West Virginia
| Code | Subject Matter |
| Code § 49-1-1 | Child Welfare: Purpose |
| Code § 49-1-2 | Child Welfare: "Juvenile" or "Child" defined |
| Code § 49-1-3 | Child Welfare: Definitions relating to abuse and neglect |
| Code § 49-1-4 | Child Welfare: Other definitions |
| Code § 49-2-5 | State Responsibilities for the Protection and Care of Children: Supervision, records and reports |
| Code § 49-5-13 | Juvenile Proceedings: Disposition of juvenile delinquents; appeal |
| Code § 49-5-13e | Juvenile Proceedings: Comprehensive plan for juveniles |
| Code § 49-5-17 | Juvenile Proceedings: Confidentiality of juvenile records |
| Code § 49-7-1 | Child Welfare: Confidentiality of records |
| Code § 49-5A-6a | Juvenile Referee System: State plan for predispositional detention centers for juveniles |
| Code § 49-5B-4 | Juvenile Offender Rehabilitation Act: Responsibilities of the department of health and human resources and others |
| Code § 49-5D-1 | Multidisciplinary Teams: Purpose; additional cases and teams |
| Code § 49-5D-3 | Multidisciplinary Teams: Multidisciplinary treatment planning process |
| Code § 49-5D-3a | Multidisciplinary Teams: Recommendation of team to the court; hearing requirement; required findings |
| Code § 49-5D-6 | Multidisciplinary Teams: Other agencies of government required to cooperate |
| Code § 49-5E-1 | Division of Juvenile Services: Policy |
| Code § 49-5E-3 | Division of Juvenile Services: Transfer of functions; duties and powers; employment of comprehensive strategy |
Chapter 49. Child Welfare.
Article 1. Purposes and Definitions.
W. Va. Code § 49-1-1 (2009)
(a) The purpose of this chapter is to provide a coordinated system of child welfare and juvenile justice for the children of this state that has goals to:
(1) Assure each child care, safety and guidance;
(2) Serve the mental and physical welfare of the child;
(3) Preserve and strengthen the child's family ties;
(4) Recognize the fundamental rights of children and parents;
(5) Adopt procedures and establish programs that are family-focused rather than focused on specific family members, except where the best interests of the child or the safety of the community are at risk;
(6) Involve the child and his or her family or caregiver in the planning and delivery of programs and services;
(7) Provide services that are community-based, in the least restrictive settings that are consonant with the needs and potentials of the child and his or her family;
(8) Provide for early identification of the problems of children and their families, and respond appropriately with measures and services to prevent abuse and neglect or delinquency;
(9) Provide a system for the rehabilitation of status offenders and juvenile delinquents;
(10) Provide a system for the secure detention of certain juveniles alleged or adjudicated delinquent;
(11) Provide a system for the secure incarceration of juveniles adjudicated delinquent and committed to the custody of the director of the division of juvenile services; and
(12) Protect the welfare of the general public.
(b) In pursuit of these goals it is the intention of the Legislature to provide for removing the child from the custody of his or her parents only when the child's welfare or the safety and protection of the public cannot be adequately safeguarded without removal; and, when the child has to be removed from his or her family, to secure for the child custody, care and discipline consistent with the child's best interests and other goals herein set out. It is further the intention of the Legislature to require that any reunification, permanency or preplacement preventative services address the safety of the child.
(c) The child welfare service of the state shall be administered by the department of health and human resources. The division of juvenile services of the department of military affairs and public safety shall administer the secure predispositional juvenile detention and juvenile correctional facilities of the state. Notwithstanding any other provision of this code to the contrary, the administrative authority of the division of juvenile services over any child in this state extends only to those detained or committed to a secure detention facility or secure correctional facility operated and maintained by the division by an order of a court of competent jurisdiction during the period of actual detention or confinement in the facility.
(d) The department of health and human resources is designated as the agency to cooperate with the United States department of health and human services and United States department of justice in extending and improving child welfare services, to comply with regulations thereof, and to receive and expend federal funds for these services. The division of juvenile services of the department of military affairs and public safety is designated as the agency to cooperate with the United States department of health and human services and United States department of justice in operating, maintaining and improving juvenile correction facilities and centers for the predispositional detention of children, to comply with regulations thereof, and to receive and expend federal funds for these services.
(e) The department of health and human resources and the division of juvenile services shall present a joint plan for a coordinated system of child welfare and juvenile justice, including specific provisions for juveniles who have been accused of an act of delinquency through the filing of a formal petition pursuant to section seven [§ 49-5-7], article five of this chapter, to the designated legislative task force for juvenile oversight on or before the first day of September, one thousand nine hundred ninety-nine. The department and division shall report regularly during the interim period to the designated task force before completion of the plan to advise the Legislature as to progress of the plan's development.
§ 49-1-2. "Juvenile" or "Child" defined.
As used in this chapter, "juvenile" or "child" means any person under eighteen years of age. Once a juvenile or child is transferred to a court with criminal jurisdiction pursuant to section ten [§ 49-5-10], article five of this chapter, he or she nevertheless remains a juvenile or child for the purposes of the applicability of the provisions of this chapter with the exception of sections one through seventeen [§§ 49-5-1 through 49-5-17] of article five of this chapter, unless otherwise stated therein.
§ 49-1-3. Definitions relating to abuse and neglect.
(a) "Abused child" means a child whose health or welfare is harmed or threatened by:
(1) A parent, guardian or custodian who knowingly or intentionally inflicts, attempts to inflict or knowingly allows another person to inflict, physical injury or mental or emotional injury, upon the child or another child in the home; or
(2) Sexual abuse or sexual exploitation; or
(3) The sale or attempted sale of a child by a parent, guardian or custodian in violation of section sixteen [§ 48-4-16], article four, chapter forty-eight of this code; or
(4) Domestic violence as defined in section two hundred two [§ 48-27-202], article twenty-seven, chapter forty-eight of this code.
In addition to its broader meaning, physical injury may include an injury to the child as a result of excessive corporal punishment.
(b) "Abusing parent" means a parent, guardian or other custodian, regardless of his or her age, whose conduct, as alleged in the petition charging child abuse or neglect, has been adjudged by the court to constitute child abuse or neglect.
(c) "Battered parent" means a parent, guardian or other custodian who has been judicially determined not to have condoned the abuse or neglect and has not been able to stop the abuse or neglect of the child or children due to being the victim of domestic violence as defined by section two hundred two [§ 48-27-202], article twenty-seven, chapter forty-eight of this code, which domestic violence was perpetrated by the person or persons determined to have abused or neglected the child or children.
(d) "Child abuse and neglect" or "child abuse or neglect" means physical injury, mental or emotional injury, sexual abuse, sexual exploitation, sale or attempted sale or negligent treatment or maltreatment of a child by a parent, guardian or custodian who is responsible for the child's welfare, under circumstances which harm or threaten the health and welfare of the child.
