Bill Text: WV HB5520 | 2024 | Regular Session | Enrolled
Bill Title: Relating to juvenile competency
Spectrum: Moderate Partisan Bill (Republican 6-1)
Status: (Passed) 2024-04-22 - Chapter 50, Acts, Regular Session, 2024 [HB5520 Detail]
Download: West_Virginia-2024-HB5520-Enrolled.html
WEST VIRGINIA LEGISLATURE
2024 REGULAR SESSION
ENROLLED
House Bill 5520
By Delegates Hillenbrand, Kelly, Steele, Ward, Thorne, Akers, and Garcia
[Passed March 8, 2024; in effect ninety days from passage.]
AN ACT to amend and reenact §49-4-727 and §49-4-729 of the Code of West Virginia, 1931, as amended, all relating to juvenile competency; modifying the presumption of competence of a child 13 and over; modifying the presumption of incompetence to age 12 and under; clarifying that the presumption applies to the adjudicatory phase of the case and authorizing pre-adjudicatory procedures; allowing cases where the juvenile is presumed to be competent to proceed up to adjudication but no further if his or her competency is at issue.
Be it enacted by the Legislature of West Virginia:
CHAPTER 49. CHILD WELFARE.
ARTICLE 4. COURT ACTIONS.
§49-4-727. Juvenile competency proceedings.
(a) Subject to the provisions of subsection (c) of this section, a juvenile’s attorney, the prosecuting attorney, or the court may raise the issue of his or her competency to participate in the proceeding any time during proceedings under this article.
(b) In any delinquency proceeding pursuant to this article, a juvenile 13 years of age or older is presumed to be competent. If a juvenile’s attorney, the prosecuting attorney, or the court raise the issue of competency, all adjudication or disposition proceedings shall be stayed until the issue of competency is resolved: Provided, That the juvenile’s attorney, guardian ad litem, or prosecuting attorney may seek, or the court may order, any pre-adjudicatory procedures or case specific alternatives permitted by the Rules of Juvenile Procedure while the issue of competency is pending. A juvenile has the burden of proof to rebut this presumption by showing incompetency by a preponderance of the evidence.
(c) In any delinquency proceeding pursuant to this article, if the juvenile is under 13 years of age, there exists a rebuttable presumption that he or she is incompetent to be adjudicated, unless judicially determined to be competent pursuant to the procedures set forth in §49-4-728 through §49-4-734 of this code: Provided, That the juvenile’s attorney, guardian ad litem, or prosecuting attorney may seek, or the court may order, any pre-adjudicatory procedures or case specific alternatives permitted by the Rules of Juvenile Procedure or any disposition alternatives set forth in §49-4-734 of this code for a juvenile presumed incompetent. The state has the burden of proof to rebut this presumption by showing competency by a preponderance of the evidence.
(d) Regardless of the age of the juvenile, the court may dismiss the petition without ordering a competency evaluation or competency hearing if the prosecuting attorney, the juvenile’s attorney, and the guardian ad litem, if previously appointed, agree that there is compelling evidence that the juvenile is not competent to participate in the proceedings: Provided, That a court may not order services authorized by §49-4-733 of this code without a competency evaluation.
(e) If and when the issue of a juvenile’s competency is raised under subsection (b) of this section or, a rebuttable presumption of incompetency exists under subsection (c) of this section, the court shall appoint a guardian ad litem for the juvenile. The Supreme Court of Appeals is requested to establish a training program for persons acting as guardians ad litem in juvenile competency matters.
§49-4-729. Motion for determination of competency, time frames, order for evaluation.
(a) When the prosecuting attorney, the juvenile’s attorney, or the guardian ad litem has reasonable basis to believe that:
(1) A juvenile age 13 or older is incompetent to proceed in the delinquency action, that party shall file a motion for a determination of competency. The motion shall state any known facts to the movant of in support thereof. If the court raises the issue sua sponte, it shall, by written order, set forth the basis for ordering a competency evaluation.
(2) A juvenile under the age of 13 is competent to proceed in the delinquency action, the prosecuting attorney shall file a motion for determination of competency. The motion shall state the basis to believe the juvenile is competent to proceed despite the presumption of incompetency due to age and shall state any known facts to the prosecuting attorney in support of the motion. If the court raises the issue sua sponte, the court by written order shall set forth the factual basis supporting the finding that the juvenile is competent to proceed.
(b) Within 10 judicial days after a motion is made, the court shall make one of the following determinations regardless of which presumption applies:
(1) Find that there is compelling evidence that the juvenile is not competent to participate in the proceedings and dismiss the case pursuant to §49-4-727(d) of this code;
(2) Without conducting a hearing, find that there exists a reasonable basis to conduct a competency evaluation; or
(3) Schedule a hearing to determine whether there exists a reasonable basis to conduct a competency evaluation. The hearing shall be held within 30 judicial days. The court’s determination shall be announced no later than three judicial days after the conclusion of the hearing.
(c) If the court determines there is a reasonable basis to order a competency evaluation pursuant to §49-4-731 of this code, or if the prosecutor and the juvenile’s attorney agree to the evaluation, the court shall order a competency evaluation. If the court orders a competency evaluation, the court shall order that the competency evaluation be conducted in the least restrictive environment, taking into account the public safety and the best interests of the juvenile.
(1) Notwithstanding any other provisions of this code, the court shall provide in its order that the qualified forensic evaluator shall have access to all relevant confidential and public records related to the juvenile, including competency evaluations and reports conducted in prior delinquent proceedings. The court shall provide to the qualified forensic evaluator a copy of the petition and the names and contact information for the judge, prosecutor, juvenile’s attorney, and parents or legal guardians.
(2) Within five judicial days after the court orders an evaluation, the prosecutor shall deliver to the evaluator copies of relevant police reports and other background information relevant to the juvenile that are in the prosecutor’s possession.
(3) Within five judicial days after the court orders an evaluation, the juvenile’s attorney shall deliver to the qualified forensic evaluator copies of police reports and other records including, but not limited to, educational, medical, psychological, and neurological records that are relevant to the evaluation and that are in the attorney’s possession. Upon good cause shown, the court may extend the time frame to deliver these documents noting that time is of the essence.
The Clerk of the House of Delegates and the Clerk of the Senate hereby certify that the foregoing bill is correctly enrolled.
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Clerk of the House of Delegates
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Clerk of the Senate
Originated in the House of Delegates.
In effect ninety days from passage.
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Speaker of the House of Delegates
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President of the Senate
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The within is ................................................ this the...........................................
Day of ..........................................................................................................., 2024.
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Governor
