16.1-260 - Intake; petition; investigation.
§ 16.1-260. Intake; petition; investigation.
A. All matters alleged to be within the jurisdiction of the court shall becommenced by the filing of a petition, except as provided in subsection H ofthis section and in § 16.1-259. The form and content of the petition shall beas provided in § 16.1-262. No individual shall be required to obtain supportservices from the Department of Social Services prior to filing a petitionseeking support for a child. Complaints, requests and the processing ofpetitions to initiate a case shall be the responsibility of the intakeofficer. However, (i) the attorney for the Commonwealth of the city or countymay file a petition on his own motion with the clerk, (ii) designatednonattorney employees of the Department of Social Services may complete, signand file petitions and motions relating to the establishment, modification,or enforcement of support on forms approved by the Supreme Court of Virginiawith the clerk, and (iii) any attorney may file petitions on behalf of hisclient with the clerk except petitions alleging that the subject of thepetition is a child alleged to be in need of services, in need of supervisionor delinquent. Complaints alleging abuse or neglect of a child shall bereferred initially to the local department of social services in accordancewith the provisions of Chapter 15 (§ 63.2-1500 et seq.) of Title 63.2.Motions and other subsequent pleadings in a case shall be filed directly withthe clerk. The intake officer or clerk with whom the petition or motion isfiled shall inquire whether the petitioner is receiving child supportservices or public assistance. No individual who is receiving supportservices or public assistance shall be denied the right to file a petition ormotion to establish, modify or enforce an order for support of a child. Ifthe petitioner is seeking or receiving child support services or publicassistance, the clerk, upon issuance of process, shall forward a copy of thepetition or motion, together with notice of the court date, to the Divisionof Child Support Enforcement.
B. The appearance of a child before an intake officer may be by (i) personalappearance before the intake officer or (ii) use of two-way electronic videoand audio communication. If two-way electronic video and audio communicationis used, an intake officer may exercise all powers conferred by law. Allcommunications and proceedings shall be conducted in the same manner as ifthe appearance were in person, and any documents filed may be transmitted byfacsimile process. The facsimile may be served or executed by the officer orperson to whom sent, and returned in the same manner, and with the sameforce, effect, authority, and liability as an original document. Allsignatures thereon shall be treated as original signatures. Any two-wayelectronic video and audio communication system used for an appearance shallmeet the standards as set forth in subsection B of § 19.2-3.1.
When the court service unit of any court receives a complaint alleging factswhich may be sufficient to invoke the jurisdiction of the court pursuant to §16.1-241, the unit, through an intake officer, may proceed informally to makesuch adjustment as is practicable without the filing of a petition or mayauthorize a petition to be filed by any complainant having sufficientknowledge of the matter to establish probable cause for the issuance of thepetition.
An intake officer may proceed informally on a complaint alleging a child isin need of services, in need of supervision or delinquent only if thejuvenile (i) is not alleged to have committed a violent juvenile felony or(ii) has not previously been proceeded against informally or adjudicateddelinquent for an offense that would be a felony if committed by an adult. Apetition alleging that a juvenile committed a violent juvenile felony shallbe filed with the court. A petition alleging that a juvenile is delinquentfor an offense that would be a felony if committed by an adult shall be filedwith the court if the juvenile had previously been proceeded againstinformally by intake or had been adjudicated delinquent for an offense thatwould be a felony if committed by an adult.
If a juvenile is alleged to be a truant pursuant to a complaint filed inaccordance with § 22.1-258 and the attendance officer has provideddocumentation to the intake officer that the relevant school division hascomplied with the provisions of § 22.1-258, then the intake officer shallfile a petition with the court. The intake officer may defer filing thecomplaint for 90 days and proceed informally by developing a truancy plan.The intake officer may proceed informally only if the juvenile has notpreviously been proceeded against informally or adjudicated in need ofsupervision for failure to comply with compulsory school attendance asprovided in § 22.1-254. The juvenile and his parent or parents, guardian orother person standing in loco parentis must agree, in writing, for thedevelopment of a truancy plan. The truancy plan may include requirements thatthe juvenile and his parent or parents, guardian or other person standing inloco parentis participate in such programs, cooperate in such treatment or besubject to such conditions and limitations as necessary to ensure thejuvenile's compliance with compulsory school attendance as provided in §22.1-254. The intake officer may refer the juvenile to the appropriate publicagency for the purpose of developing a truancy plan using an interagencyinterdisciplinary team approach. The team may include qualified personnel whoare reasonably available from the appropriate department of social services,community services board, local school division, court service unit and otherappropriate and available public and private agencies and may be the familyassessment and planning team established pursuant to § 2.2-5207. If at theend of the 90-day period the juvenile has not successfully completed thetruancy plan or the truancy program, then the intake officer shall file thepetition.
