West Virginia Judiciary

Rules of Juvenile Procedure | Rules 27-52

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Rules 27 through 52

 

Table of Contents Full Table of Contents
  1. Commencement of Adjudication
  2. Adjudication by Admission
  3. Jury at Adjudication
  4. Contested Adjudicatory Hearing
  5. Evidence
  6. Standard of Proof
  7. Adjudication Findings
  8. Disposition Hearing
  9. Multidisciplinary Treatment Teams
  10. Recommendations of the Multi-Disciplinary Treatment Team
  11. Case Plan
  12. Disposition – Status Offenses
  13. Delinquency Disposition
  14. Investigations and Evaluations
  15. Mental Health Disposition
  16. Permanency Hearings
  17. Judicial Review
  18. Termination of Parental Rights
  19. After-Care Planning
  20. After-Care Review
  21. Probation Violations
  22. Search Warrants
  23. Confidentiality of Juvenile Records
  24. Sealing Juvenile Records
  25. Development of Life Skills Curriculum and Transitional Plan

Commencement of Adjudications

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

  1. 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.
  2. For a Juvenile Not in Detention. An adjudication shall be commenced within 60 days of the service of the petition upon the juvenile.
  3. Release. If the juvenile is detained and the adjudication has not commenced within the time periods specified in the 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.
  4. 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 pre-adjudicatory community supervision period.
  5. Pre-adjudicatory Community Supervision Period. If an 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.
  6. 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.

Adjudication by Admission
  1. The court shall not accept a juvenile's admission to a charge at any stage of the proceedings without first determining the following based on the juvenile's statements on the record or contained in a written document signed by the juvenile and counsel.
    1. The juvenile understands the allegations in the petition and the elements of each charge, and that there is a factual basis for the admission that is reflected by specific facts set forth on the record or by a signed document.
    2. The juvenile understands that he or she has a right to adjudication on the merits, and to require proof of all of the elements of all of the charges.
    3. The juvenile understands the other rights, and possible consequences, as set forth in Rule 7.
    4. The juvenile understands the court's power to make a disposition of the charges if they are admitted, including:
      1. the court's dispositional authority includes the most severe step of placing the juvenile in an institution;
      2. the court's jurisdiction over an adjudicated delinquent could be up to the juvenile's 21st birthday. The court's jurisdiction over status offenders could be up to their 18th birthday;
      3. the court can modify a disposition, even repeatedly, until the termination of the court's jurisdiction; and
      4. the juvenile understands the potential future consequences of the court's disposition which may include:
        1. the possible effect on future dispositions imposed as a juvenile; and
        2. the possible effect on future sentences imposed as an adult.
  2. With the consent of the prosecuting attorney and the approval of the court, the juvenile shall be allowed to enter an admission to a lesser-included offense than is charged.
  3. Binding Admissions. A juvenile charged with a delinquency offense can enter plea negotiations with the state's attorney with the goal of reaching a settlement regarding the plea entered, whether the plea will be to the offense charged or to a lesser offense, and disposition. The court may accept or reject the entire agreement.
  4. Disposition. If the court accepts the juvenile's admission, the court shall schedule a disposition hearing in accordance with Rule 34.
  5. Withdrawal of an Admission. A juvenile may, on the record or by written motion filed with the court, request to withdraw an admission to the charges for good cause shown. The court may allow the juvenile to withdraw the admission: (1) before disposition if it is fair and just to do so giving due consideration to the reasons given and any prejudice withdrawal of the admission would cause due to action taken in reliance on the juvenile's admission; or (2) any time upon a showing that withdrawal is necessary to correct manifest injustice.
  6. Record. A record shall be made of the adjudicatory hearing. The record shall be transcribed: (1) pursuant to a court order; or (2) when the juvenile seeks an appeal or other review. The court reporter shall furnish a transcript of the proceedings at no charge to any indigent juvenile who seeks an appeal or other review if an affidavit is filed stating that neither the juvenile nor the juvenile's parents or legal guardians have the ability to pay for the transcript.

Jury at Adjudication
  1. When a juvenile is charged with a delinquent act which, if charged against an adult would expose the adult to possible incarceration upon conviction, the juvenile, the juvenile's counsel, or the juvenile's parent or guardian may demand, or the court upon its own motion may order, a jury for the adjudicatory hearing. A jury shall consist of 12 members; but at any time before verdict, the state and juvenile may stipulate in writing with the approval of the court that a valid verdict may be returned by a jury consisting of less than 12 persons.
  2. Should a juvenile elect to proceed to an adjudication by the court and waive the right to a jury for a delinquency charge under subparagraph (a), such waiver shall be in writing or an oral waiver on the record, and approved by the court.
  3. When a juvenile is charged with: (1) a status offense; (2) a delinquent act where incarceration is not a possibility under the equivalent adult criminal offense; or (3) where the court rules prior to the adjudicatory hearing that a disposition involving out-of-home placement will not be imposed if the juvenile is adjudicated as having committed the delinquent offense, the court shall conduct the adjudicatory hearing without a jury. Provided, if the court proceeds without a jury pursuant to this subparagraph, prior to commencement of the adjudicatory hearing the court shall advise the juvenile that a subsequent determination of a substantial violation of any service or treatment plan or any condition of probation will not preclude a modified disposition involving an out-of-home placement.
  4. Prior to voir dire, all prospective jurors for an adjudicatory hearing shall be instructed by the court regarding the confidentiality of juvenile proceedings.
  5. The provisions of this rule have no application to teen court programs conducted under West Virginia Code § 49-4-716.

