WEST VIRGINIA JUVENILE LAW & PROCEDURE

Table of Contents

Introduction    
Overview of the West Virginia Prevention and Intervention Programs for Juveniles

Juvenile Court Jurisdiction and Judicial Officers    
Circuit Court Jurisdiction    
Magistrate Court Jurisdiction    
Municipal Court Jurisdiction

Types of Offenses    
Definition of Status Offense    
Definition of Delinquency

Facility Types    
Secure Facility    
Staff-Secure Facility    
Non-Secure Facility

Juvenile Proceedings: Status Offense and Delinquency    
Initiation of Juvenile Case    
Informal Resolution    
Juvenile Petition (Formal Proceedings)    
Law Enforcement Responsibilities Regarding Custody of Juveniles    
Detention Hearing    
Delinquency Offenses    
Status Offenses    
Juvenile Case Initiated by a Domestic Violence Emergency Protective Order    
Preliminary Hearing    
Pre-Adjudicatory Community Supervision Period    
Required Findings for Out-of-Home Placements of Juveniles    
Child Support for Out-of-Home Placements

Adjudication and Disposition in Status Offense Cases    
Disposition    
Services and Multidisciplinary Treatment Teams    
Further Disposition    
Appeal

Adjudication and Disposition in Delinquency Cases    
Juvenile Delinquency Adjudicatory Hearings    
Dispositional Hearings Generally

Specifics of Delinquency Dispositions    
Disposition Alternatives    
Multidisciplinary Treatment Teams    
Individualized Case Plans    
Commitment to a Mental Health Facility    
Fines, Revocation of Vehicle Privileges, and Restitution    
Graduated Sanctions for Alcohol Consumption    
Modification of Disposition    
Modification or Revocation of Probation

Delinquency Cases: Transfer to Criminal Jurisdiction    
Transfer to Adult Criminal Jurisdiction    
Mandatory Transfer    
Discretionary Transfer    
Procedures for Transfer

Post-Dispositional Review and Services: Status Offense and Delinquency Cases    
Permanency Hearings    
Termination of Parental Rights    
Review Hearings in Status Offense and Delinquency Cases    
Post-Dispositional Transfer of Cases    
After-Care Plans for Status Offense and Delinquency Cases    
Life Skills Curriculum and Transitional Plan

Facilities and Placement Limitations    
Federal and State Detention Monitoring

Protection of Rights    
Rights for Specific Circumstances

Juvenile Records    
Confidentiality of Juvenile Records    
Specific Exceptions to Confidentiality

Introduction

This is an overview of West Virginia juvenile law and court procedures. It is intended to provide a framework for understanding West Virginia's juvenile justice system.  This overview can be used as a training tool for juvenile justice system personnel, law enforcement, students, and the public.  It is accurate as of February 2016.  It is not intended to explain every nuance of juvenile law and procedure.  For further clarification and understanding, specific statutes and rules are cited throughout.  Although cases are cited where relevant, this overview does not summarize the substantial body of juvenile case law from the Supreme Court of Appeals of West Virginia (West Virginia Supreme Court).

Juvenile proceedings are governed principally by the statutes in Article 4 (Part VII) Sections 701 through 725, of Chapter 49 of the West Virginia Code and the West Virginia Rules of Juvenile Procedure (RJP).  In addition, the Juvenile Offender Rehabilitation Act, contained in Article 2 (Part X) of Chapter 49, requires the Department of Health and Human Resources (DHHR) and the Bureau of Juvenile Services (BJS) to provide services designed to prevent juvenile offenses and to rehabilitate juvenile offenders.  Article 4 (Part IV) of Chapter 49 governs multidisciplinary treatment teams and requires the DHHR and the BJS to convene individualized treatment teams in juvenile cases. The DHHR has adopted a Youth Services Policy that is found in Chapter 12 of the Social Services Manual.  

Overview of West Virginia Prevention and Intervention Programs for Juveniles

Prevention and intervention services to keep youths from entering or further advancing into the juvenile justice system are provided to communities primarily through grants by the DHHR and the Department of Military Affairs and Public Safety through the Division of Justice and Community Services - ­Governor's Committee on Crime, Delinquency and Correction (and its Juvenile Justice Subcommittee).  The Governor’s Committee is West Virginia's coordinated planning body for prevention, intervention, and accountability for state and federal grant funds.  This committee is charged by executive order (EO No. 14-68) and legislation (W. Va. Code §§ 15-9-1, et seq.  ) with developing a statewide planning capacity to improve West Virginia's juvenile justice system.  Members are appointed by the Governor and represent every aspect of West Virginia's juvenile justice system.

Intervention can involve the referral of a juvenile matter for informal resolution without the formal filing of a petition with the court.  Depending on the circumstances, such a referral can result in a prepetition diversion agreement with specific terms (W. Va. Code § 49-4-702) or a period of counseling or community service (W. Va. Code § 49-4-702a).  If the juvenile successfully completes the diversion agreement or period of counseling/community service, the matter is concluded without a petition being filed and formal court proceedings being conducted.

Specialized intervention efforts that serve as alternatives to standard juvenile court proceedings principally include teen courts and juvenile drug courts. Teen courts offer young offenders the opportunity to obtain dispositions that involve community service, educational classes, and teen court jury service. W. Va. Code § 49-4-716. Juvenile drug courts serve either as alternatives or adjuncts to formal juvenile proceedings. They seek to divert non-violent juvenile offenders who exhibit alcohol or substance abuse behavior to intensive, individualized rehabilitation and treatment. W. Va. Code § 49-4-703. A judicial circuit may also develop a truancy diversion program and refer juveniles to it before filing a petition to address the truancy of a juvenile. W. Va. Code § 49-4-702.

Juvenile Court Jurisdiction and Judicial Officers

Circuit Court Jurisdiction

Circuit courts have exclusive jurisdiction over most proceedings involving juveniles.  W. Va. Code § 49-4-701(a).  The few exceptions, discussed in the next two sections below, involve certain offenses for which magistrate courts and municipal courts also have juvenile jurisdiction.  

Additionally, magistrates may be appointed as juvenile referees to serve as judicial officers of the circuit court in some juvenile hearings. W. Va. Code § 49-1-207; Rule 3, RJP. A magistrate designated by the circuit court to serve as a juvenile referee has the authority to hold juvenile detention hearings (W. Va. Code § 49-4-706), to conduct preliminary hearings (W. Va. Code § 49-4-708(a)), and to perform other duties as assigned by circuit court.  In these circumstances, a magistrate is acting as a judicial officer of the circuit court.  A magistrate-referee, however, is prohibited from conducting any hearing involving a ruling on the merits of any juvenile case under the circuit court's exclusive jurisdiction: for example -- accepting admissions; holding adjudicatory, transfer, or dispositional hearings; or determining whether a juvenile is entitled to a community supervision period.

Magistrate Court Jurisdiction

For certain offenses, magistrate courts have concurrent jurisdiction with circuit courts to handle cases involving a juvenile. W. Va. Code § 49-4-701(c). These offenses include:

1. Any violation of W. Va. Code § Chapter 20 (hunting, fishing, wildlife offenses);
2. Any violation of W. Va. Code §§ 16-9A-3 or -4 (tobacco offenses);
3. Any violation of W. Va. Code § 11-16-19 (purchase, possession, consumption, service, or sale of beer);
4. Any violation of W. Va. Code § 60-6-9 (possession of alcohol, consumption of alcohol, or intoxication in a public place); and
5. A misdemeanor violation of a traffic law EXCEPT (as specified in W. Va. Code § 49-1-207) any of the following offenses
   1. hit and run (W. Va. Code §§ 17C-4-1 and -2);
   2. negligent homicide (W. Va. Code § 17C-5-1);
   3. driving under the influence (W. Va. Code § 17C-5-2); and
   4. reckless driving (W. Va. Code § 17C-5-3).

Charges for these offenses may be brought against a juvenile by citation or by criminal complaint instead of by juvenile petition. Upon a finding of guilt, a magistrate may not, however, impose incarceration as a penalty.  W. Va. Code § 49-4-701(c).  A magistrate court disposition may involve only a fine, community service, and, if appropriate, restitution.

A magistrate may also acquire jurisdiction over a juvenile on any misdemeanor charge that is the subject of a juvenile delinquency petition pending before the circuit court if a juvenile, age 14 or older, demands transfer to adult criminal jurisdiction. W. Va. Code § 49-4-701(c); Rule 20(h), RJP.  Upon receipt of a circuit court order referring such a case, a magistrate treats the juvenile as an adult with regard to the misdemeanor charge except that no confinement in a facility that holds adults is permissible.  W. Va. Code § 49-4-720(a).

Further, a magistrate may order a juvenile to be taken into custody (the equivalent of issuing an adult arrest warrant).  W. Va. Code § 49-4-705(a) Rule 6, RJP.  Any magistrate is also authorized to conduct a juvenile detention hearing when a circuit judge is not available in the county.  W. Va. Code § 49-4-704(c)(4).

Municipal Court Jurisdiction

Municipal court jurisdiction over juveniles is limited to any violation of a municipal traffic or curfew ordinance or any municipal ordinance regulating or prohibiting public intoxication; drinking or possessing alcohol, liquor, or beer in public places; and underage consumption.  Municipal courts also have concurrent juvenile jurisdiction for any municipal ordinance prohibiting underage possession or use of tobacco products. However, municipal courts may not impose a sentence of incarceration on juveniles.  W. Va. Code § 49-4-701(d).

Types of Offenses

Juvenile jurisdiction extends to juveniles accused of committing a delinquency or a status offense.  Juvenile jurisdiction applies if the accused was under eighteen when the alleged offense occurred.

Definition of Status Offenses

A status offense involves behavior that is harmful to a juvenile because of his or her age.  W. Va. Code § 49-1-202.  A status offense is not a crime under state law or municipal ordinance, or an offense if committed by an adult.  Status offenses are any of the offenses listed below:

          Incorrigibility    
          Habitual and continual refusal to respond to the lawful supervision by a parent, guardian, or legal custodian such that the behavior substantially endangers the health, safety, or welfare of the juvenile or any other person.

          Runaway    
          Leaving the care of a parent, guardian, or custodian without consent or without good cause.

          Truancy    
          Habitual absence from school without good cause.

          Underage Offenses    
          Use or possession of alcohol or tobacco by minors, which may be handled by citation rather than by juvenile petition.  Alcohol use may also be addressed by referral to juvenile drug court.

          If a juvenile is adjudicated as a status offender, juvenile jurisdiction may extend until the juvenile turns 18 years of age.  There is one exception that may extend court jurisdiction over a status offender beyond age 18.  If a juvenile is adjudicated as a status offender due to truancy, the jurisdiction of the court continues until either the juvenile reaches the age of 21, completes high school, completes a high school equivalent program or other plan approved by the court, or the court otherwise relinquishes jurisdiction, whichever occurs first.  W. Va. Code § 49-4-701 (f)(2).

Definition of Delinquency

Delinquency entails an act that would be a crime under state law or municipal ordinance if committed by an adult.  W. Va. Code § 49-1-202. For a juvenile adjudicated for a delinquency offense, juvenile jurisdiction may continue to age 21.  W. Va. Code § 49-4-701(f)(1).

Facility Types

Secure Facility

A secure facility is "any public or private residential facility which includes construction fixtures designed to physically restrict the movements and activities of juveniles or other individuals held in lawful custody in such facility." W. Va. Code § 49-1-206; Rule 12(b)(1), RJP. The DJS has authority over in-state secure detention and correctional facilities. W. Va. Code § 49-¬2-902. Only juveniles charged or adjudicated in delinquency proceedings may be placed in secure facilities. A status offender may not be placed in a secure facility, with the exception of status offenders who are detained under the jurisdiction of the Interstate Compact for Juveniles. W. Va. Code § 49-4-706(a)(3); Rule 14(b), RJP; Rules 6-102 and 6-103, Interstate Compact for Juveniles.