(e) "Child abuse and neglect services" means social services which are directed toward:
(1) Protecting and promoting the welfare of children who are abused or neglected;
(2) Identifying, preventing and remedying conditions which cause child abuse and neglect;
(3) Preventing the unnecessary removal of children from their families by identifying family problems and assisting families in resolving problems which could lead to a removal of children and a breakup of the family;
(4) In cases where children have been removed from their families, providing services to the children and the families so as to reunify such children with their families or some portion thereof;
(5) Placing children in suitable adoptive homes when reunifying the children with their families, or some portion thereof, is not possible or appropriate; and
(6) Assuring the adequate care of children who have been placed in the custody of the department or third parties.
(f) "Child advocacy center" means a community-based organization that is a member in good standing with the West Virginia Child Abuse Network, Inc., and is working to implement the following program components:
(1) Child-appropriate/child-friendly facility:
A child advocacy center provides a comfortable, private, child-friendly
setting that is both physically and psychologically safe for clients.
(2) Multidisciplinary team (MDT):
A multidisciplinary team for response to child abuse allegations
includes representation from the following: Law enforcement; child protective
services; prosecution; mental health; medical; victim advocacy; child advocacy
center.
(3) Organizational capacity:
A designated legal entity responsible for program and fiscal operations
has been established and implements basic sound administrative practices.
(4) Cultural competency and diversity:
The CAC promotes policies, practices and procedures that are culturally
competent. Cultural competency is defined as the capacity to function in more
than one culture, requiring the ability to appreciate, understand and interact
with members of diverse populations within the local community.
(5) Forensic interviews:
Forensic interviews are conducted in a manner which is of a neutral,
fact finding nature and coordinated to avoid duplicative interviewing.
(6) Medical evaluation:
Specialized medical evaluation and treatment are to be made available
to CAC clients as part of the team response, either at the CAC or through coordination
and referral with other specialized medical providers.
(7) Therapeutic intervention:
Specialized mental health services are to be made available as
part of the team response, either at the CAC or through coordination and referral
with other appropriate treatment providers.
(8) Victim support/advocacy:
Victim support and advocacy are to be made available as part of
the team response, either at the CAC or through coordination with other providers,
throughout the investigation and subsequent legal proceedings.
(9) Case review:
Team discussion and information sharing regarding the investigation,
case status and services needed by the child and family are to occur on a routine
basis.
(10) Case tracking:
CACs must develop and implement a system for monitoring case progress
and tracking case outcomes for team components: Provided, That a child advocacy
center may establish a safe exchange location for children and families who
have a parenting agreement or an order providing for visitation or custody
of the children that require a safe exchange location.
(g) "Imminent danger to the physical well-being of the child" means an emergency situation in which the welfare or the life of the child is threatened. Such emergency situation exists when there is reasonable cause to believe that any child in the home is or has been sexually abused or sexually exploited, or reasonable cause to believe that the following conditions threaten the health or life of any child in the home:
(1) Nonaccidental trauma inflicted by a parent, guardian, custodian, sibling or a babysitter or other caretaker;
(2) A combination of physical and other signs indicating a pattern of abuse which may be medically diagnosed as battered child syndrome;
(3) Nutritional deprivation;
(4) Abandonment by the parent, guardian or custodian;
(5) Inadequate treatment of serious illness or disease;
(6) Substantial emotional injury inflicted by a parent, guardian or custodian; or
(7) Sale or attempted sale of the child by the parent, guardian or custodian.
(h) "Legal guardianship" means the permanent relationship between a child and caretaker, established by order of the circuit court having jurisdiction over the child, pursuant to the provisions of this chapter and chapter forty-eight [§§ 48-1-101 et seq.] of this code.
(i) "Multidisciplinary team" means a group of professionals and paraprofessionals representing a variety of disciplines who interact and coordinate their efforts to identify, diagnose and treat specific cases of child abuse and neglect. Multidisciplinary teams may include, but are not limited to, medical, educational, child care and law-enforcement personnel, social workers, psychologists and psychiatrists. Their goal is to pool their respective skills in order to formulate accurate diagnoses and to provide comprehensive coordinated treatment with continuity and follow-up for both parents and children. "Community team" means a multidisciplinary group which addresses the general problem of child abuse and neglect in a given community and may consist of several multidisciplinary teams with different functions.
(j) (1) "Neglected child" means a child:
(A) Whose physical or mental health is harmed or threatened by a present refusal, failure or inability of the child's parent, guardian or custodian to supply the child with necessary food, clothing, shelter, supervision, medical care or education, when such refusal, failure or inability is not due primarily to a lack of financial means on the part of the parent, guardian or custodian; or
(B) Who is presently without necessary food, clothing, shelter, medical care, education or supervision because of the disappearance or absence of the child's parent or custodian;
(2) "Neglected child" does not mean a child whose education is conducted within the provisions of section one [§ 18-8-1], article eight, chapter eighteen of this code.
(k) "Parenting skills" means a parent's competencies in providing physical care, protection, supervision and psychological support appropriate to a child's age and state of development.
(l) "Sexual abuse" means:
(A) As to a child who is less than sixteen years of age, any of the following acts which a parent, guardian or custodian shall engage in, attempt to engage in, or knowingly procure another person to engage in, with such child, notwithstanding the fact that the child may have willingly participated in such conduct or the fact that the child may have suffered no apparent physical injury or mental or emotional injury as a result of such conduct:
(i) Sexual intercourse;
(ii) Sexual intrusion; or
(iii) Sexual contact;
(B) As to a child who is sixteen years of age or older, any of the following acts which a parent, guardian or custodian shall engage in, attempt to engage in, or knowingly procure another person to engage in, with such child, notwithstanding the fact that the child may have consented to such conduct or the fact that the child may have suffered no apparent physical injury or mental or emotional injury as a result of such conduct:
(i) Sexual intercourse;
(ii) Sexual intrusion; or
(iii) Sexual contact;
(C) Any conduct whereby a parent, guardian or custodian displays his or her sex organs to a child, or procures another person to display his or her sex organs to a child, for the purpose of gratifying the sexual desire of the parent, guardian or custodian, of the person making such display, or of the child, or for the purpose of affronting or alarming the child.
(m) "Sexual contact" means sexual contact as that term is defined in section one [§ 61-8B-1], article eight-b, chapter sixty-one of this code.
(n) "Sexual exploitation" means an act whereby:
(1) A parent, custodian or guardian, whether for financial gain or not, persuades, induces, entices or coerces a child to engage in sexually explicit conduct as that term is defined in section one [§ 61-8C-1], article eight-c, chapter sixty-one of this code;
(2) A parent, guardian or custodian persuades, induces, entices or coerces a child to display his or her sex organs for the sexual gratification of the parent, guardian, custodian or a third person, or to display his or her sex organs under circumstances in which the parent, guardian or custodian knows such display is likely to be observed by others who would be affronted or alarmed.
