H. B. 2873
(By Delegates Amores, Givens, Buchanan, Coleman, Johnson,
Smirl, L. White)
(Originating in the Committee on the Judiciary)
[March 31, 1997]
A BILL to repeal section five, article one, chapter forty-nine
of the code of West Virginia, one thousand nine hundred
thirty-one, as amended; to repeal sections six and seven,
article five-b of said chapter; to amend and reenact
sections two and four, article one of said chapter; to amend
and reenact sections three, eight, nine, eleven, thirteen
and sixteen, article five of said chapter; to further amend
said article by adding thereto two new sections, designated
sections eight-a and eleven-a; and to amend and reenact
sections one, two, three, four and five, article five-b of
said chapter, all relating to changing the definitions of
juvenile delinquent and status offender; providing that a
status offender may be taken into custody; providing when
a juvenile custody hearing shall be held; providing that a
status offender shall not be detained except under specific
circumstances; providing that the department of health and
human resources shall be immediately notified if an alleged
status offender is taken into custody and that the child
shall be placed in the care of the department; providing that a status offender shall not be confined in a secure facility; providing circumstances when a status offender
shall be referred to the department of health and human
resources for services; providing that the department may
petition the court for a valid court order to enforce
compliance with a service plan or to place a juvenile in
certain settings; providing that status offenders who
violate a valid court order may be placed in secure
facilities following a review and report by the department;
providing that no juvenile shall be confined in a facility
for adult offenders; and providing that juveniles may be
transferred to secure adult facilities after age eighteen.
Be it enacted by the Legislature of West Virginia:
That section five, article one, chapter forty-nine of the
code of West Virginia, one thousand nine hundred thirty-one, as
amended, be repealed; that sections six and seven, article five-b
of said chapter be repealed; that sections two and four, article
one of said chapter be amended and reenacted; that sections
three, eight, nine, eleven, thirteen and sixteen, article five of
said chapter be amended and reenacted; that said article be
further amended by adding thereto two new sections, designated
sections eight-a and eleven-a; and that sections one, two, three,
four and five, article five-b of said chapter be amended and
reenacted, all to read as follows:
ARTICLE 1. Purposes; Definitions.
§49-1-2. "Juvenile" or
"Child" defined.
As used in this chapter, "juvenile" or "child" means any
person under eighteen years of age. Once a child juvenile is
transferred to a court with criminal jurisdiction pursuant to section ten, article five of this chapter, he or she nevertheless
remains a child juvenile for the purposes of the applicability of
the provisions of this chapter with the exception of sections one
through seventeen of article five of this chapter, unless
otherwise stated therein.
§49-1-4. "Delinquent child" defined. Other definitions.
"Delinquent child" means a child:
(1) Who commits an act which would be a crime under state
\law or a municipal ordinance if committed by an adult,
punishable by confinement in a jail or imprisonment;
(2) Who commits an act designated a crime under a municipal
ordinance or state law not punishable by confinement in a jail or
imprisonment;
(3) Who, without just cause, habitually and continually
refuses to respond to the lawful supervision by such child's
parents, guardian or custodian;
(4) Who is habitually absent from school without good cause;
or
(5) Who willfully violates a condition of a probation order
or a contempt order of any court.