Staff-Secure Facility

A staff-secure facility is "any public or private residential facility characterized by staff restrictions of the movements and activities of individuals held in lawful custody in such facility and which limits its residents' access to the surrounding community, but is not characterized by construction fixtures designed to physically restrict the movements and activities of residents." W .Va. Code § 49-1-206; Rule 12(b)(2), RJP. The DHHR has responsibility for oversight (principally by way of licensing) of these in-state juvenile facilities, except any staff-secure facilities operated by DJS. Juveniles charged or adjudicated in delinquency or status offense proceedings may be placed in non-secure or staff-secure facilities. Status offenders may not be placed in a staff-secure facility operated by DJS. W. Va. Code § 49-4-712(g).

Under Rule 52 of the Rules of Juvenile Procedure, there is a type of facility designated as a "qualified residential treatment program" or "QRTP" that will address the needs of a juvenile with serious emotional or behavioral disorders and must include a trauma-informed treatment model. Although the applicable rule does not specify which category such a facility belongs to, these types of facilities are most likely to be considered staff-secure facilities. This type of facility has been developed to comply with federal provisions found in 42 U.S.C. § 675a, which were enacted as part of the Family First Prevention Services Act of 2018.

Non-Secure Facility

A non-secure facility is "any public or private residential facility not characterized by construction fixtures designed to physically restrict the movements and activities of individuals held in lawful custody in such facility and which provides its residents access to the surrounding community with supervision." W. Va. Code § 49-1-206; Rule 12(b)(3), RJP.

Juvenile Proceedings: Status Offense and Delinquency

Initiation of Juvenile Case

A juvenile case is typically initiated by the filing of a juvenile petition alleging a status or delinquency offense. W. Va. Code § 49-4-704(a)(1). On a less frequent basis, it is initiated by certification or transfer to circuit court juvenile jurisdiction from the adult criminal jurisdiction of any court. W. Va. Code § 49-4-701(b) and (e). The petition process (and all that follows) is often noted in some manner as formal: "formal filing," "formal petition," "formal proceedings," or  "going formal." Juvenile jurisdiction may also be initiated when an emergency protective order is entered by a magistrate court against a juvenile, and the domestic violence petition was filed by or on behalf of a parent, guardian, custodian, or other person with whom the juvenile resides. W. Va. Code § 48-27-403(h), § 49-4-704(f); Rule 15, RJP.

The practice in many counties, by local policy authorized by statute, is to initiate a juvenile matter by an informal complaint or referral that details incidents that may involve status or delinquency offenses. An intake officer, usually a juvenile probation officer or a prosecutor, screens the referral to determine whether to divert the case for informal resolution or to file a formal petition. W. Va. Code § 49-4-702. A juvenile alleged to be a delinquent or status offender may also be referred to professional counseling services before juvenile proceedings are formally instituted. W. Va. Code § 49-4-702(a). (The various types of diversions are discussed later in the section titled "Informal Resolution.") Since action is allowed without the filing of a petition, the practice of screening juvenile referrals is appropriate and consistent with the intent of Chapter 49, Article 4 of the West Virginia Code and the Rules of Juvenile Procedure to resort to the least restrictive means to address the juvenile's conduct.

Informal Resolution

Before formal filing of a juvenile petition, an alleged status offender or delinquent may be referred to an informal resolution or diversion program. There are a variety of possibilities for informal resolution before the filing of a formal petition. Some of the diversion programs are available after a formal petition is filed as well.

At any time, the court may refer a juvenile offender to noncustodial counseling or community services with the DHHR, a community mental health center, other community professional counseling agency, or a truancy diversion specialist. Before a petition is filed, a DHHR worker or other official such as a probation officer, upon the request of a juvenile's parent, guardian, or custodian, may refer a juvenile for such counseling and services. W. Va. Code § 49-4-702a(a). If the juvenile complies and the counseling and services are successful, the matter is resolved. If the juvenile does not comply, the DHHR may, with notice to the juvenile, seek a court order directing submission to counseling and services. After a hearing, the judge may order the juvenile to participate in noncustodial counseling or community services for up to six months. The court may extend the order for an additional period not to exceed six months. If recommended by the DHHR or requested by a parent, guardian, or custodian, the order may allow or require a parent, guardian, or custodian to participate in the counseling or community services. If the counseling and services are not successful, a petition might be filed (although one is not mandated) initiating formal proceedings against the juvenile. Any information obtained during the period of pre-petition counseling and services is inadmissible in any subsequent proceeding. W. Va. Code § 49-7-702a(a).

As an alternative type of informal resolution, the court may refer an alleged juvenile offender to a probation officer for counseling and advising in an effort toward informal adjustment when it appears that the court would have jurisdiction and that the best interests of the public and the juvenile would be served by this manner of resolution. The juvenile and a parent, guardian, or custodian must consent. W. Va. Code § 49-4-702a(b). This type of diversion is commonly known as informal probation. Informal probation may not continue longer than six months, unless extended by the court not to exceed an additional six months. If the effort succeeds, the matter is resolved. If not, a petition might be filed (although one is not mandated) initiating formal proceedings against the juvenile.

Prepetition diversion can result when a juvenile matter is brought to a county prosecuting attorney. Status offenses of any nature and delinquency matters involving a nonviolent misdemeanor offense are capable of being addressed through the prepetition diversion process. Depending on the particular circumstances, a referral by the prosecuting attorney for prepetition diversion can be mandatory or discretionary. If the matter involves a truancy offense, the prosecuting attorney is required to refer it to a DHHR worker, probation officer, or truancy diversion specialist for development of a diversion program. W. Va. Code § 49-4-702(b)(1). If the matter involves a status offense other than truancy, the prosecuting attorney is likewise required to refer it to a DHHR case worker or probation officer to be handled under a diversion program. W. Va. Code § 49-4-702(b)(2). In truancy and other status offense matters, a referral is not mandatory if the juvenile has a prior adjudication for a status or delinquency offense, or if there is a significant and likely risk of harm to the juvenile, a family member, or the public. In these circumstances a prosecuting attorney is not required to refer the matter for diversion and may proceed with filing a formal petition with the court. W. Va. Code § 49-4-702(b)(3). Similarly, if a juvenile matter involves a nonviolent misdemeanor offense, the prosecutor has discretion to decide whether diversion is appropriate. W. Va. Code § 49-4-702(c).

When a matter is referred for prepetition diversion, the case worker, probation officer, or truancy diversion specialist is required to develop a diversion program by conducting an assessment of the juvenile; obtaining the consent of the juvenile and the juvenile's parent, guardian, or custodian to the diversion agreement terms; and referring the juvenile and, if needed, any parent, guardian, or custodian to community services. W. Va. Code § 49-4-702(d)(1). If the juvenile's parent, guardian, or custodians do not consent to the diversion agreement, a petition may be filed initiating formal proceedings. W. Va. Code § 49-4-702(d)(4).

A diversion agreement may refer the juvenile to community-based nonresidential prevention or intervention services or programs designed to reduce delinquency and future court involvement; referral of the juvenile's parent, guardian, or custodian to services; referral of the juvenile to community work service programs; a requirement that the juvenile regularly attend school; and community-based sanctions for future noncompliance. W. Va. Code § 49-4-702(d)(2).

The involved case worker, probation officer, or truancy diversion specialist will monitor the juvenile's compliance with the terms of the diversion agreement. If the juvenile successfully completes the terms of the diversion agreement, no petition is filed and the matter is concluded. If the juvenile is noncompliant or unsuccessful with the diversion agreement, the matter is referred to a local prepetition review team. W. Va. Code § 49-2-702(e). The prepetition review team will review the diversion agreement and service referrals completed, and determine whether other appropriate services are available to address the needs of the juvenile. The review team will then refer a modified diversion agreement back to the case worker, probation officer, or truancy diversion specialist; advise that a petition be filed with the court; or advise that an investigation for child abuse or neglect should be opened. W. Va. Code § 49-4-702(f). The provisions in W. Va. Code § 49-4-702 regarding prepetition diversion are not mandatory until July 1, 2016.

A juvenile subject to a status offense petition or a delinquency petition involving a nonviolent misdemeanor offense may, prior to adjudication, be referred to a restorative justice program where available. W. Va. Code § 49-4-725(a). A restorative justice program is a community-based program designed to emphasize repairing the harm to the victim and community caused by the juvenile. Typical characteristics of a restorative justice program include the following:

• Dialogue between the victim and juvenile offender or group conferencing attended voluntarily by the victim, juvenile offender, a facilitator, a victim advocate, community members, or supporters of the victim or juvenile that provide an opportunity for the offender to accept responsibility for the harm and to participate in setting consequences to repair the harm.
• Sanctions for the juvenile such as restitution to the victim or community, services performed by the juvenile for the victim or community, or any other measure to provide redress to the victim or community. W. Va. Code § 49-4-715(b).

If a juvenile offender is referred to and successfully completes the requirements of a restorative justice program, the petition against the juvenile shall be dismissed. W. Va. Code § 49-4-715(c). Any information obtained as a result of a juvenile's participation in a restorative justice program is not admissible in any subsequent juvenile proceeding. W. Va. Code § 49-4-725(c).

Another "informal" alternative procedure is a teen court program, which the circuit court of any county or any municipality may establish. W. Va. Code § 49-4-716. If offered in the county or city of the alleged offense, the teen court program is available as an alternative to the initiation of formal proceedings, or, after the initiation of formal proceedings, as an alternative to proceeding to a disposition. In teen court programs established in circuit court, the option is limited to cases in which a juvenile is alleged to be a status offender or alleged to be a delinquent whose offense would be a misdemeanor if committed by an adult. In municipal teen court programs, the option is limited to alleged violations of municipal ordinances over which municipal courts have juvenile jurisdiction. The circuit court or municipal court, if it finds an offender a suitable candidate, may refer the offender to teen court. The court cannot require a juvenile to admit to the alleged offense as a prerequisite to participation in the teen court program. No juvenile may enter a teen court program unless the juvenile's parent or guardian consents. Except for the teen court judge (who must be an active or retired circuit judge or an active attorney-member of the State Bar), teen court officials and jurors are mainly volunteer students. The teen court jury may impose monitored community service, and the juvenile must perform two sessions of teen court jury service. A juvenile who does not cooperate in and complete the program returns to circuit or municipal court for further juvenile proceedings.

In some instances, a juvenile may participate in a juvenile drug court program as a diversion from or in conjunction with formal juvenile proceedings. Juvenile drug courts are conducted by circuit court judges or family court judges appointed by the West Virginia Supreme Court to preside over these specialized courts, in addition to their regular judicial duties. Senior status (retired) circuit judges and former family court judges may also serve as juvenile drug court judges. Juvenile drug courts are community-based programs designed to provide intensive supervision and individualized rehabilitative services to non-violent juvenile offenders with drug or alcohol problems. W. Va. Code § 49-4-703. Juveniles referred to and found eligible for juvenile drug court participation must successfully complete the program or they will return to circuit court for resumption of formal juvenile proceedings.

Juvenile Petition (Formal Proceedings)

A petition is a verified, written statement by a person who has knowledge of the facts alleged. W. Va. Code § 49-4-704(a); Rule 8(a), RJP. Unless a specific statutory or rule exception applies, the presentation of the petition and verification must be made by a prosecuting attorney or a law enforcement officer. Rule 8(b), RJP. A status offender petition for the offenses of incorrigibility, runaway, or truancy may be presented by a DHHR representative or by a parent, guardian, or custodian. Rule 8(c)(1), RJP. A status offender petition for truancy may also be made by a representative of the juvenile's school district. Rule 8(c)(2), RJP.

The petition must contain specific allegations of the essential facts within the petitioner's knowledge. The petition must indicate the approximate time and place of the alleged conduct of the named juvenile respondent. Further, it must include the name and address of the juvenile's parents or legal guardians, who must be named as additional respondents. W. Va. Code § 49-5-7; Rule 8(a), RJP.

A juvenile delinquency case is also automatically initiated if an emergency protective order is issued by a magistrate in a domestic violence proceeding against the juvenile, and the petitioner in the domestic violence proceeding is the juvenile's parent, legal guardian, custodian, or other person residing with the juvenile. W. Va. Code § 48-27-403(h); § 49-5-7(f); Rule 15(a), RJP. Upon issuance of the emergency protective order, the domestic violence petition is to be treated as a juvenile petition. When these circumstances arise, the prosecutor is to be notified within 24 hours by the magistrate who issues the emergency protective order, and if desired, the prosecutor may file an amended juvenile petition within two judicial days.