(o) "Sexual intercourse" means sexual intercourse as that term is defined in section one [§ 61-8B-1], article eight-b, chapter sixty-one of this code.
(p) "Sexual intrusion" means sexual intrusion as that term is defined in section one [§ 61-8B-1], article eight-b, chapter sixty-one of this code.
(q) "Parental rights" means any and all rights and duties regarding a parent to a minor child, including, but not limited to, custodial rights and visitational rights and rights to participate in the decisions affecting a minor child.
(r) "Placement" means any temporary or permanent placement of a child who is in the custody of the state in any foster home, group home or other facility or residence.
(s) "Serious physical abuse" means bodily injury which creates a substantial risk of death, which causes serious or prolonged disfigurement, prolonged impairment of health or prolonged loss or impairment of the function of any bodily organ.
(t) "Siblings" means children who have at least one biological parent in common or who have been legally adopted by the same parents or parent.
(u) "Time-limited reunification services" means individual, group and family counseling, inpatient, residential or outpatient substance abuse treatment services, mental health services, assistance to address domestic violence, services designed to provide temporary child care and therapeutic services for families, including crisis nurseries and transportation to or from any such services, provided during fifteen of the most recent twenty-two months a child has been in foster care, as determined by the earlier date of the first judicial finding that the child is subjected to abuse or neglect, or the date which is sixty days after the child is removed from home.
As used in this chapter:
(1) "Child welfare agency" means any agency or facility maintained by the state or any county or municipality thereof or any agency or facility maintained by an individual, firm, corporation, association or organization, public or private, to receive children for care and maintenance or for placement in residential care facilities or any facility that provides care for unmarried mothers and their children;
(2) "Child advocacy center" means a community-based organization that is a member in good standing with the West Virginia Child Abuse Network, Inc., and is working to implement the following program components:
(A) Child-appropriate/child-friendly facility: A child advocacy center provides a comfortable, private, child-friendly setting that is both physically and psychologically safe for clients;
(B) Multidisciplinary team (MDT): A multidisciplinary team for response to child abuse allegations includes representation from the following: Law enforcement; child protective services; prosecution; mental health; medical; victim advocacy; child advocacy center;
(C) Organizational capacity: A designated legal entity responsible for program and fiscal operations has been established and implements basic sound administrative practices;
(D) Cultural competency and diversity: The child advocacy center promotes policies, practices and procedures that are culturally competent. Cultural competency is defined as the capacity to function in more than one culture, requiring the ability to appreciate, understand and interact with members of diverse populations within the local community;
(E) Forensic interviews: Forensic interviews are conducted in a manner which is of a neutral, fact-finding nature and coordinated to avoid duplicative interviewing;
(F) Medical evaluation: Specialized medical evaluation and treatment are to be made available to child advocacy center clients as part of the team response, either at the child advocacy center or through coordination and referral with other specialized medical providers;
(G) Therapeutic intervention: Specialized mental health services are to be made available as part of the team response, either at the child advocacy center or through coordination and referral with other appropriate treatment providers;
(H) Victim support/advocacy: Victim support and advocacy are to be made available as part of the team response, either at the child advocacy center or through coordination with other providers, throughout the investigation and subsequent legal proceedings;
(I) Case review: Team discussion and information sharing regarding the investigation, case status and services needed by the child and family are to occur on a routine basis;
(J) Case tracking: Child advocacy centers must develop and implement a system for monitoring case progress and tracking case outcomes for team components: Provided, That a child advocacy center may establish a safe exchange location for children and families who have a parenting agreement or an order providing for visitation or custody of the children that require a safe exchange location;
(3) "Community based", when referring to a facility, program, or service, means located near the juvenile's home or family and involving community participation in planning, operation and evaluation and which may include, but is not limited to, medical, educational, vocational, social and psychological guidance, training, special education, counseling, alcoholism and any treatment and other rehabilitation services;
(4) "Court" means the circuit court of the county with jurisdiction of the case or the judge thereof in vacation unless otherwise specifically provided;
(5) "Custodian" means a person who has or shares actual physical possession or care and custody of a child, regardless of whether such person has been granted custody of the child by any contract, agreement or legal proceedings;
(6) "Department" or "state department" means the State Department of Health and Human Resources;
(7) "Division of Juvenile Services" means the division within the Department of Military Affairs and Public Safety pursuant to article five-e [§§ 49-5E-1 et seq.] of this chapter;
(8) "Guardian" means a person who has care and custody of a child as a result of any contract, agreement or legal proceeding;
(9) "Juvenile delinquent" means a juvenile who has been adjudicated as one who commits an act which would be a crime under state law or a municipal ordinance if committed by an adult;
(10) "Nonsecure facility" means 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;
(11) "Referee" means a juvenile referee appointed pursuant to section one [§ 49-5A-1], article five-a of this chapter, except that in any county which does not have a juvenile referee, the judge or judges of the circuit court may designate one or more magistrates of the county to perform the functions and duties which may be performed by a referee under this chapter;
(12) "Secretary" means the Secretary of Health and Human Resources;
(13) "Secure facility" means 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;
(14) "Staff-secure facility" means 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;
(15) "Status offender" means a juvenile who has been adjudicated as one:
(A) Who habitually and continually refuses to respond to the lawful supervision by his or her parents, guardian or legal custodian such that the child's behavior substantially endangers the health, safety or welfare of the juvenile or any other person;
(B) Who has left the care of his or her parents, guardian or custodian without the consent of such person or without good cause; or
(C) Who is habitually absent from school without good cause;
(16) "Valid court order" means a court order given to a juvenile who was brought before the court and made subject to such order and who received, before the issuance of such order, the full due process rights guaranteed to such juvenile by the constitutions of the United States and the State of West Virginia.
Chapter 49. Child Welfare.
Article 2. State Responsibilities for the Protection and Care of Children.
W. Va. Code § 49-2-5 (2009)
§ 49-2-5. Same -- Supervision, records and reports.
In order to improve standards of child care, the state department shall cooperate with the governing boards of child welfare agencies, assist the staffs of such agencies through advice on progressive methods and procedures of child care and improvement of the service rendered, and assist in the development of community plans of child care. The state department of health, or its duly authorized agent, may visit any child welfare agency to advise the agency on matters affecting the health of children and to inspect the sanitation of the buildings used for their care. Each child welfare agency shall keep such records regarding each child under its control and care as the state department may prescribe, and shall report to the department, whenever requested, such facts as may be required with reference to such children, upon blanks furnished by the department. All records regarding children and all facts learned about children and their parents or relatives shall be regarded as confidential and shall be properly safeguarded by the agency and the state department.
Chapter 49. Child Welfare.
Article 5. Juvenile Proceedings.
W. Va. Code § 49-5-13 (2009)
§ 49-5-13. Disposition of juvenile delinquents; appeal.