As used in this chapter:
(1) "Child welfare agency" means any agency or facility
maintained by the state or any county or municipality thereof, or
any agency or facility maintained by an individual, firm,
corporation, association or organization, public or private, to
receive children for care and maintenance or for placement in
residential care facilities;
(2) "Community based," when referring to a facility, program, or service means located near the juvenile's home or
family and involving community participation in planning,
operation, and evaluation, and which may include, but is not
limited to medical, educational, vocational, social and
psychological guidance, training, special education, counseling,
alcoholism and any treatment, and other rehabilitation services;
(3)
"Court" means the circuit court of the county with
jurisdiction of the case or the judge thereof in vacation unless
otherwise specifically provided;
(4) "Custodian"
means a person who has or shares actual
physical possession or care and custody of a child, regardless of
whether such person has been granted custody of the child by any
contract, agreement or legal proceedings;
(5) "Department" or "state department" means the state
department of health and human resources;
(6) "Guardian"
means a person who has care and custody of a
child as a result of any contract, agreement or legal proceeding
;
(7) "Juvenile delinquent"
means a juvenile who commits an
act which would be a crime under state law or a municipal
ordinance if committed by an adult;
(8) "Nonsecure facility" means any public or private
residential facility not characterized by construction fixtures
designed to physically restrict the movements and activities of
individuals held in lawful custody in such facility and which
provides its residents access to the surrounding community with
supervision;
(9) "Referee"
means a juvenile referee appointed pursuant to
section one, article five-a of this chapter, except that in any county which does not have a juvenile referee the judge or judges
of the circuit court may designate one or more magistrates of the
county to perform the functions and duties which may be performed
by a referee under this chapter;
(10) "Secretary" means the secretary of health and human
resources;
(11) "Secure facility" means any public or private
residential facility which includes construction fixtures
designed to physically restrict the movements and activities of
juveniles or other individuals held in lawful custody in such
facility;
(12) "Status offender" means a juvenile:
(A) Who habitually and continually refuses to respond to the
lawful supervision by his or her parents, guardian or legal
custodian such that the child's behavior substantially endangers
the health, safety, or welfare of the juvenile or any other
person;
(B) Who has left the care of his or her parents, guardian or
legal custodian without the consent of such person or without
good cause;
(C) Who is habitually absent from school without good cause;
or
(D) Who violates any West Virginia municipal, county, or
state law regarding use of alcoholic beverages by minors;
(13) "Valid court order" means a court order given to a
juvenile who was brought before the court and made subject to
such order, and who received, before the issuance of such order, the full due process rights guaranteed to such juvenile by the
constitutions of the United States and the state of West
Virginia.
ARTICLE 5. JUVENILE PROCEEDINGS.
§49-5-3. Noncustodial counseling of a child.
The court at any time, or the state department or other
official upon a request from a parent, guardian, or custodian,
may, without institution of proceedings under this article,
refer a child juvenile alleged to be delinquent or a status
offender to a counselor at the state department or a community
mental health center, residential treatment facility or other
professional counselor in the community. In the event the child
juvenile refuses to respond to such reference the state
department may serve a notice by first-class mail or personal
service of process upon the child juvenile, setting forth the
facts and stating that the department will seek a noncustodial
order from the court directing the child 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 hearing
may direct the child juvenile to participate in a noncustodial
period of counseling not to exceed six months. Upon
recommendation of the department, and with the consent of the
child's juvenile's parent, custodian, or guardian, the court or
referee may also allow the participation of such parent,
custodian, or guardian in said counseling. No information
obtained as the result of such counseling shall be admissible in
a subsequent proceeding under this article except a dispositional proceeding.
§49-5-8. Taking a
child juvenile into custody; detention
hearing; counsel.
(a) In proceedings instituted by the filing of a juvenile
petition the circuit court may enter an order directing that a
child juvenile be taken into custody only if one of the following
conditions exist: (1) The petition shows that grounds exist for
the arrest of an adult in identical circumstances; (2) the
health, safety and welfare of the child juvenile demand such
custody; (3) the child juvenile is a fugitive from a lawful
custody or commitment order of a juvenile court; or (4) the
child juvenile is an alleged delinquent and has a record of
willful failure to appear at juvenile proceedings, and custody is
necessary to assure his or her presence before the court; or (5)
the juvenile is a status offender. A detention hearing pursuant
to section eight-a of this article shall be held without delay by
the judge, juvenile referee or magistrate authorized to conduct
such hearing, and in no event shall the delay exceed the next
succeeding judicial day, excluding Saturday, and such child
juvenile shall be released on recognizance to his or her parent,
guardian or custodian unless findings are made as specified in
subsection (d) of this section (a) of section eight-a of this
article.
(b) Absent a warrant or court order, a child juvenile may be
taken into custody by a law-enforcement official only if one of
the following conditions exist: (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 child juvenile; (3) the
official has reasonable grounds to believe that the child
juvenile is a runaway without just cause from the child's has
left the care of his or her parents, guardian, or legal custodian
without the consent of such person, and the health, safety and
welfare of the child juvenile is endangered; (4) the child
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 child juvenile to have been driving a motor
vehicle with any amount of alcohol in his or her blood; or (6)
the juvenile is a status offender.
