter.
(k) At all adjudicatory hearings held under this article,
the rules of evidence applicable in criminal cases apply,
including the rule against written reports based upon hearsay.
(l) Except for res gestae, extrajudicial statements made by
a juvenile who has not attained fourteen years of age to law- enforcement officials or while in custody are not admissible
unless those statements were made in the presence of the
juvenile's counsel. Except for res gestae, extrajudicial
statements made by a juvenile who has not attained sixteen years
of age but who is at least thirteen years of age to law- enforcement officers or while in custody, are not admissible
unless made in the presence of the juvenile's counsel or made in
the presence of, and with the consent of, the juvenile's parent
or custodian, and the parent or custodian has been fully informed
regarding the juvenile's right to a prompt detention hearing, the juvenile's right to counsel, including appointed counsel if the
juvenile cannot afford counsel, and the juvenile's privilege
against self-incrimination.
(m) A transcript or recording shall be made of all transfer,
adjudicatory and dispositional hearings. At the conclusion of
each of these hearings, the circuit court shall make findings of
fact and conclusions of law, both of which shall appear on the
record. The court reporter shall furnish a transcript of the
proceedings at no charge to any indigent juvenile who seeks
review of any proceeding under this article if an affidavit is
filed stating that neither the juvenile nor the juvenile's
parents or custodian have the ability to pay for the transcript.
§49-5-2a. Pre-petition diversion to informal resolution.
Before a juvenile petition is formally filed with the court,
the court may refer the matter to a state department worker or
probation officer for preliminary inquiry to determine whether
the matter can be resolved informally without the formal filing
of a petition with the court.
§49-5-3. Noncustodial counseling of a juvenile.
The court at any time, or the department or other official
upon a request from a parent, guardian or custodian, may, before
proceedings under this article are formally instituted by the
filing of a petition with the court, refer a juvenile alleged to
be delinquent or a status offender to a counselor at the
department or a community mental health center, or other professional counselor in the community. In the event the
juvenile refuses to respond to this referral, the department may
serve a notice by first class mail or personal service of process
upon the juvenile, setting forth the facts and stating that a
noncustodial order will be sought from the court directing the
juvenile to submit to counseling. The notice shall set forth the
time and place for the hearing on the matter. The court or
referee after a hearing may direct the juvenile to participate in
a noncustodial period of counseling that may not exceed six
months. Upon recommendation of the department or request by the
juvenile's parent, custodian or guardian, the court or referee
may allow or require the parent, custodian or guardian to
participate in this noncustodial counseling. No information
obtained as the result of this counseling is admissible in a
subsequent proceeding under this article.
§49-5-3a. Informal adjustment counseling by probation officer.
(a) Before a petition is formally filed with the court, the
probation officer or other officer of the court designated by it,
subject to its direction, may give counsel and advice to the
parties with a view to an informal adjustment if it appears:
(1) The admitted facts bring the case within the
jurisdiction of the court;
(2) Counsel and advice without an adjudication would be in
the best interest of the public and the juvenile; and
(3) The juvenile and his parents, guardian or other custodian consent thereto with knowledge that consent is not
obligatory.
(b) The giving of counsel and advice pursuant to this
section may not continue longer than six months from the day it
is commenced unless extended by the court for an additional
period not to exceed six months.
§49-5-4. Wards of the court.
A person under the age of eighteen years who appears before
the circuit court in proceedings under this article shall be
considered a ward of the court and protected accordingly. The
court or judge thereof may request the county health officer in
any county employing a full-time health officer to make a
physical and mental examination of the wards of the court as
defined in this section. The health officer shall, as promptly as
may be, furnish to the court or judge a written report of these
examinations on forms to be furnished to the health officer by
the court. In those counties not employing a full-time health
officer, the court or judge may designate a reputable physician
of the county to make mental and physical examinations pursuant
to this section and render written reports to the court. When
any such mental and physical examination is made and any such
report rendered, the state shall pay to the examining physician
a sum not to exceed ten dollars for each such mental and physical
examination, upon certification of the fact of such examination
by the court or the judge thereof.
§49-5-6. Jury trial under article.
In a proceeding under this article, the juvenile, the
juvenile's counsel or the juvenile's parent or guardian, or any
one of them may demand, or the judge of his or her own motion,
may order a jury of twelve persons to try any question of fact.
