Rule 14 - Pre-Adjudicatory Placement Factors for Status Offenses(a) Mandatory Release. The court shall release the accused juvenile unless: (1) Circumstances present an imminent danger to the health, safety, and welfare of the juvenile if released;(2) No responsible adult can be found into whose custody the juvenile could be released. However, the custody order shall direct the custodial agency or facility: (i) to make a written record of all attempts to locate such a responsible adult;(ii) that this procedure must take place each day the juvenile is detained; and(iii) that the juvenile shall be returned to court forthwith if a responsible adult is found for the court's consideration of release of the juvenile to such adult; or(3) The juvenile has run away or absconded from a lawful custody or commitment order of a juvenile court of this State, or any other jurisdiction operating under the Interstate Compact for Juveniles (W.Va. Code § 49-7-301, et seq.).(b) Nonsecure or Staff-Secure Placement. A juvenile placed in custody by reason of subparagraph (a)(1), (2), or (3) above may only be placed in a nonsecure or staff-secure facility. On or after January 1, 2016, a juvenile adjudicated solely as a status offender may not be placed in a Division of Juvenile Services facility.(c) Less Restrictive Alternatives. In reaching the decision to place a juvenile in a nonsecure or staff-secure facility, the court shall first consider all less restrictive alternatives, such as placement with a willing adult relative, and all reasonably ascertainable factors relevant to the permissible reasons for custody under subparagraph (a)(1), (2), or (3) above.(d) Custody in Department. The department of health and human resources shall be immediately notified of any pre-adjudicatory custody hearing to be held, and any juvenile held pursuant to this rule may be placed in the legal custody of the department pending further proceedings by the court.(e) Additional Findings Necessary for Removal. In any order requiring the removal of the juvenile from his or her home, the court shall find and state in its order: that continuation in the home is contrary to the welfare of the juvenile with specific findings as to why; and whether the department of health and human resources made reasonable efforts to prevent the out-of-home placement or that the emergency situation made such efforts unreasonable or impossible.COMMENTS
Pre-adjudicatory custody of status offenders is an extraordinary measure. The provisions of West Virginia Code, § 49-4-701, et seq., contemplate that any necessary pre-adjudicatory services should be in-home services (e.g. truancy prevention).