ENGROSSED

COMMITTEE SUBSTITUTE

FOR


Senate Bill No. 364

(By Senators Prezioso, Unger, Rowe, Kessler, Helmick, Caldwell, Plymale, Sharpe, Ross, Dempsey, Love, Hunter, Sprouse, Minard, Jenkins, Fanning, White, McCabe, Bowman, Minear and Tomblin, Mr. President)

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[Originating in the Committee on the Judiciary;

reported February 19, 2003.]

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A BILL to amend and reenact sections seven and twenty-one, article five, chapter forty-nine of the code of West Virginia, one thousand nine hundred thirty-one, as amended; to further amend said article by adding thereto a new section, designated section sixteen-b; to amend and reenact section three, article five-d of said chapter; and to further amend said article by adding thereto two new sections, designated sections three-a and eight, all relating to child welfare and juvenile justice generally; requiring notice of certain proceedings to the department of health and human resources and the division of juvenile services for purposes of multidisciplinary hearings; providing for greater involvement of multidisciplinary teams in juvenile and abuse and neglect proceedings; providing that quarterly judicial reviews be continued while child remains in custody; exceptions to meeting requirement; providing for when offenses are committed while in custody; providing for recommended court orders; requiring that recommended service plans be considered; requiring written findings when order deviates from treatment team's recommended plan; and affording multidisciplinary treatment team notice and opportunity to present evidence.

Be it enacted by the Legislature of West Virginia:
That sections seven and twenty-one, article five, chapter forty-nine of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be amended and reenacted; that said article be further amended by adding thereto a new section, designated section sixteen-b; that section three, article five-d of said chapter be amended and reenacted; and that said article be further amended by adding thereto two new sections, designated sections three-a and eight, all to read as follows:
ARTICLE 5. JUVENILE PROCEEDINGS.

§49-5-7. Institution of proceedings by petition; notice to juvenile and parents; subpoena.