(a) In aid of disposition of juvenile delinquents, the juvenile probation officer assigned to the court shall, upon request of the court, make an investigation of the environment of the juvenile and the alternative dispositions possible. The court, upon its own motion, or upon request of counsel, may order a psychological examination of the juvenile. The report of such examination and other investigative and social reports shall not be made available to the court until after the adjudicatory hearing. Unless waived, copies of the report shall be provided to counsel for the petitioner and counsel for the juvenile no later than seventy-two hours prior to the dispositional hearing.
(b) Following the adjudication, the court shall conduct the dispositional proceeding, giving all parties an opportunity to be heard. In disposition the court shall not be limited to the relief sought in the petition and shall, in electing from the following alternatives, consider the best interests of the juvenile and the welfare of the public:
(1) Dismiss the petition;
(2) Refer the juvenile and the juvenile's parent or custodian to a community agency for needed assistance and dismiss the petition;
(3) Upon a finding that the juvenile is in need of extra-parental supervision: (A) Place the juvenile under the supervision of a probation officer of the court or of the court of the county where the juvenile has his or her usual place of abode or other person while leaving the juvenile in custody of his or her parent or custodian; and (B) prescribe a program of treatment or therapy or limit the juvenile's activities under terms which are reasonable and within the child's ability to perform, including participation in the litter control program established pursuant to section three [§ 22-15A-3], article fifteen-a, chapter twenty-two of this code or other appropriate programs of community service;
(4) Upon a finding that a parent or custodian is not willing or able to take custody of the juvenile, that a juvenile is not willing to reside in the custody of his parent or custodian or that a parent or custodian cannot provide the necessary supervision and care of the juvenile, the court may place the juvenile in temporary foster care or temporarily commit the juvenile to the department or a child welfare agency. The court order shall state that continuation in the home is contrary to the best interest of the juvenile and why; and whether or not the department made a reasonable effort to prevent the placement or that the emergency situation made such efforts unreasonable or impossible. Whenever the court transfers custody of a youth to the department, an appropriate order of financial support by the parents or guardians shall be entered in accordance with section five [§ 49-7-5], article seven of this chapter and guidelines promulgated by the Supreme Court of Appeals;
(5) Upon a finding that the best interests of the juvenile or the welfare of the public require it, and upon an adjudication of delinquency pursuant to subdivision (1), section four [§ 49-1-4], article one of this chapter, the court may commit the juvenile to the custody of the Director of the Division of Juvenile Services for placement in a juvenile services facility for the treatment, instruction and rehabilitation of juveniles: Provided, That the court maintains discretion to consider alternative sentencing arrangements. Notwithstanding any provision of this code to the contrary, in the event that the court determines that it is in the juvenile's best interests or required by the public welfare to place the juvenile in the custody of the Division of Juvenile Services, the court shall provide the Division of Juvenile Services with access to all relevant court orders and records involving the underlying offense or offenses for which the juvenile was adjudicated delinquent, including sentencing and presentencing reports and evaluations, and provide the Division with access to school records, psychological reports and evaluations, medical reports and evaluations or any other such records as may be in the court's possession as would enable the Division of Juvenile Services to better assess and determine the appropriate counseling, education and placement needs for the juvenile offender. Commitments shall not exceed the maximum term for which an adult could have been sentenced for the same offense and any such maximum allowable sentence to be served in a juvenile correctional facility may take into account any time served by the juvenile in a detention center pending adjudication, disposition or transfer. The order shall state that continuation in the home is contrary to the best interests of the juvenile and why; and whether or not the state department made a reasonable effort to prevent the placement or that the emergency situation made such efforts unreasonable or impossible; or
(6) After a hearing conducted under the procedures set out in subsections (c) and (d), section four [§ 27-5-4], article five, chapter twenty-seven of this code, commit the juvenile to a mental health facility in accordance with the juvenile's treatment plan; the Director of the mental health facility may release a juvenile and return him or her to the court for further disposition. The order shall state that continuation in the home is contrary to the best interests of the juvenile and why; and whether or not the state department made a reasonable effort to prevent the placement or that the emergency situation made such efforts unreasonable or impossible.
(c) The disposition of the juvenile shall not be affected by the fact that the juvenile demanded a trial by jury or made a plea of denial. Any dispositional order is subject to appeal to the Supreme Court of Appeals.
(d) Following disposition, the court shall inquire whether the juvenile wishes to appeal and the response shall be transcribed; a negative response shall not be construed as a waiver. The evidence shall be transcribed as soon as practicable and made available to the juvenile or his or her counsel, if the same is requested for purposes of further proceedings. A judge may grant a stay of execution pending further proceedings.
(e) Notwithstanding any other provision of this code to the contrary, if a juvenile charged with delinquency under this chapter is transferred to adult jurisdiction and there tried and convicted, the court may make its disposition in accordance with this section in lieu of sentencing such person as an adult.
§ 49-5-13e. Comprehensive plan for juveniles.
(a) The division of juvenile services shall develop and annually update a comprehensive plan to establish a unified state system for social and rehabilitative programming and treatment of juveniles who are detained or incarcerated in predispositional detention centers and in juvenile correction facilities and a comprehensive plan for regional juvenile detention facilities and programs. These plans and updates are to be submitted to the West Virginia Legislature no later than the first day of January each year.
(b) The comprehensive plan for regional detention programs and facilities shall be based on the need for secure juvenile detention services in a given county or region. The secretary of the department of health and human resources, the secretary of the department of military affairs and public safety and the executive director of the regional jail and correctional facility authority shall develop and agree to the criteria to be considered in determining the construction, renovation, acquisition or repair of projects proposed after the effective date of this article. These criteria are to be reviewed periodically and included in the annual report required pursuant to this section. The comprehensive plan may propose locating newly constructed detention facilities on or near a planned or existing regional jail facility, with common facilities and administration as permitted by federal law.
§ 49-5-17. Confidentiality of juvenile records.
(a) Records of a juvenile proceeding conducted under this chapter are not public records and shall not be disclosed to anyone unless disclosure is otherwise authorized by this section.
(b) Notwithstanding the provisions of subsection (a) of this section, a copy of a juvenile's records shall automatically be disclosed to certain school officials, subject to the following terms and conditions:
(1) Only the records of certain juveniles shall be disclosed. These include, and are limited to, cases in which:
(A) The juvenile has been charged with an offense which:
(i) Involves violence against another person;
(ii) Involves possession of a dangerous or deadly weapon; or
(iii) Involves possession or delivery of a controlled substance as that term is defined in section one hundred one [§ 60A-1-101], article one, chapter sixty-a of this code; and
(B) The juvenile's case has proceeded to a point where one or more of the following has occurred:
(i) A judge, magistrate or referee has determined that there is probable cause to believe that the juvenile committed the offense as charged;
(ii) A judge, magistrate or referee has placed the juvenile on probation for the offense;
(iii) A judge, magistrate or referee has placed the juvenile into an improvement period in accordance with section nine [§ 49-5-9] of this article; or
(iv) Some other type of disposition has been made of the case other than dismissal.
