West Virginia Judiciary

Rules of Juvenile Procedure | Table of Contents

NOTE: The Rules of Juvenile Procedure became effective on July 1, 2010, and govern the procedures in the courts of West Virginia having jurisdiction over delinquency and status offense matters pursuant to West Virginia Code, Chapter 49, Articles 5 through 5E and apply to both delinquency and status offense proceedings except where otherwise specified or limited.

Part I. Rules 1 through 10
Part II. Rules 11 through 20
Part III. Rules 21 through 30
Part IV. Rules 31 through 40
Part V. Rules 41 through 51

Rule 1. Scope, Application and General Purpose

(a) Scope and Application. These rules govern the procedures in the courts of West Virginia having jurisdiction over delinquency and status offense matters pursuant to West Virginia Code, Chapter 49, Articles 5 through 5E, and apply to both delinquency and status offense proceedings except where otherwise specified or limited. If these rules are in conflict with other rules or statutes, these rules shall apply.

(b) Notice. Where these rules require giving notice to parties, notice shall be given to the juvenile or juvenile’s counsel, the juvenile’s parents or legal guardians, the prosecuting attorney, any agency having custody of the juvenile, and any others specified by particular rule as having an interest in matters before the court.

(c) General Purpose. These rules are intended to establish uniform practices and procedures for the courts of the State of West Virginia having juvenile jurisdiction, and to assure that the statutory and constitutional rights of juveniles are protected. These purposes should be pursued through means that are fair and just, that recognize the unique characteristics and needs of juveniles, and that give juveniles access to opportunities for personal and social growth, while promoting public safety and reducing juvenile offenses. These rules shall be construed to achieve these ends.

(d) Rights Generally. Juveniles charged with delinquency or status offenses are given the same rights as adults charged with criminal offenses, and in some instances they are afforded more protection. The courts must work to ensure that the rights of alleged juvenile offenders are protected. Juveniles should be informed of all of their statutory and constitutional rights during the proceedings.

Rule 2. Terminology

As used in these rules:

(a) "Division" or "DJS" means the West Virginia Division of Juvenile Services.

(b) "Department" or "DHHR" means the West Virginia Department of Health and Human Resources.

(c) "Multidisciplinary Team" or "MDT" means the treatment team convened to assess, plan and implement a comprehensive, individualized service and treatment plan for a juvenile and the juvenile's family involved in a status offense proceeding, or in a delinquency proceeding when the court is considering placing the juvenile in the department's custody or placing the juvenile out of home at the department's expense.

2(d) Computation of Time – When the number of days prescribed or allowed by these rules is fewer than 11 days, intermediate Saturdays, Sundays, and legal holidays shall be excluded in the computation; however, this provision has no application to detention hearing time frames or any time frame in these rules stated in hours.

Rule 3. Juvenile Jurisdiction

Juvenile jurisdiction of circuit courts over proceedings related to and controlled by these rules is as provided in West Virginia Code § 49-5-2(a) through (f). Juvenile referees, including those magistrates so designated, act under the jurisdiction of the appointing circuit court to the extent authorized by statute. Prepetition diversion generally relating to all alleged status and delinquency offenses is within circuit court jurisdiction as authorized under West Virginia Code §§ 49-5-2a, -3, and -3a. Prepetition diversion specifically relating to alleged delinquency offenses involving harm to an animal is within circuit court jurisdiction as authorized under West Virginia Code § 49-5-13f.

Rule 4. Venue

(a) The petition shall be filed in the county in which the alleged offense occurred. Upon notice and motion of a party, and for good cause shown, the court may order the petition removed to another county.

(b) "Good cause" shall include a showing on the record that removal is in the best interest of the juvenile and the least restrictive alternative available to the court which insures the safety of the juvenile; and that the removal to the more appropriate forum will result in the efficient administration of justice, including recognition of the seriousness of the crime, consideration of victim's rights, and availability of witnesses. "Good cause" may include a showing on the record that the juvenile, or the juvenile's parents or legal guardians, are absent from the court's jurisdiction, but can be found in another county within the state; or that there are one or more pending petitions regarding the juvenile in another county.

