Rules of Juvenile Procedure

Rules 1 through 26

Table of Contents Full Table of Contents

Scope, Application and General Purpose
Terminology
Juvenile Jurisdiction
Venue
Appointment of Counsel
Taking a Juvenile into Custody
Informing Juvenile of Charges and Rights
Petitions
Service
Attendance at Hearings and Confidentiality
Release Under Bond Conditions for Delinquency and Status Offenses
Detention and Alternate Placements in Delinquency Cases
Pre-Adjudicatory Detention Factors for Delinquency Cases
Pre-Adjudicatory Placement Factors for Status Offenses
Domestic Violence Emergency Protective Orders as Juvenile Petitions
Review of Detention
Admission at Initial Appearances
Preliminary Hearings
Pre-Adjudicatory Community Supervision Periods
Transfer to Criminal Jurisdiction
Discovery
Subpoenas
Severance
Pre-Adjudication Motions
Pre-Adjudication Conferences
Pre-Adjudicatory Competency Evaluations

Scope, Application and General Purpose

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, §§ 49-2-901 through 49-2-913; 49-2-1001 through 49-2-1006; 49-4-701 through 49-4-725; and 49-5-101 through 49-5-106 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.
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.
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.
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.

Terminology

As used in these rules:

"Division" or "DJS" means the West Virginia Division of Juvenile Services.
"Department" or "DHHR" means the West Virginia Department of Health and Human Resources.
"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.
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.

Juvenile Jurisdiction

Juvenile jurisdiction of circuit courts over proceedings related to and controlled by these rules is as provided in West Virginia Code § 49-4-701. Magistrates, as juvenile referees, act under the jurisdiction of the appointing circuit court to the extent authorized by statute. Pre-petition diversion generally relating to all alleged status and delinquency offenses is within circuit court jurisdiction as authorized under West Virginia Code §§ 49-4-702, -702a, -703, and -725. Pre-petition diversion specifically relating to alleged delinquency offenses involving sexting is within circuit court jurisdiction as authorized under West Virginia Code § 49-4-717.

Venue

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.
"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.
Any procedure to remove a petition to another county shall not be initiated prior to the appointment of counsel to represent the juvenile.
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.
Objections regarding improper venue must be raised prior to the adjudicatory hearing or they are deemed to be waived.

Appointment of Counsel

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 W.Va. Code § 49-4-701, et seq. 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.
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 § 49-1-207, 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 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.
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.
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.
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.
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.
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.
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 § 49-4-704] 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.

Taking a Juvenile into Custody

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:
  1. the petition shows that grounds exist for the arrest of an adult in identical circumstances;
  2. the health, safety, and welfare of the juvenile demand such custody;
  3. the juvenile is a fugitive from a lawful custody or commitment order of a court; or
  4. 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:
  1. the health, safety, and welfare of the juvenile demand such custody; or
  2. 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 § 49-4-704(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:
  1. order the juvenile to be brought immediately before the circuit or magistrate court for a detention hearing;
  2. 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;
  3. 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;
  4. 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;
  5. state the time and date when issued, and the county and court where issued;
  6. 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
  7. 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.
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.
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.

Informing Juvenile of Charges and Rights

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.
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.
  1. Alleged Status Offenders. A juvenile alleged to have committed a status offense is not entitled to a trial by jury.
  2. 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.
  3. 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.
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.

Petitions

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.
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.
Presentation Exceptions for Certain Status Offenses.
1. A petition for a status offense under West Virginia Code § 49-1-202 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 § 49-1-202 alleging that a juvenile is habitually absent from school without good cause also may be presented and sworn by a representative of the juvenile's school district showing reason to have reliable information and belief.
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.
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.
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.
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.

Service

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.
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.
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.

Attendance at Hearings and Confidentiality

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.
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.
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.

Release Under Bond Conditions for Delinquency and Status Offenses

Should the court determine that unconditional release is inappropriate, but believes that an alternative to detention will provide protection to the community and safety for the juvenile, the juvenile may be admitted to bail, with or without surety, under conditions which may include any reasonable term, including but not limited to the following terms.

The juvenile shall:

not violate any criminal laws of this state or any other jurisdiction;
not enter or remain at any establishment that sells alcoholic beverages for consumption on the premises;
not use alcoholic beverages nor any controlled substance, inhalant or intoxicant of any kind unless specifically prescribed by a licensed physician;
submit to random substance screen testing at the direction of a probation officer;
report to the probation office as directed by the probation officer and be available for home visits by the probation officer;
not leave the state without the permission of the probation office;
attend school every day unless absent under a doctor's written excuse, not be suspended, complete all assignments and make reasonable efforts to make passing grades; or if approved by the probation officer seek or maintain approved employment;
remain under the supervision of the juvenile's parents or legal guardians and submit to such supervision in the matters of the juvenile's comings and goings;
not have access to or contact with a firearm or other dangerous and deadly weapons of any type;
not be ungovernable or habitually disobedient and beyond the control of parents or guardians;
abide by the decisions of the probation officer of the court who shall have the authority to designate those individuals with whom this juvenile may not communicate or associate;
adhere to any curfew set by the probation officer;
have no contact with victim or any witnesses absent permission of the court or arranged through the juvenile's counsel with counsel for the state;
appear timely at all hearings when notified to appear; and
acknowledge that a substantial violation of any one or a combination of any of the limitations and restrictions is sufficient grounds to detain the juvenile pending further proceedings.

