H. B. 4429
(By Delegates Boggs, Michael and Cann)
[Introduced February 7, 2002; referred to the
Committee on the Judiciary.]
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 allowing the
division of juvenile services to have access to all court
records concerning a juvenile offender adjudicated delinquent.
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 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 department, 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), section four, article one
of this chapter, the court may commit the juvenile to the custody
of the director of the division of juvenile services for placement
in a juvenile correctional services facility for the treatment,
instruction and rehabilitation of juveniles: Provided, That the
court maintains discretion to consider alternative sentencing
arrangements: Provided, however, That the division of juvenile
services shall be provided and have access to all court records
involving the underlying offense or offenses for which the juvenile
was adjudicated delinquent so that it can assess what the
appropriate counseling and placement needs of the juvenile offender
would be. Commitments shall not exceed the maximum term for which
an adult could have been sentenced for the same offense and any
such maximum allowable sentence to be served in a juvenile
correctional facility may take into account any time served by the juvenile in a detention center pending adjudication, disposition or
transfer. 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 of the mental health facility may release a juvenile 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 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, the court shall inquire whether the
juvenile wishes to appeal and the response shall be 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 allow the division of
juvenile services to have
access to all court records involving the
underlying offense or offenses for which a juvenile is adjudicated
delinquent so that it can assess what the appropriate counseling
and placement needs of the juvenile offender would be.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.