(c) Any procedure to remove a petition to another county shall not be initiated prior to the appointment of counsel to represent the juvenile.

(d) If the court is informed during the course of a juvenile proceeding that a juvenile proceeding involving the juvenile is pending in another county, the court shall stay the proceedings and communicate with the court in which the other proceeding is pending so that the issues in both petitions may be litigated in the most appropriate sequence and manner, whether in one or both forums.

(e) Objections regarding improper venue must be raised prior to the adjudicatory hearing or they are deemed to be waived.

Rule 5. Appointment of Counsel

(a) Generally. The juvenile has the right to be represented by an attorney at all stages of proceedings brought under the delinquency and status offense provisions of Chapter 49, Article 5. This right attaches no later than when the juvenile first appears before a magistrate or circuit judge. The attorney shall initially consult with the juvenile privately, outside of the presence of any parent or legal guardian. The attorney, whether court-appointed or privately retained, shall act solely as the counsel for the juvenile.

(b) Appointment of Counsel.

(1) Delinquency and Status Offenses. Except as otherwise specifically provided in this rule, in any proceeding in which the juvenile is charged with an offense, including any proceeding in which a juvenile is alleged to have violated the terms of probation for a prior offense or where a modification of a prior disposition is proposed, the court shall appoint counsel at public expense to represent the juvenile, if the juvenile cannot afford counsel and private counsel has not been retained to represent the juvenile.

(2) Juvenile Traffic Offenses and Other Offenses Heard in Magistrate Court. In any proceeding in which the juvenile is charged in magistrate court with a violation of a traffic law, as defined under West Virginia Code § 49-5-1(f), or with a violation of West Virginia Code §§ 60-6-9 or 11-16-19, or a violation of West Virginia Code, Chapter 20, the juvenile or the juvenile's parents or legal guardians may retain private counsel, but the juvenile does not have a right to appointment of a public defender or other counsel at public expense.

(3) Municipal Offenses. In any proceeding in which the juvenile is charged in municipal court with a municipal ordinance regulating traffic, enforcing a municipal curfew, or regulating or prohibiting public intoxication, drinking or possessing alcoholic liquor or beer in public places, or any other act prohibited by West Virginia Code §§ 60-6-9 and 11-16-19, the juvenile or the juvenile's parents or legal guardians may retain private counsel, but the juvenile does not have a right to appointment of a public defender or other counsel at public expense.

(4) Appearance before a Grand Jury. A juvenile appearing before a grand jury as a witness shall be represented by an attorney at public expense if the juvenile cannot afford to retain private counsel and is not granted immunity for the juvenile's testimony.

(c) Eligibility for Court-Appointed Counsel at Public Expense.

(1) When Parents or Juvenile Cannot Afford to Retain Counsel. A juvenile and a juvenile's parents or legal guardians are financially unable to obtain counsel if the juvenile is unable to obtain adequate representation without substantial hardship for the juvenile or the juvenile's family. The court shall inquire to determine the financial eligibility of a juvenile for the appointment of counsel, and such determination shall be made in accordance with West Virginia Code § 29-21-16.

(2) When Parents Can Afford to Retain Counsel. If the parents or legal guardians of a juvenile can afford to retain counsel and have not retained counsel for the juvenile, and the juvenile cannot afford to retain counsel, the court may order the parents or legal guardians to provide, by paying for, legal representation for the juvenile in the proceedings. Such order may be entered only after giving the parents or legal guardians a reasonable opportunity to be heard. The court may disregard the assets of the juvenile's parents or guardians and appoint counsel for the juvenile, as provided in paragraph (1) above, if the court concludes, as a matter of law, that the juvenile and the parents or guardians have a conflict of interest that would adversely affect the juvenile's right to effective representation of counsel, or concludes, as a matter of law, that requiring the juvenile's parents or guardians to provide legal representation for the juvenile would otherwise jeopardize the best interests of the juvenile.

