H. B. 2059
(By Delegates Givens and Facemyer)
[Introduced Janaury 13, 1999; referred to the
Committee on the Judiciary then Finance.]
A BILL to amend and reenact section thirteen, article five,
chapter forty-nine of the code of West Virginia, one
thousand nine hundred thirty-one, as amended, relating to
disposition of juvenile delinquents; discretion of the court
to commit such a juvenile for treatment, instruction and
rehabilitation; and providing that where the court orders
the state medicaid agency to pay for services for the
juvenile, the state medicaid agency is to be specifically
notified in advance of the dispositional hearing and
afforded an opportunity to address the medical necessity of
the court-ordered placement and the order for payment.
Be it enacted by the Legislature of West Virginia:
That section thirteen, article five, chapter forty-nine of
the code of West Virginia, one thousand nine hundred thirty-one, as amended, be amended and reenacted to read as follows:
ARTICLE 5. JUVENILE PROCEEDINGS.
§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 juvenile and the alternative dispositions possible. The
court, upon its own motion, or upon request of counsel, may order
a psychological examination of the 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 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
juvenile and the welfare of the public:
(1) Dismiss the petition;
(2) Refer the juvenile and the juvenile's parent or
custodian to a community agency for needed assistance and dismiss the petition;
(3) Upon a finding that the juvenile is in need of
extra-parental supervision: (A) Place the juvenile under the
supervision of a probation officer of the court or of the court
of the county where the juvenile has his or her usual place of
abode or other person while leaving the juvenile in custody of
his or her parent or custodian; and (B) prescribe a program of
treatment or therapy or limit the 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 juvenile, that a 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 juvenile, the court may place the
juvenile in temporary foster care or temporarily commit the
juvenile to the department, the division of juvenile services or
a child welfare agency. The court order shall state that
continuation in the home is contrary to the best interest of the
juvenile and why; and whether or not the 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 division 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 juvenile
or the welfare of the public require it, and upon an adjudication
of delinquency pursuant to subdivision (1) (8), section four,
article one of this chapter, the court may commit the juvenile to
an industrial home, correctional institution for juveniles or
other appropriate facility for the treatment, instruction and
rehabilitation of juveniles: Provided, That the court maintains
discretion to consider alternative sentencing arrangements:
Provided, however, That the state medicaid agency will be
specifically notified in advance of the hearing and afforded an
opportunity to be present and address the medical necessity of
any court-ordered placement for treatment and any order for
payment by the agency. 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 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; or
(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 juvenile to a mental health
facility in accordance with the juvenile's treatment plan; the
director may release a 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 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 juvenile shall not be affected by
the fact that the 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 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 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.
NOTE: The purpose of this bill is to provide that where a
juvenile has been adjudicated as a delinquent, the court must
provide advance notice of the dispositional hearing to the state
Medicaid agency and the agency must be afforded an opportunity to
address the medical necessity of any placement for treatment
ordered by the court and any order for payment by the agency.
Also, one cross reference is updated to conform to amendments
that were made in 1997.
Strike-throughs indicate language that would be stricken
from the present law, and underscoring indicates new language
that would be added.