(a) (1) A petition alleging that a juvenile is a status offender or a juvenile delinquent may be filed by a person who has knowledge of or information concerning the facts alleged. The petition shall be verified by the petitioner, shall set forth the name and address of the juvenile's parents, guardians or custodians, if known to the petitioner, and shall be filed in the circuit court in the county where the alleged status offense or act of delinquency occurred: Provided, That any proceeding under this chapter may be removed, for good cause shown, in accordance with the provisions of section one, article nine, chapter fifty-six of this code. The petition shall contain specific allegations of the conduct and facts upon which the petition is based, including the approximate time and place of the alleged conduct; a statement of the right to have counsel appointed and consult with counsel at every stage of the proceedings; and the relief sought.
(2) Upon the filing of the petition, the court shall set a time and place for a preliminary hearing as provided in section nine of this article and may appoint counsel. A copy of the petition and summons may be served upon the respondent juvenile by first class mail or personal service of process. If a juvenile does not appear in response to a summons served by mail, no further proceeding may be held until the juvenile is served a copy of the petition and summons by personal service of process. If a juvenile fails to appear in response to a summons served in person upon him or her, an order of arrest may be issued by the court for that reason alone.
(b) The parents, guardians or custodians shall be named in the petition as respondents and shall be served with notice of the proceedings in the same manner as provided in subsection (a) of this section for service upon the juvenile and required to appear with the juvenile at the time and place set for the proceedings unless such respondent cannot be found after diligent search. If any such respondent cannot be found after diligent search, the court may proceed without further requirement of notice: Provided, That the court may order service by first class mail to the last known address of such respondent. The respondent shall be afforded fifteen days after the date of mailing to appear or answer.
(c) The court or referee may order the issuance of a subpoena against the person having custody and control of the juvenile ordering him or her to bring the juvenile before the court or referee.
(d) When any case of a juvenile charged with the commission of a crime is certified or transferred to the circuit court, the court or referee shall forthwith cause the juvenile and his or her parents, guardians or custodians to be served with a petition as provided in subsections (a) and (b) of this section. In the event the juvenile is in custody, the petition shall be served upon the juvenile within ninety-six hours of the time custody began and if the petition is not served within that time, the juvenile shall be released forthwith.
(e) The clerk of the court shall promptly notify the local office of the department of health and human resources of all proceedings under this article, which shall then be responsible for convening and directing the multidisciplinary treatment planning process in accordance with the provisions of section three, article five-d of this chapter: Provided, That in status offense or delinquency cases where a case manager has not been assigned, the juvenile probation officer shall be responsible for notifying the local office of the department of health and human services which will assign a case manager who will initiate assessment and be responsible for convening and directing the multidisciplinary treatment planning process.
§49-5-16b. Conviction for offense while in custody.
Notwithstanding any other provision of law to the contrary, any person who is eighteen years of age or older who is convicted as an adult of an offense that he or she committed while in the custody of the division of juvenile services and who is therefor sentenced to a regional jail or state correctional facility for said offense may not be returned to the custody of the division upon the completion of his or her adult sentence until a hearing is held before the court which committed the person to the custody of the division of juvenile services at which hearing the division may present any objections it may have to return the person to its custody. If the division does object and the court overrules the division's objections, it shall make specific written findings as to its rationale for overruling the objections: Provided, That no person who is eighteen years of age or older who is convicted as an adult of a felony crime of violence against the person while in the custody of the division of juvenile services be returned to the custody of the division of juvenile services upon completion of his or her adult sentence.
§49-5-21. Quarterly judicial review of juvenile proceedings.
For cases under this article in which the provisions of section three, article five-d of this chapter apply, the court wherein the juvenile proceeding is pending shall conduct regular judicial review of the case with the multidisciplinary treatment team and a juvenile probation officer in attendance. Such judicial review may be conducted as often as is considered necessary by the court, but shall be conducted at least once every three calendar months until the case is wholly resolved and finally dismissed from the docket of the court as long as the child remains in the legal or physical custody of the state.
In conducting the judicial review required by this section, the court shall address the extent of progress in the case, treatment and service needs, permanent placement planning for the juvenile, any uncontested issues and any other matters that the court considers pertinent. An order reflecting the matters considered, any uncontested rulings and the scheduling of an evidentiary hearing on any contested issue shall be issued by the court within ten judicial days of the judicial review.
ARTICLE 5D. MULTIDISCIPLINARY TEAMS.
§49-5D-3. Multidisciplinary treatment planning process.
(a) (1) On or before the first day of January, one thousand nine hundred ninety-five, a multidisciplinary treatment planning process shall be established within each county of the state, either separately or in conjunction with a contiguous county by the secretary of the department with advice and assistance from the prosecutor's advisory council as set forth in section four, article four, chapter seven of this code.
(2) Treatment teams shall assess, plan and implement a comprehensive, individualized service plan for children who are victims of abuse or neglect and their families when a judicial proceeding has been initiated involving the child or children and for juveniles and their families involved in status offense or delinquency proceedings when, in a status offense proceeding, the court refers the juvenile for services pursuant to sections eleven and eleven-a, article five of this chapter and when, in a delinquency proceeding, the court is considering placing the juvenile in the department's custody and/or placing the juvenile out-of-home at the department's expense pursuant to the provisions of section thirteen of said article. In any such status offense or delinquency case, the juvenile probation officer shall notify the local office of the department of health and human resources and the division of juvenile services at least five working days before the court proceeding in order to allow the multidisciplinary treatment team to convene and develop a comprehensive individualized service plan for the child: Provided, That such notice is not required in cases where the child is already in state custody or there exist exigent circumstances which justify taking the child immediately into custody without a judicial proceeding.
(3) Prior to disposition, in each case in which a treatment planning team has been convened, the team shall advise the court as to the types of services the team has determined are needed and the type of placement, if any, which will best serve the needs of the child.
(b) Each treatment team shall be convened and directed by the child's or family's case manager. The treatment team shall consist of the child's custodial parent(s) or parents, or guardian(s) or guardians, other immediate family members, the attorney(s) or attorneys representing the parent(s) or parents of the child, if assigned by a judge of the circuit court, the child, if the child is over the age of twelve and if the child's participation is otherwise appropriate, the child if under the age of twelve when the team determines that the child's participation is appropriate, the guardian ad litem, if any, the prosecuting attorney or his or her designee and any other agency, person or professional, or an agency representative who may assist in providing recommendations for the particular needs of the child and family. The child may participate in multidisciplinary treatment team meetings if such is deemed appropriate by the multidisciplinary treatment team. For purposes of delinquency proceedings, the juvenile probation officer shall be a member of the treatment team.
(c) The treatment team shall coordinate their its activities and membership with local family resource networks and coordinate with other local and regional child and family service planning committees to assure the efficient planning and delivery of child and family services on a local and regional level.
(d) State, county and local agencies shall provide the multidisciplinary treatment teams with any information requested in writing by the team as allowable by law or upon receipt of a certified copy of the circuit court's order directing said agencies to release information in its possession relating to the child. The team shall assure that all information received and developed in connection with the provisions of this article remain confidential. For purposes of this section, the term "confidential" shall be construed in accordance with the provisions of section one, article seven of this chapter.
§49-5D-3a. Recommendation of team to the court; hearing requirement; required findings.

In any case in which a multidisciplinary treatment team develops an individualized service plan for a child pursuant to the provisions of section three of this article, the court shall review the proposed service plan to determine if implementation of the plan is in the child's best interests. If the court determines not to adopt the team's recommendations, it shall, sua sponte, schedule and hold within ten days of such determination, and prior to the entry of an order placing the child in the custody of the department or in an out-of-home setting, a hearing to consider evidence from the team as to its rationale for the proposed service plan. If, after a hearing held pursuant to the provisions of this section, the court does not adopt the teams's recommended service plan, it shall make specific written findings as to why the team's recommended service plan was not adopted.
§49-5D-8. Exemption from multidisciplinary team review for emergency out-of-home placements.

Notwithstanding any provisions of this article to the contrary, a multidisciplinary team recommendation shall not be required for temporary out-of-home placement of a child in an emergency circumstance or for purposes of assessment as provided for by the provisions of this article.