In addition to including allegations describing the particular offense, the juvenile petition must contain a statement that informs the juvenile of the right to counsel, including appointed counsel, and the right to consult with counsel. W. Va. Code § 49-4-704(a); Rule 8(a), RJP. The petition must also contain a statement that indicates that the DHHR may initiate a separate proceeding to terminate parental or custodial rights if the juvenile remains in an out-of-home placement for 15 months. Rules 8(g) and 44, RJP.

A petition must be filed with the circuit court in the county where the delinquency or status offense allegedly occurred. W. Va. Code § 49-4-704(a); Rule 4(a), RJP.  However, a court, for good cause, may order the removal of the petition to another county. The court must appoint counsel for the juvenile before a procedure to remove a petition is initiated. Rule 4(c), RJP.

When a juvenile petition is filed, the circuit court should appoint counsel when required by Rule 5 of the Rules of Juvenile Procedure and W.Va. Code § 49-4-701(h). Appointment of counsel is not required for traffic and other citation-type offenses involving juveniles heard in magistrate or municipal court. The petition and summons must be served upon the juvenile. The petition may be served by first-class mail or by personal service. If a juvenile does not appear in response to service by mail, the juvenile must be personally served with the petition and summons. No other proceedings may be conducted until the juvenile is personally served. A court may issue an arrest warrant if a juvenile does not appear after being personally served. W. Va. Code § 49-4-704(a); Rule 9(a), RJP.

The parent, guardian, or custodian of the juvenile must also be served with a copy of the summons and petition. Service must be accomplished either by first class mail or personal service. If an adult respondent cannot be located after diligent search, the court may conduct proceedings without further requirement of notice to the adult respondent. W. Va. Code § 49-4-704(b); Rule 9(b), RJP.

Law Enforcement Responsibilities Regarding Custody of Juveniles

Custody Without a Court Order

In the absence of a court order to take a juvenile into custody, a law enforcement officer may take a juvenile into custody only if one of the following conditions exists:

1. An adult could be arrested under identical circumstances;
2. There are emergency circumstances that are dangerous to the health, safety, and welfare of the juvenile;
3. The officer has reason to believe that the juvenile has left the care of a parent, guardian, or custodian and the juvenile's health, safety, and welfare are endangered;
4. The juvenile is a fugitive from a lawful custody or commitment order issued by juvenile court of any jurisdiction;
5. There are reasonable grounds to conclude that the juvenile is driving a motor vehicle and has any amount of alcohol in his or her blood; or
6. The juvenile is a named respondent in an emergency domestic violence protective order and the petitioner is the juvenile's parent, guardian, or custodian or other person who resides with the juvenile. W. Va. Code § 49-4-705(b); Rule 6(b), RJP.

Immediate Custody Order -- Delinquency Cases

If a juvenile delinquency petition has been filed, the circuit court judge or magistrate may issue an order that authorizes a juvenile to be taken into custody. The custody or "pick-up" order may be issued if there is probable cause that one of the following conditions exists:

1. An adult could be arrested under identical circumstances;
2. The health, safety, or welfare of the juvenile requires such custody;
3. The juvenile is a fugitive from a lawful custody or commitment order issued by a juvenile court; or
4. The juvenile is alleged to be a juvenile delinquent with a record of willful failure to appear at juvenile proceedings. W. Va. Code § 49-4-705(a); Rule 6(a)(2), RJP.

Immediate Custody Order -- Status Cases

If a status offense petition has been filed, the judge or magistrate may issue an immediate custody order only if there is probable cause to believe:

1. The health, safety, and welfare demand such custody; or
2. The juvenile is a fugitive from a lawful custody or commitment order. W. Va. Code § 49-4-705(a); Rule 6(a)(3), RJP.

Notification Requirements

When a juvenile is taken into custody (with or without a court order), the law enforcement officer must immediately notify the juvenile's parent, guardian, or custodian and indicate the reasons the juvenile is in custody. If such a person cannot be located, a close relative should be notified. W. Va. Code § 49-4-705(c)(1); Rule 6(a)(11), RJP.

The law enforcement officer is required to release the juvenile to his or her parent, guardian, or custodian unless one of the following conditions is present:

1. There is a threat of serious bodily harm if the juvenile is released;
2. A responsible adult who could accept custody of the juvenile cannot be located (and in these circumstances, all attempts to locate a responsible adult must be documented); or
3. The juvenile was taken into custody for an act for which secure detention is allowed. W. Va. Code § 49-4-705(c)(2).

The law enforcement officer must notify the DHHR if the juvenile is an alleged status offender or if an emergency protective order has been entered against the juvenile and the individual obtaining the protective order is a parent, guardian, custodian, or other person with whom the juvenile resides. W. Va. Code § 49-4-705(c)(3).

If a juvenile is not released to a parent, guardian, custodian, or other responsible adult, the law enforcement officer must immediately bring the juvenile before a circuit court judge or magistrate for a detention hearing. If no judge or magistrate is immediately available, the juvenile may be detained and presented for hearing without unreasonable delay when a judicial officer is available. In any event, the juvenile must be released if not presented for hearing within one day of being taken into custody. W. Va. Code § 49-4-705(c)(4); Rule 6(c), RJP.

Detention Hearing

A detention hearing may be conducted by a circuit judge or a magistrate. At the detention hearing, the judicial officer must inform the juvenile of the right to remain silent, that any statement made may be used against the juvenile in subsequent proceedings, the right to counsel, and that no interrogation of the juvenile may occur outside the presence of a parent or counsel. If counsel has not been retained, counsel must be appointed. W. Va. Code § 49-4-706(a).

The sole mandatory issue at a detention hearing is whether the juvenile should be detained pending further court proceedings. Release of a juvenile before adjudication is strongly favored under the applicable statutes and rules, unless one of a few specific circumstances present good reason for detention. W. Va. Code § 49-4-706(a); Rules 11-15, RJP. Bail may be required, except it may be denied in cases where bail could be denied for an adult. W. Va. Code §§ 49-4-701(g); 49-4-706(a).

Delinquency Offenses

At the time of the hearing, the judicial officer must contact the juvenile’s parent, guardian, custodian, or, if necessary, a close relative. If the juvenile is charged with a delinquency offense, he or she must be released to the custody of a parent, guardian, custodian, or close relative unless one or more of the following is true:

1. Releasing the juvenile would create an immediate threat to the health or welfare of the juvenile;
2. A responsible adult cannot be found to take custody of the juvenile;
3. There is a substantial likelihood that the juvenile would not appear for a court hearing or would not remain in the care or control of the person into whose custody the juvenile is released; or
4. There is a substantial likelihood that the juvenile would endanger others. W. Va. Code § 49-4-705(a); Rule 12(c), RJP.

If a responsible adult cannot be found to take custody and the juvenile is detained for that reason alone, a record must be kept of all attempts to locate a responsible adult. W. Va. Code § 49-4-705(c)(2)(B).

A juvenile charged with delinquency may be detained in a secure facility only as permitted under very strict standards that take into account an array of factors, particularly the seriousness of the alleged offense. The secure detention standards were originally established in two West Virginia Supreme Court opinions: State ex rel. M.C.H. v. Kinder, 173 W.Va. 387, 317 S.E.2d 150 (1984), and Facilities Review Panel v. Coe, 187 W.Va. 541, 420 S.E.2d 532 (1992). These standards, in substantially similar content, are now set out in Rules 12 and 13 of the Rules of Juvenile Procedure. In determining whether a juvenile should be released, a court must consider factors such as the nature of the offense alleged and whether a bond with special conditions or any available day-reporting supervision program would be a suitable alternative to detention and reduce the risk of flight or misconduct. If it is determined that detention is necessary, depending on the specific offense and circumstances, something less restrictive than secure detention (e.g. staff-secure facility or electronically monitored home confinement) may be considered as a viable alternative. A juvenile is entitled to have an appropriate bail set unless an adult could be denied bail under the same circumstances. W. Va. Code §§ 49-4-701(g); 49-4-706(a). A juvenile, however, may not be detained in any jail or other adult facility. W. Va. Code § 49-4-720.

At the conclusion of a detention hearing, the judicial officer should prepare an order setting forth findings of fact and conclusions of law and provide a copy to the juvenile, the parent, and the attorney. Rules 13 and 14, RJP. A circuit judge may conduct a review hearing regarding a detention order and may continue, modify, or vacate any detention order as the judge deems appropriate. Rule 16, RJP.

Status Offenses

Before adjudication, a court is required to release an alleged status offender who has been taken into custody by law enforcement unless one of the following circumstances is present that allows an alleged status offender to be held in out-of-home custody:

1. Circumstances present an imminent danger to the juvenile's health, safety, or welfare.
2. No responsible adult can be found to take custody of the juvenile. If this is the basis for placement, the custody order must require the custodial agency or facility to record, on a daily basis, all attempts to locate a responsible adult. The order must also provide that the juvenile must be returned to court if a responsible adult is located for the court's consideration of possible release.
3. The juvenile has run away or absconded from a custody order entered by a court of this state or any other jurisdiction that operates under the Interstate Compact for Juveniles W. Va. Code § 49-7-301, et seq. Rule 14, RJP. Although the court may, in these limited circumstances, order the pre-adjudicatory placement of a juvenile charged with a status offense, the juvenile may be placed only in a non-secure or staff-secure facility, with the exception of those in custody under the jurisdiction of the Interstate Compact for Juveniles who may require secure detention. Rule 14(b), RJP; Rules 6-102 and 6-103, Interstate Compact for Juveniles.

The DHHR must be notified immediately of any pre-adjudicatory placement hearing for an alleged status offender. When considering the pre-adjudicatory placement of an alleged status offender, the court must first consider all less restrictive alternatives. Rule 14(c), RJP. If out-of-home custody is ordered, the court must make case-specific findings that continuation in the home is contrary to the welfare of the juvenile and must find whether the DHHR made reasonable efforts to prevent removal or that there was an emergency situation that made any such efforts unreasonable or impossible. Rule 14(e), RJP. As noted previously, an alleged status offender may be placed only in a non-secure or staff-secure facility.

A court may review the pre-adjudicatory detention of a juvenile upon the request of a juvenile, his or her counsel, the prosecuting attorney, the DHHR, BJS, the probation officer, or any other person with an interest in the matter. Rule 16, RJP. A court may also review placement upon its own motion. The court can modify or vacate the detention order, or let it stand as originally entered.

Juvenile Case Initiated by a Domestic Violence Emergency Protective Order

A juvenile case is automatically initiated by the entry of an emergency protective order directed against a juvenile if the petitioner in the domestic violence proceeding is a parent, guardian, custodian, or other person with whom the juvenile resides. W. Va. Code § 48-27-403(h), § 49-4-704(f); Rule 15(a), RJP. If a law-enforcement official takes a juvenile into custody in these circumstances, upon presentment for a detention hearing, the court must immediately notify the DHHR. W. Va. Code § 49-4-705(c)(3); Rule 15(b), RJP. In these domestic violence cases as well, there is a presumption that the juvenile should be released. Rule 15(c), RJP. However, a juvenile may be subject to pre-adjudicatory detention if there are circumstances that present an immediate threat of bodily harm to the juvenile or to others. A juvenile may also be subject to pre-adjudicatory detention if there is no responsible adult who can take temporary custody of the juvenile. If this reason is the basis for custody, the custodial agency or facility will be required to keep a written record of daily attempts to locate such an adult and the juvenile will be returned to court if a responsible adult is located. The court must consider all less restrictive alternatives.

If pre-adjudicatory detention is ordered based upon a domestic violence order, a juvenile may be placed only in a non-secure or staff-secure facility unless the following narrow exception applies: A juvenile may be placed in secure detention if serious physical violence formed the basis for the protective order or there is a "substantial or credible risk of bodily injury." Rule 15(d), RJP. If a magistrate places a juvenile in a secure or staff-secure facility, the magistrate is required to refer the matter to the circuit court within 24 hours. In turn, the circuit court must conduct a detention review hearing under Rule 16 within three judicial days.

