3.4 Juvenile Law

• Library: The Virginia Lawyer: A Deskbook for Practitioners (Virginia CLE) (2022 Ed.)

3.4 JUVENILE LAW ¹⁵⁹¹

3.401 Introduction.

A. Historical Background.

The Virginia General Assembly's reorganization of the court system in 1972 and 1973 resulted in the creation of a statewide system of juvenile and domestic relations district courts as a counterpart to the circuit courts and general district courts. Before this action, the juvenile courts were a part of the county courts in all jurisdictions other than those cities where separate courts had previously been established and those areas of the state where regional juvenile and domestic relations courts were operating. After a comprehensive drafting process over several years, the Virginia Supreme Court in 1992 adopted the Juvenile and Domestic Relations District Courts Rules as part eight of the Rules of the Virginia Supreme Court, effective on July 1, 1992. In the 2020 and 2021 legislative sessions, the General Assembly made some of the most sweeping changes to the juvenile criminal system as part of the larger effort toward criminal justice reform.

B. Organization of Juvenile Code.

The juvenile and domestic relations district court law, found in chapter 11 of title 16.1, is fairly comprehensive, and representative of the fact that juvenile court law is largely statutory with little reliance on case law. The code has three significant organizational characteristics: (i) it is designed along tracks, depending on how the juvenile enters the court system, whether through delinquency, abuse, or neglect; children in need of services; or children in need of supervision; ¹⁵⁹² (ii) it proceeds chronologically through the process in an orderly sequence; ¹⁵⁹³ and (iii) wherever there are alternative courses of action possible, that which is listed first is the least intrusive or restrictive alternative. ¹⁵⁹⁴ The third characteristic is particularly significant in light of the philosophical basis for the juvenile court and its jurisdiction. ¹⁵⁹⁵

C. Jurisdiction of Juvenile Court.

1. In General.

The juvenile court has jurisdiction primarily over matters involving juveniles, defined as persons under the age of 18. ¹⁵⁹⁶ The critical point in time for the ages specified in the law is the "age of the child at the time of the acts complained of in the petition." ¹⁵⁹⁷ There is no statutory minimum age for delinquency, or any other basis for jurisdiction, and it is debatable whether the common-law minimum age of seven for criminal responsibility applies in the juvenile court. ¹⁵⁹⁸ The Virginia Code is silent on the issue of infancy and incapacity to commit an offense. The Code does, however, prescribe a minimum age for commitment to the Department of Juvenile Justice. Only a juvenile 11 years of age or older who has been convicted of an act enumerated in section 16.1-269.1(B) or (C) of the Virginia Code ¹⁵⁹⁹ or any juvenile 14 years of age or older may be committed to the Department. ¹⁶⁰⁰ Only a juvenile 14 years of age or older can be held posttrial in a local facility. If a person has reached the age of 21 without being tried as a juvenile, he or she must be tried as an adult even if the offense occurred before that person's 18th birthday. ¹⁶⁰¹ Proceedings against adults who are under the age of 21 and who are alleged to have committed an offense before attaining the age of 18 that would be a crime if committed by an adult must be commenced by filing a petition. ¹⁶⁰²

Once jurisdiction over the person has been obtained by a juvenile court, that jurisdiction, which includes the authority to suspend, reduce, modify, or dismiss the disposition of any juvenile adjudication, may be retained until the person reaches the age of 21, except when custody is in the Department of Juvenile Justice or when jurisdiction has been divested by the circuit court pursuant to section 16.1-244. ¹⁶⁰³

2. Venue.

Where delinquency is alleged, the case must begin in the city or county where the alleged acts occurred unless the child and the commonwealth's attorneys for each jurisdiction consent in writing to the case being commenced in the city or county where the juvenile resides. ¹⁶⁰⁴ Cases involving alleged abuse or neglect of a child should be commenced "(i) in the city or county where the child resides, (ii) in the city or county where the child is present when the proceedings are commenced, or (iii) in the city or county where the alleged abuse or neglect occurred. ¹⁶⁰⁵ In other cases involving children, the proceedings generally should begin in the city or county where the child resides or where the child is present. ¹⁶⁰⁶ Spousal and child support cases other than those covered by title 20 are to be commenced in the city or county where either party resides or in the locality where the respondent resides when the proceeding commences, and spousal abuse protective order cases are to be commenced where either party has his or her principal residence or where the abuse occurred. ¹⁶⁰⁷ When the juvenile court is exercising jurisdiction over adults charged with criminal offenses, venue is where the alleged acts occurred. ¹⁶⁰⁸ Except for custody, visitation, and support cases, the court may at any time, for good cause shown, transfer a matter to the city or county of the child's residence, if brought elsewhere, although in a delinquency case such transfer cannot be made until after adjudication. ¹⁶⁰⁹

3. Subject Matter Jurisdiction.

a. In General.

