Filed: October 23, 1992
Tracy B. Lusk
Public Defender Corporation
Welch, West Virginia
Attorney for the Appellant
Robert M. Nunley
Office of the Attorney General
Charleston, West Virginia
Attorneys for the Appellee
This Opinion was delivered PER CURIAM.
"'"Before transfer of a juvenile to criminal court, a
juvenile court judge must make a careful, detailed analysis into
the child's mental and physical condition, maturity, emotional
attitude, home or family environment, school experience and other
similar personal factors." W. Va. Code, 49-5-10(d).' Syl. Pt. 4,
State v. C. J. S., 164 W. Va. 473, 263 S.E.2d 899 (1980), overruled
in part on other grounds State v. Petry, 166 W. Va. 153, 273 S.E.2d
346 (1980) and State ex rel. Cook v. Helms,  W. Va. , 292
S.E.2d 610 (1981)." Syl. pt. 2, State v. Sonja B., 183 W. Va. 380,
395 S.E.2d 803 (1990).
The appellant, Michael S.,See footnote 1 appeals from the February 28, 1992 order of the Circuit Court of McDowell County granting the motion of the appellee, the State of West Virginia (by Trooper J. J. Miller), requesting that the appellant be transferred from the jurisdiction of the juvenile court to the adult criminal jurisdiction of the trial court. The appellant contends that the trial court erred in failing to consider the rehabilitation prospects available to the appellant. Because we agree with appellant's contention, this case is remanded for evaluation of the appellant's rehabilitation potential within the juvenile system.
The appellant, who was born on March 27, 1974, was charged in McDowell County on January 21, 1992, by a juvenile petition seeking an adjudication of delinquency. The petition alleged that on January 17, 1992, the appellant had committed an act which, if committed by an adult, would be an offense of violence to the person constituting a felony. Specifically, the petition alleged that the appellant had committed malicious assault in violation of W. Va. Code, 61-2-9  and was in possession of a deadly weapon as a minor in violation of W. Va. Code, 61-7-8 . A hearing was held and the appellant was judged delinquent.
Following the delinquency hearing, the State moved the
trial court to waive juvenile jurisdiction and transfer this case
to the court's adult criminal jurisdiction pursuant to W. Va. Code,
49-5-10 .See footnote 2 A transfer hearing was held on February 20, 1992,
at which time the appellant was five weeks shy of his eighteenth
birthday. At the hearing, the State presented three witnesses,
each of whom testified only to the probable cause issue of the
offense. The appellant does not contest that the state has
probable cause to believe that he was (1) over sixteen years of age
and (2) committed an offense of violence to the person which would
be a felony if committed by an adult.
The trial court also considered a "social history information" report concerning the appellant prepared by Carolyn Stuart, the juvenile probation officer of McDowell County. The report noted that the appellant had "no major discipline problems" at home, but that the appellant's mother had been notified approximately three times of the appellant's "misbehavior" at school over the preceding three years.See footnote 3 The report also noted that "[e]very now and then neighbors would report to [appellant's mother] that [the appellant] was in the company of delinquent peers."
The report did not comment on the mental status or maturity of the appellant, although it did note that his physical appearance seemed to be that of a "normal, healthy 17-year-old." The report also did not comment on the rehabilitation potential of the appellant, and concluded:
that based on the community sentiment, there is a general feeling that Michael should not be placed back in the home with his mother at this time. It is also believed by this officer that psychiatric and psychological evaluations are needed for the defendant.
Also, this officer believes that an out of
school environment such as homebound would be
more suitable given what took place at school.
At the transfer hearing Mrs. Stuart testified that she had not been "looking at anything towards rehabilitation" in the report, but that "most of the places we look to to house juveniles, usually after they're about 16, it's just hard to get a placement for them." She also testified that beyond a forty-five minute conversation with the appellant, she had "not had enough contact to make a judgment about [the appellant's] maturity," nor had she been to the appellant's home or spoken with any relatives of the appellant beyond his mother.
The trial court also admitted into evidence a psychological report of the appellant performed by a school psychologist three months prior to the incident in question. The psychological report documented that the appellant was placed in special education classes for the learning disabled, but was "not having any difficulties with any of his subjects." Attached to the psychological report were school records showing that the appellant was frequently cited for discipline problems in school, usually in the form of tardiness for classes.