If the juvenile is detained temporarily in a facility, the court initially placing the juvenile is required to make case-specific findings as to why it is contrary to the welfare of the juvenile to remain in his or her home. Additionally, the court must find, based upon the facts of the case, whether the DHHR made reasonable efforts to prevent out-of-home placement, or that exigent circumstances made such efforts unreasonable or impossible. Rule 15(f), RJP.

Preliminary Hearing

The purpose of a preliminary hearing is to determine whether the juvenile petition is supported by probable cause. W. Va. Code § 49-4-708(a)(3); Rule 18, RJP. It may be conducted by either a circuit court judge or a magistrate acting as a juvenile referee. A record must be made of the preliminary hearing. Rule 18(e), RJP.

If a juvenile has been detained, the preliminary hearing must be held within 10 days of the detention hearing. It may be conducted at the same time as a detention hearing if the parties are prepared to proceed and the juvenile is represented by counsel. If a juvenile is not detained, the preliminary hearing must be conducted within 20 days after the juvenile is served with the petition. W. Va. Code § 49-4-708(a); Rule 18(a), RJP.

At the preliminary hearing, the court may admit any evidence that would be admissible under the applicable rules of evidence in a criminal trial. Hearsay evidence may also be admitted if the court concludes that the evidence is reliable and it would be unreasonably burdensome to produce the primary source of the evidence. Rule 18(b), RJP. The juvenile’s counsel has the right to cross-examine any state witness and introduce any testimony or evidence on behalf of the juvenile. Rule 18(c), RJP. On the advice of counsel, the juvenile may waive the preliminary hearing. W. Va. Code § 49-4-708(a); Rule 18(a), RJP.

At the preliminary hearing, the judge or magistrate must inform the juvenile and the juvenile's parent, guardian, or custodian of the juvenile's right to counsel at all stages of the proceedings; appoint counsel if counsel has not already been retained, appointed, or knowingly waived; and determine whether there is probable cause to believe the juvenile committed a status or delinquency offense. If no probable cause is found, the judicial officer must dismiss the petition. If probable cause is found, the judicial officer must inform the juvenile of his or her right to a jury trial (if applicable) and must also determine whether the juvenile should be released on recognizance or bail, detained, or placed in the temporary custody of the DHHR. W. Va. Code § 49-4-708.

If probable cause is found and the juvenile is detained, the adjudicatory hearing must occur within thirty days unless there is good cause for postponement or a jury trial is demanded. If a jury trial is requested, it must be in the next regular term of court. Unless waived by all parties, a ten-day notice of the adjudicatory hearing must be given the juvenile, parent, and attorney. W. Va. Code § 49-4-708(a)(3). If the juvenile is not detained, an adjudicatory hearing must be held within sixty days of the service of the petition. Rule 27(a)-(b), RJP.

Pre-Adjudicatory Community Supervision Period

At any time prior to the adjudicatory hearing, unless a shorter time frame is specified by the court, a juvenile may request a community supervision period. If the circuit court finds that a community supervision period would serve the best interests of the juvenile, the court may delay the adjudicatory hearing and place the juvenile on a community supervision period not to exceed one year. The court may establish the terms calculated to address the rehabilitative needs of the juvenile, and appropriate supervision. The court may require the DHHR to provide services to the juvenile and his or her family, and may schedule interim review hearings. A juvenile may be subject to an out-of-home placement in some instances during a community supervision period. If so, the court must make the appropriate removal-from-home findings. Rule 19(c), RJP. A motion for a community supervision period, whether granted or denied, may not be construed as an admission or be used in evidence. W. Va. Code § 49-4-708(b); Rule 19, RJP.

If a juvenile successfully completes the community supervision period, the court shall dismiss the petition. If a juvenile fails to comply with the terms of the community supervision period, the prosecuting attorney or probation officer may file a motion to revoke the community supervision period. The court must schedule a hearing on the motion with notice to the parties and counsel. If the state proves by clear and convincing evidence that there has been a substantial violation of the terms of the community supervision period, the court can terminate the community supervision period. Upon termination, the court must schedule an adjudicatory hearing on the original petition to commence within 30 days. Rule 19(d), RJP.

Required Findings for Out-of-Home Placements of Juveniles

At various junctures during a juvenile case, including the stages prior to adjudication, the juvenile may be placed out of his or her home, subject to the limitations established by law. In all circumstances in which a juvenile is removed from the home by a court order, the court should find that continuation in the home is contrary to the best interests of the juvenile and must provide case-specific reasons supporting this finding. These findings should be included in a written order that authorizes the removal of the juvenile from the home. In addition, the court must determine whether the DHHR made reasonable efforts to prevent the out-of-home placement or that exigent circumstances made such efforts unreasonable or impossible. Rules 6(a)(5)(G), 12(d), 14(e), 15(f), 19(d), 38(d)(1), and 39(b)-(c), RJP. These required findings allow the DHHR to obtain federal funding for many of the juvenile placements.

Child Support for Out-of-Home Placements

If a juvenile is placed in the custody of either the DHHR or BJS, the court must require a parent or legal guardian to pay child support. W. Va. Code § 49-4-801; Rules 38(e) and 39(d), RJP. The court should set the support obligation in accordance with the guidelines for child support set forth in West Virginia Code § 48-13-101, et seq. unless the court finds that the use of the guidelines is inappropriate. If there is a prior family court order governing child support, the circuit court order will supersede the family court order while the juvenile is in the custody of either the DHHR or BJS.

Adjudication and Disposition in Status Offense Cases

At the beginning of an adjudicatory hearing, the circuit court must ask the juvenile whether he or she chooses to admit or deny the allegations in the petition. The juvenile may choose to stand silent, and the court will enter this as a general denial of the allegations in the petition. W. Va. Code § 49-4-711. If the juvenile elects to admit the allegations, the court must determine whether the juvenile understands the allegations in the petition and whether there is a factual basis for the allegations. The court must also determine whether there is a defense to the allegations. The court must further determine whether the juvenile understands his or her right to adjudication on the merits, his or her rights as set forth in Rule 7 of the Rules of Juvenile Procedure, the court's dispositional authority over the juvenile, and the range of possible consequences once the juvenile has been adjudicated. The court must determine that the juvenile understands his or her rights and the consequences of the proceeding before accepting the admission. The admission can be based upon the juvenile's statements on the record or upon the juvenile's statements that are contained in a written document signed by the juvenile and counsel. W. Va. Code § 49-4-711; Rule 28, RJP.

If the juvenile does not admit to the allegations in a status offense petition, the state is required to prove by clear and convincing evidence that the juvenile committed the charged status offense. W. Va. Code § 49-4-711(4); Rule 32(b), RJP. The cases are handled as bench trials. There is no right to a jury in status offense cases. W. Va. Code § 49-4-709(b); Rule 29(c), RJP.

After an adjudicatory hearing, the court is required to make findings of fact and conclusions of law with regard to the allegations in the petition. Although the findings may be stated on the record at the conclusion of the hearing, the court is required to prepare a written order with the findings. W. Va. Code § 49-4-711(6); Rule 33, RJP. If the state does not prove its case, the court is required to dismiss the petition. If the juvenile had been placed in custody, upon dismissal the juvenile must be discharged from custody. W. Va. Code § 49-4-711(5); Rule 33, RJP.

Disposition

For the initial disposition in status offense cases, the judge is required to refer the juvenile to DHHR for an individualized program of rehabilitation based on the findings of the risk and needs assessment. The judge also must order DHHR to report the juvenile’s progress to the court at least every 90 days or until the judge (on motion by DHHR or a party or on the judge’s own motion) orders further disposition or dismisses the case from the court’s docket. W. Va. Code § 49-4-711(4), Rule 38, RJP. If the offense is truancy and the circuit court is operating its own truancy program, the judge may order that the juvenile be supervised by the court's probation office rather than refer the juvenile to DHHR. The judge may also refer a truant juvenile to a truancy diversion specialist if one is employed in the juvenile's school.

Services and Multidisciplinary Treatment Teams

When a juvenile adjudicated to be a status offender is referred to DHHR under W. Va. Code § 49-4-711(4), a multi-disciplinary treatment team (MDT) must be convened. The MDT is required to assess, plan, and implement an individually tailored service plan for the juvenile and family. W. Va. Code § 49-4-406(a), Rule 35, RJP. The comprehensive assessment must include a needs assessment. The judge must conduct a judicial review of the case as often as the court deems necessary, attended by the MDT. If the juvenile is in an out-of-home placement, the judicial reviews must occur at least once every three months. W. Va. Code § 49-4-406(d)(4); Rule 43, RJP. In providing services appropriate to the needs of a status offender and family, DHHR must consider the MDT recommendations and must maintain consistency with the provisions of the Juvenile Offender Rehabilitation Act, West Virginia Code, Chapter 49, Article 2. W. Va. Code § 49-4-712(a). This Act provides for a diverse array of programs and services to address the rehabilitative needs of juveniles and to strengthen family support.

Further Disposition

If a juvenile, parent, guardian, or custodian fails to comply with the service plan, the DHHR may petition the court to order compliance with a service plan or to restrain actions interfering with or defeating a service plan. W. Va. Code § 49-4-712(b)(1). DHHR may also petition the court to order placement of a status offender in a non-secure or staff-secure facility and to place the juvenile in DHHR’s custody. A juvenile adjudicated as a status offender generally may not be ordered to an out-of-home placement if that juvenile has no prior adjudications for a status or delinquency offense, or no prior period of pre-adjudicatory community supervision or probation for the current matter. However, placement out of the home can be ordered for such a juvenile if the court finds, by clear and convincing evidence, a significant and likely risk of harm to the juvenile, a family member, or the public if the juvenile is left in the home. Before placement the court must also find that continuation in the home is contrary to the best interests of the juvenile, and that DHHR has made all reasonable efforts to prevent removal from the home or that such efforts are not required due to an emergency situation. W. Va. Code § 49-4-712(b)(2). The court is not, however, limited to what DHHR seeks in a further-disposition petition, and must make reasonable efforts to avoid the juvenile's removal from home. If out-of-home placement is found necessary, the court must attempt to place a status offender in the least restrictive community-based facility that is appropriate to the juvenile’s and the community’s needs. The disposition may include reasonable orders to parents, guardians, or custodians needed to make the disposition effective. If the court finds that placement in a residential facility is necessary, it must make findings on the record or in the placement order as to the necessity of the placement, that community services were previously attempted, and the likely effectiveness of the residential placement. W. Va. Code § 49-4-712(d). A dispositional order may later be modified by the court in conformance with W. Va. Code § 49-4-718. Rule 38(g), RJP. A plan for transition shall begin upon the juvenile's entry into a residential facility. The transition process must begin thirty days after admission to the facility and conclude no later than three months after admission. An extension of time in a residential placement prior to a juvenile's transition to the community may be ordered by the court if the court finds by clear and convincing evidence that an extension beyond the initial 90 day placement is in the child's best interest. W. Va. Code § 49-2-1002(d)(2) & (4).

Appeal

A status offender may appeal to the West Virginia Supreme Court any dispositional order other than the initial mandatory order referring the juvenile to DHHR for services. W. Va. Code § 49-4-712(e).

Adjudication and Disposition in Delinquency Cases

Juvenile Delinquency Adjudicatory Hearings

In a delinquency case, the adjudicatory hearing must begin no longer than 60 days after the petition has been served, provided the juvenile is not in detention. If a juvenile is in detention, the adjudicatory hearing must begin within 30 days of detention. However, if a juvenile is entitled to and has demanded a jury trial, the adjudicatory hearing must begin no later than the next term of court. W. Va. Code § 49-4-708(a)(4); Rule 27, RJP.

