West Virginia Judiciary

Rules of Juvenile Procedure | Rules 41-51

Rule 41. Mental Health Disposition

(a) 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 § 49-5-13(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.

(b) 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.

(c) 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.

(d) 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.

Rule 42. Permanency Hearings

(a) 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 Chapter 49, Article 6, 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.

(b) 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.

(c) 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.

(d) Written Order. The court shall issue a written order within 10 days following the permanency hearing.

Rule 43. Judicial Review

(a) 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.

(b) 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.

(c) 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.

(d) 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.

(e) 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.

Rule 44. Termination of Parental Rights

(a) 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.

(b) 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.

(c) 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.

Rule 45. After-Care Planning

(a) 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:

(A) description of the juvenile’s current placement and services;
(B) 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;
(C) identify possible sources of funding for the after-care plan; and
(D) recommendations for post-discharge judicial review.

(b) 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.

(c) 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.

(d) The court shall require the state agency having custody of the juvenile to provide additional or alternative plans if deemed necessary by the court.

Rule 46. 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.

Rule 47. Probation Violations

(a) 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.

(b) 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.

(c) 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.

(d) 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.

(e) 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.

(f) Discovery. The provisions of Rule 21(a)-(c) apply.

Rule 48. 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 § 49-5-17.

Rule 49. 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 §§ 49-5-17(b) or 49-7-1. 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.

Rule 50. Sealing Juvenile Records

(a) 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.

(b) 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.

(c) 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.

(d) 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.

Rule 51. Development of Life Skills Curriculum and Transitional Plan

(a) 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 § 49-5D-3, 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.

(b) 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.

(c) 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.

(d) 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.

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