Contested Adjudicatory Hearing
  1. Initial Procedure. At the beginning of the adjudicatory hearing, if the court has not previously determined the following information at a pre-adjudicatory conference, the court shall:
    1. verify the full name, age, and residence of the juvenile who is the subject of the matter;
    2. determine whether all necessary persons are present and identify those present for the record; and
    3. determine whether notice requirements have been met and, if not, whether the affected persons waive notice.
  2. Order of Adjudicatory Hearing. The order of the hearing shall be as follows:
    1. the prosecuting attorney may make an opening statement, confining the statement to the facts that the state expects to prove;
    2. the juvenile’s counsel may make an opening statement after the prosecutor’s opening statement (or waiver of the same) or may reserve the opening statement until immediately before offering the defense evidence. The statement shall be confined to a statement of the defense and the facts expected to be proved;
    3. the prosecuting attorney shall offer evidence in support of the petition;
    4. the juvenile’s counsel may offer evidence in defense of the juvenile;
    5. the juvenile’s counsel and the prosecuting attorney shall have the right to cross-examine witnesses;
    6. the prosecuting attorney may offer evidence in rebuttal of the defense evidence, and the juvenile’s counsel may then offer evidence in rebuttal of the state’s rebuttal evidence;
    7. at the conclusion of the evidence, the prosecuting attorney may make a closing argument and rebuttal argument to any closing argument by the juvenile’s counsel;
    8. the juvenile's counsel may make a closing argument; and
    9. motions for judgment of acquittal shall be governed by Rule 29 of the West Virginia Rules of Criminal Procedure.
  3. Record. A record shall be made of the adjudicatory hearing. The record shall be transcribed: (1) pursuant to a court order; or (2) when the juvenile seeks an appeal or other review. The court reporter shall furnish a transcript of the proceedings at no charge to any indigent juvenile who seeks an appeal or other review if an affidavit is filed stating that neither the juvenile nor the juvenile’s parents or legal guardians have the ability to pay for the transcript.

Evidence

Except as modified in West Virginia Code § 49-4-701, the West Virginia Rules of Evidence shall apply, including the use of depositions as contemplated by Rule 15 of the Rules of Criminal Procedure.


Standard of Proof
  1. Delinquent Offense. The burden is on the State to prove the allegations in the petition beyond a reasonable doubt before an adjudication can be made that a juvenile committed a delinquent offense.
  2. Status Offense. The burden is on the State to prove the allegations in the petition by clear and convincing evidence before an adjudication can be made that the juvenile committed a status offense.

Adjudication Findings

Within seven days of the conclusion of the adjudication hearing, the court shall issue an order stating its findings that the allegations in the petition have or have not been proven. Findings may be made on the record at the conclusion of the adjudicatory hearing, but must be followed up in writing within the seven days. For good cause, the court may extend the time for filing written findings for an additional seven days. If one or more offenses have been proven at the adjudication hearing, the court shall schedule a dispositional hearing. The court shall dismiss the petition if the allegations have not been proven.


Dispositional Hearing
  1. Generally. Juveniles adjudicated as delinquent or status offenders are entitled to be sentenced in the least restrictive manner possible that will meet their needs and protect the welfare of the public. The goal in disposition should be the rehabilitation of the juvenile to enable and promote becoming a productive member of society. In disposition, the court has discretion when determining terms and conditions, and is not limited to the relief sought in the petition. The court shall consider the best interests of the juvenile and the welfare of the public when rendering its decision.
  2. Timing. After the court finds that charges in the petition have been admitted or sustained by proper proof at the adjudicatory hearing, the court may conduct a disposition hearing immediately, unless the multidisciplinary treatment team planning process needs to be completed for disposition, or schedule the matter for a disposition hearing in accordance with the following time frames:
    1. Detained Juvenile. If a juvenile is currently being detained or otherwise being held in out-of-home custody, the court shall hold the dispositional hearing within 30 days of the conclusion of the adjudicatory hearing.
    2. Non-Detained Juvenile. If a juvenile is not being detained or otherwise being held in out-of-home custody, the court shall hold the dispositional hearing within 60 days of the conclusion of the adjudicatory hearing.
    3. Continuances. For good cause, including but not limited to pre-dispositional examination, diagnosis and classification, or difficulties in locating an appropriate proposed placement, by written order, the court may extend the time period to hold a dispositional hearing for one additional period of up to 60 days. Except in extraordinary circumstances, if the court fails to hold a dispositional hearing for a juvenile held in detention or other out-of-home custody within the time limits prescribed by this rule, the juvenile shall be released from detention or other out-of-home custody. If a dispositional hearing for a juvenile is not conducted within the time limits prescribed by this rule, the court may also dismiss the case.
  3. Conduct and Manner of Hearing. The court shall give the juvenile, the state, and any victim an opportunity to be heard during the dispositional hearing. The juvenile and the state may put on witnesses and present evidence regarding the disposition of the juvenile. The juvenile shall be given the opportunity to comment on any proposed disposition during the hearing.
  4. Record. A record shall be made of the dispositional hearing. The record shall be transcribed:
    1. pursuant to a court order; or
    2. when the juvenile seeks an appeal or other review. The court reporter shall furnish a transcript of the proceedings at no charge to any indigent juvenile who seeks an appeal or other review if an affidavit is filed stating that neither the juvenile nor the juvenile’s parents or legal guardians have the ability to pay for the transcript.