Detention and Alternative Placements in Delinquency Cases

Scope. This rule governs all physical liberty restrictions placed upon a juvenile in delinquency cases before and after adjudication, upon disposition, or pending a probation violation hearing. For purposes of this rule, the first day of any confinement from which the designated period of time begins to run shall be included.
Types of Detention or Placement.
1. Secure Detention Facility. A secure detention facility means any public or private residential facility which includes construction fixtures designed to physically restrict the movements and activities of detainees held in lawful custody in such facility. A secure detention facility is designed to restrict a juvenile's liberty and substantially affect physical freedom or living arrangements.
2. Staff-Secure Facility. A staff-secure facility means any public or private residential facility characterized by staff restrictions of the movements and activities of residents held in the lawful custody in such facility and which limits residents' access to the surrounding community, but is not characterized by construction fixtures designed to physically restrict the movements and activities of residents.
3. Nonsecure Facility. A public or private residential facility not characterized by construction fixtures designed to physically restrict the movements and activities of individuals held in lawful custody in such facility.
4. Home Confinement. Restriction to the juvenile's residence, with or without electronic or global positioning system monitoring, except for out-of-home activities authorized by the court.
Presumption for Unconditional Release.
1. The juvenile shall be released, with or without conditions, unless the court determines there is substantial likelihood that:
  1. the juvenile's health or welfare would be immediately endangered;
  2. the juvenile would endanger others;
  3. the juvenile would not appear for a court hearing; or
  4. the juvenile would not remain in the care or control of the person into whose lawful custody the juvenile is released.
2. A juvenile who is taken into custody and found eligible for release except for the fact that no responsible adult can be found into whose custody the juvenile could be released may be detained until such time as a responsible adult can be found into whose custody the juvenile can be delivered. However, at the time the juvenile is taken into custody, a written record must be made of all attempts to locate a responsible adult in whose custody the juvenile can be released. This procedure must take place each and every day the juvenile is detained.
Additional Findings Necessary for Removal. In any order requiring the removal of the juvenile from his or her home, the court shall find and state in its order: 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.

Pre-Adjudicatory Detention Factors for Delinquency Offenses

Mandatory Release. The court shall release the accused juvenile unless:
1. The charge is a category 1 offense;
2. The charge is a category 2 or 3 offense and there is a judicial finding that the juvenile presents a danger to the public if not securely detained;
3. The charge is a category 2 or 3 offense and the juvenile is an escapee from detention or any commitment setting ordered; or the juvenile has a recent record of willful failure to appear at juvenile court proceedings and no measure short of secure detention can be imposed to reasonably ensure appearance;
4. The charge involves a violation of an alternative method of disposition;
5. The juvenile is awaiting adjudication or disposition for an offense which would be a felony under criminal jurisdiction, and is charged with committing another offense during the interim period which would be a felony;
6. The juvenile is awaiting adjudication or disposition for an offense which would be a felony under criminal jurisdiction, and was released on bond conditions but is found by a judicial authority to have committed a material violation of bond; or
7. The juvenile has been determined to be a fugitive from another jurisdiction, and an official of such jurisdiction or an official from the West Virginia Interstate Compact Office has formally requested that the juvenile be placed in detention.
Bond. When mandatory release is applicable, such release may be upon appropriate bond conditions set by the court pursuant to Rule 11.
No Mandatory Detention. A juvenile who is excluded from mandatory release under subparagraph (a) is not to be automatically detained. No category of alleged conduct in and of itself may justify a failure to exercise discretion to release upon consideration of the needs of the juvenile and the community.
1. Discretionary Release. In every situation in which the detention of an arrested juvenile is permissible, the court shall first consider and determine whether the juvenile qualifies for an available diversion program or release under bond conditions, or whether any other form of control short of detention is available to reasonably reduce the risk of flight or misconduct. The court should explicitly state in writing the reasons for rejecting each of these forms of release.
2. Secure vs. Other Detention. When appropriate, the court shall consider staff-secure detention alternatives prior to committing a juvenile to a secure detention facility.
Threatening Witnesses. An additional ground for detention is a determination by the court that there exists a substantial likelihood of danger to one or more witnesses should the juvenile be released.
Delinquency Offense Categories for Detention Assessments.
1. Category 1 Offenses. Treason; Murder, 1st or 2nd Degree, or Felony Murder; Murder of Child; Kidnapping; Sexual Assault, 1st or 2nd Degree; Robbery; Malicious Assault; Possession with Intent to Deliver, or Manufacture or Delivery of Controlled Substances; Arson, 1st Degree; Sexual Abuse 1st Degree; Brandishing a Deadly Weapon; Possession or Carrying a Deadly Weapon by Minor; and Attempted Category 1 Offense.
2. Category 2 Offenses. Child Sexual Abuse; Incest; Child Abuse, Injurious; Child Neglect, Injurious; Burglary; Sexual Assault, 3rd Degree; Voluntary Manslaughter; Sexual Abuse, 2nd Degree; Unlawful Assault; and Attempted Category 2 Offense.
  1. All other charges of criminal-type behavior which, in the case of an adult would be punishable by a sentence of not less than one year and if proven as a juvenile offense, could result in a commitment to a secure facility, but is not herein enumerated, will be considered under the terms and conditions of Category 2 offenses.
3. Category 3 Offenses. DUI (causing death or personal injury); Abduction; Extortion; DUI, 2nd or 3rd Offense; Possession or use of Explosives; Malicious Killing of Animal; Arson, 2nd, 3rd, or 4th Degree; Unlawful Shooting; Involuntary Manslaughter; Negligent Homicide (vehicular); Assault; Battery; Hit and Run Causing Personal Injury; Escape from Division of Juvenile Services Custody; Sexual Abuse, 3rd Degree; and Attempted Category 3 Offense.
Discretion to Release Even if One or More Factors are Met. Even if a juvenile meets one or more of the detention factors above, the court has broad discretion to release that juvenile following the detention hearing if other less restrictive measures would be adequate under the specific circumstances as determined by the court.