(c) Except as is otherwise provided in section six-a,
article five, chapter seventeen-c of this code, Upon taking a
child juvenile into custody, with or without a warrant or court
order, the official shall:
(i) (1) Immediately notify the child's juvenile's parent,
guardian, custodian or, if the parent
, guardian or custodian
cannot be located, a close relative;
(ii) (2) Release the child juvenile into the custody of his
or her parent, guardian or custodian unless the circumstances
warrant otherwise: Provided, That a status offender shall not be
detained 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 responsible adult and, after the initial detention,
a lawyer must be appointed to represent the juvenile;
(iii) (3) Refer the matter to the prosecuting attorney,
state division department or probation officer for proceedings
under this article; and
(iv) (4) If a child juvenile is being held in custody absent
a warrant or court order, cause a warrant, petition or order, as
the case may be, to be immediately issued authorizing the
detention of such child juvenile.
A status offender detained pursuant to paragraphs (A) and
(B) of subdivision (2) herein shall be placed in the care of the
department.
(d) If a child an alleged status offender is taken into
custody pursuant to subdivision (2) or (3) hereunder this
section
, the state division department shall be immediately
notified. Any child taken into custody as a runaway pursuant to
these sections shall not be held in custody more than forty-eight
hours without a court order, or more than seven days in any
event. Such child shall be placed in t
he care of the department
and shall not be confined in any a secure facility wherein
persons are being detained for an offense which would be a crime
if committed by an adult.
(c) (e) In the event that a child is delivered into the
custody of a sheriff or director of a detention facility, such
sheriff or director shall immediately notify the court or
referee. Said sheriff or director shall immediately provide to every child who is delivered into his or her custody a written
statement explaining the child's right to a prompt detention
hearing, his or her right to counsel including appointed counsel
if he cannot afford counsel and his or her privilege against
self-incrimination. In all cases when a child is delivered into
custody, the child shall be released to his or her parent,
guardian or custodian by the end of the next succeeding judicial
day, excluding Saturday, after being delivered into such custody,
unless the child has been placed in detention pursuant to
subsection (d) of this section section eight-a of this article.
(d) 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 succeeding judicial 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.
The judge, referee or magistrate shall inform the child 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 be made without the presence of a parent or
counsel. If the child 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 child 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 whether the child shall be detained pending further court proceedings. The court shall,
if advisable, and if the health, safety and welfare of the child
will not be endangered thereby, release the child 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 judge of the circuit court or referee may, in
conjunction with the detention hearing, conduct a preliminary
hearing pursuant to section nine, article five of this chapter:
Provided,
That all parties are prepared to proceed and the child
has counsel during such hearing.
(a)
The judge, 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 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 whether the juvenile shall 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.
(b) The judge of the circuit court or referee may, in
conjunction with the detention hearing, conduct a preliminary
hearing pursuant to section nine, 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 child juvenile is in
custody, such hearing shall be held within ten days of the time
the child juvenile is taken into custody unless good cause be
shown for a continuance. If no preliminary hearing is held
within ten days of the time the child juvenile is taken into
custody, the child 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 other county. The preliminary hearing may be
waived by the child juvenile, upon advice of his counsel. At the
hearing, the court or referee shall:
(1) If the child juvenile is not represented by counsel, inform the child juvenile and his parents, guardian or custodian
or any other person standing in loco parentis to him of the
child's 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 child juvenile is a status offender or a
juvenile delinquent child. If probable cause is not found, the
child juvenile, if in detention, shall be released and the
proceedings dismissed. If probable cause is found, the case
shall proceed to adjudication. At the hearing or as soon
thereafter as is practicable, the date for the adjudicatory
hearing shall be set to give the child , juvenile, the child's
juvenile's parents and attorney at least ten days' notice, unless
notice is waived by all parties.
(4) In lieu of placing the child in a detention facility
when bond is not provided, the court may place the child juvenile
in the temporary custody of the state department pursuant to
section sixteen, article two of this chapter or may place the
child juvenile, if the juvenile is an alleged delinquent, in the
custody of a probation officer.
If the child juvenile is detained in custody, the detention
shall not continue longer than thirty days without commencement
of the adjudicatory hearing unless good cause for a continuance
be shown by either party or, if a jury trial be demanded, no longer than the next regular term of said court.
(5) Inform the child juvenile of the right to demand a jury
trial.
(b) The child 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 child 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
child 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 not be construed
as an admission or be used as evidence.
§49-5-11. Adjudication.
At the outset of an adjudicatory hearing, the court shall
inquire of the child juvenile whether he wishes to admit or deny
the allegations in the petition. The child 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 child 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 his rights under this article, (2) the
respondent voluntarily, intelligently and knowingly admits all
facts requisite for an adjudication and (3) the respondent in his
admission has not set forth facts which constitute a defense to the allegations.