Multidisciplinary Treatment Teams
  1. Convening of Multidisciplinary Treatment Teams. After a juvenile is adjudicated as a status or delinquent offender pursuant to the provisions of West Virginia Code Chapter 49, Article 4, Part VII, the multidisciplinary treatment team shall have the responsibilities specified below:
  2. Comprehensive Assessment Requirement.
    1. Status Offenders. Whenever a juvenile is adjudicated as a status offender pursuant to West Virginia Code § 49-4-711(4), the department of health and human resources shall promptly convene a multidisciplinary treatment team and conduct a risk and needs assessment, utilizing a standard uniform comprehensive assessment instrument or protocol, to determine the juvenile’s mental and physical condition, maturity and education level, home and family environment, rehabilitative needs, and recommended service plan.
    2. Delinquent Offenders. If the juvenile is adjudicated as a delinquent and the court refers the juvenile for comprehensive assessment by the multidisciplinary treatment team pursuant to West Virginia Code § 49-4-406, the probation officer shall promptly notify the DHHR and the DJS in order to allow the MDT to convene and develop a comprehensive individualized service plan for the juvenile.
  3. Assessment Time Frame and Report.
    1. The assessment must be completed within 60 days following adjudication, unless for good cause shown, the court extends the assessment period by written order providing the reasons for the extension of time. If the juvenile is being detained or otherwise being held in out-of-home custody, the assessment must be completed within 30 days following adjudication.
    2. Upon completion of the assessment, the DHHR shall be responsible for providing the assessment report, forthwith, to members of the multidisciplinary treatment team; provided, if the juvenile has been adjudicated delinquent and ordered into the custody of the DJS for examination and diagnosis, the DJS shall be responsible for providing the assessment report to the MDT.
    3. The assessment report must also be provided by the responsible agency to the court and counsel at least 72 hours before the dispositional hearing.
  4. Access to and Confidentiality of Information. The multidisciplinary treatment team shall be afforded access to information in the possession of the DHHR, DJS, law-enforcement agencies, and other state, county, and local agencies; and the agencies shall cooperate in the sharing of information as may be provided by West Virginia Code §§ 49-5-101, 49-5-103, and any other relevant provision of law. Any multidisciplinary team member who acquires confidential information shall not disclose such information except as permitted by statute or these rules.
  5. Responsibilities. The multidisciplinary treatment team shall submit written reports to the court as required by these rules or by the court, shall meet with the court at least every three months, as long as the juvenile remains in the legal or physical custody of the state, and shall be available for status conferences and hearings as required by the court.
  6. Scope of this Rule. This rule is to be construed broadly to effectuate cooperation and communication between all service providers, parties, counsel and the court.

Recommendations of the Multidisciplinary Treatment Team
  1. Individualized Service Plan. Pursuant to W.Va. Code § 49-4-403, the multidisciplinary team shall develop an individualized service plan for the juvenile based upon the assessment report provided pursuant to Rule 35, and based upon the team’s independent investigation of the juvenile’s circumstances and rehabilitative needs. The multidisciplinary treatment team shall provide its proposed individualized service plan to the court and counsel at least 72 hours prior to the juvenile’s dispositional hearing.
  2. Conflicting Determinations Regarding the Plan. If the multidisciplinary treatment team cannot agree on a service plan or if, upon review of the proposed service plan, the court determines not to adopt the team’s plan, upon motion or sua sponte, the court shall schedule and hold a hearing within ten days (prior to entry of a dispositional order placing the juvenile in the dispositional custody of the DHHR or in an out-of-home setting) to consider evidence from the team as to its rationale for the proposed service plan or reasons regarding disagreement on the plan. After such hearing, if the court does not adopt the team’s recommended service plan for the juvenile, it shall make specific written findings as to why the team’s plan was not adopted.
  3. Out-of-State Placement. In any case in which the court determines that the most appropriate placement of the juvenile is an out-of-state facility or program, the court shall set forth in the placement order the reasons why the juvenile was not placed in an in-state facility or program.
  4. Exceptions. Nothing in these rules should be construed to require a multidisciplinary team meeting to be held prior to temporarily placing a juvenile out-of-home under exigent circumstances.