COMMENTS: Unconditional vs. Conditional or Supervised Release. In order to minimize the imposition of release conditions on persons who would appear in court without them, and present no substantial risk in the interim, each judicial circuit should develop guidelines for the use of various forms of release based upon the resources and programs available, and analysis of the effectiveness of each form of release.

Pre-Adjudicatory Placement Factors for Status Offenses

Mandatory Release. The court shall release the accused juvenile unless:
1. Circumstances present an imminent danger to the health, safety, and welfare of the juvenile if released;
2. No responsible adult can be found into whose custody the juvenile could be released. However, the custody order shall direct the custodial agency or facility: (i) to make a written record of all attempts to locate such a responsible adult; (ii) that this procedure must take place each day the juvenile is detained; and (iii) that the juvenile shall be returned to court forthwith if a responsible adult is found for the court's consideration of release of the juvenile to such adult; or
3. The juvenile has run away or absconded from a lawful custody or commitment order of a juvenile court of this State, or any other jurisdiction operating under the Interstate Compact for Juveniles (W.Va. Code § 49-7-301, et seq.).
Nonsecure or Staff-Secure Placement. A juvenile placed in custody by reason of subparagraph (a)(1), (2), or (3) above may only be placed in a nonsecure or staff-secure facility. On or after January 1, 2016, a juvenile adjudicated solely as a status offender may not be placed in a Division of Juvenile Services facility.
Less Restrictive Alternatives. In reaching the decision to place a juvenile in a nonsecure or staff-secure facility, the court shall first consider all less restrictive alternatives, such as placement with a willing adult relative, and all reasonably ascertainable factors relevant to the permissible reasons for custody under subparagraph (a)(1), (2), or (3) above.
Custody in Department. The department of health and human resources shall be immediately notified of any pre-adjudicatory custody hearing to be held, and any juvenile held pursuant to this rule may be placed in the legal custody of the department pending further proceedings by the court.
Additional Findings Necessary for Removal. In any order requiring the removal of the juvenile from his or her home, the court shall find and state in its order: 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.

COMMENTS: Pre-adjudicatory custody of status offenders is an extraordinary measure. The provisions of West Virginia Code, § 49-4-701, et seq., contemplate that any necessary pre-adjudicatory services should be in-home services (e.g. truancy prevention).