(b) If the respondent child 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 the 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.
;otherwise the petition shall be dismissed and the child
discharged from custody.
(d) If the allegations in a petition alleging that the
juvenile is a status offender are admitted or sustained by proof
beyond a reasonable doubt, the court shall refer the juvenile to
the Department of Health and Human Resources for services,
pursuant to section eleven-a of this article.
(e) If the allegations in a petition are not sustained by
proof beyond a reasonable doubt, 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; enforcement; detention; out-of-home placement; state
department custody; least restrictive alternative.
(a) Services for status offenders provided by the department
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 and the 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 setting, and/or to place a juvenile in custody of
the department.
(c) The court shall not be 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) Status offenders shall not be placed in secure
facilities: Provided, That status offenders who violate a valid
court order may be placed in secure facilities pursuant to
subsection (e) herein.
(e) If a juvenile violates a valid court order pursuant to
subdivision (1) of this subsection, the court may order placement
of the juvenile in a secure detention facility, after a hearing, only if the department has:
(1) Reviewed the behavior of such juvenile and the
circumstances under which such juvenile was brought before the
court and made subject to such order;
(2) Determined the reasons for the behavior that caused such
juvenile to be brought before the court and made subject to such
order;
(3) Determined that all dispositions (including treatment),
other than placement in a secure detention facility or a secure
correctional facility, have been exhausted or are clearly
inappropriate; and
(4) Submitted to the court a written report stating the
results of the review conducted under subdivision (1) of this
subsection and the determinations made under subdivisions (2) and
(3) of this subsection.
§49-5-13. Disposition of juvenile delinquents; appeal.
(a) In aid of disposition of juvenile delinquents, the
juvenile probation officer assigned to the court shall, upon
request of the court, make an investigation of the environment of
the child juvenile and the alternative dispositions possible.
The court, upon its own motion, or upon request of counsel, may
order a psychological examination of the child juvenile. The
report of such examination and other investigative and social
reports shall not be made available to the court until after the
adjudicatory hearing. Unless waived, copies of the report shall
be provided to counsel for the petitioner and counsel for the
child juvenile no later than seventy-two hours prior to the
dispositional hearing.
(b) Following the adjudication, the court shall conduct the
dispositional proceeding, giving all parties an opportunity to be
heard. In disposition the court shall not be limited to the
relief sought in the petition and shall, in electing from the
following alternatives, consider the best interests of the child
juvenile and the welfare of the public:
(1) Dismiss the petition;
(2) Refer the child juvenile and the child's juvenile's
parent or custodian to a community agency for needed assistance
and dismiss the petition;
(3) Upon a finding that the child juvenile is in need of
extra-parental supervision: (A) Place the child juvenile under
the supervision of a probation officer of the court or of the
court of the county where the child juvenile has his or her usual
place of abode or other person while leaving the child juvenile
in custody of his or her parent or custodian; and (B) prescribe
a program of treatment or therapy or limit the child's juvenile's
activities under terms which are reasonable and within the
child's ability to perform, including participation in the litter
control program established pursuant to section twenty-five,
article seven, chapter twenty of this code, or other appropriate
programs of community service;
(4) Upon a finding that a parent or custodian is not willing
or able to take custody of the child juvenile, that a child
juvenile is not willing to reside in the custody of his parent or
custodian, or that a parent or custodian cannot provide the
necessary supervision and care of the child juvenile, the court
may place the child juvenile in temporary foster care or
temporarily commit the child juvenile to the state department or a child juvenile welfare agency. The court order shall state
that continuation in the home is contrary to the best interest of
the child juvenile and why; and whether or not the state
department made a reasonable effort to prevent the placement or
that the emergency situation made such efforts unreasonable or
impossible. 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
juvenile or the welfare of the public require it, and upon an
adjudication of delinquency pursuant to subdivision (1), section
four, article one of this chapter, the court may commit the child
juvenile to an industrial home, correctional institution for
children juveniles, 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 juvenile and why; and whether or not the state department
made a reasonable effort to prevent the placement or that the
emergency situation made such efforts unreasonable or impossible;
(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) (6) After a hearing conducted under the procedures set
out in subsections (c) and (d), section four, article five,
chapter twenty-seven of this code, commit the child juvenile to
a mental health facility in accordance with the child's
juvenile's treatment plan; the director may release a child
juvenile 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 juvenile and why; and whether
or not the state department made a reasonable effort to prevent
the placement or that the emergency situation made such efforts
unreasonable or impossible.