(d) Right of Parents to Counsel. The parents or legal guardians of a juvenile who is the subject of a juvenile proceeding have the right to retain their own counsel at their own expense, but such right does not create an entitlement on the part of the juvenile's parents or guardians to participate as full and separate parties in the juvenile proceeding.

(e) Withdrawal of Counsel. A public defender or other appointed or retained lawyer cannot withdraw from a juvenile case until all proceedings have been completed, except upon written order of the court pursuant to a written motion, or upon written substitution of counsel approved by the court. A lawyer who wishes to withdraw from a case must file a written motion and serve it by mail or personal service upon the client and upon the prosecuting attorney; and the lawyer shall have the matter heard by the court. If the court approves the withdrawal, it shall be effective when the order has been served on the client and the prosecuting attorney by mail or personal service and proof of such service has been filed with the court.

(f) Joint Representation. When two or more juveniles are alleged to have participated in the same act or occurrence or in the same series of acts or occurrences constituting an offense or offenses and are represented by the same retained or assigned counsel or by retained or assigned counsel who are associated in the practice of law, the court shall personally advise each juvenile, and the juvenile's parents or legal guardians, of the right to effective assistance of counsel, including separate representation. Unless the court concludes, based upon specific findings set forth in the record, that there is good cause to believe that no conflict of interest is likely to arise, the court shall take such measures as may be appropriate to protect each juvenile's right to counsel, including appointment of separate counsel.

(g) Guardian Ad Litem. A juvenile's parents or legal guardians are presumed to act in the juvenile's best interests in providing input and guidance to the juvenile on important decisions made during juvenile proceedings. However, under circumstances indicating to the court that the parents or guardians have a serious and tangible interest that is hostile to the interests of the juvenile and that might be affected by the result of the adjudication, or if the court finds reason to believe that the parents' or guardians' influence over the juvenile is contrary to the juvenile's best interests, the court may appoint a guardian ad litem for the juvenile.

(h) Court Costs. If the juvenile qualifies for court-appointed counsel under subparagraph (c) above, the juvenile is also eligible for court costs, including transcript fees, at public expense.

Comments

An example of such conflict of interest under subparagraph (c)(2) would be when a parent is a complaining witness in the juvenile proceeding.

Rule 8(a) reflects the statutory requirement [W. Va. Code § 49-5-7(b)] that a juvenile's parents or legal guardians also be named in the juvenile petition as respondents. The provision in Rule 5(d) above limiting parent or guardian participation as full and separate parties in the juvenile proceeding, for the reasons detailed in State v. Kirk N., 214 W. Va. 730, 591 S.E.2d 288 (2003), is not in conflict with the Rule 8(a) requirement.

Rule 6. Taking a Juvenile into Custody

(a) Orders for Immediate Custody.

(1) Probable Cause Required. In proceedings formally instituted by the filing of a juvenile petition, probable cause may be established by facts set forth in the verified petition and by any affidavit attached to the petition.

(2) Immediate Custody Order for Delinquency Offenses. A circuit judge, or a magistrate may issue an order for immediate custody of a juvenile charged with a delinquency offense if the judge or magistrate finds that there is probable cause to believe that one of the following conditions exists:

(A) the petition shows that grounds exist for the arrest of an adult in identical circumstances;
(B) the health, safety, and welfare of the juvenile demand such custody;
(C) the juvenile is a fugitive from a lawful custody or commitment order of a court; or
(D) the juvenile is alleged to be a juvenile delinquent with a record of willful failure to appear at juvenile proceedings and custody is necessary to assure the juvenile's presence before the court.

(3) Immediate Custody Order for Status Offenses. A circuit judge or a magistrate may issue an order for immediate custody of a juvenile charged with a status offense if the judge or magistrate finds that there is probable cause to believe that one of the following conditions exists:

(A) the health, safety, and welfare of the juvenile demand such custody; or
(B) the juvenile is a fugitive from a lawful custody or commitment order of a court.

