SB725 SUB1
COMMITTEE SUBSTITUTE
FOR
Senate Bill No. 725
(By Senators Wooton, Craigo, Jackson, Walker,
White, Buckalew and Scott )
__________
[Originating in the Committee on the Judiciary;
reported March 6, 1998.]
__________
A BILL 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, fifteen and sixteen 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 pre-petition 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; 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as amended, be repealed; that sections one, two, three, three-a,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, fifteen and sixteen 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)
As used in this article, the term "Adult" means a
person who is at least eighteen years of age.
(b)
As used in this article, the term "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)
As used in this article, the term "Extrajudicial
statement" means any utterance, written or oral, which was made
outside of court.
(d)
As used in this article, the term "Juvenile"
shall have
has the same meaning as the term "child."
(e)
As used in this article, the term "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)
As used in this article, the term "Violation of a
traffic law of West Virginia" means a violation of any provision
of chapters seventeen-a, seventeen-b, seventeen-c or seventeen-d of this code except a violation of
chapter seventeen-c, article
four, sections one
and or two,
article four, chapter seventeen-c
(hit and run) or of
chapter seventeen-c, article five, sections
one (negligent homicide), two (driving under the influence of
alcohol, controlled substances or drugs) or three (reckless
driving) section one, article five of said chapter seventeen-c
(negligent homicide), section two of said article five (driving
under the influence of alcohol, controlled substances or drugs)
or section three of said article five (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
shall have 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
shall 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
shall be are liable for punishment for violations of
such these laws in the same manner as adults except that
magistrate courts
shall have no jurisdiction to impose a sentence
of incarceration for the violation of
such these laws.
(d) Notwithstanding any other provision of this article,
municipal courts
shall 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
such these violations as a circuit court exercising its juvenile
jurisdiction could properly impose, except that municipal courts
shall have no jurisdiction to impose a sentence of incarceration
for the violation of
such 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
adjudged neglected 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.
or
(3) By a warrant, capias or attachment which charges a
juvenile with an act of delinquency, is issued by a judge, referee or magistrate, and is returnable to the circuit court.
(f) If a juvenile commits an act which would be a crime if
committed by an adult, and the juvenile is
adjudged adjudicated
a delinquent for
such that act, the jurisdiction of the court
which adjudged the juvenile
a delinquent
shall continue continues
until the juvenile becomes twenty-one years of age. The court
shall have has the same power over
the that person that it had
before he or she became an adult, and
shall have has the further
power to sentence
the that person to a term of incarceration:
which cannot Provided, That any such term of incarceration may
not exceed six months. This authority
shall not does not
preclude the court from exercising criminal jurisdiction over
the
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
shall be is entitled to be admitted to bail
or recognizance in the same manner as an adult and shall
have be
afforded the protection guaranteed by Article III of the West
Virginia Constitution.
(h) A juvenile
shall have 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
parents parent or custodian executes an affidavit showing that
the juvenile cannot afford an attorney, the court shall appoint
an attorney, who
will 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
have 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
such 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
applicable 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
shall apply,
including the rule against written reports based upon hearsay.
(l)
Except for res gestae, extrajudicial statements
other than res gestae, which were made by a juvenile
under who has not
attained fourteen years of age to law-enforcement officials or
while in custody
shall not be are not admissible unless
such
those statements were made in the presence of the juvenile's
counsel.
Except for res gestae, extrajudicial statements
other
than res gestae, which were made by a juvenile who
is under has
not attained sixteen years of age but
above the age of who is at
least thirteen
years of age to law-enforcement officers or while
in custody,
shall not be 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,
who
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
any hearing 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,
without
institution of 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
such reference 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
the department will seek 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
to exceed six months. Upon
recommendation of the department
or request by the juvenile's parent, custodian or guardian, and with the consent of the
juvenile's parent, custodian, or guardian, the court or referee
may
also allow
or require the
participation of such parent,
custodian or guardian
to participate in
said this noncustodial
counseling. No information obtained as the result of
such this
counseling
shall be 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
child juvenile; and
(3) The
child 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 cannot extend beyond 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
any capacity proceedings under this article
shall be
deemed to be considered a ward of the court and
protected accordingly.
Such The court or judge thereof
shall
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.