Domestic Violence Emergency Protective Orders as Juvenile Petitions

Emergency Protective Orders Treated as Juvenile Petitions. A domestic violence petition filed pursuant to West Virginia Code § 48-27-403 by or on behalf of the juvenile's parent, legal guardian or other person with whom the juvenile resides that results in the issuance of an emergency protective order naming the juvenile as the respondent shall be treated as a petition arising under W.Va. Code § 49-4-701, et seq., alleging the juvenile is a juvenile delinquent. The magistrate court shall notify the prosecuting attorney within 24 hours of the issuance of the emergency protective order, and the prosecuting attorney may file an amended verified petition within two judicial days, if desired. The appointment of a guardian ad litem and the family court hearing shall proceed; and any domestic violence order issued by the family court shall remain in effect until the juvenile petition is addressed by order in the circuit court or the protective order expires under its own terms.
Notice to Department. If a law-enforcement official takes into custody a juvenile named as a respondent in an emergency protective order issued pursuant to West Virginia Code § 48-27-403 wherein the individual filing the domestic violence petition is the juvenile's parent or legal guardian or other person with whom the juvenile resides, upon presentment for a detention hearing the court shall immediately notify the department of health and human resources as required by West Virginia Code § 49-4-705(c)(3).
Presumption for Release. The court shall release the juvenile unless:
1. Circumstances present an immediate threat of serious bodily harm to the juvenile or others if released; or
2. No responsible adult can be found into whose custody the juvenile can be delivered. However, the detention order shall direct the custodial agency or facility: (i) to make a written record of all attempts to locate such a responsible adult; (ii) that this procedure must take place each day the juvenile is detained; and (iii) that the juvenile shall be returned to court forthwith if a responsible adult is found for the court's consideration of release of the juvenile to such adult.
Detention. A juvenile detained by reason of subparagraph (c)(1) or (2) above may only be detained in a nonsecure or staff-secure facility. Provided, if the court determines that serious physical violence is the basis for the emergency protective order or that a substantial and credible risk of bodily injury is present, the court may order the juvenile detained in a secure facility. If the juvenile is placed in a secure or staff-secure facility by a magistrate, the magistrate shall within 24 hours refer the matter to circuit court, and the court shall hold a detention review hearing pursuant to Rule 16 within three judicial days.
Less Restrictive Alternatives. In reaching the decision to detain a juvenile in a nonsecure or staff-secure facility, the magistrate or judge shall first consider all less restrictive alternatives, such as placement with a willing adult relative, and all reasonably ascertainable factors relevant to the permissible reasons for detention under subparagraph (c)(1) or (2) above.
Additional Findings Necessary for Removal. In any order requiring the removal of the juvenile from his or her home, the court shall find and state in its order: 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.
Bond. Should the juvenile be detained under this rule, release under bond may be addressed after the prosecuting attorney has been notified and given the opportunity to file an amended juvenile petition pursuant to West Virginia Code § 49-4-704(f).

Review of Detention

The circuit court may schedule a review of pre-adjudicatory detention or placement consistent with the following:

Request For Hearing. A review of detention or placement may be requested by the juvenile, juvenile's counsel, prosecuting attorney, DHHR, DJS, probation officer, or upon application of any person with an interest in the matter. If the court finds a reasonable basis exists for the request, a hearing shall be scheduled as soon as possible, and no later than three judicial days after the request. The court may also set a detention or placement review hearing on its own motion.
Notice. The person requesting review shall make the request with notice to all parties and any agency with custody of the juvenile.
Relevant Evidence. Subject to constitutional limitations and privileged communications, the court may admit any evidence, including reliable hearsay and opinion evidence, that is relevant to the decision regarding continued detention or placement of the juvenile.
Continued Detention or Placement. The court may continue the detention or placement only if the court makes appropriate findings pursuant to Rule 13 or 14, whichever applies.

Admission at Initial Appearances

No inquiry relative to admission or denial of the charges or the juvenile's demand for a jury trial may be made by the court until the court has determined whether the proceeding is to be transferred to criminal jurisdiction.
If a juvenile enters a plea of denial to charges alleged in the petition at the arraignment stage, the court shall conduct all further proceedings for adjudication in accordance with these rules. If the juvenile remains silent when confronted with the charges the court shall proceed in the same manner as if the juvenile had denied the charges.

Preliminary Hearings

Timeliness and Purpose. A preliminary hearing shall be held within 20 days after the juvenile is served with the petition, or within 10 days if the juvenile is detained, unless a preliminary hearing was conducted in conjunction with a detention hearing, or waived by the juvenile after being advised by counsel. The purpose of a preliminary hearing is to determine if there is probable cause to believe the alleged juvenile offense has been committed and that the juvenile before the court is the person who committed it. If probable cause is found, the matter shall be bound over to the circuit court for an adjudication.
Types of Evidence. Evidence shall be introduced at the preliminary hearing under the rules of evidence prevailing in a criminal trial except that hearsay evidence may be received if there is a substantial basis for believing:
1. the source of the hearsay is credible;
2. there is a factual basis for the information furnished; and
3. that it would impose an unreasonable burden on one of the parties or a witness to require the primary source of the evidence be produced.
The Juvenile's Participation. The juvenile's counsel has the right to cross-examine the state's witnesses and introduce evidence.
No Probable Cause Found. If the court is of the opinion that the state has failed to establish probable cause, the petition shall be dismissed, the juvenile released, and the bond, if any, discharged.
Records. The magistrate shall electronically record the preliminary hearing or if conducted by the circuit court, the record shall be made by way of the court's regular method for recording hearings. A magistrate conducting any preliminary hearing shall promptly transmit the electronic record to the circuit clerk. The circuit court shall consider any motion for transcription of the preliminary hearing made by the juvenile or the state, with appropriate provisions for payment of the cost of transcription to be included in any order for transcription. Should recording procedures fail, the presiding magistrate or judge shall make a summary of the proceeding and file the written summary with the circuit clerk.