The juvenile and domestic relations district court has jurisdiction over practically all matters affecting the family, other than divorce and adoption. Section 16.1-241 of the Virginia Code governs the exclusive and original jurisdiction of the court.

The circuit court has concurrent jurisdiction with the juvenile and domestic relations district court in matters of custody, support, and visitation where a matter is pending in the juvenile and domestic relations court before the filing of a divorce action. However, the juvenile and domestic relations court is divested of jurisdiction when a divorce pleading raises issues of custody, support, or visitation and a hearing is set in the circuit court for a date certain, to be heard within 21 days of the filing, unless both parties agree to a referral to the juvenile and domestic relations court. ¹⁶¹⁰

When a juvenile appeals a conviction or adjudication of delinquency or when the juvenile court certifies any felony charge or ancillary misdemeanor charge committed by an adult to the circuit court, jurisdiction vests in that court. ¹⁶¹¹

b. Delinquency.

The juvenile and domestic relations district court has original and exclusive jurisdiction over all charges against a child that would be crimes if committed by an adult, whether misdemeanors, felonies, traffic violations, or the refusal to take a blood test, and regardless of whether a violation of state or federal law or a city, county, town, or service district ordinance, except where the jurisdiction has been terminated. ¹⁶¹² Delinquency does not include a "traffic infraction" as defined in section 46.2-100 of the Virginia Code. ¹⁶¹³ For some purposes, a conviction for underage possession of marijuana is treated as delinquent by the Virginia Code. ¹⁶¹⁴

The juvenile court can be divested of its jurisdiction over a minor. If a young person is "tried and convicted in a circuit court as an adult," he or she is "considered and treated as an adult in any criminal proceeding resulting from any alleged future criminal acts." ¹⁶¹⁵ Once tried and convicted as an adult, the specific protections of the juvenile code no longer apply to the minor. ¹⁶¹⁶ Section 16.1-269.1 grants the juvenile court jurisdiction to hold a preliminary hearing for a juvenile 16 years of age or older if charged with the crimes enumerated in subsection (B) and, if the commonwealth's attorney serves the appropriate notice, the crimes enumerated in subsection (C). ¹⁶¹⁷ If a juvenile 14 years of age or older but not yet 16 is charged with the crimes enumerated in section 16.1-269.1(B) or (C), the Commonwealth can attempt to transfer pursuant to subsection (A). ¹⁶¹⁸ Jurisdiction over an "ancillary charge," a delinquent act committed by the juvenile as part of the same act or transaction as a felony delinquent act, is also divested when the principal charge is transferred or certified. ¹⁶¹⁹

c. Children in Need of Services (CHINServ).

The court has jurisdiction over any "child whose behavior, conduct or condition presents or results in a serious threat to the well-being and physical safety of the child" or "another person." The definition includes children under age 14. The conduct must also present a clear and substantial danger to the child's life or health or another person's life or health; there must be a need for the treatment, rehabilitation, or services not being received; and the intervention of the court must be essential to getting the treatment, rehabilitation, or services provided. ¹⁶²⁰ A child in need of services is not considered delinquent, but a child could become delinquent in subsequent proceedings for violating a court's order under section 16.1-278.4. ¹⁶²¹

d. Children in Need of Supervision (CHINSup).

A child in need of supervision is defined as one who is habitually truant without justification, provided the child has been offered an adequate opportunity to receive the benefit of any and all required educational services that meet the child's particular needs and the school system has made a reasonable effort to effect the child's regular attendance without success or the child is a habitual runaway from either home or a residential care facility without consent or authority and such conduct presents a clear and substantial danger to the child's life or health, the child or family is in need of treatment, rehabilitation, or services not presently received, and the court's intervention is essential to provide the services. ¹⁶²² A child in need of supervision is not considered delinquent but may be punished for willful, material violations of the court's order by...