The February 28, 1992 order of the trial court granted the motion for transfer, stating, in part:
That the Court in considering the infant defendant's mental and physical condition, maturity, emotional attitude, home or family environment, school experience and similar personal factors, finds that the infant defendant was sufficiently mature to understand the consequences of his behavior, and that there are no reasonable alternatives available to the Juvenile Court that are designed to rehabilitate the infant defendant. The Court further finds that the psychological evaluation performed in this matter shows that the learning disability of the infant defendant was not such as would cause the infant defendant to fail to be able to appreciate the consequences of his behavior, particularly in light of the fact that the infant defendant contacted the victim to express remorse for the behavior of the infant defendant.
In State v. Sonja B., 183 W. Va. 380, 384, 395 S.E.2d
803, 807 (1990), we noted that:
The juvenile law of this state, both statutory and that developed judicially, has been designed to rehabilitate the child. We stated in State v. D. D.,  W. Va. , , 310 S.E.2d 858, 862 (1983) that
A holistic appraisal of the child and his
environment is consistent with the broad
rehabilitative purposes of juvenile law, and
reflects a legislative recognition that
unlawful behavior is not simply a product of
the evils of human nature; that criminal,
anti-social behavior may have its genesis in a
broken or violent home, in educational
difficulties, or in poverty. The causes of a
child's behavior, therefore, must be analyzed
if the rehabilitative, child-saving purpose of
our child welfare law is to be fulfilled.
Furthermore, in State v. Beaman, 181 W. Va. 614, 617, 383 S.E.2d
796 (1989), we stated:
In order to properly determine whether a juvenile defendant should be transferred to adult jurisdiction, a court must consider the purpose behind affording a juvenile such a hearing. In State ex rel. Smith v. Scott, 160 W. Va. 730, , 238 S.E.2d 223, 226 (1977), we recognized that '[i]n theory the transfer hearing is invoked by the State where there are special circumstances [footnote omitted] which may justify relinquishment of juvenile jurisdiction. The hearing is not intended to establish guilt.' Moreover, we stated that the legislative intent behind the enactment of the juvenile statute was 'that juveniles should, in the ordinary case, be subject to juvenile court jurisdiction. Transfer therefore should be the exception and not the rule.' Id. See Kent v. United States, 383 U.S. 541, 560-61, 86 S. Ct. 1045, 1057, 16 L. Ed. 2d 84, 97 (1966).
It is clear from the citations to the foregoing cases
that our child-welfare law serves a rehabilitative, child-saving
purpose that should only be foregone in special or exceptional
circumstances. W. Va. Code, 49-5-10(d)  outlines the
considerations a trial court must analyze before the juvenile
jurisdiction may be relinquished in favor of adult criminal
jurisdiction.See footnote 4 In this case the trial court gave insufficient
consideration to those factors set forth by statute which must be
considered upon a motion for transfer. Specifically, the record
reveals that no evidence concerning the appellant's home or family
environment was presented for the trial court's consideration, and
only cursory examinations of his rehabilitation potential, maturity
and mental status were performed.
In syllabus point 2 of State v. Sonja B., 183 W. Va. 380, 395 S.E.2d 803 (1990), we stated:
'"Before transfer of a juvenile to criminal court, a juvenile court judge must make a careful, detailed analysis into the child's mental and physical condition, maturity, emotional attitude, home or family environment, school experience and other similar personal factors." W. Va. Code, 49-5-10(d).' Syl. Pt. 4, State v. C. J. S., 164 W. Va. 473, 263 S.E.2d 899 (1980), overruled in part on other grounds State v. Petry, 166 W. Va. 153, 273 S.E.2d 346 (1980) and State ex rel. Cook v. Helms,  W. Va. , 292 S.E.2d 610 (1981).
Because the trial court failed to make a "careful,
detailed analysis" of all of the considerations enunciated in
W. Va. Code, 49-5-10(d), this case is reversed and remanded for
further proceedings whereby the appellant will be given the
opportunity to show that he has rehabilitation potential in the
juvenile justice system, and the State will have an opportunity to
show that there are no reasonable juvenile rehabilitation options
available to the appellant.See footnote 5
For the foregoing reasons, this case is reversed and
remanded to the Circuit Court of McDowell County for further
proceedings consistent with this decision.