Pre-Adjudicatory Community Supervision Periods

Motion. At any time prior to adjudication, or in a time frame otherwise specified by the court, the juvenile may, before the circuit court, move for the allowance of a pre-adjudicatory community supervision period. If the court finds that the best interest of the juvenile is likely to be served by a pre-adjudicatory community supervision period, the court may delay the adjudicatory hearing and grant a pre-adjudicatory community supervision period. A motion for a pre-adjudicatory community supervision period, whether granted or denied, may not be construed as an admission or be used in evidence.
Duration and Terms. A pre-adjudicatory community supervision period may be granted for any period not exceeding one year. The terms of the pre-adjudicatory community supervision period, as determined by the court to address the treatment and rehabilitative needs of the juvenile, shall be set forth in a written order provided to the parties and counsel within 10 days of the hearing in which the motion was granted. In its discretion and based upon the particular circumstances, the court may direct that the juvenile be subject to the supervision of a probation officer during the pre-adjudicatory community supervision period; and may schedule the matter for interim judicial reviews. If the juvenile successfully completes the pre-adjudicatory community supervision period, the court shall dismiss the proceeding.
Services and Treatment. As part of the terms of the juvenile's pre-adjudicatory community supervision period, the court may direct the DHHR to provide services and treatment to address the rehabilitative needs of the juvenile and associated needs of his or her family.
Placement Out of Home. In appropriate cases, the court may place the juvenile in the custody of the department for out-of-home placement and treatment during all or part of the pre-adjudicatory community supervision period. If the juvenile is placed out of the home, the court shall find and state in the written order that continuation in the home is contrary to the best interests of the juvenile and why; and whether or not the department made reasonable efforts to prevent out-of-home placement or that exigent circumstances made such efforts unreasonable or impossible.

Provided, pursuant to W.Va. Code § 49-4-712, a juvenile adjudicated solely as a status offender - who has no prior adjudication for a status or juvenile delinquency offense or no prior disposition to pre-adjudicatory community supervision or probation for the current matter - may not be placed in an out-of-home placement, excluding placement made for abuse and neglect, unless the court finds by clear and convincing evidence the existence of a significant and likely risk of harm to the juvenile, family member, or the public.

On or after January 1, 2016, a juvenile adjudicated solely as a status offender may not be placed in a Division of Juvenile Services Facility.
Revocation. Upon a motion to revoke the pre-adjudicated community supervision period filed by the prosecuting attorney or probation officer, the court shall schedule a hearing upon the motion with notice to the parties and counsel. If the state proves to the court by clear and convincing evidence that the juvenile has committed a substantial violation of one or more terms of the pre-adjudicatory community supervision period, the court shall terminate the supervision period and schedule an adjudicatory hearing on the original petition, to commence within 30 days of the revocation.

Transfer to Criminal Jurisdiction

Scope. This rule applies to juvenile proceedings where a transfer to criminal jurisdiction is sought pursuant to the provisions of West Virginia Code § 49-4-710.
Motion by the State Any transfer motion made by the prosecuting attorney shall be filed and served at least eight days prior to the adjudicatory hearing. The motion must state, with particularity, the grounds for the requested transfer, including the statutory basis relied upon as set forth in West Virginia Code § 49-4-710.
Inquiries. No inquiries relative to admission or denial of the allegations contained in the petition or the demand for a jury trial may be made of the juvenile until the court has determined whether the proceedings will be transferred to criminal jurisdiction.
Notice. The juvenile, the juvenile's counsel, and the juvenile's parents or legal guardians shall be provided notice of the transfer motion at the time of filing and the hearing date.
Conduct of Hearing on Motion to Transfer
1. Timing. A hearing shall be held within seven days of the filing of the motion to transfer. The court may continue the hearing for a reasonable period of time sua 22sponte, or upon a motion by the prosecuting attorney or juvenile's counsel demonstrating good cause.
2. Burden of Proof. The burden is on the state to establish by clear and convincing evidence that the grounds for transfer exist.
3. Mandatory Transfer. The court shall transfer a juvenile proceeding to criminal jurisdiction if there is probable cause to believe that the conditions listed in West Virginia Code § 49-4-710(d)(1), (2) or (3) exist.
4. Discretionary Transfer. The court may transfer a juvenile proceeding to criminal jurisdiction if there is probable cause to believe that the conditions listed in West Virginia Code § 49-4-710(e), (f) or (g) exist.
5. Discovery. The juvenile shall be entitled to full discovery under Rule 21. Discovery obligations shall apply to both evidence regarding the charged offense and any evidence presented regarding personal factors under West Virginia Code § 49-4-710(e), (f) or (g). The juvenile shall be subject to the reciprocal discovery requirements contained in these rules. The prosecuting attorney shall provide discovery no later than seven days prior to the transfer hearing, and the juvenile's counsel shall provide discovery no later than four days prior to the hearing.
6. Evidence. The West Virginia Rules of Evidence shall apply to the portion of the hearing dealing with evidence of the charged offense. The court shall in its discretion admit reliable evidence regarding personal factors under West Virginia Code § 49-4-710(e), (f) or (g).
7. Suppression Motions. The juvenile shall be permitted to file suppression motions under W. Va. R. Crim. P. Rule 12(b)(3). The court shall hear evidence and make findings of fact and law regarding any such motions.
8. Testimony. The prosecuting attorney and juvenile shall be afforded the opportunity to present witnesses, present evidence and cross-examine witnesses. The parties shall have an opportunity to present an argument on the issue of transfer. The juvenile has the right to testify regarding the charged offense as well as personal factors affecting transfer. A juvenile who testifies regarding personal factors alone shall not be subject to cross-examination regarding the charged offense. All evidence, testimony, and argument shall be made a part of the court record.
Order. The court shall issue an order containing findings of fact and conclusions of law regarding the issue of transfer. If an order of transfer is issued pursuant to West Virginia Code § 49-4-710(e), (f), or (g) it shall contain detailed factual findings regarding the juvenile's mental state, physical condition, maturity, emotional state, home and family environment, school experience, and other relevant personal factors. For every petition seeking a discretionary transfer, the court shall give specific reasons as to why the transfer was or was not made.
Appeal. A juvenile who has been transferred to criminal jurisdiction pursuant to West Virginia Code § 49-4-710(e), (f) or (g) has the right to either directly appeal an order of transfer to the supreme court of appeals or to appeal the order of transfer following a conviction of the offense of transfer. Any appeal shall follow the procedures set forth in West Virginia Code § 49-4-710(j).
Transfer Request by Juvenile. The court shall transfer a juvenile proceeding to criminal jurisdiction upon the motion of a juvenile who has attained the age of 14 years. The court shall conduct a proceeding on the record to insure that any such demand is made knowingly, voluntarily, and intelligently, and with knowledge of the possible penalties under the criminal jurisdiction of the court. The court shall permit transfer only when it finds that the juvenile has been fully and effectively informed by counsel regarding the juvenile's constitutional, statutory, and procedural rights.
Disposition Alternative. If a juvenile charged with delinquency is transferred to adult jurisdiction and there convicted, the court may make its disposition in accordance with the juvenile dispositional statutes and rules in lieu of sentencing the juvenile as an adult.