§49-5-7. Institution of proceedings by petition; notice to
juvenile and parents; subpoena.
(a) (1) A petition alleging that a juvenile is a status
offender or a juvenile delinquent may be filed by a person who
has knowledge of or information concerning the facts alleged.
The petition shall be verified by the petitioner, shall set forth
the name and address of the juvenile's parents, guardians or
custodians, if known to the petitioner, and shall be filed in the
circuit court in the county where the alleged status offense or
act of delinquency occurred:
Provided, That any proceeding under
this chapter may be removed, for good cause shown, in accordance
with the provisions of section one, article nine, chapter fifty- six of this code. The petition shall contain specific
allegations of the conduct and facts upon which the petition is
based, including the approximate time and place of the alleged
conduct; a statement of the right to have counsel appointed and
consult with counsel at every stage of the proceedings; and the
relief sought.
(2) Upon the filing of the petition, the court shall set a
time and place for a preliminary hearing as provided in section nine of this article and may appoint counsel. A copy of the
petition and summons may be served upon the respondent juvenile
by first class mail or personal service of process. If a
juvenile does not appear in response to a summons served by mail,
no further proceeding may be held until the juvenile is served a
copy of the petition and summons by personal service of process.
If a juvenile fails to appear in response to a summons served in
person upon him or her, an order of arrest may be issued by the
court for that reason alone.
(b) The parents, guardians or custodians shall be named in
the petition as respondents, and shall be served with notice of
the proceedings in the same manner as provided in subsection (a)
of this section for service upon the juvenile and required to
appear with the juvenile at the time and place set for the
proceedings unless such respondent cannot be found after diligent
search. If any such respondent cannot be found after diligent
search, the court may proceed without further requirement of
notice:
Provided, That the court may order service by first
class mail to the last known address of such respondent. The
respondent shall be afforded fifteen days after the date of
mailing to appear or answer.
(c) The court or referee may order the issuance of a
subpoena against the person having custody and control of the
juvenile ordering him or her to bring the juvenile before the
court or referee.
(d) When any case of a juvenile charged with the commission
of a crime is certified or transferred to the circuit court, the
court or referee shall forthwith cause the juvenile and his or
her parents, guardians or custodians to be served with a
petition, as provided in subsections (a) and (b) of this section.
In the event the juvenile is in custody, the petition shall be
served upon the juvenile within ninety-six hours of the time
custody began, and if the petition is not served within that
time, the juvenile shall be released forthwith.
(e) The clerk of the court shall promptly notify the
department of health and human resources of all proceedings under
this article.
§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, 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:
(A) Circumstances present an immediate threat of serious
bodily harm to the juvenile if released;
(B) No responsible adult can be found into whose custody the
juvenile can be delivered:
Provided, That each day the juvenile
is detained, a written record must be made of all attempts to
locate such a responsible adult; or
(C) The juvenile has been taken into custody for an alleged
act of delinquency for which secure detention is permissible.
(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 the juvenile, but only
in a nonsecure or staff-secure facility;
(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 custody of a sheriff or director of a detention facility, the
sheriff or director shall immediately notify the court or
juvenile referee. The sheriff or director 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 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 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. 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:
(A) Circumstances present an immediate threat of serious
bodily harm to the juvenile if released;
(B) No responsible adult can be found into whose custody the
juvenile can be delivered:
Provided, That each day the juvenile
is detained, a written record must be made of all attempts to
locate such a responsible adult; or
(C) The juvenile is charged with an act of delinquency for
which secure detention is permissible; and
(3) If the juvenile is an alleged status offender,
immediately notify the department of health and human resources,
and, if the circumstances of either paragraph (A) or (B),
subdivision (2) of this subsection exist and the requirements
therein are met, the court may order the juvenile detained, but only in a nonsecure or staff-secure facility. Any juvenile
detained pursuant to this subdivision shall be placed in the
legal custody of the department of health and human resources
pending further proceedings by the court.
(b) 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.
§49-5-9. Preliminary hearing; counsel; improvement period.