(4) Immediate Custody Order Following Failure to Appear. If a juvenile served by personal service of process with a petition and summons pursuant to West Virginia Code § 49-5-7(a)(2) fails to appear for the initial hearing, the circuit court, or a magistrate may issue an order for immediate custody based upon such failure to appear in response to the summons.

(5) Contents of Order for Immediate Custody. An order for immediate custody shall be signed by a circuit judge or magistrate, and shall:

(A) order the juvenile to be brought immediately before the circuit or magistrate court for a detention hearing;
(B) state the name and address of the juvenile, or if unknown, designate the juvenile by any name or description by which the juvenile can be identified with reasonable certainty;
(C) state the age and sex of the juvenile, or, if the age of the juvenile is unknown, that the juvenile is believed to be of an age subject to the juvenile jurisdiction of the court;
(D) state the reasons why the juvenile is being taken into custody; (E) when applicable, state the reasons for a limitation on the time or location of the execution of the order for custody;
(F) state the time and date when issued, and the county and court where issued;
(G) state that continuation in the home is contrary to the welfare of the juvenile with specific findings as to why; and whether the department of health and human resources made reasonable efforts to prevent the out-of-home placement or that the emergency situation made such efforts unreasonable or impossible; and
(H) if the juvenile is being taken into custody in relation to a status offense, direct the law-enforcement officer taking custody to immediately notify the department of health and human resources.

(6) Who May Execute. An order for immediate custody may only be executed by a law-enforcement officer authorized by law to execute an arrest warrant.

(7) How Executed. An order for immediate custody shall be executed by taking the juvenile into custody.

(8) Where Executed. An order for immediate custody may be executed at any place in the state except where prohibited by law, unless the magistrate or judge who issues the warrant limits in writing on the order the location where the order may be executed.

(9) When Executed. An order for immediate custody may be executed at any time unless the magistrate or judge who issues the order limits in writing on the order the time during which the order may be executed.

(10) Possession of Order. An existing order for immediate custody need not be in the law-enforcement officer's physical possession at the time the juvenile is taken into custody.

(11) Notice. When an order for immediate custody is executed, the juvenile's parents or legal guardians shall immediately be informed of the custody and the reasons why the juvenile is being taken into custody as stated in the order. If a parent or guardian cannot be located, a close relative shall be informed of the custody and order.

(b) Custody Without a Court Order. Absent a court order, a juvenile may be taken into custody by a law-enforcement officer only if one of the following conditions exists:

(1) grounds exist for the arrest of an adult in identical circumstances;
(2) emergency conditions exist which, in the judgment of the officer, pose imminent danger to the health, safety, and welfare of the juvenile;
(3) the officer has reasonable grounds to believe that the juvenile has left the care of his or her parents or guardians without consent, and the health, safety, and welfare of the juvenile is endangered;
(4) the juvenile is a fugitive from a lawful custody or commitment order of a juvenile court;
(5) the officer has reasonable grounds to believe the juvenile to have been driving a motor vehicle with any amount of alcohol in his or her blood; or
(6) the juvenile is the named respondent in an emergency protective order issued pursuant to West Virginia Code § 48-27-403, and the individual filing the petition for the emergency protective order is the juvenile's parent or legal guardian.

(c) Prompt Presentment Upon Custody. Upon taking a juvenile into custody with or without a court order under one of the circumstances specified in this rule, the law-enforcement officer shall immediately bring the juvenile before the circuit or magistrate court for a detention or placement hearing.

Rule 7. Informing Juvenile of Charges and Rights

(a) A juvenile alleged to be a delinquent or status offender shall be provided a copy of the signed petition at the first appearance before a circuit judge or magistrate. The juvenile petition shall conform to Rule 8 as to contents. Unless waived by the juvenile, the court shall read the allegations of the charging document to the juvenile and determine that the juvenile understands them, and if not, provide an explanation. If the petition is not available during a detention hearing, then it shall be provided to the juvenile within 2 days following the detention hearing. The juvenile has the right to counsel at the first appearance, and court-appointed counsel shall be provided pursuant to Rule 5 if the juvenile is without counsel.