Case Plan
  1. Case Plan for Foster Care. For every juvenile in foster care under the supervision of the DHHR or DJS, the custodial agency must prepare a case plan for the child within the first 60 days of entering the care, custody and control of the agency.
  2. Coordination with Multidisciplinary Team. The Case Plan shall be developed in coordination and consultation with the Multidisciplinary Team and the comprehensive assessment process.
  3. Contents of Case Plan. The Case Plan shall include, but need not be limited to:
    1. A description of the type of home or institution in which a child is to be placed or is placed, including a discussion of the safety and appropriateness of the placement.
    2. The factors to be considered in determining the safety and appropriateness of the placement shall include, consistent with the best interest and special needs of the juvenile, whether the placement is the least restrictive setting, the most nurturing setting, in reasonable proximity to the juvenile's home, and any other factor the court deems pertinent. If the juvenile has been placed in a home or facility welfare agency a substantial distance from the home of the parents, or in another State, the reasons why such placement is in the best interests of the juvenile must be set forth.
    3. A plan for assuring that the juvenile receives safe and proper care and that services are provided to the parents, juvenile and foster parents, if applicable, in order to improve the conditions in the parents’ home, facilitate return of the child to his own safe home or the permanent placement of the child, and address the needs of the child while in foster care, including a discussion of the appropriateness of the services that have been provided to the juvenile.
    4. The health and education records of the juvenile, including the most recent information available regarding:
      1. the names and address of the juvenile’s health and educational providers;
      2. the juvenile’s grade level performance;
      3. the juvenile’s school record;
      4. a record of the juvenile’s immunizations;
      5. the juvenile’s medications; and
      6. any other relevant health and education information.
    5. For a juvenile age 14 or older, written descriptions of the programs and services which will help prepare the juvenile for the transition from foster care to independent living.
    6. If a W.Va. Code § 49-4-601, et seq, proceeding is contemplated by the DHHR, in the case of a juvenile with respect to whom the permanency plan is adoption or placement in another permanent home, documentation of the steps the DHHR is taking to find an adoptive family or other permanent living arrangement for the juvenile, to the place the juvenile with an adoptive family, a fit and willing relative, a legal guardian, or in another planned permanent living arrangement, and to finalize the adoption or legal guardianship. At a minimum, such documentation shall include juvenile specific recruitment efforts such as the use of State, regional and national adoption exchanges.
    7. If a W.Va. Code § 49-4-601, et seq., proceeding is contemplated by the DHHR, in the case of a juvenile with respect to whom the permanency plan is placement with a relative and receipt of kinship guardianship assistance subsidy, a description of:
      1. the steps the DHHR has taken to determine that it is not appropriate for the juvenile to be returned home or adopted;
      2. the reasons for any separation of siblings during placement;
      3. the reasons why a permanent placement with a fit and willing relative through a kinship guardianship subsidy is in the juvenile’s best interest;
      4. the ways in which the juvenile meets the eligibility requirements for a kinship guardianship assistance subsidy;
      5. the efforts the DHHR has made to discuss adoption by the juvenile’s relative foster parent as a more permanent alternative to legal guardianship and, in the case of a relative foster parent who has chosen not to pursue adoption, documentation of the reasons therefore; and
      6. the efforts made by the DHHR to discuss with the juvenile’s parent or parents the kinship guardianship assistance subsidy, or the reasons why the efforts were not made.
    8. A plan for ensuring the educational stability of the juvenile while in foster care, including:
      1. assurances that the placement of the juvenile takes into account the appropriateness of the current educational setting and the proximity to the school in which the juvenile is enrolled at the time of placement; and
      2. an assurance that the custodial agency has coordinated with appropriate local educational agencies to ensure that the juvenile remains in the school in which the juvenile is enrolled at the time of placement; or
      3. if remaining in such school is not in the best interests of the juvenile, assurances by the custodial agency and the local educational agency to provide immediate and appropriate enrollment in a new school, with all of the educational records of the juvenile provided to the school.

Disposition – Status Offenses
  1. Referral for Service Plan. If the allegations in a petition alleging that the juvenile is a status offender are admitted or sustained by clear and convincing proof, the court shall refer the juvenile to the department of health and human resources for services, pursuant to West Virginia Code § 49-4-711, and order the DHHR to report back to the court with regard to the juvenile’s progress at least every 90 days until the court, upon motion or sua sponte, determines the disposition completed and dismisses the case from its docket. Services provided shall be designed to develop skills and social supports for the juvenile and to resolve problems related to the juvenile and his or her family. Services may include, but are not limited to, referral of the juvenile and parents, guardians and other family members to services for psychiatric or other medical care, or psychological, legal, educational or other social services, as appropriate to the needs of the juvenile and his or her family.
  2. Further Order of Compliance. If necessary, the DHHR may petition the circuit court:
    1. For a court order to enforce compliance with a service plan or to restrain actions that interfere with or defeat a service plan; or
    2. For a court order to place a juvenile out of home in a non-secure or staff-secure setting, and/or to place a juvenile in the custody of the DHHR.
  3. Further Disposition Alternatives. In ordering any further disposition of the status offender under subparagraph (b) above, the court is not limited to the relief sought in the DHHR petition and shall make every effort to place the juvenile in community-based programs and facilities which are the least restrictive alternatives appropriate to the needs of the juvenile and the community.
  4. Out-of-Home Placement Findings.
    1. In every case where the court orders an out-of-home placement for the juvenile, the order shall further find and state in the order that continuation in the home is contrary to the best interests of the juvenile and why; and whether or not the DHHR made reasonable efforts to prevent out-of-home placement or that exigent circumstances made such efforts unreasonable or impossible.
    2. The prior actual provision of services by the DHHR under subparagraph (a) above is not in all cases a jurisdictional prerequisite for the filing of a petition seeking an order for out-of-home placement and/or department custody. However, such relief at the outset may only be granted upon a showing by clear and convincing evidence that such a placement or custody order is actually necessary; and that the effective provision of services cannot occur absent such an order. Any order granting such placement or transfer must be based on specific findings and conclusions by the court with respect to the grounds for and the necessity of the order.
  5. Financial Support. If the court places the juvenile in the custody of the DHHR, an appropriate order of financial support shall be imposed upon the parents or legal guardians. The circuit court shall make the determination and enter the order establishing a child support obligation, and any subsequent modification thereto, in accordance with West Virginia Code § 49-4-801, et seq., and the Guidelines for Child Support Awards found in West Virginia Code § 48-13-101, et seq. Copies of the child support orders shall be provided to the Department of Health and Human Resources, Bureau of Child Support Enforcement as set forth in W.Va. Code § 49-4-801(c). The Guidelines may be disregarded, or the calculation of a support obligation under the Guidelines may be adjusted, only if the court makes specific findings that use of the Guidelines is inappropriate. If there is a child support obligation relating to the juvenile imposed in a divorce or other family court proceeding, the circuit court order entered pursuant to this rule shall supersede the family court support order for the period the juvenile is in DHHR custody, or as otherwise specified by the circuit court.
  6. Removal of Case to Another County. At disposition or any time thereafter, if the juvenile resides in another county, the court, upon motion or sua sponte may determine that the best interests of the juvenile warrant removal of the case to the other county where the juvenile resides for dispositional supervision and quarterly reviews. Such removals in post-disposition matters are further governed by West Virginia Code § 56-9-1. If the case is removed to the juvenile’s county of residence for dispositional supervision and review, the court shall direct the circuit clerk to send the file to the juvenile’s home county within five days of the entry of the removal order.
  7. Modification of Disposition. A dispositional order may be modified by the court in conformance with West Virginia Code § 49-4-718.