Such The health officer shall, as promptly as may be, furnish to
the court or judge a written report of
such these examinations on
forms to be furnished to
said 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
such mental and physical examinations
pursuant to this
section and render
such 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,
an interested person 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
child juvenile is a
status
offender or a juvenile delinquent
child 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
child's juvenile's parents, guardians
or custodians,
if known to the petitioner,
unless the petitioner
is the natural parent, guardian or custodian 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 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 filing of a petition. 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
child juvenile by first class mail or personal service of process. If
a
child juvenile does not appear in response to a summons served
by mail, no further proceeding may be held until the
child
juvenile is served a copy of the petition and summons by personal
service of process. If
such a child 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
child juvenile and required
to appear with the
child juvenile at the time and place set for
the proceedings unless such respondent cannot be found after
diligent search. If any such respondent cannot be found after
diligent search, the court may proceed without further
requirement of notice:
Provided, That the court may order
service by first class mail to the last known address of such
respondent. The respondent shall
have 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
child juvenile ordering him or her to bring the
child juvenile
before the court or referee.
(d) When any case of a
child juvenile charged with the
commission of a crime is certified or transferred to the circuit court,
or brought before the court by warrant pursuant to section
two of this article, the court or referee shall forthwith cause
the
child 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
child
juvenile is in custody, the petition shall be served upon the
child juvenile within ninety-six hours of the time custody began,
or and if the petition is not served within that time, the
child
juvenile shall be released
from custody forthwith.
(e) The clerk of the court shall promptly notify the
state
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 may
enter issue an order
directing that a juvenile be taken into custody
before
adjudication only
if upon a showing of probable cause to believe
that one of the following conditions
exist 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
an alleged
to be a juvenile delinquent
and
has 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
by the judge, juvenile referee
or magistrate authorized to conduct such hearing, and in no event
shall the may any delay exceed the next day.
and such juvenile
shall be released on recognizance to his or her parent, guardian
or custodian unless findings are made as specified in subsection
(a) of section eight-a of this article.
(b) Absent a
warrant or court order, a juvenile may be taken
into custody by a law-enforcement official only if one of the
following conditions
exist 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
warrant or court order, the official shall:
(1) Immediately notify the juvenile's parent, guardian,
custodian or, if the parent, guardian or custodian cannot be
located, a close relative;
(2) Release the juvenile into the custody of his or her
parent, guardian or custodian unless:
the circumstances warrant
otherwise: Provided, That an alleged status offender shall not
be detained in a secure facility in any case and in a staff- secure facility only if:
(A) Circumstances present an immediate threat of serious
bodily harm to the juvenile if released;
or
(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;
and, after the initial
detention, a lawyer shall be appointed to represent the juvenile
by the end of the next calendar day;
(3) Refer the matter to the prosecuting attorney, department
or probation officer for proceedings under this article; and
(4) If a juvenile is being held in custody absent a warrant
or court order, cause a warrant or order, as the case may be, to
be immediately issued authorizing the detention of such juvenile.
(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.
An alleged status offender detained pursuant to paragraphs
(A) and (B) of subdivision (2) herein shall be placed in the
custody of the department.
(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) If an alleged status offender is taken into custody
pursuant to this section, the department shall be immediately.
notified. Such child shall be placed in the custody of the
department and shall not be confined in a secure facility.
(e) (d) In the event that a
child juvenile is delivered into
the custody of a sheriff or director of a detention facility,
such the sheriff or director shall immediately notify the court
or
juvenile referee.
Said The sheriff or director shall
immediately provide to every
child juvenile who is delivered into
his or her custody a written statement explaining the
child's
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
child juvenile is delivered
into
a sheriff's or detention center director's custody,
the
child shall be released that official shall release the juvenile
to his or her parent, guardian or custodian by the end of the
next day
after being delivered into such custody, unless the
child juvenile has been placed in detention
after a hearing
conducted pursuant to section eight-a of this article.
(f) A child in custody must immediately be taken before a
referee or judge of the circuit court and in no event shall a
delay exceed the next day: Provided, That if there be no judge
or referee then available in the county, then such child shall be
taken immediately before any magistrate in the county for the
sole purpose of holding a detention hearing.
§49-5-8a. Detention hearing; counsel.
