West Virginia

Juvenile Indigent Defense Delivery System

WVWest Virginia provides counsel to indigent youth through West Virginia Public Defender Services, a state-funded entity that “administers, coordinates and evaluates programs by which the state provides legal representation to indigent persons, monitors the progress of various delivery systems, and recommends improvements.” W. Va. Code § 29-21-3. Public Defender Services funds a public defender corporation in each judicial circuit to provide representation. W. Va. Code § 29-21-8. The office may also contract with attorneys or nonprofit groups to provide defense services.

Appellate advocacy is provided to certain indigent defendants by the statewide Public Defender Services. W. Va. Code § 29-21-6(e). The office also contains a criminal law research center and an accounting and auditing division to oversee the public defender corporations. W. Va. Code § 29-21-6(c).

Each circuit court maintains local and regional panels of private attorneys that may be appointed for financially eligible clients in conflict cases. If there is no local or regional panel attorney available and the circuit does not have an operational public defender office, the circuit judge may appoint a private attorney. W. Va. Code § 29-21-9.

West Virginia has no statutorily required or recommended training requirements or standards for attorneys representing youth in delinquency proceedings, but the Indigent Defense Commission is responsible for developing training standards. W. Va. Code § 29-21-3b(f)(1). However, no standards have been found online.

West Virginia youth have a right to a trial “on any question of fact, in which the juvenile is accused of any act or acts of delinquency which, if committed by an adult would expose the adult to incarceration.” W. Va. Code § 49-5-6(a).

Court Rules

In addition to statutes and case law, juvenile court proceedings are governed by court rules. These are often promulgated at the state level, but may also be passed at the local court level instead of or in addition to statewide rules. West Virginia’s juvenile court rules are called the Rules of Juvenile Procedure.

Right to Counsel

Beyond the right to counsel in juvenile court guaranteed by the Due Process Clause of the United States Constitution and In re Gault, 387 U.S. 1 (1967), states often have state constitution or statutory provisions further expanding upon on or delineating that right.

In West Virginia, youth in juvenile court have the right to counsel at all stages of proceedings brought under the delinquency and status offense provisions. W. Va. R. Juv. P. 5(a). “This right attaches no later than when the juvenile first appears before a magistrate or circuit judge” but does not extend to juvenile traffic offenses or other offenses heard in Magistrate Court or to violations of municipal ordinances; in those proceedings a juvenile may be represented by retained counsel but does not have a right to court-appointed counsel. W. Va. R. Juv. P. 5(a), (b). When a youth appears at a preliminary hearing without counsel, the court is to inform the youth of his or her right to counsel and the right to have counsel appointed if indigent; the court must then either appoint counsel or obtain a knowing waiver of the right from the youth. W. Va. Code § 49-5-9.

A child is specifically entitled to counsel at the following stages:

Determination of Indigence

West Virginia has no presumption of indigence in juvenile court proceedings. If a child tells the court that he or she is unable to pay for counsel, the court shall require the child’s parent or guardian to complete a financial affidavit. If the court finds that the parent or custodian lacks sufficient assets to pay for counsel, the court shall appoint counsel for the child. W. Va. Code § 29-21-16(c); W. Va. R. Juv. P. 5(c)(1).

If the parents or guardian can afford counsel but have not hired a lawyer for the child and the child cannot afford counsel on his own, “the court may order the parents or legal guardians to provide, by paying for, legal representation for the juvenile in the proceedings. Such order may be entered only after giving the parents or legal guardians a reasonable opportunity to be heard.” W. Va. R. Juv. P. 5(c)(2).

“The court may disregard the assets of the parent or guardian and appoint counsel for the child” if the court finds there is a conflict of interest between the child and the parents or custodian “that would adversely affect the child’s right to effective representation of counsel” or “if requiring the child’s parent or custodian to provide legal representation for the child would otherwise jeopardize the best interests of the child.” Id.

The process and standard for determining whether a parent or guardian “does not have sufficient assets to pay for counsel” are described in statute. W. Va. Code § 29-21-16.

Waiver of Counsel

A juvenile in West Virginia may waive his or her right to counsel if the waiver is knowing. W. Va. Code § 49-5-9(a)(2). The Supreme Court of Appeals of West Virginia has held that a juvenile’s waiver of a constitutional right is valid and knowing only if it is done upon the advice of counsel. State ex rel. J. M. v. Taylor, 276 S.E.2d 199 (W. Va. 1981).

Detention Provisions

When and how the court may decide to detain a child or otherwise place restrictions on the child’s freedom is defined by statute and court rules. In West Virginia, a detention hearing must be held without delay and no later than the next day after the child is taken into custody. W. Va. Code § 49-5-8(c)(4). Provisions for the detention of juveniles are found in W. Va. Code §§ 49-5-8, 49-5-8a, 49-5A-2, and 49-5A-3, and W. Va. R. Juv. P. 6, 12, 13, and 16.

The U.S. Constitution and Supreme Court case law are also sources of due process rights beyond local and state statutes and provisions. NJDC’s Detention Page provides more information about detaining youth.

Post-Disposition Advocacy

The legal needs of children in the delinquency system rarely end at disposition, and states vary in the way they provide a right to representation on these post-disposition issues. West Virginia statutes list two post-disposition proceedings at which youth have a right to counsel.

In West Virginia, youth have a right to counsel in the following post-disposition proceedings:

NJDC’s Post-Disposition Page has more information on this topic from a national perspective.

Ages of Juvenile Court Jurisdiction

The age of a child who comes within the jurisdiction of the state’s juvenile courts is defined by state law. In West Virginia:

Youth in Adult Court

Despite the existence of juvenile courts, many youth are still tried as adults. West Virginia has one way that juveniles can be prosecuted as adults:

Discretionary and Mandatory Waiver, where discretionary waiver can be used for youth age 14 and older for certain felonies. Mandatory waiver is required for youth age 14 and older that meet the offense criteria. W. Va. Code § 49-5-10(d).


NJDC conducts statewide assessments of access to counsel and the quality of juvenile defense representation in delinquency proceedings around the country. These assessments provide a state with baseline information about the nature and efficacy of its juvenile indigent defense structures, highlight the strengths and weaknesses of the indigent juvenile defense system, and provide tailored recommendations that address each state’s distinctive characteristics to help decision-makers focus on key trouble spots and highlight best practices. The NJDC State Assessment Page provides more information about state assessments.

The West Virginia Assessment was completed in Spring 2010.

Current through January 2014