Delinquency Disposition
  1. Findings.
    1. The dispositional order by the court shall contain written findings of fact to support the disposition and shall contain the following information:
      1. why public safety and the best interest of the juvenile are served by the disposition ordered;
      2. what alternative dispositions, if any, were recommended to the court and why such recommendations were not ordered; and
      3. if the disposition changes the custody or placement of the juvenile:
        1. the reasons why public safety and the best interest of the juvenile are not served by preserving the juvenile’s present custody; and
        2. suitability of the placement, taking into account the program of the placement facility and assessment of the juvenile’s actual needs.
  2. Department of Health and Human Resources Custody. Upon a finding that a parent or custodian is not willing or able to take custody of the juvenile, that a juvenile is not willing to reside in the custody of a parent or custodian, or that a parent or custodian 41cannot provide the necessary supervision and care of the juvenile, the court may place the juvenile in the temporary custody of the DHHR. The order shall further find and state that continuation in the home is contrary to the best interests of the juvenile and why; and whether or not the DHHR made reasonable efforts to prevent the out-of-home placement or that the exigent circumstances leading to the delinquency adjudication made such efforts unreasonable or impossible.
  3. Division of Juvenile Services Commitments. Upon a finding that the best interests of the juvenile or the welfare of the public require it, the court may commit the juvenile to the custody of the Director of the Division of Juvenile Services for placement in a juvenile services facility for the treatment, instruction, and rehabilitation of juveniles; provided, that the court maintains discretion to consider alternative dispositional arrangements. The order shall further find and state that continuation in the home is contrary to the best interest of the juvenile and why; and whether or not the DHHR made reasonable efforts to prevent out-of-home placement or that the exigent circumstances leading to the delinquency adjudication made such efforts unreasonable or impossible. Commitments shall not exceed the maximum term for which an adult could have been sentenced for the same offense and any such maximum allowable commitment to be served in a juvenile services facility shall take into account any time served by the juvenile in a detention center pending adjudication, disposition, or transfer.
  4. Financial Support. If the court places the juvenile in the custody of the DHHR or DJS, an appropriate order of financial support shall be imposed upon the parents or legal guardians. The circuit court shall make the determination and enter the order establishing a child support obligation, and any subsequent modification thereto, in accordance with West Virginia Code § 49-4-801, et seq., and the Guidelines for Child Support Awards found in West Virginia Code § 48-13-101, et seq. Copies of the child support orders shall be provided to the Department of Health and Human Resources, Bureau of Child Support Enforcement as set forht in W.Va. Code § 49-4-801(c). The Guidelines may be disregarded, or the calculation of a support obligation under the Guidelines may be adjusted, only if the court makes specific findings that use of the Guidelines is inappropriate. If there is a child support obligation relating to the juvenile imposed in a divorce or other family court proceeding, the circuit court order entered pursuant to this rule shall supersede the family court support order for the period the juvenile is in DHHR or DJS custody, or as otherwise specified by the circuit court.
  5. Probation. Upon a finding that the juvenile is in need of extra-parental supervision: (1) place the juvenile under the supervision of a probation officer of the court while leaving the juvenile in the home; and (2) prescribe a program of treatment, therapy or limitations upon the juvenile's activities under reasonable terms which are within the juvenile's ability to perform, including any appropriate program of community service and restitution.
  6. Removal of Case to Another County. At disposition or any time thereafter, if the juvenile resides in another county, the court, upon motion or sua sponte may determine that the best interests of the juvenile warrant removal of the case to the other county where the juvenile resides for dispositional supervision and quarterly reviews. Such removals in post-disposition matters are further governed by West Virginia Code § 56-9-1. If the case is removed to the juvenile’s county of residence for dispositional supervision and review, the court shall direct the circuit clerk to send the file to the juvenile’s home county within five days of the entry of the removal order.
  7. Modification of Disposition. A dispositional order may be modified by the court in conformance with West Virginia Code § 49-4-718. If the modification sought is revocation of probation, Rule 46 shall apply.

Investigations and Evaluations
  1. Generally. The court may order an investigation of the personal and family history and environment of the juvenile, and medical, psychological or chemical dependency evaluations of the juvenile:
    1. with the consent of the juvenile, juvenile’s counsel, and the parents or legal guardians of the juvenile, before the charges in the petition have been proved; or
    2. at any time after the charges in the petition have been proved.
  2. Psychological Evaluation. The court, sua sponte or upon motion of counsel, may order a psychological examination of the juvenile prior to disposition. The report of the examination shall be made available to the court and parties no later than 72 hours before the dispositional hearing.
  3. Psychological and Medical Evaluation Pursuant to § 49-2-907.
    1. Period of Custody. The court may order, in aid of disposition, that the juvenile be taken into the custody of the Division of Juvenile Services to undergo a complete diagnostic evaluation and medical examination.
    2. Duration. The period of custody shall not exceed 30 days.
    3. Multidisciplinary Team. During the period the juvenile is in custody, the DJS shall convene a multidisciplinary team to aid in determining the appropriate recommended disposition for the juvenile. Within ten days after the end of the examination period, the multidisciplinary team shall submit a report to the court discussing the results and findings of the examinations, and the team's recommendations for the juvenile.
  4. Probation Officer Predisposition Reports. The probation officer assigned to the court shall, upon request of the court, make an investigation of the environment of the juvenile and the alternative dispositions possible. The report of such investigation shall not be made available to the court until after the adjudicatory hearing. The probation officer report shall file the predisposition report 72 hours prior to the time scheduled for the disposition hearing and provide copies of the report to the juvenile’s counsel, the prosecuting attorney, and the parents or legal guardians of the juvenile; and when the court is considering placing the juvenile in DHHR custody or placing the juvenile out of home at DHHR expense, provide a copy to the local DHHR office.
  5. Advisory. When the court orders a predisposition investigation, the court shall advise the juvenile, the juvenile’s counsel, the prosecuting attorney and the juvenile’s parents or legal guardians that a predisposition investigation is being ordered, the nature of the evaluations to be included, and the date when the reports resulting from the investigation are to be filed with the court.