(2) The circuit court for each judicial circuit in West Virginia shall designate one person to supervise the disclosure of juvenile records to certain school officials.
(3) If the juvenile attends a West Virginia public school, the person designated by the circuit court shall automatically disclose all records of the juvenile's case to the county superintendent of schools in the county in which the juvenile attends school and to the principal of the school which the juvenile attends, subject to the following:
(A) At a minimum, the records shall disclose the following information:
(i) Copies of the arrest report;
(ii) Copies of all investigations;
(iii) Copies of any psychological test results and any mental health records;
(iv) Copies of any evaluation reports for probation or facility placement; and
(v) Any other material that would alert the school to potential danger that the juvenile may pose to himself, herself or others;
(B) The disclosure of the juvenile's psychological test results and any mental health records shall only be made in accordance with subdivision (14) of this subsection;
(C) If the disclosure of any record to be automatically disclosed under this section is restricted in its disclosure by the Health Insurance Portability and Accountability Act of 1996 and any amendments and regulations under the Act, the person designated by the circuit court shall provide the superintendent and principal any notice of the existence of the record that is permissible under the Act and, if applicable, any action that is required to obtain the record; and
(D) When multiple disclosures are required by this subsection, the person designated by the circuit court is required to disclose only material in the juvenile record that had not previously been disclosed to the county superintendent and the principal of the school which the juvenile attends.
(4) If the juvenile attends a private school in West Virginia, the person designated by the circuit court shall determine the identity of the highest ranking person at that school and shall automatically disclose all records of a juvenile's case to that person.
(5) If the juvenile does not attend school at the time the juvenile's case is pending, the person designated by the circuit court shall not transmit the juvenile's records to any school. However, the person designated by the circuit court shall transmit the juvenile's records to any school in West Virginia which the juvenile subsequently attends.
(6) The person designated by the circuit court shall not automatically transmit juvenile records to a school which is not located in West Virginia. Instead, the person designated by the circuit court shall contact the out-of-state school, inform it that juvenile records exist and make an inquiry regarding whether the laws of that state permit the disclosure of juvenile records. If so, the person designated by the circuit court shall consult with the circuit judge who presided over the case to determine whether the juvenile records should be disclosed to the out-of-state school. The circuit judge shall have discretion in determining whether to disclose the juvenile records and shall consider whether the other state's law regarding disclosure provides for sufficient confidentiality of juvenile records, using this section as a guide. If the circuit judge orders the juvenile records to be disclosed, they shall be disclosed in accordance with the provisions of subdivision (7) of this subsection.
(7) The person designated by the circuit court shall transmit the juvenile's records to the appropriate school official under cover of a letter emphasizing the confidentiality of such records and directing the official to consult this section of the code. A copy of this section of the code shall be transmitted with the juvenile's records and cover letter.
(8) 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 shall have the duty to disclose the contents of those records to any teacher who teaches a class in which the subject juvenile is enrolled and to the regular driver of a school bus in which the subject juvenile is regularly transported to or from school, except that the disclosure of the juvenile's psychological test results and any mental health records shall only be made in accordance with subdivision (14) of this subsection. Furthermore, any school official to whom the juvenile's records are transmitted may disclose the contents of such records to any adult within the school system who, in the discretion of the school official, has the need to be aware of the contents of those records.
(9) If for any reason a juvenile ceases to attend a school which possesses that juvenile's records, the appropriate official at that school shall seal the records and return them to the circuit court which sent them to that school. If the juvenile has changed schools for any reason, the former school shall inform the circuit court of the name and location of the new school which the juvenile attends or will be attending. If the new school is located within West Virginia, the person designated by the circuit court shall forward the juvenile's records to the juvenile's new school in the same manner as provided in subdivision (7) of this subsection. If the new school is not located within West Virginia, the person designated by the circuit court shall handle the juvenile records in accordance with subdivision (6) of this subsection.
If the juvenile has been found not guilty of an offense for which records were previously forwarded to the juvenile's school on the basis of a finding of probable cause, the circuit court shall not forward those records to the juvenile's new school. However, this shall not affect records related to other prior or future offenses. If the juvenile has graduated or quit school or will otherwise not be attending another school, the circuit court shall retain the juvenile's records and handle them as otherwise provided in this article.
(10) Under no circumstances shall one school transmit a juvenile's records to another school.
(11) Under no circumstances shall juvenile records be automatically transmitted to a college, university or other post-secondary school.
(12) No one shall suffer any penalty, civil or criminal, for accidentally or negligently attributing certain juvenile records to the wrong person. However, such person shall have the affirmative duty to promptly correct any mistake that he or she has made in disclosing juvenile records when the mistake is brought to his or her attention. A person who intentionally attributes false information to a certain person shall be subjected to both criminal and civil penalties in accordance with subsection (e) of this section.
(13) If a judge, magistrate or referee has determined that there is probable cause to believe that a juvenile has committed an offense but there has been no final adjudication of the charge, the records which are transmitted by the circuit court shall be accompanied by a notice which clearly states in bold print that there has been no determination of delinquency and that our legal system requires a presumption of innocence.
(14) The county superintendent shall designate the school psychologist or psychologists to receive the juvenile's psychological test results and any mental health records. The psychologist designated shall review the juvenile's psychological test results and any mental health records and, in the psychologist's professional judgment, may disclose to the principal of the school that the juvenile attends and other school employees who would have a need to know the psychological test results, mental health records and any behavior that may trigger violence or other disruptive behavior by the juvenile. Other school employees include, but are not limited to, any teacher who teaches a class in which the subject juvenile is enrolled and the regular driver of a school bus in which the subject juvenile is regularly transported to or from school.
(c) Notwithstanding the provisions of subsection (a) of this section, juvenile records may be disclosed, subject to the following terms and conditions:
(1) If a juvenile case is transferred to the criminal jurisdiction of the circuit court pursuant to the provisions of subsection (c) or (d), section ten [§ 49-5-10] of this article, the juvenile records shall be open to public inspection.
(2) If a juvenile case is transferred to the criminal jurisdiction of the circuit court pursuant to the provisions of subsection (e), (f) or (g), section ten [§ 49-5-10] of this article, the juvenile records shall be open to public inspection only if the juvenile fails to file a timely appeal of the transfer order, or the Supreme Court of Appeals refuses to hear or denies an appeal which has been timely filed.
(3) If a juvenile is fourteen years of age or older and a court has determined there is a probable cause to believe the juvenile committed an offense set forth in subsection (g), section ten [§ 49-5-10] of this article, but the case is not transferred to criminal jurisdiction, the juvenile records shall be open to public inspection pending trial only if the juvenile is released on bond and no longer detained or adjudicated delinquent of the offense.