Discovery

Initial Disclosures. The prosecuting attorney shall advise the juvenile's counsel in writing of the following:
1. Evidence obtained against the juvenile as a result of any search, seizure or electronic forms of recording voice, pictures or both;
2. Statements made by the juvenile including the names of individuals present at the time of the statement and the relationship, if any, to the juvenile;
3. Evidence acquired or discovered as a result of the statements referenced in subparagraph (b); and
4. A narrative of identification procedures involving the juvenile including live or photo lineups.
Disclosures Prior to Adjudication. The prosecuting attorney shall make the following disclosures in anticipation of adjudication:
1. Witnesses. The name, address and telephone number of witnesses the state intends to call in its case-in-chief, and any prior written or recorded statement of such witnesses.
2. Statements of Accomplices. Summaries of oral statements and copies of transcribed recorded statements made by accomplices of the juvenile.
3. Documents and Tangible Objects. Permit the juvenile's counsel to inspect and copy relevant books, papers, documents, photographs and tangible objects that the state intends to introduce at adjudication.
4. Reports of Examinations and Tests. Provide copies of reports of physical, mental, scientific tests or examinations. A written summary of the anticipated testimony regarding such reports shall also be provided.
5. Juvenile's Record. Provide the juvenile's counsel with prior allegations of delinquency, prior adjudications and pre-adjudicatory community supervision periods.
6. Exculpatory Information. Disclose to the juvenile's attorney any material or information known to the state that tends to disprove the allegations of the petition or be in mitigation at disposition.
7. Prior Statements. Any prior written or recorded statements of the juvenile.
Disclosure by the Juvenile. The juvenile's counsel shall make the following disclosures:
1. Witnesses. The name, address and telephone number of witnesses the juvenile intends to call in the juvenile's case-in-chief, and any prior written or recorded statement of such witnesses.
2. Documents and Tangible Objects. Permit the prosecuting attorney to inspect and copy relevant books, papers, documents, photographs and tangible objects that the juvenile intends to introduce at adjudication.
3. Reports of Examinations and Tests. Provide copies of reports of physical, mental, scientific tests or examinations which the juvenile intends to introduce in the juvenile's case in chief at the adjudicatory hearing. A written summary of the anticipated testimony regarding such reports shall also be provided.
4. Notice of Specific Defenses. Inform the prosecuting attorney in writing of any of alibi, entrapment, duress, insanity, self-defense and lack of jurisdiction defense.
Time Limitations.
1. Juvenile Detained. If the juvenile is detained in a facility operated by the Division of Juvenile Services:
  1. Initial disclosures by the state under paragraph (a) shall be made not less than five days prior to the date set for the preliminary hearing.
  2. Disclosures by the state under paragraph (b) shall be made not less than ten days prior to the date set for the adjudicatory hearing.
  3. Disclosures by the juvenile under paragraph (c) shall be made not less than ten days prior to the date set for the adjudicatory hearing.
2. Juvenile Not Detained. If the juvenile is not detained in a facility operated by the Division of Juvenile Services or is released prior to the time limitations imposed by Rule 27(a), disclosures under paragraphs (a), (b), and (c) shall be made not less than 30 days prior to the date set for the adjudicatory hearing.
3. Upon motion and for good cause shown the court may alter the time limitations provided by this rule.
Further Disclosure by the State.
1. Nothing in these rules shall prohibit the juvenile from filing a motion with three days prior notice to the state and prior to adjudication requiring the state to disclose to the juvenile's counsel any additional information relevant to the juvenile's innocence, guilt or culpability.
2. If the court denies the motion, upon application of the juvenile's counsel the court shall inspect and preserve such information, identified by the juvenile's counsel with some specificity.
Further Disclosures by the Juvenile.
1. Upon motion by the prosecuting attorney with three days prior notice to the juvenile's counsel and a showing that the sought procedures listed below will be material in determining whether or not the juvenile committed an alleged act or acts, the court at any time prior to adjudication may, subject to constitutional limitations, order the juvenile to:
  1. appear in a line up;
  2. speak for a witness for the purpose of voice identification;
  3. be fingerprinted;
  4. permit measurements and weight of the juvenile's body;
  5. pose for non-reenactment photographs;
  6. permit the taking of blood, hair or saliva samples;
  7. provide handwriting specimens; and
  8. submit to reasonable physical or medical examination.
Information Not Subject to Disclosure.
1. Pertaining to the Juvenile. Unless otherwise provided by these rules, any legal research, records, correspondence, reports or memoranda to the extent they contain opinions, theories, or conclusions of the juvenile, the juvenile's counsel, members of counsel's staff or counsel's agents participating in the representation of the juvenile are not subject to disclosure.
2. Pertaining to the State. Unless otherwise provided by these rules, any legal research, records, correspondence reports or memoranda to the extent they contain opinions, theories, or conclusions of the prosecuting attorney, members of prosecuting attorney's staff, or police agencies participating in the representation of the state are not subject to disclosure.
Depositions. Depositions for adjudications shall be taken and used under the same conditions as depositions pursuant to Rule 15 of the West Virginia Rules of Criminal Procedure.
Continuing Duty to Disclose. If after compliance with any discovery rule or court order, the prosecuting attorney or counsel for the juvenile discovers additional material information or witnesses subject to disclosure, counsel shall promptly notify opposing counsel of the existence of the additional information.
Protective and Modifying Orders. Upon a sufficient showing the court may at any time order that certain discovery or inspection be denied, restricted or deferred, or make such other order as is appropriate. Upon motion by the state or juvenile, the court may permit the party to make such showing, in whole or in part, in the form of a written statement to be inspected by the judge alone. If the court enters an order granting relief following such an ex parte showing, the entire text of the party's statement shall be sealed and preserved in the records of the court to be made available to the appellate court in the event of an appeal.