Mental Health Disposition
  1. Procedures for Commitment to a Mental Health Facility. Should the juvenile, the prosecuting attorney, the probation officer, or the court on its own motion, request disposition pursuant to West Virginia Code § 49-4-714(b)(6), the following shall apply:
    1. The DHHR Bureau for Behavioral Health and Health Facilities shall be given notice that the court is considering a commitment of the juvenile to a mental health facility.
    2. If the court determines that probable cause exists to believe the juvenile has a mental illness requiring in-patient treatment further delinquency proceedings shall be stayed and the juvenile ordered to undergo a diagnostic study as designated by the court to permit the court to receive expert opinions on the advisability of in-patient treatment, the expected duration of time the juvenile shall remain out of the home, the suggested treatment plan and the types of facilities available within the state, or if no such facility exists within the state, out-of-state where appropriate treatment of the juvenile may be administered. The examination may be arranged by the community mental health center where the juvenile resides.
  2. Proposed Placement by DHHR. Not more than five judicial days after issuance of the evaluation ordered pursuant to subparagraph (a)(2) above, the DHHR shall provide the court, counsel for the juvenile, the prosecuting attorney, and the probation officer with its recommendations for placement. The recommendations shall include available in-state placements and the projected date of when the placement will be available. If no appropriate in-state placement exists or the projected in-state placement will not be available within five days of the hearing contemplated by subparagraph (c) below, DHHR shall provide the court with a list of available out-of-state placements and the projected date the placement will become available. The recommendations shall also detail how the recommended facility will meet the juvenile’s treatment needs.
  3. Hearing on Commitment. Not more than five judicial days after the recommended placement report by the DHHR as required by subparagraph (b) above, the court shall conduct a hearing on commitment. If the criterion for commitment under West Virginia Code, Chapter 27 is met, the court shall consider the recommended placement as provided by the DHHR. The court thereafter may follow the recommendation, reject the recommendation and refer the matter back to the DHHR for additional recommendations, or accept recommendations of the juvenile, the prosecuting attorney or the probation officer.
  4. Commitment Findings. If the court orders commitment of the juvenile to a mental health facility, in addition to the findings specifically supporting such commitment, the court shall further find and state in the order that continuation in the home is contrary to the best interests of the juvenile and why; and whether or not the DHHR made reasonable efforts to prevent out-of-home placement or that exigent circumstances made such reasonable efforts unreasonable or impossible.

Permanency Hearings
  1. Timing and Purpose. For every juvenile in out-of-home custody of the DHHR, the court shall conduct a permanency hearing within 14 months of the date of the juvenile's initial removal from the home, and at least once every 12 months thereafter so long as the juvenile remains out of the home in DHHR custody. The purpose of the hearing is to determine the permanency plan for the juvenile that includes whether, and if applicable when, the child will be returned to the parent or the state will file a petition for termination of parental rights as a proceeding arising out of West Virginia Code § 49-4-601, et seq., or referred for legal guardianship, or placed in another planned living arrangement. Procedural safeguards shall be applied with respect to parental rights pertaining to the removal of the juvenile from the home of his parents, to a change in the juvenile's placement and to any determination affecting visitation privileges of parents; and procedural safeguards shall be applied to assure that in any permanency hearing held with respect to the juvenile, the court consults, in an age-appropriate manner, with the juvenile regarding the proposed permanency or transition plan. In the discretion of the court, the hearing may be scheduled and held concurrently with a judicial review hearing, so long as the permanency plan matters are distinctly addressed in the hearing and reflected in a written order.
  2. Findings. At the permanency hearing, the court shall determine the juvenile's permanency plan, make findings as to whether the department made reasonable efforts to finalize the permanency plan, find whether or not the department made reasonable efforts to permanently place the juvenile in a timely manner, and identify services required to meet the juvenile's needs.
  3. Notice. In addition to parties and counsel, foster parents or relatives providing care for the juvenile, if any, shall be given timely written notice of permanency hearings, and shall be afforded the right to be heard in any such hearing.
  4. Written Order. The court shall issue a written order within 10 days following the permanency hearing.