(c) The disposition of the child juvenile shall not be
affected by the fact that the child juvenile demanded a trial by
jury or made a plea of denial. Any dispositional order is
subject to appeal to the supreme court of appeals.
(d) Following disposition, it shall be inquired of the
respondent whether or not appeal is desired and the response 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 juvenile or his or her counsel,
if the same is requested for purposes of further proceedings. A
judge may grant a stay of execution pending further proceedings.
(e) Notwithstanding any other provision of this code to the
contrary, if a child juvenile charged with delinquency under this
chapter is transferred to adult jurisdiction and there tried and
convicted, the court may make its disposition in accordance with
this section in lieu of sentencing such person as an adult.
§49-5-16. Committing children to jail and detention facilities;
standards. Prohibition on committing juveniles to
adult facilities.
(a) A child under eighteen years of age shall not be
committed to a jail or police station, except that any child over
fourteen years of age who has been committed to an industrial
home or correctional institution may be held in the juvenile
department of a jail while awaiting transportation to the
institution for a period not to exceed ninety-six hours, and a
child over fourteen years of age who is charged with a crime
which would be an offense of violence which would be a felony if
committed by an adult, may, upon an order of the circuit court,
be housed in a juvenile detention portion of a county facility,
but not within sight of adult prisoners. A child charged with or
found to be delinquent solely under subdivision (3), (4) or (5),
section four, article one of this chapter, shall not be housed in
a detention or other facility wherein persons are detained for
criminal offenses or for delinquency involving offenses which would be crimes if committed by an adult: Provided, That a child
who is adjudicated delinquent under subdivision (5) of said
section and who has violated an order of probation or a contempt
order arising out of a proceeding wherein the child was
adjudicated delinquent for an offense which would be a crime if
committed by an adult may not be housed in a detention or other
facility wherein persons are detained who have not been
adjudicated delinquent for such offenses.
(b) No child who has been convicted of an offense under the
adult jurisdiction of the circuit court shall be held in custody
in a penitentiary of this state: Provided, That such child may
be transferred from a secure juvenile facility to a penitentiary
after he shall attain the age of eighteen years if, in the
judgment of the court which committed such child, such transfer
is appropriate: Provided, however, That any other provision of
this code to the contrary notwithstanding, prior to such transfer
the child shall be returned to the sentencing court for the
purpose of reconsideration and modification of the imposed
sentence, which shall be based upon a review of all records and
relevant information relating to the child's rehabilitation since
his conviction under the adult jurisdiction of the court.
No juvenile, including one who has been transferred to
criminal jurisdiction of the court, shall be detained or confined
in any institution in which he or she has contact with adult
persons incarcerated because they have been convicted of a crime
or are awaiting trial on criminal charges or with the security
staff (including management) or direct-care staff of a jail or locked facility for adults.
However, a juvenile may be
transferred from a secure juvenile facility to a secure adult
facility after he or she attains the age of eighteen.
ARTICLE 5B. WEST VIRGINIA JUVENILE OFFENDER REHABILITATION ACT.
§49-5B-1. Short title.
This article shall be known and cited as the "West Virginia
Juvenile Offender Rehabilitation Act."
§49-5B-2.
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 juvenile
delinquents and status offenders. It is further the intent of
the Legislature that this state, through the department of
welfare health and human resources, establish, maintain, and
continuously refine and develop, a balanced and comprehensive
state program for children juveniles who are potentially
delinquent or are delinquent other than those children committed
to the custody of the department of corrections status offenders
or juvenile delinquents in the care or custody of the department.
§49-5B-3. Definitions.
For the purposes of this article:
(1) "Juvenile offender" means an individual subject to the
exercise of juvenile court jurisdiction for purposes of
adjudication and treatment as a delinquent.
(2) "Criminal-type offender" means a juvenile who has been charged with delinquency or adjudicated a delinquent for conduct
which would be a crime if committed by an adult.
(3) "Status offender" means a juvenile who has been charged
with delinquency or adjudicated a delinquent for conduct which
would not be a crime if committed by an adult
(4) "Accused juvenile offender" means a juvenile with
respect to whom a petition has been filed in the juvenile court
alleging that such juvenile is a criminal-type offender or is a
status offender and no final adjudication has been made by the
juvenile court.