Subpoenas

For Attendance of Witnesses. A subpoena shall be issued by the clerk under the seal of the court. It shall state the name of the court, the name of the state as the petitioner and the first name and initial of the last name of the juvenile, and the juvenile case number, and shall command each person to whom it is directed to attend and give testimony at the time and place specified therein. When a subpoena seeks the attendance and testimony of a witness who is a minor, the subpoena shall specifically name and be directed to a parent or custodian, directing such parent or custodian to bring the minor to give testimony at the time and place specified therein. The clerk shall issue a subpoena, signed and sealed, but otherwise blank, to the party requesting it, who shall fill in the blanks before it is served.
Juveniles Unable to Pay. A subpoena may be issued for service on a named witness upon an ex parte application of a juvenile upon a satisfactory showing that the juvenile is financially unable to pay the subpoena costs and fees of the witness. The costs incurred by the subpoena process and the fees of the witness are paid as in the case of a witness subpoenaed in behalf of the state.
For Production of Documentary Evidence and of Objects. A subpoena may also command the person to whom it is directed to produce the books, papers, documents or other objects designated therein. The court on motion made promptly may quash or modify the subpoena if compliance would be unreasonable or oppressive. The court may direct that books, papers, documents or objects designated in the subpoena be produced before the court at a time prior to trial or prior to the time when they are to be offered in evidence and may upon their production permit the books, papers, documents or objects or portions thereof to be inspected by the parties and their attorneys.
Service. A subpoena may be served by the sheriff, by a deputy sheriff, or by any other credible person who is not a party and who is not less than 18 years of age. Service of a subpoena shall be made by delivering a copy thereof to the person named and by tendering to that person, if demanded, the fee for one day's attendance and the mileage allowed by law. Fees and mileage need not be tendered to the witness upon service of a subpoena issued in behalf of the state or an officer or agency thereof, or any subpoena issued under subparagraph (b) above.
Place of Service. A subpoena requiring the attendance of a witness at a hearing or trial may be served at any place within the state.
Contempt. Failure by any person without adequate excuse to obey a subpoena served upon that person may be deemed a contempt of the court from which the subpoena was issued or of the circuit court for the county.