(a) Following the filing of a juvenile petition, unless a
preliminary hearing has previously been held in conjunction with
a detention hearing with respect to the same charge contained in
the petition, the circuit court or referee shall hold a
preliminary hearing. In the event that the juvenile is being
detained, the hearing shall be held within ten days of the time
the juvenile is placed in detention unless good cause is shown
for a continuance. If no preliminary hearing is held within ten
days of the time the juvenile is placed in detention, the
juvenile shall be released on recognizance unless the hearing has
been continued for good cause. If the judge is in another county
in the circuit, the hearing may be conducted in that other
county. The preliminary hearing may be waived by the juvenile,
upon advice of counsel. At the hearing, the court or referee
shall:
(1) If the juvenile is not represented by counsel, inform
the juvenile and his or her parents, guardian or custodian or any
other person standing in loco parentis to him or her of the
juvenile's right to be represented at all stages of proceedings
under this article and the right to have counsel appointed;
(2) Appoint counsel by order entered of record, if counsel
has not already been retained, appointed or knowingly waived;
(3) Determine after hearing if there is probable cause to
believe that the juvenile is a status offender or a juvenile
delinquent. If probable cause is not found, the juvenile, if in
detention, shall be released and the proceedings dismissed. If
probable cause is found, the case shall proceed to adjudication.
At this hearing or as soon thereafter as is practicable, the date
for the adjudicatory hearing shall be set to give the juvenile
and the juvenile's parents and attorney at least ten days'
notice, unless notice is waived by all parties;
(4) In lieu of placing the juvenile in a detention facility,
the court may place the juvenile in the temporary legal and/or
physical custody of the department. If the juvenile is detained,
the detention may not continue longer than thirty days without
commencement
of the adjudicatory hearing unless good cause for a
continuance is shown by either party or, if a jury trial is
demanded, no longer than the next regular term of the court:
Provided, That a juvenile who is alleged to be a status offender
may not be placed in a secure detention facility; and
(5) Inform the juvenile of the right to demand a jury trial.
(b) The juvenile may move to be allowed an improvement
period for a period not to exceed one year. If the court is
satisfied that the best interest of the juvenile is likely to be
served by an improvement period, the court may delay the
adjudicatory hearing and allow a noncustodial improvement period
upon terms calculated to serve the rehabilitative needs of the
juvenile. At the conclusion of the improvement period, the court
shall dismiss the proceeding if the terms have been fulfilled;
otherwise, the court shall proceed to the adjudicatory stage. A
motion for an improvement period may not be construed as an
admission or be used as evidence.
§49-5-11. Adjudication for alleged status offenders and
delinquents; mandatory initial disposition of status
offenders.
At the outset of an adjudicatory hearing, the court shall
inquire of the juvenile whether he or she wishes to admit or deny
the allegations in the petition. The juvenile may elect to stand
mute, in which event the court shall enter a general denial of
all allegations in the petition.
(a) If the respondent juvenile admits the allegations of the
petition, the court shall consider the admission to be proof of
the allegations if the court finds: (1) The respondent fully
understands all of his or her rights under this article; (2) the
respondent voluntarily, intelligently and knowingly admits all facts requisite for an adjudication; and (3) the respondent in
his or her admission has not set forth facts which constitute a
defense to the allegations.
(b) If the respondent juvenile denies the allegations, the
court shall dispose of all pretrial motions and the court or jury
shall proceed to hear evidence.
(c) If the allegations in a petition alleging that the
juvenile is delinquent are admitted or are sustained by proof
beyond a reasonable doubt, the court shall schedule the matter
for disposition pursuant to section thirteen of this article.
(d) If the allegations in a petition alleging that the
juvenile is a status offender are admitted or sustained by clear
and convincing proof, the court shall refer the juvenile to the
department of health and human resources for services, pursuant
to section eleven-a of this article and order the department to
report back to the court with regard to the juvenile's progress
at least every ninety days or until the court, upon motion or sua
sponte, orders further disposition under section eleven-a of this
article or dismisses the case from its docket.
(e) If the allegations in a petition are not sustained by
proof as provided in subsections (c) and (d) of this section, the
petition shall be dismissed and the juvenile shall be discharged
if he or she is in custody.
(f) Findings of fact and conclusions of law addressed to all
allegations in the petition shall be stated on the record or reduced to writing and filed with the record or incorporated into
the order of the court.
§49-5-11a. Status offenders: Intervention and services by state
department pursuant to initial disposition; enforcement;
further disposition; detention; out-of-home placement; state
department custody; least restrictive alternative; appeal.
