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WVC 49 - 4 - 702 §49-4-702. Prepetition diversion to informal resolution; mandatory prepetition diversion program for status offenses and misdemeanor offenses; prepetition review team.

     (a) Before a juvenile petition is formally filed with the court, the court may refer the matter to a case worker, probation officer or truancy diversion specialist for preliminary inquiry to determine whether the matter can be resolved informally without the formal filing of a petition with the court.

     (b) (1) If the matter is for a truancy offense, the prosecutor shall refer the matter to a state department worker, probation officer or truancy diversion specialist who shall develop a diversion program pursuant to subsection (d) of this section.

     (2) If the matter is for a status offense other than truancy, the prosecutor shall refer the juvenile to a case worker or probation officer who shall develop a diversion program pursuant to subsection (d) of this section.

     (3) The prosecutor is not required to refer the juvenile for development of a diversion program pursuant to subdivision (1) or (2) of this subsection and may proceed to file a petition with the court if he or she determines:

     (A) The juvenile has a prior adjudication for a status or delinquency offense; or

     (B) There exists a significant and likely risk of harm to the juvenile, a family member or the public.

     (c) If the matter is for a nonviolent misdemeanor offense, the prosecutor shall determine whether the case can be resolved informally through a diversion program without the filing of a petition. If the prosecutor determines that a diversion program is appropriate, it shall refer the matter to a case worker or probation officer who shall develop a diversion program pursuant to subsection (d) of this section.

     (d) (1) When developing a diversion program, the case worker, probation officer or truancy diversion specialist shall:

     (A) Conduct an assessment of the juvenile to develop a diversion agreement;

     (B) Create a diversion agreement;

     (C) Obtain consent from the juvenile and his or her parent, guardian or custodian to the terms of the diversion agreement;

     (D) Refer the juvenile and, if necessary, his or her parent, guardian or custodian to services in the community pursuant to the diversion agreement.

     (2) A diversion agreement may include:

     (A) Referral to community services as defined in section two hundred six, article one of this chapter for the juvenile to address the assessed need;

     (B) Referral to services for the parent, guardian or custodian of the juvenile;

     (C) Referral to one or more community work service programs for the juvenile;

     (D) A requirement that the juvenile regularly attend school;

     (E) Community-based sanctions to address noncompliance; or

     (F) Any other efforts which may reasonably benefit the community, the juvenile and his or her parent, guardian or custodian.

     (3) When a referral to a service provider occurs, the service provider shall make reasonable efforts to contact the juvenile and his or her parent, custodian or guardian within seventy-two hours of the referral.

     (4) Upon request by the case worker, probation officer or truancy diversion specialist, the court may enter reasonable and relevant orders to the parent, custodian or guardian of the juvenile who have consented to the diversion agreement as is necessary and proper to carry out the agreement.

     (5) If the juvenile and his or her parent, custodian or guardian do not consent to the terms of the diversion agreement created by the case worker, probation officer or truancy diversion specialist, the petition may be filed with the court.

     (6) Referral to a prepetition diversion program shall toll the statute of limitations for status and delinquency offenses.

     (7) Probation officers may be authorized by the court to participate in a diversion program.

     (e) The case worker, probation officer or truancy diversion specialist shall monitor the juvenile's compliance with any diversion agreement.

     (1) If the juvenile successfully completes the terms of the diversion agreement, a petition shall not be filed with the court and no further action shall be taken.

     (2) If the juvenile is unsuccessful in or noncompliant with the diversion agreement, the diversion agreement shall be referred to a prepetition review team convened by the case worker, probation officer or the truancy diversion specialist: Provided, That if a new delinquency offense occurs, a petition may be filed with the court.

     (f) (1) The prepetition review team may be a subset of a multidisciplinary team established pursuant to section four hundred six, article four of this chapter.

     (2) The prepetition review team may consist of:

     (A) A case worker knowledgeable about community services available and authorized to facilitate access to services;

     (B) A service provider;

     (C) A school superintendent or his or her designee; or

     (D) Any other person, agency representative, member of the juvenile's family, or a custodian or guardian who may assist in providing recommendations on community services for the particular needs of the juvenile and his or her family.

     (3) The prepetition review team shall review the diversion agreement and the service referrals completed and determine whether other appropriate services are available to address the needs of the juvenile and his or her family.

     (4) The prepetition review shall occur within fourteen days of referral from the state department worker, probation officer or truancy diversion specialist.

     (5) After the prepetition review, the prepetition review team may:

     (A) Refer a modified diversion agreement back to the case worker, probation officer or truancy diversion specialist;

     (B) Advise the case worker, probation officer or truancy diversion specialist to file a petition with the court; or

     (C) Advise the case worker to open an investigation for child abuse or neglect.

     (g) The requirements of this section are not mandatory until July 1, 2016: Provided, That nothing in this section prohibits a judicial circuit from continuing to operate a truancy or other juvenile treatment program that existed as of January 1, 2015: Provided, however, That any judicial circuit desiring to create a diversion program after the effective date of this section and prior to July 1, 2016, may only do so pursuant to this section.

Note: WV Code updated with legislation passed through the 2016 Regular Session
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