H. B. 3257
(By Delegates Webster, Brown, Guthrie and Mahan)
[Introduced February 23, 2007; referred to the
Committee on the Judiciary.]
A BILL to amend and reenact §49-5-9 of the Code of West Virginia,
1931, as amended, relating to allowing a court to order an
improvement period in which a juvenile is placed in the
custody of the Department of Health and Human Resources for
placement in a residential treatment facility.
Be it enacted by the Legislature of West Virginia:
That §49-5-9 of the Code of West Virginia, 1931, as amended,
be amended and reenacted to read as follows:
ARTICLE 5. JUVENILE PROCEEDINGS.
§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 juvenile is being detained, the hearing shall be held within ten days of the time the juvenile is
placed in detention unless good cause is shown for a continuance.
If no preliminary hearing is held within ten days of the time the
juvenile is placed in detention, the 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 that other county. The preliminary hearing may be
waived by the juvenile, upon advice of counsel. At the hearing,
the court or referee shall:
(1) If the juvenile is not represented by counsel, inform the
juvenile and his or her parents, guardian or custodian or any other
person standing in loco parentis to him or her of the 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 juvenile is a status offender or a juvenile
delinquent. If probable cause is not found, the juvenile, if in
detention, shall be released and the proceedings dismissed. If
probable cause is found, the case shall proceed to adjudication.
At this hearing or as soon thereafter as is practicable, the date
for the adjudicatory hearing shall be set to give the juvenile and
the juvenile's parents and attorney at least ten days' notice, unless notice is waived by all parties;
(4) In lieu of placing the juvenile in a detention facility,
the court may place the juvenile in the temporary legal and/or
physical custody of the department. If the juvenile is detained,
the detention may not continue longer than thirty days without
commencement of the adjudicatory hearing unless good cause for a
continuance is shown by either party or, if a jury trial is
demanded, no longer than the next regular term of the court:
Provided, That a juvenile who is alleged to be a status offender
may not be placed in a secure detention facility; and
(5) Inform the juvenile of the right to demand a jury trial.
(b) The 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 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 juvenile
or an improvement
period in which the juvenile is placed in the legal custody of the
Department of Heath and Human Resources for placement in a
residential treatment facility. 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 may not
be construed as an admission or be used as evidence.
NOTE: The purpose of this bill is to permit judges presiding
over juvenile proceedings to order an improvement period in which
the juvenile is placed in the custody of the Department of Health
and Human Resources for placement in a residential treatment
facility.
Underscoring indicates new language that would be added.