The adjudicatory hearing is delayed if a pre-adjudicatory community supervision period is granted. At the conclusion of the community supervision period, the court will dismiss the case if the terms have been fulfilled; otherwise, the court will proceed with the adjudicatory hearing. If a community supervision period is later revoked, the adjudicatory hearing must begin within 30 days of the revocation. If a mistrial has been declared or a new adjudicatory hearing has been ordered following an appeal to the Supreme Court, a status conference must be conducted within 15 days to schedule a new adjudication hearing. Rule 27, RJP.

At the beginning of an adjudicatory hearing, the court must determine whether the juvenile wants to admit, deny, or stand silent in response to the allegations in the petition. W. Va. Code § 49-4-711. If a juvenile stands silent, it has the same effect as a denial.

If a juvenile either stands silent or denies the allegations, the court must conduct a contested adjudicatory hearing. The West Virginia Rules of Evidence govern the admissibility of any evidence, except for the limitations on the admission of a juvenile's extrajudicial statements (statements, written or oral, made outside of court) as established by W. Va. Code § 49-4-701(k) and (I). In a delinquency case, the state is required to prove the allegations in the petition beyond a reasonable doubt. W. Va. Code § 49-4-711(3); Rule 32, RJP. The court is required to issue an adjudicatory hearing order within seven days of the conclusion of the hearing. The court may extend this period for an additional seven days for good cause. Rule 33, RJP.

A juvenile charged with a delinquency offense is entitled to a jury trial if the criminal offense would expose an adult to possible incarceration upon a conviction. W. Va. Code § 49-4-709; Rule 29(a), RJP. However, a juvenile is not entitled to a jury trial if the court rules before the adjudication hearing that a disposition of out-of-home placement (the equivalent of a sentence of incarceration for an adult) will not be imposed. If the relevant criminal statute would not allow incarceration as a penalty for a convicted adult, the juvenile is not entitled to a jury trial for the equivalent delinquency charge. Rule 29(c), RJP.

A juvenile or his or her parents may demand a jury trial when so entitled. On its own motion, the court may also order a jury trial if the offense supports such a trial. W. Va. Code § 49-4-709(a); Rule 29(a), RJP. If a juvenile waives the right to a jury trial, such a waiver should either be made in writing or orally on the record. Rule 29(b), RJP.

If a juvenile admits to the allegations in the petition, the court is required to determine whether the juvenile understands the allegations and elements of each charge. The court must also find that there is a factual basis for the charges. Similarly, the court must ascertain whether the juvenile understands that he or she has a right to an adjudication on the merits, including the right to require proof of all of the elements. Rule 28, RJP. Further, the court must inquire whether the juvenile understands other rights and consequences, including those enumerated in Rule 7 of the Rules of Juvenile Procedure. Regarding consequences, the court must determine whether the juvenile understands the possible dispositions that may be imposed. Rule 28, RJP.

Rather than admit to the charged offense, with the agreement of the prosecuting attorney and the approval of the court, the juvenile can enter an admission to a lesser-included offense. Rule 28(b), RJP. A juvenile may also engage in plea negotiations with the prosecutor to reach a "binding admission" that includes the specific offense that the juvenile will admit to and an agreed-upon disposition. The court may accept or reject the entire agreement. Rule 28(c), RJP. With a proposed binding admission, the court may not accept only part of this type of agreement, for example, accept the admission but deny the negotiated disposition.

Dispositional Hearings Generally

In general, an adjudicated delinquency offender is entitled to be sentenced to the least restrictive disposition available that will address and resolve the juvenile’s circumstances. W. Va. Code § 49-4-712(c) and 49-4-714(b)(6). The goal of any disposition should be rehabilitation of the juvenile. When ordering a disposition, the court must consider the juvenile's best interest and the welfare of the public. Rule 34(a), RJP.

The court may conduct a disposition hearing immediately after the juvenile has been adjudicated, unless the multidisciplinary treatment team must first be convened. Rule 34(b), RJP. A dispositional hearing must be conducted within 30 days of the conclusion of the adjudicatory hearing if the juvenile is currently detained or being held in another type of out-of-home custody. Otherwise, the court must conduct the dispositional hearing within 60 days. For good cause, the court may extend the dispositional hearing for an additional period of 60 days. Only in extraordinary circumstances may a juvenile be detained or be held in out-of-home custody without a dispositional hearing within the time frame established by Rule 34.

To determine an appropriate disposition, the court may require a juvenile probation officer to prepare a predisposition report on the juvenile. The court may also require a juvenile to undergo a screening process to identify treatment needs, or if additional information is necessary, a psychological examination. Such reports are for disposition determinations and may not be relied upon by the judge in making a determination of adjudication. W. Va. Code § 49-4-714(a). Regardless of whether other reports are ordered, prior to disposition the judge must receive and consider the results of a risk and needs assessment designed to identify factors that predict a juvenile's likelihood of reoffending and, when appropriately addressed, may reduce reoffending. W. Va. Code § 49-4-724. Unless waived, all the reports must be provided to the prosecutor and defense counsel at least 72 hours before the dispositional hearing. W. Va. Code § 49-4-714(a); Rule 40, RJP. Before disposition, the court may also order the juvenile to undergo examination, diagnosis, classification, and medical examination at a secure juvenile diagnostic center. W. Va. Code § 49-2-907(a); Rule 40(c), RJP. While the juvenile is in diagnostic custody, the BJS must convene a multidisciplinary team to aid in determining the appropriate recommended disposition and submit a report to the court. W. Va. Code § 49-4-406(c); Rule 40(c)(3), RJP. A court may also refer the juvenile to the DHHR for an assessment by a multidisciplinary treatment team. W. Va. Code § 49-4-406(a); Rule 35, RJP. If the court is considering placing the juvenile in DHHR custody or out-of-home at DHHR expense, the court is required to refer the juvenile for a multidisciplinary treatment team assessment. W. Va. Code § 49-4-406(b).

Specifics of Delinquency Dispositions

Disposition Alternatives

Once a juvenile has been adjudicated for a delinquency offense, the court may impose a disposition based upon a range of alternatives. The possible dispositions include:

1. Dismissing the petition. W. Va. Code § 49-4-714(b)(1);
2. Referring the juvenile and parents to a community agency for needed services and dismissing the petition. W. Va. Code § 49-4-714(b)(2);
3. Finding the juvenile is in need of extra-parental supervision and placing the juvenile on supervised probation but leaving the juvenile in the custody of his or her parents. W. Va. Code § 49-4-714(b)(3); Rule 39(e), RJP. (The court may establish terms of probation with limits on the juvenile's activities and prescribe a treatment program);
4. Placing the juvenile in temporary foster care or placing the juvenile in DHHR's custody for placement in a rehabilitative facility. W. Va. Code § 49-4-714(b)(4); Rule 39(b), RJP; or directing the DHHR to provide non-custodial treatment services in the community. W. Va. Code § 49-2-1002;
5. Placing the juvenile in BJS custody if the court finds that the best interests of the juvenile or the welfare of the public requires this type of disposition. W. Va. Code § 49-4-714(b)(5); Rule 39(c), RJP. A commitment to BJS custody may not exceed the maximum term of incarceration that could be imposed if a juvenile were an adult; or
6. Committing the juvenile to a mental health facility (discussed later). W. Va. Code § 49-4-714(b)(6).

The court is required to undertake all reasonable efforts to choose a disposition that is the least restrictive alternative appropriate to the needs of the juvenile and the community. A juvenile adjudicated delinquent for a nonviolent misdemeanor offense generally may not be ordered to an out-of-home placement with BJS or DHHR if that juvenile has no prior adjudications for a status or delinquency offense, or no prior period of pre-adjudicatory community supervision or probation for the current offense. However, placement out of the home can be ordered for such a juvenile if the court finds, by clear and convincing evidence, that there is a significant and likely risk of harm, as determined by a risk and needs assessment, to the juvenile, a family member, or the public if the juvenile is left in the home. W. Va. Code § 49-4-714(b). Before placement, the court must also find that continuation in the home is contrary to the best interests of the juvenile, and that DHHR has made all reasonable efforts to prevent removal from the home or that such efforts are not required due to an emergency situation.

A dispositional order must contain written findings of fact. The order must indicate why the public safety and the best interests of the juvenile are served by the disposition. It also must indicate any proposed alternative dispositions and why they were not ordered. If the disposition involves the juvenile's out-of-home placement, the court is required to make findings regarding the treatment and rehabilitation plan the court adopted, the recommendation of the MDT, that continuation in the home is contrary to the best interest of the juvenile (and why) and whether the DHHR made reasonable efforts to prevent the out-of-home placement, or that exigent circumstances made such efforts unreasonable or impossible. W. Va. Code § 49-4-714(f); Rule 39, RJP.

Multidisciplinary Treatment Teams

When a juvenile is adjudicated as a delinquent or has been granted a preadjudicatory community supervision period, the court may, prior to disposition, refer the juvenile for a comprehensive assessment by a multidisciplinary treatment team (MDT). W. Va. Code § 49-4-406(b); Rule 35(b)(2), RJP. If the court is considering placing the juvenile in DHHR custody or out of the home at DHHR expense, a referral to DHHR shall be made for a MDT assessment. W. Va. Code § 49-4-406(b). If the juvenile has been detained outside of the home, the assessment of the juvenile must be completed within thirty days. Otherwise, the assessment must be completed within sixty days. The MDT report should be provided to the court and parties at least 72 hours before the dispositional hearing. Rule 35(c), RJP.

Individualized Case Plans

If a juvenile is placed under probation supervision at disposition, the assigned probation officer must develop and implement an individualized case plan in consultation with the juvenile's parents, guardian, or custodian, and other appropriate parties. The case plan is also to be based upon the results of a risk and needs assessment conducted within the last six months. W. Va. Code § 49-4-413(a). If a juvenile's disposition involves out-of-home placement under DHHR custody, the DHHR must ensure that the residential placement provider develop and implement an individualized case plan based upon the recommendations of the juvenile's MDT and the results of a risk and needs assessment. W. Va. Code § 49-4-413(b).

When a juvenile has been committed to BJS, including those cases in which the juvenile has been committed for examination and diagnosis, BJS must promptly convene a MDT and conduct an assessment and prepare an individualized service plan, which shall be provided to the court. In cases where the juvenile is committed to DJS custody as a final disposition, the MDT must review plan progress at least quarterly. W. Va. Code § 49-4-406(c); W. Va. Code § 49-4-413(c).

Commitment to a Mental Health Facility

As a disposition, the court may commit a juvenile who has been adjudicated as a delinquent to a mental health facility. W. Va. Code § 49-4-714(b)(6); Rule 41, RJP. When the court imposes this type of disposition, further juvenile proceedings are stayed. The juvenile, the probation officer, or the prosecutor may request this type of disposition, or the court, upon its own motion, may invoke the procedures required to implement this disposition. Rule 41(a), RJP. To establish commitment to a mental health facility as a disposition, the DHHR Bureau for Behavioral Health and Health Facilities must be given notice that the court is considering such a disposition. Secondly, the juvenile must undergo a diagnostic study to determine if the juvenile requires in-patient treatment, the expected duration of any treatment, a suggested treatment plan, the in-state facilities that could provide the treatment, and any out-of-state facility that could provide the treatment if no in-state facility could do so. The evaluation may be arranged for by the community mental health center where the juvenile resides.

Once the evaluation has been completed, the DHHR has five judicial days to provide the court, counsel for the juvenile, the prosecuting attorney, and the probation officer with its recommendations for placement. The DHHR's recommendation must list appropriate in-state facilities and the projected date that the facilities could admit the juvenile. If there are no appropriate in-state facilities or the placement would not be available within five days of the hearing, the DHHR must list appropriate out-of-state placements and the projected date on which the juvenile could be admitted. Rule 41(b), RJP.

A court is required to conduct a hearing on the proposed commitment within five judicial days after receipt of the DHHR's recommended placement report. Rule 41(c), RJP. The court may consider the DHHR's recommended placement if the need for commitment under Chapter 27 of the West Virginia Code has been established. If the court orders the commitment of the juvenile, the court is required to make findings, in addition to the specific findings that support the commitment, that continuation in the home is contrary to the best interests of the juvenile (and why); and whether the DHHR made reasonable efforts to prevent out-of-home placement, or that exigent circumstances made such efforts unreasonable or impossible. W. Va. Code § 49-4-714(b)(6); Rule 41(d), RJP.