(a) Services provided by the department for juveniles
adjudicated as status offenders shall be consistent with the
provisions of article five-b of this chapter and shall be
designed to develop skills and supports within families and to
resolve problems related to the juveniles or conflicts within
their families. Services may include, but are not limited to,
referral of juveniles and parents, guardians or custodians and
other family members to services for psychiatric or other medical
care, or psychological, welfare, legal, educational or other
social services, as appropriate to the needs of the juvenile and
his or her family.
(b) If necessary, the department may petition the circuit
court:
(1) For a valid court order, as defined in section four,
article one of this chapter, to enforce compliance with a service
plan or to restrain actions that interfere with or defeat a
service plan; or
(2) For a valid court order to place a juvenile out of home
in a nonsecure or staff-secure setting, and/or to place a juvenile in custody of the department.
(c) In ordering any further disposition under this section,
the court is not limited to the relief sought in the department's
petition and shall make every effort to place juveniles in
community-based facilities which are the least restrictive
alternatives appropriate to the needs of the juvenile and the
community.
(d) The disposition of the juvenile may not be affected by
the fact that the juvenile demanded a trial by jury or made a
plea of denial. Any order providing disposition other than
mandatory referral to the department for services is subject to
appeal to the supreme court of appeals.
(e) Following any further disposition by the court, the
court shall inquire of the juvenile whether or not appeal is
desired and the response shall be transcribed; a negative
response may 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 it is requested for purposes
of further proceedings. A judge may grant a stay of execution
pending further proceedings.
§49-5-12. Prosecuting attorney to represent petitioner.
The prosecuting attorney shall represent the petitioner in
all proceedings under this article before the court, referee or
magistrate having juvenile jurisdiction.
§49-5-13a. Examination, diagnosis and classification; period of custody.
As a part of the dispositional proceeding for a juvenile who
has been adjudicated delinquent, the court may, upon its own
motion or upon request of counsel, order the juvenile to be
delivered into the custody of the director of the division of
juvenile services, who shall cause the juvenile to be transferred
to a juvenile diagnostic center for a period not to exceed thirty
days. During this period, the juvenile shall undergo
examination, diagnosis, classification, and a complete medical
examination and shall at all times be kept apart from the general
juvenile inmate population in the director's custody. Not later
than thirty days after commitment pursuant to this section, the
juvenile shall be remanded and delivered to the custody of the
director, an appropriate agency or any other person that the
court by its order directs. Within ten days after the end of the
examination, diagnosis and classification, the director of the
division of juvenile services shall make or cause to be made a
report to the court containing the results, findings, conclusions
and recommendations of the director with respect to that
juvenile.
§49-5-13d. Teen court program.
(a) Notwithstanding any provision of this article to the
contrary, any juvenile who is alleged to have committed a status
offense or an act of delinquency which would be a misdemeanor if
committed by an adult, and who is otherwise subject to the provisions of this article may be given the option of proceeding
in a teen court program as an alternative to the filing of a
formal petition under section seven of this article or proceeding
to a disposition as provided by section eleven-a or thirteen of
this article, as the case may be. The decision to enter the teen
court program as an alternative procedure shall be made by the
circuit court, juvenile probation officer, the department and
parent, guardian or custodian of the juvenile:
Provided, That
before the option is extended, the circuit court first finds that
the offender is a suitable candidate for the program. Any
juvenile who does not successfully cooperate in and complete the
teen court program and any disposition imposed therein shall be
returned to the circuit court for further disposition as provided
by section eleven-a or thirteen of this article, as the case may
be.
(b) The teen court program shall be administered by the
governor's committee on crime, delinquency and correction.
(c) The following provisions apply to all teen court
programs:
(1) The judge for each teen court proceeding shall be an
acting or retired circuit court judge or an active member of the
West Virginia state bar, who serves on a voluntary basis. Bar
members shall be offered continuing legal education credit for
this service.
(2) Any juvenile who selects the teen court program as an alternative disposition shall agree to serve thereafter on at
least two occasions as a teen court juror.
(3) Volunteer students from grades seven through twelve of
the schools within the county shall be selected to serve as
defense attorney, prosecuting attorney, court clerk and bailiff
for each proceeding.