Footnote: 1 As this case involves a sensitive matter, we shall follow our traditional practice using only the last initial of the juvenile defendant. See State v. Sonja B., 183 W. Va. 380, 381 n. 1, 395 S.E.2d 803, 804 n. 1 (1990) (citing cases).
Footnote: 2 W. Va. Code, 49-5-10  states, in pertinent part:
(a) Upon written motion of the
prosecuting attorney filed at least eight days
prior to the adjudicatory hearing and with
reasonable notice to the child, the parents,
guardians, or custodians of the child, and the
child's counsel, the court shall conduct a
hearing to determine if juvenile jurisdiction
should be waived and the proceeding should be
transferred to the criminal jurisdiction of
the court. Any motion filed in accordance
with this section shall state, with
particularity, the grounds for the requested
transfer, including the grounds relied upon
set forth in subsection (d) of this section,
and the burden shall be upon the State to
establish such grounds by clear and convincing
proof. Any hearing held under the provisions
of this section shall be held within seven
days of the filing of the motion for transfer
unless it is continued for good cause.
. . . .
(d) The court may, upon consideration of
the child's mental and physical condition,
maturity, emotional attitude, home or family
environment, school experience and similar
personal factors, transfer a juvenile
proceeding to criminal jurisdiction if there
is a probable cause to believe that:
. . . .
(4) A child, sixteen years of age or
over, has committed an offense of violence to
the person which would be a felony if
committed by an adult[.]
Footnote: 3 Exactly what this "misbehavior" entailed is not evident from the record.
Footnote: 4 This is not to imply that a court must always address the considerations outlined in W. Va. Code, 49-5-10(d) . The legislature has specified that juvenile jurisdiction may be waived without an analysis of these considerations when there is probable cause to believe that the juvenile has committed one of the serious crimes listed in W. Va. Code, 49-5-10(d)(1) . As we stated in syllabus point 2 of State ex rel. Cook v. Helms, 170 W. Va. 200, 292 S.E.2d 610 (1982):
When a court finds that there is probable
cause to believe that a juvenile has committed
one of the crimes specified in W. Va. Code,
49-5-10(d)(1) (treason, murder, robbery
involving the use of or presenting of deadly
weapons, kidnapping, first-degree arson, and
first-degree sexual assault), the court may
transfer the juvenile to the court's criminal
jurisdiction without further inquiry. To the
extent this holding is inconsistent with State
v. R. H., W. Va., 273 S.E.2d 578 (1980) and
State v. C. J. S., W. Va. 263 S.E.2d 899
(1980), those cases are overruled.
The instant case is not one where the exceptions of W. Va. Code, 49-5-10(d)(1) apply; therefore, the considerations enunciated at the outset of W. Va. Code, 49-5-10(d) must be analyzed.
Footnote: 5 It is not enough for the appellant to show that the State has not sufficiently examined his rehabilitation potential and options in the juvenile system. The appellant should affirmatively show that he has rehabilitation potential and options within the juvenile system. For example, in In the Interest of H.J.D., 180 W. Va. 105, 107, 375 S.E.2d 576, 578 (1988), we noted
that the juvenile in that case had presented evidence from a "youth
specialist" to the effect that the juvenile had suffered negative
effects from long-term institutionalization, but had recently made
progress. We ruled that such evidence was insufficient, in that
case, to defeat the "clearly wrong" standard of review applied to
a trial court's findings of fact in a transfer hearing. In
syllabus point 1 of that case, we stated:
'Where the findings of fact and
conclusions of law justifying an order
transferring a juvenile proceeding to the
criminal jurisdiction of the circuit court are
clearly wrong or against the plain
preponderance of the evidence, such findings
of fact and conclusions of law must be
reversed. W. Va. Code, 49-5-10(a) 
[now, 49-5-10(e) ].' Syl. pt. 1, State
v. Bannister, 162 W. Va. 447, 250 S.E.2d 53
In the instant case, however, no evidence concerning the rehabilitation options or potential of the juvenile was presented. Therefore, this case must be remanded for further evidence.