Fines, Revocation of Vehicle Privileges, and Restitution

In addition to the types of dispositions governed by W.Va. Code § 49-4-714, a court is also authorized to impose certain penalties or conditions as part of its disposition. A court may:

• Impose a fine in the amount of $100 or less. The court should consider the juvenile's ability to pay any fine and should not decline to impose probation or other alternative sentence based upon the juvenile's inability to pay a fine;
• Order restitution to any victim for actual damages caused by the offense. If the juvenile does not make full restitution, the court may require the custodial parents to make full or partial restitution. The court should consider the juvenile's ability to pay restitution and may not decline to place a juvenile on probation or impose an alternative disposition because the juvenile or family is unable to pay restitution;
• Require the juvenile to participate in a public service project; or
• Order that a juvenile aged 15 or younger may not be issued a junior probationary operator's permit. If the child is between the ages of 16 and 18, the court may order that the juvenile is not eligible to drive a motor vehicle and any junior or probationary operator's license must be surrendered to the court. Driving privileges may be suspended only for a period of two years. W. Va. Code § 49-4-715.

Graduated Sanctions for Alcohol Consumption

If a juvenile is adjudicated for first-offense underage consumption of an alcoholic beverage, in addition to any other penalty, the court is required to order the juvenile to perform up to eight hours of community service or impose a fine of not more than $25, or both. If a juvenile is adjudicated for second offense underage consumption, the court is required to order the juvenile to complete up to sixteen hours of community service, or impose a fine not to exceed $50, or both. If a juvenile is adjudicated of third or subsequent offense underage consumption, the court is required to order the juvenile to perform up to 24 hours of community service, impose a fine of not more than $100, or both. W. Va. Code § 49-4-713.

In addition to requiring community service or a fine, the court is required to suspend the juvenile's operator's license for a definite term of not less than five or more than 90 days if the juvenile has been adjudicated for second-offense underage consumption. W. Va. Code § 49-4-713(b). When a juvenile is adjudicated for a third or subsequent offense of underage consumption, the court is required to suspend the juvenile operator's license until the juvenile turns 18.

Modification of Disposition

The following persons may move for the modification of a juvenile's disposition: the probation officer, an official from the DHHR, the director of BJS, the prosecutor, the juvenile, or the juvenile's parent or custodian. W. Va. Code § 49-4-718(a); Rule 39(g), RJP. Written notice of a motion for modification must be given at least 72 hours before a hearing. W. Va. Code § 49-4-718(b). The court may modify the disposition order to impose a more restrictive disposition only if there is clear and convincing evidence of a substantial violation of a prior court order.

Modification or Revocation of Probation

For any disposition involving probation, the juvenile's probation officer must submit to the court, at least every 90 days, a report of the juvenile's compliance with the conditions of probation and goals of the case plan. If the juvenile has been compliant and no longer needs probation supervision, upon the probation officer's recommendation the court may determine that early termination of the probation period is warranted, and discharge the juvenile from probation without conducting a review hearing. If the juvenile has not been in compliance with probation conditions or has not met case plan goals, the probation officer must recommend in the report additional or modified conditions or goals to achieve compliance. Upon conducting a review hearing, the court may determine that modification of the conditions of probation are warranted. W. Va. Code § 49-4-718(d).

A probation officer or prosecuting attorney may also file a petition seeking either to modify or revoke a juvenile's probation based upon allegations that a juvenile has violated the terms of probation. Rule 47, RJP. The basis for the alleged probation violation must be set forth in a verified petition. If warranted under the circumstances established by Rule 6 of the Rules of Juvenile Procedure, the court may issue an immediate order of custody. Alternatively, the court may conduct a review hearing after providing 72 hours’ notice to the juvenile, juvenile's counsel, the juvenile's parents or guardians, the probation officer, and the prosecuting attorney. Rule 47, RJP.

If the juvenile is placed in custody based upon the petition, the court must conduct a hearing within five judicial days. Otherwise, the hearing must be conducted within 10 judicial days. The court either may modify or revoke the juvenile's probation if it finds, by clear and convincing evidence, that there was a substantial violation of any probationary terms. Rule 47, RJP.

Delinquency Cases: Transfer to Criminal Jurisdiction

Transfer to Adult Criminal Jurisdiction

Not all juveniles charged with acts that would be criminal if committed by an adult are dealt with under juvenile jurisdiction. State law has provisions requiring or allowing transfer of proceedings from juvenile to adult jurisdiction in some circumstances. W. Va. Code § 49-4-710 and Rule 20 of the Rules of Juvenile Procedure govern the transfer of certain juvenile cases to adult criminal jurisdiction.

Mandatory Transfer

To be subject to a mandatory transfer to criminal jurisdiction, the juvenile must be at least 14 years old, and upon written motion of the state, a hearing is held and it is found that there is probable cause to believe the juvenile committed:

1. Treason, murder, armed robbery, kidnapping, first-degree arson or sexual assault in the first degree. W. Va. Code § 49-4-710(d)(1);
2. An offense that would be a felony offense of violence against another person if the juvenile had been an adult, provided that the juvenile has a prior delinquency adjudication of a felony offense of violence against another person. W. Va. Code § 49-4-710(d)(2); or
3. An offense that would be a felony offense if the juvenile had been an adult, and the juvenile has two prior delinquency adjudications for felony offenses. W. Va. Code § 49-4-710(d)(3).

A juvenile must also be transferred to criminal jurisdiction of the circuit court when the juvenile is at least 14 years of age and demands that the proceedings be transferred. If the charged offense is a misdemeanor, the court may transfer the case to magistrate court. W. Va. Code § 49-4-710(c).

Discretionary Transfer

The court has discretion to transfer a juvenile case to criminal jurisdiction if a juvenile is under age 14, and upon written motion of the state, a hearing is held and it is found that there is probable cause to believe that the juvenile committed:

1. Treason, murder, armed robbery, first-degree arson, kidnapping or first- degree sexual assault. W. Va. Code § 49-4-710(e);
2. What would be for an adult a felony offense of violence against another person, and the juvenile has a prior delinquency adjudication for a felony offense of violence against another person, after considering personal factors of the juvenile, such as mental and physical condition or maturity. W. Va. Code § 49-4-710(f); or
3. What would be for an adult a felony, and the juvenile has two prior delinquency adjudications for a felony, after a consideration of personal factors of the juvenile. W. Va. Code § 49-4-710(f).

Further, upon the State's motion, a court has jurisdiction to transfer a juvenile of at least age fourteen to criminal jurisdiction after a consideration of personal factors if there is probable cause to believe the juvenile committed

1. Any felony offense of violence against another person;
2. Any felony offense, provided the juvenile has a prior delinquency adjudication for a felony offense;
3. The juvenile used or presented a firearm or deadly weapon during the commission of a felony;
4. A felony offense involving a narcotic drug; or
5. Second-degree arson. W. Va. Code § 49-4-710(g).

The personal factors include the juvenile's mental and physical condition, maturity, emotional attitude, home or family environment, school experience or other similar factors.

Procedures for Transfer

For any proposed transfer, the prosecutor must file a written motion at least eight days before the scheduled adjudicatory hearing. W. Va. Code § 49-4-710(a); Rule 20(b), RJP. The motion must state, with particularity, the basis for the transfer, including the reference to the specific statutory provision relied upon. The juvenile, his or her counsel, and the juvenile's parents or legal guardians must be provided with prompt notice of the transfer motion and the hearing date. Rule 20(d), RJP.

A court is required to conduct a hearing on the transfer motion within seven days of the filing of the motion unless good cause for a continuance has been established. W. Va. Code § 49-4-710(a); Rule 20(e)(1), RJP. A juvenile is entitled to discovery under Rule 21 of the Rules of Juvenile Procedure before the transfer hearing, and discovery must be relevant to both the charged offense and any personal factors that the State intends to rely upon as a basis for transfer. The prosecutor is required to disclose any evidence at least seven days before the transfer hearing, and the juvenile's counsel is required to disclose evidence at least four days before the transfer hearing. Rule 20(e)(5), RJP. At the transfer hearing, the West Virginia Rules of Evidence apply to any evidence relevant to the charged offense. The court may admit reliable evidence with regard to any personal factors in cases in which transfer is discretionary. Rule 20(e)(6), RJP. A juvenile is entitled to file any suppression motions before the transfer hearing. Rule 20(e)(7), RJP. Both the prosecutor and the juvenile shall have the opportunity to present testimony and other evidence and to cross-examine witnesses. A juvenile may elect to testify about the charged offense and with regard to the personal factors. If the juvenile elects to testify about the personal factors only, the juvenile may not be cross-examined about the charged offense. Rule 20(e)(8), RJP.

One provision of the West Virginia Code generally requires the prosecutor to establish grounds for transfer by clear and convincing evidence. W. Va. Code § 49-4-710(a). Each of the subsections specifically setting out grounds for mandatory or for discretionary transfer, however, requires only probable cause. W. Va. Code § 49-4-710(d), (e), (f), and (g). Probable cause is a much lower standard or burden of proof. The applicable rule of statutory construction when there is such conflict or inconsistency regarding the same matter is that the specific prevails rather than the general. Thus it appears that the prosecutor needs only to show that there is probable cause that grounds exist for a transfer. Further, transfer proceedings are preliminary matters for which a probable cause standard is appropriate. The clear and convincing standard is for the ultimate questions of guilt or innocence addressed in the adjudicatory hearing.

A court is required to issue a written order with findings of fact and conclusions of law regarding the transfer. If the transfer is discretionary, the court is required to make detailed findings concerning any personal factors that were considered and must give specific reasons as to the basis for its decision to either grant or deny the motion for transfer. W. Va. Code § 49-4-710(i); Rule 20(f), RJP.

If a court grants a discretionary transfer motion, the juvenile has the right to appeal the transfer within 10 days after the entry of the transfer order or after a conviction for the offense on which the transfer was based. W. Va. Code § 49-4-710(j); Rule 20(g), RJP. By implication, a juvenile may appeal a mandatory transfer to adult status only after a conviction.

Even when a juvenile case is transferred to criminal jurisdiction, upon a conviction the court has the discretion to impose a disposition according to the statute governing delinquency offenses rather than imposing a sentence based upon the criminal statute. W. Va. Code § 49-4-714(g); Rule 20(i), RJP. In addition, the Bureau of Juvenile Services shall notify the court and prosecutor within 180 days of the juvenile's 18 birthday. When the court is so notified, it shall schedule a hearing that will be conducted before the juvenile's 18 birthday. At the hearing, the court may transfer the respondent to an adult facility (upon his or her 18 birthday), a facility for youth offenders, and any other disposition that the court finds is appropriate. However, an offender who has reached the age of 18 may not be placed in a juvenile facility or in other placements with juveniles. Before the juvenile has turned 18, he or she may not be incarcerated in an adult correctional facility W. Va. Code § 49-4-720.

Post-Dispositional Review and Services: Status Offense and Delinquency Cases

Permanency Hearings

If a juvenile is placed in the out-of-home custody of the DHHR in either a status offense or delinquency case, the court must conduct permanency hearings in order to comply with federal statutes and regulations. Rule 42, RJP. An initial permanency hearing must be conducted within fourteen months of when the juvenile was placed in the DHHR's custody. Subsequently, the court must conduct permanency review hearings at least once every twelve months. The purpose of the hearing is to determine the juvenile's permanency plan and to determine whether the state will seek termination of parental rights pursuant to Part 6 of Article 4 of Chapter 49. At this hearing, the court must find whether the DHHR made reasonable efforts to finalize the permanency plan, whether the DHHR made reasonable efforts to place the juvenile in a permanent placement in a timely manner and identify any services the juvenile requires. The court may conduct permanency hearings concurrent with review hearings. However, the required findings regarding the permanency plan must be addressed at the hearing and be included in a written order.