(4) If a juvenile is younger than fourteen years of age and a court has determined there is probable cause to believe that the juvenile committed the crime of murder under section one [§ 61-2-1], two [§ 61-2-2] or three [§ 61-2-3], article two, chapter sixty-one of this code, or the crime of sexual assault in the first degree under section three [§ 61-8B-3], article eight-b of said chapter, but the case is not transferred to criminal jurisdiction, the juvenile records shall be open to public inspection pending trial only if the juvenile is released on bond and no longer detained or adjudicated delinquent of the offense.
(5) Upon a written petition and pursuant to a written order, the circuit court may permit disclosure of juvenile records to:
(A) A court, in this state or another state, which has juvenile jurisdiction and has the juvenile before it in a juvenile proceeding;
(B) A court, in this state or another state, exercising criminal jurisdiction over the juvenile which requests such records for the purpose of a presentence report or disposition proceeding;
(C) The juvenile, the juvenile's parents or legal guardian, or the juvenile's counsel;
(D) The officials of a public institution to which the juvenile is committed if they require such records for transfer, parole or discharge; or
(E) A person who is conducting research. However, juvenile records may be disclosed for research purposes only upon the condition that information which would identify the subject juvenile or the juvenile's family shall not be disclosed.
(6) Notwithstanding any other provision of this code, juvenile records shall be disclosed, or copies made available, to a probation officer upon his or her written request and approved by his or her supervising circuit court judge: Provided, That the clerk of the court shall file the written request and the judge's approval in the juvenile's record and note therein the date and scope of the actual disclosure: Provided, however, That any probation officer may, without a court order, access relevant juvenile case information contained in any electronic database maintained by or for the Supreme Court of Appeals and share it with any other probation officer in the same or a different circuit.
(7) Notwithstanding any other provision of this code, juvenile records shall be disclosed, or copies made available, in response to any lawfully issued subpoena from a federal court or federal agency.
(d) Any records open to public inspection pursuant to the provisions of this section are subject to the same requirements governing the disclosure of adult criminal records.
(e) Any person who willfully violates this section is guilty of a misdemeanor and, upon conviction thereof, shall be fined not more than one thousand dollars, or confined in the county or regional jail for not more than six months, or both fined and confined and shall be liable for damages in the amount of three hundred dollars or actual damages, whichever is greater.
Chapter 49. Child Welfare.
Article 7. General Provisions.
W. Va. Code § 49-7-1 (2009)
§ 49-7-1. Confidentiality of records.
(a) Except as otherwise provided in this chapter or by order of the court, all records and information concerning a child or juvenile which are maintained by the division of juvenile services, the department of health and human resources, a child agency or facility, court or law-enforcement agency shall be kept confidential and shall not be released or disclosed to anyone, including any federal or state agency.
(b) Notwithstanding the provisions of subsection (a) of this section or any other provision of this code to the contrary, records concerning a child or juvenile, except adoption records, juvenile court records and records disclosing the identity of a person making a complaint of child abuse or neglect shall be made available:
(1) Where otherwise authorized by this chapter;
(2) To:
(A) The child;
(B) A parent whose parental rights have not been terminated; or
(C) The attorney of the child or parent;
(3) With the written consent of the child or of someone authorized to act on the child's behalf; or
(4) Pursuant to an order of a court of record: Provided, That the court shall review such record or records for relevancy and materiality to the issues in the proceeding, and may issue an order to limit the examination and use of the records or any part thereof.
(c) In addition to those persons or entities to whom information may be disclosed under subsection (b) of this section, information related to child abuse or neglect proceedings, except information relating to the identity of the person reporting or making a complaint of child abuse or neglect, shall be made available, upon request, to:
(1) Federal, state or local government entities, or any agent of such entities, including law-enforcement agencies and prosecuting attorneys, having a need for such information in order to carry out its responsibilities under law to protect children from abuse and neglect;
(2) The child fatality review team;
(3) Child abuse citizen review panels;
(4) Multidisciplinary investigative and treatment teams; or
(5) A grand jury, circuit court or family law master, upon a finding that information in the records is necessary for the determination of an issue before the grand jury, circuit court or family law master.
(d) In the event of a child fatality or near fatality due to child abuse and neglect, information relating to such fatality or near fatality shall be made public by the department of health and human resources and to the entities described in subsection (c) of this section, all under the circumstances described in that subsection: Provided, That information released by the department of health and human resources pursuant to this subsection shall not include the identity of a person reporting or making a complaint of child abuse or neglect. For purposes of this subsection, "near fatality" means any medical condition of the child which is certified by the attending physician to be life-threatening.
(e) Except in juvenile proceedings which are transferred to criminal proceedings, law-enforcement records and files concerning a child or juvenile shall be kept separate from the records and files of adults and not included within the court files. Law-enforcement records and files concerning a child or juvenile shall only be open to inspection pursuant to the provisions of sections seventeen and eighteen [§§ 49-5-17, 49-5-18], article five of this chapter.
(f) Any person who willfully violates the provisions of this section is guilty of a misdemeanor and, upon conviction thereof, shall be fined not more than one thousand dollars, or confined in the county or regional jail for not more than six months, or be both fined and confined. A person convicted of violating the provisions of this section shall also be liable for damages in the amount of three hundred dollars or actual damages, whichever is greater.
(g) Notwithstanding the provisions of this section, or any other provision of this code to the contrary, the name and identity of any juvenile adjudicated or convicted of a violent or felonious crime shall be made available to the public.
Chapter 49. Child Welfare.
Article 5A. Juvenile Referee System.
W. Va. Code § 49-5A-6a (2009)
§ 49-5A-6a. State plan for predispositional detention centers for juveniles.
(a) The division of juvenile services of the department of military affairs and public safety shall develop a comprehensive plan to maintain and improve a unified state system of regional predispositional detention centers for juveniles. The plan shall be predicated upon the maximum utilization of existing resources, facilities and procedures and shall take into consideration recommendations from the department of health and human resources, the regional jail and correctional facility authority, the division of corrections, the governor's committee on crime, delinquency and correction, the supreme court of appeals, the state board of education, detention center personnel, juvenile probation officers and judicial and law-enforcement officials from throughout the state.
The principal purpose of the plan shall be, through statements of policy and program goals, to provide first for the effective and efficient use of existing regional juvenile detention facilities and the prudent allocation of resources for any future expansion or addition.
(b) The plan shall identify operational problems of secure detention centers, including, but not limited to, overcrowding, security and violence within centers, difficulties in moving juveniles through the centers within required time periods, health needs, educational needs, transportation problems, staff turnover and morale and other perceived problem areas. The plan shall further provide recommendations directed to alleviate the problems.