Whenever informal action is taken as provided in this subsection on acomplaint alleging that a child is in need of services, in need ofsupervision or delinquent, the intake officer shall (i) develop a plan forthe juvenile, which may include restitution and the performance of communityservice, based upon community resources and the circumstances which resultedin the complaint, (ii) create an official record of the action taken by theintake officer and file such record in the juvenile's case file, and (iii)advise the juvenile and the juvenile's parent, guardian or other personstanding in loco parentis and the complainant that any subsequent complaintalleging that the child is in need of supervision or delinquent based uponfacts which may be sufficient to invoke the jurisdiction of the courtpursuant to § 16.1-241 will result in the filing of a petition with the court.
C. The intake officer shall accept and file a petition in which it is allegedthat (i) the custody, visitation or support of a child is the subject ofcontroversy or requires determination, (ii) a person has deserted, abandonedor failed to provide support for any person in violation of law, (iii) achild or such child's parent, guardian, legal custodian or other personstanding in loco parentis is entitled to treatment, rehabilitation or otherservices which are required by law, or (iv) family abuse has occurred and aprotective order is being sought pursuant to § 16.1-253.1, 16.1-253.4, or16.1-279.1. If any such complainant does not file a petition, the intakeofficer may file it. In cases in which a child is alleged to be abused,neglected, in need of services, in need of supervision or delinquent, if theintake officer believes that probable cause does not exist, or that theauthorization of a petition will not be in the best interest of the family orjuvenile or that the matter may be effectively dealt with by some agencyother than the court, he may refuse to authorize the filing of a petition.The intake officer shall provide to a person seeking a protective orderpursuant to § 16.1-253.1, 16.1-253.4, or 16.1-279.1 a written explanation ofthe conditions, procedures and time limits applicable to the issuance ofprotective orders pursuant to § 16.1-253.1, 16.1-253.4, or 16.1-279.1.
D. Prior to the filing of any petition alleging that a child is in need ofsupervision, the matter shall be reviewed by an intake officer who shalldetermine whether the petitioner and the child alleged to be in need ofsupervision have utilized or attempted to utilize treatment and servicesavailable in the community and have exhausted all appropriate nonjudicialremedies which are available to them. When the intake officer determines thatthe parties have not attempted to utilize available treatment or services orhave not exhausted all appropriate nonjudicial remedies which are available,he shall refer the petitioner and the child alleged to be in need ofsupervision to the appropriate agency, treatment facility or individual toreceive treatment or services, and a petition shall not be filed. Only afterthe intake officer determines that the parties have made a reasonable effortto utilize available community treatment or services may he permit thepetition to be filed.
E. If the intake officer refuses to authorize a petition relating to anoffense that if committed by an adult would be punishable as a Class 1misdemeanor or as a felony, the complainant shall be notified in writing atthat time of the complainant's right to apply to a magistrate for a warrant.If a magistrate determines that probable cause exists, he shall issue awarrant returnable to the juvenile and domestic relations district court. Thewarrant shall be delivered forthwith to the juvenile court, and the intakeofficer shall accept and file a petition founded upon the warrant. If thecourt is closed and the magistrate finds that the criteria for detention orshelter care set forth in § 16.1-248.1 have been satisfied, the juvenile maybe detained pursuant to the warrant issued in accordance with thissubsection. If the intake officer refuses to authorize a petition relating toa child in need of services or in need of supervision, a status offense, or amisdemeanor other than Class 1, his decision is final.
Upon delivery to the juvenile court of a warrant issued pursuant tosubdivision 2 of § 16.1-256, the intake officer shall accept and file apetition founded upon the warrant.
F. The intake officer shall notify the attorney for the Commonwealth of thefiling of any petition which alleges facts of an offense which would be afelony if committed by an adult.