Termination of Parental Rights

If a juvenile is in DHHR custody for a period of 15 of the most recent 22 months, the DHHR is required to seek termination of parental rights unless there is a compelling reason not to do so. Rule 44, RJP; W. Va. Code § 49-4-605(a). Any compelling reason must be documented in the juvenile's case plan. Compelling reasons may include the following:

1. Continued placement of the juvenile is required for his or her treatment and the parents have participated with the treatment;
2. The juvenile is habitually truant and is placed in a facility with an on-grounds school;
3. The juvenile's rehabilitative needs require further out-of-home treatment but the juvenile does not want parental rights terminated; or
4. There is no basis to file a termination petition. Rule 44(b), RJP; W. Va. Code § 49-4-605(b).

Review Hearings in Status Offense and Delinquency Cases

In every status offense and delinquency case, the court should conduct review hearings as often as the court determines is necessary. If a juvenile is in an out-of-home placement, the court is required to conduct review hearings at least once every three months. W. Va. Code § 49-4-406(d)(4); Rule 43, RJP. At the hearing, the court is to consider the juvenile's progress, treatment, and permanent placement planning. Rule 43, RJP. In addition, if the juvenile is in DHHR custody, the court must determine whether the DHHR made reasonable efforts to finalize the permanency plan and state such findings in a written order.

Post-Dispositional Transfer of Cases

Either at disposition or any time thereafter, the court may order that the case be transferred to the county where the juvenile resides. In such cases, the juvenile will be supervised and subject to judicial review where he or she lives. Rules 38(f) and 39(f), RJP. See also, W. Va. Code § 49-4-704(a). A party may request the transfer, or the court can order it on its own motion. If the judge orders the transfer of the case, the circuit clerk should be directed to send the file to the juvenile's home county.

After-Care Plans for Status Offense and Delinquency Cases

In both status offense and delinquency cases, a juvenile may be subject to an out-of-home placement. When a juvenile has been placed in the custody of either the DHHR or DJS, that agency has the duty of developing an after-care plan. W. Va. Code § 49-4-409(a); Rule 45, RJP. As part of developing the plan, the respective agency has the duty of notifying the court not less than two months before discharge. Rule 45, RJP. As part of the discharge process, the court is required to schedule a hearing to consider a juvenile's after-care plan. The hearing should be scheduled at least forty-five days before the anticipated date of discharge. Rule 45(a), RJP.

In conjunction with the multidisciplinary treatment team, the state agency is required to develop a written after-care plan. The after-care plan must contain a detailed description of the education, counseling, and treatment received by the juvenile at the out-of-home placement, together with a proposed plan for further education, counseling, and treatment upon discharge. The plan must also contain a description and source of any problems the juvenile has, and a proposal for addressing those problems upon discharge. W. Va. Code § 49-4-409(b). The plan should be provided to the court within ten days after it is developed. Rule 45(b), RJP. The plan also should be provided to the juvenile's parents or legal guardians, attorney, probation officer, any applicable mental health professional, the prosecuting attorney, and the principal of the school that the juvenile will attend. Any of the persons provided with a copy of the after-care plan may submit written comments or objections to the court within 21 days of service of the after-care plan. W. Va. Code § 49-4-409(c); Rule 45(b), RJP. A person objecting to the plan must serve his or her adverse comments or objections on anyone who was provided with a copy of the after-care plan. W. Va. Code § 49-4-409(c); Rule 45(c), RJP.

If adverse comments or objections are submitted to the court or the court has reason to question any aspect of the plan, it must conduct a hearing on the after-care plan. Any person or agency having any responsibility to execute the after-care plan is required to appear at the hearing unless excused by the court. W. Va. Code § 49-4-409(e); Rule 45(c), RJP. Within five days of the hearing, the court must enter an order with findings and conclusions concerning the after-care plan. If the court determines it is necessary, the court may require the agency that has custody of the juvenile to provide alternative plans. Rule 45(d), RJP.

If no adverse comments or objections are submitted, and the court finds the plan acceptable, it is not required to conduct a hearing. In these circumstances, the court, within 45 days of receiving the plan, should issue an order adopting the plan. W. Va. Code § 49-4-409(f) and (g); Rule 45(c), RJP.

When an after-care plan has been implemented, the juvenile's probation officer or community mental health center professional is to supervise the implementation of the plan and report the juvenile's progress to the court at least every sixty days. W. Va. Code § 49-4-409(h). The court is required to review the juvenile's progress during judicial reviews. Rule 46, RJP. The court may schedule the review hearings as often as it considers necessary until the juvenile is discharged from the court’s supervision or the court no longer has jurisdiction over the case due to the juvenile’s age.

Life Skills Curriculum and Transitional Plan

If a juvenile is between the ages of 14 and 18 and is in out-of-home custody, the individualized service plan must include a life skills curriculum. Rule 51, RJP. The purpose for this requirement is to ensure that a juvenile learns basic life skills such as personal hygiene, job-seeking skills, educational or vocational instruction, and how to access community resources. At least six months before the juvenile turns 18, the multidisciplinary treatment team must assist the juvenile with the development of a transitional plan. The plan should include specific options such as housing, health insurance, and employment services. Rule 51(b), RJP.

Facilities and Placement Limitations

There are three kinds of facilities in which juveniles involved in juvenile proceedings may be detained or to which they may be committed: secure, staff secure, and non-secure facilities. Under Rule 52 of the Rules of Juvenile Procedure, there is a type of facility designated as a "qualified residential treatment program" or "QRTP" that will address the needs of a juvenile with serious emotional or behavioral disorders and must include a trauma-informed treatment model. Although the applicable rule does not specify which category such a facility belongs to, these types of facilities are most likely to be considered staff-secure facilities. This type of facility has been developed to comply with federal provisions found in 42 U.S.C. § 675a, which were enacted as part of the Family First Preventions Services Act of 2018.

West Virginia statutes place strict limitations on the type of juveniles who may be placed in secure facilities. A juvenile charged with one or more delinquency offenses may be detained in a secure facility but only as permitted under strict standards that take into account an array of factors, particularly the seriousness of the alleged offense or offenses. However, a juvenile may not be detained in any jail or other adult facility. W. Va. Code § 49-4.720(a). The BJS operates several regionally located secure juvenile detention centers. These facilities house youth who have been charged with delinquent offenses and meet the criteria for detention under state statutes (W. Va. Code § 49-2-902(b)(1)) and case law. State ex rel. M.C.H. v. Kinder, 173 W. Va. 387, 317 S.E.2d 150 (1984) and Facilities Review Panel v. Coe, 187 W. Va. 541, 420 S.E.2d 532 (1992).

The BJS also operates several treatment and rehabilitation facilities for juveniles who are adjudicated as delinquent offenders. There is also a diagnostic services facility for assessments and psychological evaluations to assist in identifying appropriate individualized treatment. W. Va. Code § 49-2-907. Other BJS-operated facilities provide treatment, rehabilitation, and education in a range of minimum to maximum-security settings. In addition to these residential facilities, the BJS operates many community-based youth reporting centers around the state. W. Va. Code § 49-2-912. These day-report centers provide treatment programs for juvenile offenders at risk of out-of-home placement and after-care services for youth who have returned home from placement.

A youth charged with a status offense may be placed out of the home only in a staff-secure or non-secure facility. These facilities are generally operated by private child welfare agencies under contract with the DHHR. The DHHR also establishes standards for the care and services for juveniles placed with child welfare agencies, as well as exercise supervision and licensing authority over juvenile residential facilities operated by these agencies. W. Va. Code §§ 49-2-101 to 124. In addition to the many non-secure and staff-secure juvenile facilities operated in the state by private child welfare agencies, the DHHR operates the West Virginia Children’s Home, a non-secure residential facility in Elkins. Status offenders and delinquent youth adjudicated of less serious offenses can be placed here or in one of the DHHR-licensed facilities.

A juvenile, whether a status or delinquency offender, may be subject to placement in a qualified residential treatment program or QRTP. As noted above, a juvenile must have serious emotional or behavioral disorders to be subject to this type of placement. In the Family First Prevention Services Act in 42 U.S.C. § 675a(c), certain requirements for these types of placements must be met in order for West Virginia to be reimbursed for the placement. To ensure compliance with the federal requirements, the West Virginia Supreme Court adopted Rule 52 of the Rules of Juvenile Procedure, and it includes more stringent requirements than the federal requirements set forth in the statute. Rule 52 requires that that an independent evaluator submit a report concerning the specific placement 20 days before placement, except in cases in which good cause can be shown. Within 10 days of receipt of the report, the court must make specific findings concerning the treatment program, and the court may conduct a hearing or may or may not approve placement of the juvenile. Although the court should make the required findings before placement, it must make them no later than 60 days of the actual placement of the juvenile in the facility. During review hearings when a juvenile is placed in a QRTP, the court should continue to determine whether the QRTP remains the most appropriate level of care in the least restrictive environment for the juvenile.

There are limits on the number of youth placed in juvenile facilities. Except in extraordinary circumstances, a court may not order placement of a juvenile in a facility that is at licensed capacity. State ex rel. WVDHHR v. Frazier, 198 W. Va. 678, 482 S.E.2d 663 (1996); State ex rel. Lewis v. Stephens, 199 W. Va. 180, 483 S.E.2d 526 (1996); W. Va. Code § 49-4-106.

Although the preference is for in-state placements, a court may order a juvenile to be placed in an out-of-state facility under certain conditions. If a court orders placement of a juvenile in an out-of-state facility, the placement order must set forth the reasons why the juvenile was not placed in an in-state facility or program. W. Va. Code § 49-4-714(c) and § 49-4-404(b). For example, an out-of-state placement may be justified if no in-state facility provides the rehabilitative services appropriate for a particular juvenile.

Federal and State Detention Monitoring

West Virginia Supreme Court of Appeals Administrative Order, effective July 1, 1997, directs the Division of Justice and Community Services (DJCS) to monitor compliance with state standards for juvenile detention facilities. The West Virginia standards and procedures for the operation of juvenile detention and correctional facilities are established by Title 101, Series 1, of the Code of State Rules. In addition to monitoring for compliance with state standards, detention facilities also report to DJCS any instances of overcapacity. A quarterly report is prepared and sent to the West Virginia Supreme Court.

The DJCS is also required to monitor for compliance with federal juvenile detention standards mandated by the Juvenile Justice & Delinquency Prevention Act of 1974. An annual report on compliance is sent to the U.S. Department of Justice.

Protection of Rights

This is an overview of juvenile rights. Juveniles charged with delinquency or status offenses are given the same constitutional and statutory rights as adults charged with criminal offenses. Due to the special characteristics and needs of youth, statutes and rules provide greater protection for juveniles in some respects.