(5) "Adjudicated juvenile offender" means a juvenile whom
the juvenile court has determined is a criminal-type offender or
is a status offender
.
(6) "Facility" means a place, an institution, a building or
part thereof, set of buildings or an area whether or not
enclosing a building or set of buildings which is used for the
lawful custody and treatment of juveniles and may be owned or
operated by public or private agencies.
(7)"Secure facility" means a facility which is designed and
operated so as to ensure that all entrances and exits from such
facility are under the exclusive control of the staff of such
facility, whether or not the person being detained has freedom of
movement within the perimeter of the facility, or which relies on
locked rooms and buildings, fences or physical restraint in order
to control behavior of its residents.
(8) (7) "Nonsecure facility" means a facility not
characterized by use of physically restricting construction, hardware and procedures and which provides its residents access
to the surrounding community with minimal supervision.
(9) "Community-based" when used to describe a facility,
program or service means a small, open group home or other
suitable place located near the juvenile's home or family, and
programs of community supervision and service which maintain
community participation in the planning, operation and evaluation
of their programs which may include, but are not limited to,
medical, educational, vocational, social and psychological
guidance, training, counseling, alcoholism treatment, drug
treatment and other rehabilitative services.
(10) "Lawful custody" means the exercise of care,
supervision and control over a juvenile offender or nonoffender
pursuant to the provisions of the law or of a judicial order or
decree.
(11) "Exclusively," when used to describe the population of
a facility, means that the facility is used only for a
specifically described category of juvenile to the exclusion of
all other types of juveniles.
(12) "Temporary resident" means a status offender
temporarily residing in a rehabilitative facility awaiting court
action in a detention hearing, adjudicatory hearing, or a
dispositional hearing.
§49-5B-4. §49-5B-2. Responsibilities of the department of
health and human resources.
(a) The department of health and human resources is
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 status
offenders, juvenile delinquents and other youth to help prevent
delinquency;
(4) Projects designed to develop and implement programs
stressing advocacy activities aimed at improving services for
and protecting rights of youth impacted by the juvenile justice
system;
(5) Educational programs or supportive services designed to
keep delinquents, and to encourage status offenders, juvenile
delinquents, and other youth to remain in elementary and
secondary schools or in alternative learning situations;
(6) Expanded use of professional and paraprofessional
personnel and volunteers to work effectively with youth;
(7) Youth initiated programs and outreach programs designed
to assist youth who otherwise would not be reached by traditional
youth assistance programs;
(8) A statewide program designed to reduce the number of
commitments of juveniles to any form of juvenile facility as a
percentage of the state juvenile population, to increase the use
of nonsecure community-based facilities as a percentage of total
commitments to juvenile facilities and to discourage the use of
secure incarceration and detention.
(b) The department of health and human resources shall
establish, within the funds available, an individualized program
of rehabilitation for each status offender referred to the
department and to each accused alleged juvenile offender
delinquent referred to the department after being allowed an
improvement period by the juvenile court, and for each
adjudicated juvenile offender delinquent who, after adjudication,
is referred to the department for investigation or treatment or
whose custody is vested in the department. Such individualized
program of rehabilitation shall take into account the programs
and services to be provided by other public or private agencies
or personnel which are available in the community to deal with the circumstances of the particular child juvenil
e. For accused
alleged juvenile delinquents and status offenders, such
individualized program of rehabilitation shall be furnished to
the juvenile court and shall be available to counsel for the
child juvenile; it may be modified from time to time at the
direction of the department or by order of the juvenile court.
The department may develop an individualized program of
rehabilitation for any child juvenile referred for noncustodial
counseling under section five, article three of this chapter, for
any child juvenile receiving counsel and advice under section
three-a, article five of this chapter, or for any other child
juvenile upon the request of a public or private agency.
(c) The department of health and human resources 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.
§49-5B-5. §49-5B-3. Rehabilitative facilities for status
offenders.
(a) The department of welfare health and human resources
shall, within the limits of state and federal funds appropriated
therefor, establish and maintain one or more rehabilitative
facilities to be used exclusively for the lawful custody of
status offenders. Each such facility shall be primarily a
nonsecure facility having as its primary purpose the
rehabilitation of adjudicated juvenile offenders who are status
offenders. Such facility shall not have a bed capacity for not
more than twenty children juveniles, and shall minimize the institutional atmosphere and prepare the child juvenile for
reintegration into the community. Provided, That such facility
may function as a temporary residential facility for accused
juvenile offenders when the juvenile is a status offender and no
final adjudication has been made by the juvenile court.