(4) Disposition in a teen court proceeding shall consist of
requiring the juvenile to perform sixteen to forty hours of
community service, the duration and type of which shall be
determined by the teen court jury from a standard list of
available community service programs provided by the county
juvenile probation system and a standard list of alternative
consequences which are consistent with the purposes of this
article. The performance of the juvenile shall be monitored by
the county juvenile probation system. The juvenile shall also
perform two sessions of teen court jury service, and, if
considered appropriate by the judge, participate in an education
program. Nothing in this section may be construed so as to deny
availability of the services provided under section eleven-a of
this article to juveniles who are otherwise eligible therefor.
(d) The rules for administration, procedure and admission of
evidence shall be determined by the chief circuit judge, but in
no case may the court require a juvenile to admit the allegation
against him or her as a prerequisite to participation in the teen
court program. A copy of these rules shall be provided to every teen court participant.
(e) Teen court programs operated pursuant to this section
are pilot projects to be utilized from the effective date of this
section until the first day of July, one thousand nine hundred
ninety-nine, in the circuit courts in three of the counties of
this state. The supreme court of appeals is to determine the
counties in which the pilot projects will be utilized based upon
its determination of those counties which have recently
experienced the most significant increases in the commission of
criminal and status offenses by juveniles.
§49-5-15. Juvenile probation officers; appointment; salary;
facilities; expenses; duties; powers.
(a) (1) Each circuit court, subject to the approval of the
supreme court of appeals and in accordance with the rules of the
supreme court of appeals, shall appoint one or more juvenile
probation officers and clerical assistants for the circuit. A
probation officer or clerical assistant may not be related by
blood or marriage to the appointing judge.
(2) The salary for juvenile probation officers and clerical
assistants shall be determined and fixed by the supreme court of
appeals. All expenses and costs incurred by the juvenile
probation officers and their staff shall be paid by the supreme
court of appeals in accordance with its rules. The county
commission of each county shall provide adequate office
facilities for juvenile probation officers and their staff. All equipment and supplies required by juvenile probation officers
and their staff shall be provided by the supreme court of
appeals.
(3) A juvenile probation officer may not be considered a
law-enforcement official under any provision of this chapter.
(b) The clerk of a court shall notify, if practicable, the
chief probation officer of the county, or his or her designee,
when a juvenile is brought before the court or judge for
proceedings under this article. When notified, or if the
probation officer otherwise obtains knowledge of such fact, he or
she or one of his or her assistants shall:
(1) Make investigation of the case; and
(2) Furnish information and assistance that the court or
judge may require.
§49-5-16a. Rules governing juvenile facilities.
The director of the division of juvenile services within the
department of military affairs and public safety shall propose
legislative rules for promulgation in accordance with the
provisions of article three, chapter twenty-nine-a of this code,
outlining policies and procedures governing the operation of
those correctional, detention, predispositional detention centers
and other facilities wherein juveniles may be housed. These
policies and procedures shall include, but are not 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. A juvenile in custody or detention
has, at a minimum, the following rights, and the policies
prescribed shall ensure that:
(1) A juvenile may not be punished by physical force,
deprivation of nutritious meals, deprivation of family visits or
imposition of solitary confinement;
(2) A juvenile shall be afforded an opportunity to
participate in physical exercise each day;
(3) Except for sleeping hours, a juvenile in a state
facility may not be locked alone in a room unless that juvenile
is not amenable to reasonable direction and control;
(4) A juvenile shall be provided with his or her own
clothing or individualized clothing which is clean and supplied
by the facility, and shall also be afforded daily access to
showers;
(5) A juvenile shall be afforded 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 juvenile's presence, without being
read, to inspect for contraband;
(6) A juvenile may make and receive regular local phone
calls without charge and long distance calls to his or her family
without charge at least once a week, and receive visitors daily and on a regular basis;
(7) A juvenile shall be afforded immediate access to medical
care as needed;
(8) A juvenile in a juvenile detention facility or juvenile
corrections facility shall be provided access to education,
including teaching, educational materials and books;
(9) A juvenile shall be afforded reasonable access to an
attorney upon request; and
(10) A juvenile shall be afforded a grievance procedure,
including an appeal mechanism.
Upon admission to a detention facility or juvenile
corrections facility, a juvenile shall be furnished with a copy
of the rights provided him or her by virtue of this section and
as further prescribed by rules proposed and promulgated pursuant
to this section.
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