Severance

Generally. When two or more juveniles are charged with any offense arising out of the same circumstances, they shall be adjudicated separately unless the court specifically finds that no prejudice will result from joint adjudication. Where the offense would be a felony if charged as an adult, the court shall consider the nature of the offense charged, the impact on the victim, the potential prejudice to each juvenile, and the interests of justice before ordering a joint adjudicatory hearing. A juvenile in a joint hearing shall be adjudicated in the same manner as a juvenile adjudicated separately.
Severance Because of Improper Joinder. Where a juvenile was improperly joined in a proceeding, the court shall order severance upon motion of the prosecuting attorney or the juvenile's counsel. Improper joinder is not a ground for dismissal.
Severance Because of Another Juvenile's Out-of-Court Statement. If the prosecuting attorney in a joint adjudicatory hearing intends to offer an out-of-court statement by one of the juveniles which is not admissible against the other in the state's case-in-chief, the juvenile against whom the statement is offered may move for severance. The court shall require the prosecuting attorney to elect one of the following options:
1. a joint adjudicatory hearing at which the statement is not received in evidence;
2. a joint adjudicatory hearing at which the statement is received in evidence only after all references to the juvenile making the motion have been deleted, if admission of the statement with the deletions will not prejudice that juvenile; or
3. severance.
Severance During Adjudicatory Hearing. If the court, during an adjudicatory hearing, determines severance is necessary to achieve a fair determination of the guilt or innocence of one or more of the juveniles in a joint hearing, the court shall order severance upon a finding of manifest necessity or with the consent of the juvenile to be adjudicated separately.

Pre-Adjudication Motions

The prosecuting attorney or any juvenile alleged to be a delinquent or status offender shall be afforded the right, subject to any time frame specified by the court, to file any motions as would be permissible under these rules or the West Virginia Rules of Criminal Procedure.
An application to the court for an order shall be by motion. A motion other than one made during a trial or hearing shall be in writing unless the court permits it to be made orally. It shall state the grounds upon which it is made and shall set forth the relief or order sought. It may be supported by affidavit.
The court, sua sponte or upon motion of counsel, may order a psychological examination of the juvenile prior to adjudication. The report of the examination shall be made available to the parties before the adjudicatory hearing.

Pre-Adjudication Conferences

Timing. The court, in its discretion or upon the motion of the juvenile's counsel or the prosecuting attorney, may order a pretrial conference. At the conclusion of any such conference, the court shall direct the entry of a memorandum order of the pretrial matters agreed upon by the parties or decided by the court.
Evidentiary and Other Issues. At the pretrial conference, the court shall determine whether there are any evidentiary or constitutional issues and, if not fully addressed during the conference, schedule an omnibus hearing. If there is no pretrial conference, evidentiary or constitutional issues raised by written motion of the juvenile's counsel or prosecuting attorney shall be heard by the court in an omnibus hearing at a time that will promote a fair and expeditious trial.
Admissions. No admissions made by the juvenile or the juvenile's attorney at a pretrial conference or hearing shall be used against the juvenile unless the admissions are reduced to writing and signed by the juvenile and the juvenile's attorney.

Pre-Adjudicatory Competency Evaluations

Whenever the circuit court has reasonable cause to believe that a juvenile who is the subject of a pending petition may be incompetent to stand trial, or that the juvenile's diminished mental capacity will be a significant factor in his or her defense, sua sponte or upon a motion filed by the State or on behalf of the juvenile, the court shall order a forensic evaluation of the juvenile in accordance with the procedures set forth in West Virginia Code, Chapter 27, Article 6A, Sections 2 and 4.

Commencement of Adjudication

Unless good cause is shown, specified in a written order:

For a Juvenile in Detention. The adjudication shall be commenced within 30 days of the juvenile being placed in detention; provided, if the charges involve a right to a jury and there has been a jury demand by the juvenile, the adjudication shall be commenced no later than the next term of court.
For a Juvenile Not in Detention. An adjudication shall be commenced within 60 days of the service of the petition upon the juvenile.
Release. If the juvenile is detained and the adjudication has not commenced within the time periods specified in subparagraph (a), the juvenile shall be released subject to such nonmonetary release conditions as may be required by the court, and the adjudication shall thereafter commence within 60 days.
Dismissal. The petition shall be dismissed without prejudice if the adjudication has not commenced within the time periods set forth in subparagraphs (b) or (c) above, whichever is applicable, and the court has not granted a continuance for good cause or an improvement period.
Pre-Adjudicatory Community Supervision Period. If a pre-adjudicatory community supervision period has been granted, but revoked prior to a successful conclusion, the adjudication shall be commenced within 30 days of the revocation.
Effect of Mistrial; Order for New Hearing. Upon a declaration of a mistrial, or an order of the circuit court or supreme court granting a new adjudication hearing, a status hearing shall be held within 15 days to schedule a new adjudication hearing in accordance with the time frames set forth in this rule.

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