(b) A juvenile alleged to be a delinquent or status offender, and any parent, guardian or custodian then appearing, shall be informed by the circuit judge or magistrate at the first appearance of the following:

(1) Right to Know Charges. The juvenile is charged with being a delinquent or a status offender, as specified in the petition;

(2) Presence of Parent or Guardian. Each parent or legal guardian and juvenile has the right to be present at any proceeding in the juvenile's case;

(3) Right to Remain Silent. The juvenile has the right to remain silent and the juvenile cannot be asked questions about the current charge or charges without the presence of a lawyer. If the juvenile gives up the right, anything the juvenile says can be used against the juvenile in court proceedings;

(4) Right to Preliminary Hearing. The juvenile has the right to preliminary hearing where the court will decide if the State has produced sufficient evidence to proceed toward an adjudicatory hearing. At the preliminary hearing the juvenile through counsel, may cross-examine any state witness and may present witnesses and other related evidence on the juvenile's behalf;

(5) Testimony by Juvenile. The juvenile has the right to testify at any hearing and likewise, the juvenile has the right not to testify and such silence may not be held against the juvenile. No one can force the juvenile to be a witness at any time in any part of these proceedings;

(6) Trial by Jury.

(A) Alleged Status Offenders. A juvenile alleged to have committed a status offense is not entitled to a trial by jury.

(B) Alleged Delinquent Offenders. A juvenile alleged to have committed a delinquent offense, which if committed by an adult would expose the adult to incarceration, shall be entitled to a trial by a jury of 12 persons./

(C) Offenses with No Possibility of Confinement. A juvenile charged with any delinquent offense where confinement is not possible, due either to the statutory penalty, or because the court rules prior to adjudication that confinement will not be imposed, shall not be entitled to a trial by jury.

(7) Possibility of Removal or Other Consequences. If the juvenile admits any delinquency or status offense or if found to have committed any such offense at the adjudicatory hearing, the juvenile could be placed outside the home. The juvenile can be ordered to pay court costs, including court-appointed counsel costs, and the juvenile can be fined up to $100 for each offense. In addition, the court may order community service, restitution, counseling or other treatment, participation in community-based programs by the juvenile and family, suspension of driving privileges, or such other authorized sentencing alternatives as may be deemed appropriate by the court.

(c) The court shall not require the juvenile to admit or deny the charges stated in the petition after completion of informing the juvenile of the charges and rights.

Rule 8. Petitions

(a) Petitions Generally. The petition is a verified written statement by a person who has knowledge or information concerning the facts alleged, containing specific allegations of the essential facts constituting the offense charged, including the approximate time and place of the alleged conduct. The petition shall set forth the name and address of the juvenile's parents or legal guardians, who shall be named as respondents. The petition shall contain a statement of the juvenile's right to have counsel appointed and consult with counsel at every stage of the proceeding./

(b) Authorized Presentation. Unless otherwise provided by statute or under subdivision (c) of this rule, the presentation and oath or affirmations regarding a delinquency or status offense shall be made by a prosecuting attorney or a law-enforcement officer showing reason to have reliable information concerning the allegations made in the petition.

(c) Presentation Exceptions for Certain Status Offenses. (1) A petition for a status offense under West Virginia Code § 49-1-4(14)(A), (B) or (C) may be presented and sworn by a representative of the department of health and human resources, or by a parent, guardian or custodian showing reason to have reliable information and belief.

(2) A petition for a status offense under West Virginia Code § 49-1-4(14)(C) alleging that a juvenile is habitually absent from school without good cause may be presented and sworn by a representative of the juvenile's school district showing reason to have reliable information and belief.

(d) Probable Cause. If from the facts stated in the petition the circuit judge or magistrate finds probable cause, the petition becomes the charging instrument initiating a juvenile proceeding.