Judicial Review
  1. Applicable Cases. Following adjudication, in every status offense case and in every juvenile delinquency case in which a multidisciplinary treatment team has convened, the court shall conduct regular judicial review of the case with the multidisciplinary treatment team. These judicial review hearings may be conducted as often as considered necessary by the court. Provided, if the juvenile is in an out-of-home placement, the judicial reviews shall occur at least once every three months.
  2. Hearing and Order. In review hearings, the court shall address the extent of progress in the case, treatment and service needs, permanent placement planning for the juvenile, the continuing necessity for and appropriateness of the placement, the extent of compliance with the case plan, including the progress made toward alleviating or mitigating the causes necessitating placement, and any other matters that the court considers pertinent. An order reflecting the matters covered, any uncontested rulings, and the scheduling of an evidentiary hearing on any contested matter shall be issued by the court within 10 judicial days of the judicial review.
  3. Required Findings. At the conclusion of each judicial review hearing, the court shall make a finding as to whether or not the department made reasonable efforts to finalize the permanency plan, and such finding shall be set forth in the written order issued following the hearing.
  4. Video Appearances. If video conferencing is available, the court may direct, with or without a motion, that the juvenile or other hearing participants may appear for a judicial review by video conference.
  5. Notice. In addition to the parties and counsel, foster parents or relatives providing care for the juvenile, if any, shall be given timely written notice of each review hearing, and shall be afforded the right to be heard in any such hearing.

Termination of Parental Rights
  1. Timing. When a juvenile has been out of the home in DHHR custody for 15 of the most recent 22 months the DHHR is required to file a petition to terminate the parental rights of the parents, unless the department has determined and documented in the case plan made available for court review a compelling reason why termination of parental rights is not in the best interests of the juvenile.
  2. Compelling Reason. Compelling reason determined by the department not to seek termination of parental rights may include, but is not limited to, the following: (1) the juvenile's developmental needs require continued out-of-home placement for an additional number of months, and the parents have cooperated with referrals, visitation, family conferences, and therapy; (2) the juvenile is habitually truant and absconds from the home, and the current placement has an on-site school with therapeutic intervention with parental involvement; (3) the juvenile's rehabilitative needs require an extended out-of-home placement and the juvenile is an older teen who does not want parental rights terminated; or (4) no grounds to file a petition to terminate parental rights exist.
  3. Seeking Termination. Any petition seeking termination of parental rights must be filed as a proceeding arising under West Virginia Code Chapter 49, Article 6; and handled in accordance with those statutes and the related procedural rules for child abuse and neglect proceedings.

After-Care Planning
  1. Not less than two months prior to a juvenile being discharged from any facility or placement, the agency in whose custody the juvenile is placed shall notify the court of the date of anticipated discharge, and the court shall:
    1. Set the matter for hearing, to occur not less than 45 days before the juvenile is to be discharged, for consideration of an after-care plan.
    2. Require the state agency in whose custody the juvenile is placed, in conjunction with the MDT, to develop a written recommended after-care plan to the court, which recommendation shall at a minimum include the following:
      1. description of the juvenile’s current placement and services;
      2. suggested services required to fully implement the juvenile’s After-Care Life Skills Plan, and identify the social worker/case manager assigned to supervise the services;
      3. identify possible sources of funding for the after-care plan; and
      4. recommendations for post-discharge judicial review.
  2. Copies of the recommended after-care plan shall, within 10 days after development, be provided to the court and to the juvenile’s: parents or legal guardian, counsel, probation officer, and mental health center professional, if applicable; and to the prosecuting attorney and the principal of any school the juvenile will attend under the plan. Within 21 days, those persons provided the plan may submit written adverse comments or objections to the court, with copies to other persons who received a copy of the plan.
  3. If adverse comments or objections are received by the court, or the court has reason to question any aspect of the plan, it shall hold the hearing to consider the plan. Any person or agency having responsibilities in executing the plan is required to appear at the hearing unless excused by the court. Within 5 days of the hearing, the court shall make findings of fact and conclusions of law as to whether adoption of the recommended after-care plan is in the best interest of the juvenile, and consistent with purposes of these rules as stated in Rule 1(c), enter an appropriate order. If no adverse comments or objections are submitted and the court finds the plan acceptable, a hearing need not be held. The court shall consider the plan as submitted and shall, within 45 days of receiving the plan, issue an order adopting the plan.
  4. The court shall require the state agency having custody of the juvenile to provide additional or alternative plans if deemed necessary by the court.

After-Care Review

If the court has implemented the provisions of an after-care plan, the court shall review the progress made toward achieving the goals of the plan during each judicial review. Review hearings may be conducted as often as is considered necessary by the court until the juvenile is discharged from the court's supervision, or until age 18 for status offense adjudications and age 21 for delinquency adjudications.


Probation Violations
  1. Commencement of Proceedings. Proceedings for modification or revocation of probation may be commenced based upon a verified petition to modify disposition filed by the probation officer or prosecuting attorney showing probable cause to believe the juvenile has violated one or more conditions of probation. Based upon the petition, the court may issue an order for immediate custody if warranted under the circumstances, as provided by Rule 6, or the court may schedule a review hearing and provide notice of the hearing to the juvenile, the juvenile's counsel, the juvenile's parents or legal guardians, probation officer and the prosecuting attorney at least 72 hours prior to the hearing. If the juvenile fails to appear in response to a review hearing notice, the court may issue an order for immediate custody.
  2. Contents of Probation Violation Petition. The probation violation petition shall include:
    1. the name, date of birth and address of the juvenile;
    2. the name and address of the juvenile’s parents or legal guardians;
    3. the underlying offense or offenses and the date of each offense for which a violation of probation is alleged; and
    4. a description of any additional facts and circumstances upon which the request for revocation is based.
  3. Hearing Time Frame. If a juvenile is taken into custody, the review hearing shall be held within 5 judicial days; otherwise, the review hearing shall be held within 10 judicial days of the filing of the petition. For good cause shown, the court may extend the time frame required for the hearing.
  4. Standard of Proof. The court may modify or revoke a juvenile's probation if it finds clear and convincing proof of a substantial violation of one or more probationary terms.
  5. Findings Required. Any revocation of probation shall be based upon findings clearly set forth in the record and resulting order. If the court orders out-of-home placement for the juvenile, the court is required to further set forth the facts which lead to the conclusion that no less restrictive alternative is appropriate; and the order shall further find and state that continuation in the home is contrary to the best interests of the juvenile and why; and whether or not the DHHR made reasonable efforts to prevent the out-of-home placement or that exigent circumstances made such efforts unreasonable or impossible.
  6. Discovery. The provisions of Rule 21(a)–(c) apply.