(c) The plan shall include, but not be limited to, statements of policies and goals in the following areas:
(1) Licensing of secure detention centers;
(2) Criteria for placing juveniles in detention;
(3) Alternatives to secure detention;
(4) Allocation of fiscal resources to the costs of secure detention facilities;
(5) Information and referral services; and
(6) Educational regulations developed and approved by the West Virginia board of education.
(d) The president of the Senate and the speaker of the House of Delegates shall designate a committee or task force thereof, to act in a continuing capacity as an oversight committee, which shall assist the director of the division of juvenile services in the development, periodic review and update of the state plan for the predispositional detention centers for juveniles. To this end, the director shall make regular reports to the designated legislative oversight body during the interim period and immediately before any regular session of the Legislature, which reports shall include any recommendations for legislative enactment, together with drafts of any proposed legislation necessary to effectuate those recommendations.
Chapter 49. Child Welfare.
Article 5B. West Virginia Juvenile Offender Rehabilitation Act.
W. Va. Code § 49-5B-4 (2009)
§ 49-5B-4. Responsibilities of the department of health and human resources and division of juvenile services of the department of military affairs and public safety.
(a) The department of health and human resources and the division of juvenile services of the department of military affairs and public safety are empowered to jointly establish, and shall establish, subject to the limits of funds available or otherwise appropriated therefor, programs and services designed to prevent juvenile delinquency, to divert juveniles from the juvenile justice system, to provide community-based alternatives to juvenile detention and correctional facilities and to encourage a diversity of alternatives within the child welfare and juvenile justice system. The development, maintenance and expansion of programs and services may include, but not be limited to, the following:
(1) Community-based programs and services for the prevention and treatment of juvenile delinquency through the development of foster-care and shelter-care homes, group homes, halfway houses, homemaker and home health services, twenty-four hour intake screening, volunteer and crisis home programs, day treatment and any other designated community-based diagnostic, treatment or rehabilitative service;
(2) Community-based programs and services to work with parents and other family members to maintain and strengthen the family unit so that the juvenile may be retained in his or her home;
(3) Youth service bureaus and other community-based programs to divert youth from the juvenile court or to support, counsel, or provide work and recreational opportunities for status offenders, juvenile delinquents and other youth to help prevent delinquency;
(4) Projects designed to develop and implement programs stressing advocacy activities aimed at improving services for and protecting rights of youth affected by the juvenile justice system;
(5) Educational programs or supportive services designed to encourage status offenders, juvenile delinquents, and other youth to remain in elementary and secondary schools or in alternative learning situations;
(6) Expanded use of professional and paraprofessional personnel and volunteers to work effectively with youth;
(7) Youth initiated programs and outreach programs designed to assist youth who otherwise would not be reached by traditional youth assistance programs; and
(8) A statewide program designed to reduce the number of commitments of juveniles to any form of juvenile facility as a percentage of the state juvenile population; to increase the use of nonsecure community-based facilities as a percentage of total commitments to juvenile facilities; and to discourage the use of secure incarceration and detention.
(b) The department of health and human resources shall establish, within the funds available, an individualized program of rehabilitation for each status offender referred to the department and to each alleged juvenile delinquent referred to the department after being allowed an improvement period by the juvenile court, and for each adjudicated juvenile delinquent who, after adjudication, is referred to the department for investigation or treatment or whose custody is vested in the department. Such individualized program of rehabilitation shall take into account the programs and services to be provided by other public or private agencies or personnel which are available in the community to deal with the circumstances of the particular juvenile. For alleged juvenile delinquents and status offenders, such individualized program of rehabilitation shall be furnished to the juvenile court and shall be available to counsel for the juvenile; it may be modified from time to time at the direction of the department or by order of the juvenile court. The department may develop an individualized program of rehabilitation for any juvenile referred for noncustodial counseling under section five, article three of this chapter, for any juvenile receiving counsel and advice under section three-a [§ 49-5-3a], article five of this chapter, or for any other juvenile upon the request of a public or private agency.
(c) The department of health and human resources and the division of juvenile services are authorized and directed to enter into cooperative arrangements and agreements with each other and with private agencies or with agencies of the state and its political subdivisions to fulfill their respective duties under this article and chapter.
Chapter 49. Child Welfare.
Article 5D. Multidisciplinary Teams.
W. Va. Code § 49-5D-1 (2009)
§ 49-5D-1. Purpose; additional cases and teams.
(a) The purpose of this article is to provide a system for evaluation of and coordinated service delivery for children who may be victims of abuse or neglect and children undergoing certain status offense and delinquency proceedings. It is the further purpose of this article to establish, as a complement to other programs of the department of health and human resources, a multidisciplinary screening, advisory and planning system to assist courts in facilitating permanency planning, following the initiation of judicial proceedings, to recommend alternatives and to coordinate evaluations and in-community services. It is the further purpose of this article to ensure that children are safe from abuse and neglect and to coordinate investigation of alleged child abuse offenses and competent criminal prosecution of offenders to ensure that safety, as determined appropriate by the prosecuting attorney.
(b) Nothing in this article precludes any multidisciplinary team from considering any case upon the consent of the members of the team.
§ 49-5D-3. Multidisciplinary treatment planning process.
(a) (1) A multidisciplinary treatment planning process shall be established within each county of the state, either separately or in conjunction with a contiguous county, by the secretary of the department with advice and assistance from the prosecutor's advisory council as set forth in section four [§ 7-4-4], article four, chapter seven of this code. The Division of Juvenile Services shall establish a similar treatment planning process for delinquency cases in which the juvenile has been committed to the custody of the director of the division.
(2) Treatment teams shall assess, plan and implement a comprehensive, individualized service plan for children who are victims of abuse or neglect and their families when a judicial proceeding has been initiated involving the child or children for juveniles and their families involved in status offense or delinquency proceedings when, in a status offense proceeding, the court refers the juvenile for services pursuant to sections eleven [§ 49-5-11] and eleven-a [§ 49-5-11a], article five of this chapter and when, in a delinquency proceeding, the court is considering placing the juvenile in the department's custody or placing the juvenile out of home at the department's expense pursuant to the provisions of section thirteen [§ 49-5-13] of said article. In any such status offense or delinquency case, the juvenile probation officer shall notify the local office of the Department of Health and Human Resources and the Division of Juvenile Services at least five working days before the court proceeding in order to allow the multidisciplinary treatment team to convene and develop a comprehensive individualized service plan for the child: Provided, That such notice is not required in cases where the child is already in state custody or there exist exigent circumstances which justify taking the child immediately into custody without a judicial proceeding. In developing an individualized service plan for a child, the team shall utilize a uniform comprehensive assessment of the child. The department shall adopt a standard uniform comprehensive assessment instrument or protocol to be used by treatment teams.
(3) Prior to disposition, in each case in which a treatment planning team has been convened, the team shall advise the court as to the types of services the team has determined are needed and the type of placement, if any, which will best serve the needs of the child. If the team determines that an out-of-home placement will best serve the needs of the child, the team shall first consider placement at facilities or programs located within the state. The team may only recommend placement in an out-of-state facility if it concludes, after considering the best interests and overall needs of the child, that there are no available and suitable in-state facilities which can satisfactorily meet the specific needs of the child.