G. Notwithstanding the provisions of Article 12 (§ 16.1-299 et seq.) of thischapter, the intake officer shall file a report with the divisionsuperintendent of the school division in which any student who is the subjectof a petition alleging that such student who is a juvenile has committed anact, wherever committed, which would be a crime if committed by an adult, orthat such student who is an adult has committed a crime and is alleged to bewithin the jurisdiction of the court. The report shall notify the divisionsuperintendent of the filing of the petition and the nature of the offense,if the violation involves:
1. A firearm offense pursuant to Article 4 (§ 18.2-279 et seq.), 5 (§18.2-288 et seq.), 6 (§ 18.2-299 et seq.), or 7 (§ 18.2-308 et seq.) ofChapter 7 of Title 18.2;
2. Homicide, pursuant to Article 1 (§ 18.2-30 et seq.) of Chapter 4 of Title18.2;
3. Felonious assault and bodily wounding, pursuant to Article 4 (§ 18.2-51 etseq.) of Chapter 4 of Title 18.2;
4. Criminal sexual assault, pursuant to Article 7 (§ 18.2-61 et seq.) ofChapter 4 of Title 18.2;
5. Manufacture, sale, gift, distribution or possession of Schedule I or IIcontrolled substances, pursuant to Article 1 (§ 18.2-247 et seq.) of Chapter7 of Title 18.2;
6. Manufacture, sale or distribution of marijuana pursuant to Article 1 (§18.2-247 et seq.) of Chapter 7 of Title 18.2;
7. Arson and related crimes, pursuant to Article 1 (§ 18.2-77 et seq.) ofChapter 5 of Title 18.2;
8. Burglary and related offenses, pursuant to §§ 18.2-89 through 18.2-93;
9. Robbery pursuant to § 18.2-58;
10. Prohibited criminal street gang activity pursuant to § 18.2-46.2;
11. Recruitment of other juveniles for a criminal street gang activitypursuant to § 18.2-46.3; or
12. An act of violence by a mob pursuant to § 18.2-42.1.
The failure to provide information regarding the school in which the studentwho is the subject of the petition may be enrolled shall not be grounds forrefusing to file a petition.
The information provided to a division superintendent pursuant to thissection may be disclosed only as provided in § 16.1-305.2.
H. The filing of a petition shall not be necessary:
1. In the case of violations of the traffic laws, including offensesinvolving bicycles, hitchhiking and other pedestrian offenses, game and fishlaws or a violation of the ordinance of any city regulating surfing or anyordinance establishing curfew violations, animal control violations orlittering violations. In such cases the court may proceed on a summons issuedby the officer investigating the violation in the same manner as provided bylaw for adults. Additionally, an officer investigating a motor vehicleaccident may, at the scene of the accident or at any other location where ajuvenile who is involved in such an accident may be located, proceed on asummons in lieu of filing a petition.
2. In the case of seeking consent to apply for the issuance of a work permitpursuant to subsection H of § 16.1-241.
3. In the case of a violation of § 18.2-266 or 29.1-738, or the commission ofany other alcohol-related offense, provided the juvenile is released to thecustody of a parent or legal guardian pending the initial court date. Theofficer releasing a juvenile to the custody of a parent or legal guardianshall issue a summons to the juvenile and shall also issue a summonsrequiring the parent or legal guardian to appear before the court with thejuvenile. Disposition of the charge shall be in the manner provided in §16.1-278.8 or 16.1-278.9. If the juvenile so charged with a violation of §18.2-51.4, 18.2-266, 18.2-266.1, 18.2-272, or 29.1-738 refuses to provide asample of blood or breath or samples of both blood and breath for chemicalanalysis pursuant to §§ 18.2-268.1 through 18.2-268.12 or 29.1-738.2, theprovisions of these sections shall be followed except that the magistrateshall authorize execution of the warrant as a summons. The summons shall beserved on a parent or legal guardian and the juvenile, and a copy of thesummons shall be forwarded to the court in which the violation is to be tried.
4. In the case of offenses which, if committed by an adult, would bepunishable as a Class 3 or Class 4 misdemeanor. In such cases the court maydirect that an intake officer proceed as provided in § 16.1-237 on a summonsissued by the officer investigating the violation in the same manner asprovided by law for adults provided that notice of the summons to appear ismailed by the investigating officer within five days of the issuance of thesummons to a parent or legal guardian of the juvenile.
I. Failure to comply with the procedures set forth in this section shall notdivest the juvenile court of the jurisdiction granted it in § 16.1-241.
(Code 1950, § 16.1-164; 1956, c. 555; 1972, cc. 672, 835; 1973, c. 440; 1977,c. 559; 1979, c. 701; 1982, c. 91; 1983, c. 349; 1985, c. 488; 1986, c. 381;1987, cc. 203, 632; 1988, cc. 792, 803; 1990, c. 742; 1991, cc. 496, 511,534; 1992, cc. 502, 527, 542; 1993, c. 981; 1995, cc. 347, 429; 1996, cc.755, 914; 1997, c. 862; 1999, cc. 54, 526, 952; 2002, c. 747; 2003, c. 587;2004, cc. 105, 255, 309, 416, 517, 558; 2006, c. 677; 2008, cc. 136, 845;2009, cc. 385, 726; 2010, c. 742.)