Search Warrants

Issuance of search warrants is governed by Rule 41 of the West Virginia Rules of Criminal Procedure, except as modified by this Rule. If the focus of the warrant pertains to a juvenile, the ex parte request for such warrant shall be conducted as a closed juvenile proceeding pursuant to Rule 10. The written application and supporting affidavit or affidavits, the original warrant, any duplicate warrant, the transcript of any hearing on the application for the warrant, and any related documents shall be deemed to be confidential juvenile court records under West Virginia Code § 49-5-103.


Confidentiality of Juvenile Records

Juvenile proceedings conducted under Chapter 49 of the West Virginia Code are not public proceedings. Additionally, the records of these proceedings are not open for public inspection. Disclosure of juvenile records is not permitted, unless specifically authorized pursuant to West Virginia Code §§ 49-5-101 or 49-5-103. Provided, however, in the interest of assuring that any determination made in proceedings before a family court arising under West Virginia Code, Chapter 48, or West Virginia Code § 44-10-3, does not contravene any determination made by a circuit court in a prior or pending juvenile proceeding, family courts and staff shall have access to all circuit court orders and case indexes in this State in all juvenile proceedings.


Sealing Juvenile Records
  1. Generally. The records of juveniles charged with a delinquency or status offense should not follow the juvenile for the rest of his or her life. These records are sealed by the court to protect the rights of the juvenile when they reach adulthood. The records of juvenile proceedings conducted under Chapter 49 of the West Virginia Code should be sealed:
    1. one year after the juvenile's 18th birthday, or
    2. one year after personal or juvenile jurisdiction of the court is terminated, whichever is later, pursuant to W.Va. Code § 49-5-104.
  2. Records of Proceedings Transferred to Criminal Jurisdiction. The records of a juvenile proceeding transferred to criminal jurisdiction are open to the public. Provided, these records should be sealed under the following circumstances:
    1. the juvenile is acquitted;
    2. the juvenile is found guilty of an offense other than offense upon which the waiver or order of transfer was granted; or
    3. the offense upon which the waiver or order of transfer was granted is subsequently dismissed.
  3. Effect. When the record of a juvenile proceeding is sealed by the court it has the legal effect of extinguishing the offense as if it never occurred. Once the record of a juvenile is sealed, it may only be opened by order of the circuit court.
  4. Sealing Process. To seal juvenile records, they should be returned to the circuit clerk to be kept in a confidential and sealed file, marked as sealed and stored in a secure location accessible only by clerk staff.

Development of Life Skills Curriculum and Transitional Plan
  1. Life Skills Curriculum. For every juvenile between ages 14 and 18 years in the custody of DHHR or DJS, as part of the MDT process, the individualized service plan shall include a Life Skills Curriculum. Life skills to be taught to the juvenile shall include, at a minimum: personal hygiene, food and financial management; housekeeping, nutrition planning, job seeking skills, educational/vocational instruction, and community resources. Pursuant to each juvenile’s Life Skills Curriculum, the MDT shall monitor, pursuant to West Virginia § 49-4-406, the instruction of juveniles between the ages of 14 and 18 years who are evaluated as likely to remain in the care and custody of DHHR or DJS until they are 18 years of age. The juvenile shall participate in the formulation of his or her Life Skills Curriculum.
  2. Transitional Plan. No later than 6 months immediately prior to the date on which the juvenile will attain 18 years of age, the MDT shall assist the juvenile with developing a transitional plan that is individualized at the direction of the juvenile, which includes specific options on housing, health insurance, education, local opportunities for mentors and continuing support services, and workforce supports and employment services.
  3. Services. A juvenile who meets the eligibility criteria for transitional plan services shall receive, in addition to those services specified in subparagraph (a) of this rule, the services ordered by the court related to the transitional plan. Delivery of these services shall be monitored by the case worker/case manager assigned to supervise the case and reported to the court at judicial reviews so long as the juvenile remains under court jurisdiction.
  4. Reports. The case worker/case manager assigned to supervise the juvenile shall report to the court during judicial reviews regarding efforts to obtain appropriate transitional plan services, including but not limited to, a voluntary placement agreement with the juvenile, educational training vouchers, other services funded through the Chafee Foster Care Independent Living Program, and training to procure a driver's license, if applicable.
COMMENTS

A juvenile living in a transitional living placement may be eligible to earn a subsidy, in addition to any traditional support payment, based on a showing of consistent participation in life skills classes and other life skills activities, in school, and in his or her job training program or employment. A cash incentive program for participation in Chafee-funded juvenile programs is available through the DHHR. The MDT and court is encouraged to identify other funding sources and positive incentives for program participation by juveniles. A job-training program for a juvenile should provide training skills compatible with the juvenile’s abilities and interests which will increase his or her employability for jobs available in the region. As a part of the job-training program, the juvenile should be provided the opportunity to obtain a GED if completion of high school is not part of the juvenile's service plan. But continuing eligibility to remain in a transitional living program should not be terminated upon the juvenile’s inability to obtain a GED.