(a) The judge,
juvenile referee or magistrate shall inform
the juvenile of his or her right to remain silent, that any
statement may be used against him or her and of his or her right
to counsel, and no interrogation
shall 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
shall
be is whether the juvenile
shall should be detained pending
further court proceedings. The court shall,
if advisable, and 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; or
(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; 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) of
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:
five of this chapter: Provided, That all parties are prepared to
proceed and the juvenile has counsel during such hearing.
§49-5-9. Preliminary hearing; counsel; improvement period.
(a) Following the filing of a juvenile petition, unless a
preliminary hearing has previously been held in conjunction with
a detention hearing with respect to the same charge contained in
the petition, the circuit court or referee shall hold a
preliminary hearing. In the event that the juvenile is
in
custody, such being detained, the hearing shall be held within
ten days of the time the juvenile is
taken into custody placed in
detention unless good cause
be is shown for a continuance. If no
preliminary hearing is held within ten days of the time the
juvenile is
taken into custody 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
such that other
county. The preliminary hearing may be waived by the juvenile, upon advice of
his 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
the 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,
when bond is not provided, the court may place the juvenile in
the temporary
legal and/or physical custody of the department.
pursuant to section sixteen, article two of this chapter or may
place the juvenile, if the juvenile is an alleged delinquent, in
the custody of a probation officer. If the juvenile is detained,
in custody, the detention
shall may not continue longer than thirty days without commencement
of the adjudicatory hearing
unless good cause for a continuance
be is shown by either party
or, if a jury trial
be is demanded, no longer than the next
regular term of
said 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
shall 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
for status offenders 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
juveniles
juvenile and
the 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
shall not be 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
juvenile proceedings
under this article before the court,
referee or magistrate having juvenile jurisdiction.
§49-5-13a. Examination, diagnosis and classification; period of
custody.
After adjudication 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,
may order the
child juvenile to be delivered into the custody of
the
commissioner of corrections director of the division of
juvenile services, who shall cause
such child the juvenile to be
forthwith transferred to a juvenile diagnostic center for a
period not to exceed thirty days. During
such this period,
such
child the juvenile shall undergo examination, diagnosis,
classification, and a complete medical examination and shall at
all times be kept
in an area wholly segregated apart from the
general juvenile inmate population in the
director's custody.
of
the commissioner of corrections Not later than thirty days after
commitment pursuant to this section,
such the juvenile shall be
remanded and delivered to the custody of
the juvenile probation
officer of the county wherein the child was adjudicated
delinquent or to the custody of such the director, an appropriate agency or any other person
as that the court
shall direct by its
order
directs. Within ten days
following the termination after
the end of
such the examination, diagnosis and classification,
the
commissioner of corrections 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
commissioner director with respect to
such
child that juvenile.
§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
shall may not be related
by
consanguinity or affinity blood or marriage to
any the
appointing judge.
of the appointing court.
(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
shall 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
child 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
such information and assistance
as that the
court or judge may require.
and
(3) Take charge of the child before and after the trial, as
may be directed by the court or judge.
§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
prescribe
written propose legislative rules
subject to the provisions of
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.
Said These policies
and procedures shall include, but
shall not be 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.
On and after the
first day of January, one thousand nine hundred seventy-nine, a
child A juvenile in custody or detention
shall have has, at a
minimum, the following rights, and the policies prescribed shall
ensure that:
(1) A
child shall juvenile may not be punished by physical
force, deprivation of nutritious meals, deprivation of family
visits or
imposition of solitary confinement;
(2) A
child juvenile shall
have the be afforded an
opportunity to participate in physical exercise each day;
(3) Except for sleeping hours, a
child juvenile in a state
facility
shall may not be locked alone in a room unless
such
child that juvenile is
out of control not amenable to reasonable
direction and control;
(4) A
child 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
child juvenile shall
haven 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
child's juvenile's
presence, without being read, to inspect for contraband;
(6) A
child 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
child juvenile shall
have be afforded immediate access
to medical care as needed;
(8) A
child juvenile in a juvenile detention facility or
state institution juvenile corrections facility shall be provided
access to education, including teaching, educational materials
and books;
(9) A
child juvenile shall
have be afforded reasonable
access to an attorney upon request; and
(10) A
child juvenile shall be afforded a grievance
procedure, including an appeal mechanism.
Upon admission to a
jail, detention facility or
institution
juvenile corrections facility, a
child 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.
Email
Webmaster | © 2024 West Virginia Legislature **