Juveniles involved in status-offense or delinquency proceedings have an array of rights afforded by statutes and rules, and by the United States Constitution and the West Virginia Constitution. They include:

1. The right to notice of the charges by service of the petition. W. Va. Code § 49-4-704(a) and (d); Rule 7(a), RJP;
2. If taken into custody, the right to a prompt detention hearing. W. Va. Code § 49-4-705(a) and (d); Rule 6(c), RJP;
3. The right not to be detained or incarcerated in any adult jail or correctional facility. W. Va. Code § 49-4-720;
4. The right to release based upon the charged offense and other established factors. W. Va. Code § 49-4-706; Rules 13 and 14, RJP;
5. The right to bail or recognizance as a general rule. W. Va. Code § 49-4-701(g); Rule 11, RJP;
6. The right to the protections guaranteed by West Virginia Constitution, Article III, including the rights against excessive bail and fines, cruel and unusual punishment, self-incrimination, double jeopardy, unreasonable searches and seizures, as well as the rights to habeas corpus, due process of law, notice of the nature of any accusation, assistance of counsel, confrontation of adverse witnesses, and compulsory process for obtaining favorable witnesses. W. Va. Code § 49-4-701(g); Rule 7, RJP;
7. The right to effective representation by counsel, whether retained or appointed, at all stages of any juvenile proceeding. In re Gault, 387 U.S. 1, 87 S. Ct. 1428 (1967); W. Va. Code § 49-4-701(h); Rule 5, RJP;
8. The right to a meaningful opportunity to be heard, including the opportunity to testify and to present and cross-examine witnesses. W. Va. Code § 49-4-701(i); Syl. Pt. 3, State v. Damian R., 214 W. Va. 610, 591 S.E.2d 168 (2003);
9. The right to closed proceedings. Juvenile proceedings are to be closed to the public, with limited exceptions that fall within the discretion of the court for persons whose presence is requested by the parties or other persons determined by the court to have a legitimate interest in the proceedings. When a juvenile is accused of committing an act of delinquency that would be a felony for an adult, the victim or a representative of the victim may be present during the proceedings at the discretion of the court. If the victim of such an offense is a juvenile, he or she may be accompanied by parents or a representative. W. Va. Code § 49-4-701(i); Rule 10, RJP;
10. At all adjudicatory hearings, all the procedural rights afforded to adults in criminal proceedings (including those afforded by the West Virginia Rules of Criminal Procedure), unless otherwise specifically provided by the law. W. Va. Code § 49-4-701(j); Rules 7 and 30-32, RJP;
11. At all adjudicatory hearings, the right to the application of the West Virginia Rules of Evidence. W. Va. Code § 49-4-701(k); Rule 31, RJP;
12. The right to preclude the admission of certain statements made by the juvenile. The following statements are not admissible: statements made by a juvenile under the age of 14 to law enforcement officials or while in custody, but not in the presence of the juvenile's counsel; statements made by a juvenile between the ages of 14 and 16 to law enforcement officials or while in custody, but not in the presence of the juvenile's counsel or without the informed consent and presence of the juvenile's parent or custodian. W. Va. Code § 49-4-701(l). Statements in this context do not include res gestae statements, which are defined to include spontaneous out-of-court statements made immediately after an event and before an individual has had an opportunity to generate a false story. W. Va. Code § 49-1-207 and 49-4-701(l);
13. The right to a jury trial in a delinquency case unless the equivalent adult criminal offense would not result in incarceration or the presiding judge rules in advance that incarceration will not be imposed. W. Va. Code § 49-4-709; Rule 29, RJP;
14. In a delinquency case at the adjudicatory hearing, the right to proof beyond a reasonable doubt. W. Va. Code § 49-4-711(3); Rule 32(a), RJP);
15. In a status-offense case at the adjudicatory hearing, the right to proof by clear and convincing evidence. W. Va. Code § 49-4-711(4); Rule 32(b), RJP;
16. The right to have the judge make, on the record, findings of fact and conclusions of law at the conclusion of any transfer, adjudicatory, and dispositional hearing. W. Va. Code §§ 49-4-701(m) and 49-4-711(6); Rules 20(f), 33 and 34, RJP;
17. The right to have a preliminary hearing recorded and to have any transfer, adjudicatory, or dispositional hearings recorded or transcribed and a transcript made available for appeal. W. Va. Code § 49-4-701(m); Rules 18(e), 28(f), 30(c) and 34(d), RJP; Rule 5.1, W. Va. R. Crim. P.;
18. The right to appeal. W. Va. Code §§ 49-4-712(f) and 49-4-714(d); Rule 28(f), 30(c) and 34(d), RJP; and
19. The right not to have a delinquency adjudication be deemed a criminal conviction. W. Va. Code § 49-4-103.

Rights for Specific Circumstances

West Virginia statutes and the Rules of Juvenile Procedure require that a juvenile be informed expressly and specifically of certain rights in three particular situations.

1. At a detention hearing or first appearance, the judicial officer must inform the juvenile of the right to remain silent, that any statement by the juvenile may be used against the juvenile, that the juvenile has a right to counsel, and that the juvenile may be interrogated only in the presence of a parent or counsel. W. Va. Code § 49-4-706(a); Rule 7, RJP.
2. At a preliminary hearing, if a juvenile does not have counsel, the judge or magistrate must inform the juvenile of the right to be represented by counsel and must see that counsel is appointed when necessary. W. Va. Code § 49-4-708(a)(1). The judge or magistrate must also inform the juvenile of the right to demand trial by jury (if charged with a delinquency offense). W. Va. Code § 49-4-708(a)(5) and 49-4-709(a); Rule 7(b)(6), RJP.
3. Upon coming into the custody of a sheriff or a detention facility director, a juvenile must be provided a written statement explaining the right to a prompt detention hearing, the right to counsel, and the right against self-incrimination. W. Va. Code § 49-4-705(d).

In addition, a juvenile in custody or detention has numerous specific rights along with the right to a copy of such rights upon admission to a juvenile facility, including:

1. The right to no punishment by physical force;
2. No deprivation of nutritious meals;
3. No deprivation of family visits;
4. No solitary confinement;
5. Daily exercise;
6. The use of his or her own clothing or individualized clothing which is clean and supplied by the facility;
7. Daily showers;
8. Writing materials and the ability to send and receive mail without censorship;
9. Make and receive phone calls;
10. The ability to receive visitors daily;
11. Medical care as needed;
12. Education, including instruction, materials, and books;
13. Reasonable access to an attorney; and
14. A grievance procedure. W.Va. Code § 49-4-721.

Juvenile Records

Confidentiality of Juvenile Records

With certain exceptions, records and information concerning a child or juvenile that are maintained by the BJS, the DHHR, a child agency or facility, a court, or a law enforcement agency shall be kept confidential and shall not be released or disclosed to anyone, including any federal or state agency except as provided by law. W. Va. Code § 49-5-101; Rule 49, RJP.

Unless juvenile proceedings are transferred to adult criminal proceedings, law enforcement records and files concerning a child or juvenile must be kept separate from the records and files of adults and should not be included within any court file. W. Va. Code § 49-5-101(e).

Although court records are generally open for public inspection, records of juvenile proceedings are not public. Juvenile court records shall not be disclosed to anyone unless disclosure is otherwise authorized by law. W. Va. Code § 49-5-101; § 49-5-103; § 49-5-104; Rule 49, RJP.

The records of a juvenile proceeding are to be treated as sealed by operation of law one year after the juvenile's eighteenth birthday, or one year after personal or juvenile jurisdiction has terminated, whichever is later. W. Va. Code § 49-5-104(a); Rule 50, RJP. These records may not be inspected except by order of the circuit court or if the records are subject to federal subpoena. W. Va. Code §§ 49-5-104(a) and 49-5-103(d)(7).

To preserve the strict confidentiality of juvenile records, they shall be maintained by the circuit court in which the case was pending, including any related records originating in magistrate court, and be kept in a separate confidential file. The records shall be physically marked to show that they are to remain confidential and shall be filed in such a manner that no one can see the identity of the juvenile. These records may not be opened except upon order of the circuit court. Marking of juvenile records to show that they remain confidential has the legal effect of extinguishing the offense as if it never occurred. W. Va. Code § 49-5-104(d); Rule 50(c), RJP.

Specific Exceptions to Confidentiality

One exception to confidentiality relates to the collection and analysis of statistical data. The Juvenile Justice Database (JJDB) is administered by the West Virginia Supreme Court for research and planning purposes. Because administrative staff members of the Supreme Court are responsible for collecting, compiling, and disseminating information on juveniles in the juvenile justice system, they have access to confidential juvenile records for the limited purpose of maintaining the JJDB. The records obtained to maintain the JJDB are otherwise kept confidential and no information is published that would identify any individual juvenile. W. Va. Code § 49-5-105.

Also, the BJS, DHHR, and Supreme Court jointly collect and compile data necessary to measure juvenile recidivism and evaluate the effectiveness of various treatment and rehabilitation programs. W. Va. Code § 49-5-106. Collected data will be shared with the Juvenile Justice Reform Oversight Committee, the body statutorily authorized to oversee the implementation of reform measures intended to improve the state's juvenile justice system. W. Va. Code § 49-2-913.

Certain records of juveniles involved in serious offenses are disclosed to school officials under specific conditions. A copy of a juvenile's records automatically shall be disclosed to certain school officials if the juvenile has been charged with an offense that involves violence against another person; involves possession of a dangerous or deadly weapon; or involves possession or delivery of a controlled substance; AND the juvenile case has proceeded to a point where one or more of the following has occurred: a judge or magistrate has determined that there is probable cause to believe that the juvenile committed the offense as charged; a judge has placed the juvenile on probation for the offense; a judge has placed the juvenile on a pre-adjudicatory community supervision period; or some other type of disposition has been made of the case other than dismissal. W. Va. Code § 49-5-103(c). The circuit court for each judicial circuit designates one person, typically a probation officer, to supervise the disclosure of juvenile records to West Virginia school officials.

Juvenile records must be treated as absolutely confidential by the school official to whom they are transmitted, and nothing contained within the juvenile's records shall be noted on the juvenile's permanent educational record. The juvenile records are to be maintained in a secure location and are not to be copied under any circumstances. However, the principal of a school to whom the records are transmitted has the duty to disclose the contents of those records to any teacher of the juvenile, regular bus driver of the juvenile, or any other school official that has the need to be aware of the contents of the records. Under no circumstances are schools allowed to transmit a juvenile's records to another school. After a student leaves a school, the school official must seal the records and return them to the person designated by the circuit court. W. Va. Code § 49-5-103(c)(8)-(11).

Family court judges and their staffs have access to all circuit court orders and case indexes in juvenile proceedings. Rule 49, RJP. The purpose of this provision is to ensure that a family court does not issue an order in either a domestic relations or minor guardianship case that contravenes a circuit court determination or order in a juvenile case.

Upon a written petition and pursuant to a written order, the circuit court may permit disclosure of juvenile records to

1. Another court that has juvenile jurisdiction and has the juvenile before it in a juvenile proceeding;
2. A court exercising criminal jurisdiction over the juvenile that requests such records for the purpose of a presentence report or disposition proceeding;
3. The officials of a public institution to which the juvenile is committed if they require such records for transfer, parole or discharge; or
4. A person who is conducting research (but information that would identify the subject juvenile or the juvenile's family shall not be disclosed). W. Va. Code § 49-5-103(d)(5).

Juvenile court records are accessible to the juvenile, a parent (whose parental rights have not been terminated), an attorney for the juvenile or a parent, and a person with written consent of the juvenile (or someone authorized to act on behalf of the juvenile). W. Va. Code § 49-5-101(b). Juvenile court records are also accessible to West Virginia probation officers, including any juvenile case information in the electronic database maintained by the West Virginia Supreme Court. W. Va. Code § 49-5-103(d)(6).

The Bureau of Juvenile Services may share a juvenile's treatment plan, court record, or other records relevant to the juvenile's supervision, care, custody, or treatment with an agency in another state that performs the same functions as BJS does in this state. In order to gain access to these records, the agency in another state must have custody of the juvenile and have a reciprocal agreement to provide BJS with access to juvenile records from that state under similar circumstances. W. Va. Code § 49-5-101(h). If a federal subpoena for juvenile records is issued from a federal court or agency, then the juvenile records shall be disclosed. W. Va. Code § 49-5-103(d)(7).

Juvenile records are open to public inspection if a juvenile case is transferred to the criminal (adult) jurisdiction of the court. The time at which the records are open for public inspection depends upon the basis for the transfer. The accompanying charts (see below) summarize when a juvenile case is open for public inspection. If a juvenile case is transferred to adult status, the records should be treated in the same public manner as an adult case. W. Va. Code § 49-5-103(e). If certain records concerning an adult would be confidential, such as a psychological report, then similar records of a juvenile would also be confidential.

When juvenile records are accessible to the public

Although the records of a juvenile convicted under the adult criminal jurisdiction of the circuit court are generally open, that can change in some instances. The records of a juvenile proceeding in which a juvenile was transferred to criminal jurisdiction pursuant to the provisions of W.Va. Code § 49-4-710 shall be treated as confidential records that may be inspected only upon order of the circuit court if the juvenile is subsequently acquitted or found guilty only of an offense other than an offense upon which the waiver or order of transfer was based, or if the offense upon which the waiver or order of transfer was based is subsequently dismissed. W. Va. Code § 49-5-104(b); Rule 50(b), RJP.

"Funding for the development and publication of this Guide was provided by the U.S. Department of Health & Human Services, Administration for Children and Families, under Court Improvement Program matching grants.”