Provided, however, That a portion of such facility may be
designed and operated as a secure facility used exclusively for
status offenders whom the juvenile court has specifically found
to be so unmanageable, ungovernable and antisocial that no other
reasonable alternative exists, or could exist, for treatment or
restraint other than placement in a secure facility. Temporary
residents of the facility shall only be placed in the secure
portion of the facility by order of the juvenile court upon a
specific finding by the court that the child is likely to injure
himself or others or to run away if placed in a less restrictive
environment: Provided, That unless the court order committing
the child specifically orders that the child not be removed from
the secure portion of the facility, the person having control of
the facility shall have the authority to permit any temporary
resident to remain in the nonsecure portions of the facility if
such temporary resident demonstrates a willingness to remain at
the facility voluntarily and to conform his or her conduct to the
lawful requirements established for residents of the nonsecure
portions of the facility.
(b) Within the funds available, rehabilitative programs and
services shall be provided by or through each such facility and
may include, but not be limited to, medical, educational, vocational, social and psychological guidance, training,
counseling, alcoholism treatment, drug treatment and other
rehabilitative services. The department of welfare health and
human resources shall provide to each child adjudicated
delinquent and status offender committed to the facility a
program of treatment and services consistent with the
individualized program of rehabilitation developed for such child
juvenile. In the case of any other child juvenile residing at
the facility, the department shall provide such programs and
services as may be proper in the circumstances including, but not
limited to, any such programs or services directed to be provided
by the court.
(c) The board of education of the county in which the
facility is located shall provide instruction for children
juveniles residing at the facility. Residents who can be
permitted to do so shall attend local schools, and instruction
shall otherwise take place at the facility.
(d) Facilities established pursuant to this section shall be
structured so as to be or become community-based facilities.
§49-5B-6. §49-5B-4. Enforcement of legal custody.
The department of welfare health and human resources shall
have authority to require any child juvenile committed to its
legal custody to remain at and to return to the residence to
which the child juvenile is assigned by the department or by the
juvenile court. In aid of such authority, and upon request of a
designated employee of the department, any police officer,
sheriff, deputy sheriff, member or officer of the department of public safety or juvenile court probation officer is authorized
to take any such child juvenile into custody and return such
child juvenile to his or her place of residence or into the
custody of a designated employee of the department of welfare.
§49-5B-7. §49-5B-5. Reporting requirements; cataloguing of
services.
(a) The department of health and human resources shall from
time to time, but not less often than annually, review its
programs and services and submit a report to the governor, the
Legislature and the supreme court of appeals, analyzing and
evaluating the effectiveness of the programs and services being
carried out by the department. Such report shall include, but
not be limited to, an analysis and evaluation of programs and
services continued, established and discontinued during the
period covered by the report, and shall further describe programs
and services which should be implemented to further the purposes
of this article. Such report shall also include, but not be
limited to, relevant information concerning the number of
children juveniles comprising the population of any
rehabilitative facility during the period covered by the report,
the length of residence, the nature of the problems of each child
juvenile, the child's juvenile's response to programs and
services and such other information as will enable a user of the
report to ascertain the effectiveness of the facility as a
rehabilitative facility.
(b) The department of health and human resources shall
prepare a descriptive catalogue of its juvenile programs and services available in local communities throughout this state
and shall distribute copies of the same to every juvenile court
in the state and, at the direction of the juvenile court, such
catalogue shall be distributed to attorneys practicing before
such court. Such catalogue shall also be made available to
members of the general public upon request. The catalogue shall
contain sufficient information as to particular programs and
services so as to enable a user of the catalogue to make
inquiries and referrals. The catalogue shall be constructed so
as to meaningfully identify and describe programs and services.
The requirements of this section are not satisfied by a simple
listing of specific agencies or the individuals in charge of
programs at a given time. The catalogue shall be updated and
republished or supplemented from time to time as may be required
to maintain its usefulness as a resource manual.
NOTE: The purpose of this bill is to
deinstitutionalize status offenders. In addition, some language
has been changed for consistency or clarity.
Strike-throughs indicate language that would be
stricken from the present law, and underscoring indicates new
language that would be added.