(b) Each treatment team shall be convened by the child's or family's case manager in the Department of Health and Human Resources or the Division of Juvenile Services if the juvenile has been ordered into its custody for examination and diagnosis pursuant to section thirteen [§ 49-5-13], article five of this chapter. The treatment team shall consist of the child's custodial parent or parents, guardian or guardians, other immediate family members, the attorney or attorneys representing the child, the parent or parents of the child, the child's attorney, the guardian ad litem, if any, the prosecuting attorney or his or her designee, a member of a child advocacy center when the child has been processed through the child advocacy center program(s) and, where appropriate to the particular case under consideration and available, a court-appointed special advocate, a member of a child advocacy center, an appropriate school official and any other person or an agency representative who may assist in providing recommendations for the particular needs of the child and family. The child may participate in multidisciplinary treatment team meetings if such is deemed appropriate by the multidisciplinary treatment team. For purposes of delinquency proceedings, the juvenile probation officer shall be a member of the treatment team. Any person authorized by the provisions of this chapter to convene a multidisciplinary team meeting may seek and receive an order of the circuit court setting such meeting and directing attendance. Members of the multidisciplinary team may participate in team meetings by telephone or video conferencing: Provided, That a member of a child advocacy center should participate in any case when appropriate to the particular case under consideration.
(c) The treatment team shall coordinate its activities and membership with local family resource networks and coordinate with other local and regional child and family service planning committees to assure the efficient planning and delivery of child and family services on a local and regional level.
(d) State, county and local agencies shall provide the multidisciplinary treatment teams with any information requested in writing by the team as allowable by law or upon receipt of a certified copy of the circuit court's order directing said agencies to release information in its possession relating to the child. The team shall assure that all information received and developed in connection with the provisions of this article remain confidential. For purposes of this section, the term "confidential" shall be construed in accordance with the provisions of section one [§ 49-7-1], article seven of this chapter.
(e) Nothing in this section may be construed to require a multidisciplinary team meeting to be held prior to temporarily placing a child out-of-home under exigent circumstances or upon a court order placing the juvenile in a juvenile facility operated by the Division of Juvenile Services.
§ 49-5D-3a. Recommendation of team to the court; hearing requirement; required findings.
(a) In any case in which a multidisciplinary treatment team develops an individualized service plan for a child pursuant to the provisions of section three [§ 49-5D-3] of this article, the court shall review the proposed service plan to determine if implementation of the plan is in the child's best interests. If the multidisciplinary team cannot agree on a plan or if the court determines not to adopt the team's recommendations, it shall, upon motion or sua sponte, schedule and hold within ten days of such determination, and prior to the entry of an order placing the child in the custody of the department or in an out-of-home setting, a hearing to consider evidence from the team as to its rationale for the proposed service plan. If, after a hearing held pursuant to the provisions of this section, the court does not adopt the team's recommended service plan, it shall make specific written findings as to why the team's recommended service plan was not adopted.
(b) In any case in which the court decides to order the child placed in an out-of-state facility or program it shall set forth in the order directing the placement the reasons why the child was not placed in an in-state facility or program.
§ 49-5D-6. Other agencies of government required to cooperate.
State, county and local agencies shall provide the multidisciplinary teams with any information requested in writing by the team as allowable by law or upon receipt of a certified copy of the circuit court's order directing said agencies to release information in its possession relating to the child. The team shall assure that all information received and developed in connection with the provisions of this article remain confidential. For purposes of this section, the term "confidential" shall be construed in accordance with the provisions of section one [§ 49-7-1], article seven of this chapter.
Chapter 49. Child Welfare.
Article 5E. Division of Juvenile Services.
W. Va. Code § 49-5E-1 (2009)
It is the policy of the state to provide a coordinated continuum of care for its children who have been charged with an offense which would be a crime if committed by an adult, whether they are taken into custody and securely detained or released pending adjudication by the court. It is further the policy of the state to ensure the safe and efficient custody of a securely detained child through the entire juvenile justice process, and this can best be accomplished by the state by providing for cooperation and coordination between the agencies of government which are charged with responsibilities for the children of the state. Accordingly, whenever any juvenile is ordered by the court to be transferred from the custody of one of these agencies into the custody of the other, the department of health and human resources and the division of juvenile services shall cooperate with each other to the maximum extent necessary in order to ease the child's transition and to reduce unnecessary cost, duplication and delay.
§ 49-5E-3. Transfer of functions; duties and powers; employment of comprehensive strategy.
The division of juvenile services shall assume the following duties previously performed by the department of health and human resources as to juveniles in detention facilities or juvenile corrections facilities:
(1) Cooperating with the United States department of justice in operating, maintaining and improving juvenile correction facilities and predispositional detention centers, complying with regulations thereof, and receiving and expending federal funds for the services, as set forth in section one [§ 49-1-1], article one of this chapter;
(2) Providing care for children needing secure detention pending disposition by a court having juvenile jurisdiction or temporary care following such court action, as set forth in section sixteen [§ 49-2-16], article two of this chapter;
(3) Assigning the necessary personnel and providing adequate space for the support and operation of any facility providing for the secure detention of children committed to the care of the division of juvenile services, as set forth in section six [§ 49-5A-6], article five-a of this chapter;
(4) Proposing rules which outline policies and procedures governing the operation of correctional, detention and other facilities in its division wherein juveniles may be securely housed, as set forth in section sixteen-a [§ 49-5-16a], article five of this chapter;
(5) Assigning the necessary personnel and providing adequate space for the support and operation of its facilities, as set forth in section six, article five-a of this chapter;
(6) Developing a comprehensive plan to maintain and improve a unified state system of regional predispositional detention centers for juveniles, as set forth in section thirteen-e [§§ 49-5-13e and 49-5A-6a], article five and section six-a, article five-a of this chapter;
(7) Working in cooperation with the department of health and human resources in establishing, maintaining, and continuously refining and developing a balanced and comprehensive state program for children who have been adjudicated delinquent, as set forth in section two [§ 49-6B-2], article six-b of this chapter;
(8) In cooperation with the department of health and human resources establishing programs and services within available funds, designed to prevent juvenile delinquency, to divert juveniles from the juvenile justice system, to provide community-based alternatives to juvenile detention and correctional facilities and to encourage a diversity of alternatives within the juvenile justice system, as set forth in section four [§ 49-5B-4], article five-b of this chapter.
Working in collaboration with the department of health and human resources, the division of juvenile services shall employ a comprehensive strategy for the social and rehabilitative programming and treatment of juveniles, consistent with the principles adopted by the office of juvenile justice and delinquency prevention of the office of justice programs of the United States department of justice.