(e) Joinder of Parties. Unlike criminal matters, juveniles shall not be named in petitions with other juveniles. More than one juvenile may, however, be named as participating in the same conduct that supports allegations of delinquency in the affidavit supporting the petition.

(f) Joinder of Allegations of Delinquency. Two or more allegations of delinquent conduct may be alleged in the same petition or may be presented in separate petitions. The state shall not fail to bring forth allegations known or that should be known to the state for the purpose of gaining an advantage in pursuing delinquency charges.

(g) Notice of Possible Termination of Parental Rights. The petition shall contain a notice that if the juvenile is placed out of the home by the court and remains in placement for a period of 15 months, the department of health and human resources may initiate separate proceedings to terminate the parental or custodial rights of the juvenile's parents or legal guardians.

Rule 9. Service

(a) Upon the filing of the petition, the court shall set a time for the preliminary hearing and appoint counsel when appropriate and necessary pursuant to Rule 5. A copy of the petition shall be served upon the 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, an order of arrest may be issued by the court.

(b) The parents or legal guardians shall be served with notice of the proceedings in the same manner as the juvenile and required to appear with the juvenile at the time and place set for the proceedings unless such respondents 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 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.

Rule 10. Attendance at Hearings and Confidentiality

(a) Right to Attend Hearing. Juvenile court proceedings are closed to the public except as provided by law. Only the following may attend hearings:

(1) the juvenile, counsel for the juvenile, and any guardian ad litem appointed for the juvenile;
(2) any parent or legal guardian of the juvenile and their counsel;
(3) any spouse or child of the juvenile;
(4) the prosecuting attorney;
(5) other persons requested by the parties listed in (1) through (4) if approved by the court;
(6) any probation officer and department of health and human resources caseworker involved in the proceedings;
(7) in cases in which the juvenile is accused of committing what would be a felony if the juvenile were an adult, an alleged victim or his or her representative (and parents if the alleged victim is a juvenile) under such conditions approved by the court;
(8) other persons authorized by the court under a determination that such persons have a legitimate interest in the proceedings; and
(9) in cases transferred to adult criminal jurisdiction, once the transfer is ordered and any appeal of the transfer is upheld, further proceedings shall be open to the public.

(b) Presence Required.

(1) Juvenile. The juvenile shall have the right to be present at all hearings. The juvenile is deemed to waive the right to be present if the juvenile voluntarily and without justification is absent after the hearing has commenced or if the juvenile disrupts the proceedings. Disruption of the proceedings occurs if the juvenile, after warning by the court, engages in conduct which prevents the orderly procedure of the court. The court may use all methods of reasonable restraint necessary to conduct the proceedings in an orderly manner. If the juvenile is restrained or removed from the courtroom, the court shall state the reasons for the restraint or removal on the record.

(2) Counsel. Counsel for the juvenile shall be present at all hearings, unless waived by the juvenile for good cause on the record. The prosecuting attorney shall be present for all hearings unless excused by the court in its discretion.

(3) Adult Respondents. The parents or legal guardians of a juvenile who is the subject of a delinquency or status offense proceeding shall accompany the juvenile to all hearings unless excused by the court for good cause shown. If any such person fails to attend a hearing with the juvenile without adequate excuse, the court may issue a subpoena or hold the person in contempt. The court may proceed if it is in the best interests of the juvenile or the administration of justice to do so even if a parent, legal guardian or other custodian fails to appear.

(c) Right to Participate.

(1) Juvenile, Counsel, and Prosecuting Attorney. The juvenile, juvenile's counsel, and prosecuting attorney have the right to participate in all hearings.

(2) Guardian ad Litem. Any guardian ad litem appointed by the court has a right to participate and advocate for the best interests of the juvenile at all hearings.

(3) Generally. Persons represented by counsel, who have a right to participate, shall participate through their counsel. Unrepresented persons may participate on their own behalf.

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