When a Virginia juvenile court transfers a juvenile to circuit court for adult prosecution and no one appeals, when does the juvenile court actually lose jurisdiction, and when can the juvenile be moved from juvenile detention to the adult jail?

Plain-English summary

This opinion is the companion to AG Opinion 09-031, also issued to Chief Judge V. Thomas Forehand, Jr. of the First Judicial Circuit. In 09-031, the AG had concluded that when no one appeals a juvenile court's transfer decision under § 16.1-269.1(A), the circuit court does not have to enter an "enabling order" before a prosecutor can seek an indictment. That left two practical follow-ups, which the judge asked in this opinion: (1) precisely when does the juvenile court lose jurisdiction over the case, and (2) when can the juvenile actually be transferred from the juvenile detention home to the local adult jail?

Acting AG William Mims answered both: immediately upon entry of the transfer order. Once the juvenile court enters a § 16.1-269.1(A) transfer order, "there is nothing more for the juvenile court to do in the matter," and the juvenile may be physically transferred to a local adult correctional facility at any time after that, unless the order is suspended pending appeal.

The reasoning starts from § 16.1-241(A), which sets the jurisdictional dividing line in transferred cases. For certified violent juvenile felonies under § 16.1-269.1(B) or (C), the statute explicitly divests the juvenile court of jurisdiction at certification. For discretionary transfers under § 16.1-269.1(A), § 16.1-241(A) says jurisdiction "shall be divested as provided in § 16.1-269.6." But § 16.1-269.6 (as 09-031 had explained) only applies to appealed cases. So § 16.1-269.6 supplies no specific rule for unappealed § 16.1-269.1(A) transfers. The AG filled the gap by reading § 16.1-269.1(A) (and the parallel § 16.1-269.1(D) for certifications) to mean that the transfer order itself divests the juvenile court of jurisdiction, immediately.

Section 16.1-298(A) reinforces the result for appealed cases. Appeals do not automatically suspend juvenile court orders. Following Martin v. Bales, 7 Va. App. 141 (1988), the AG concluded that legislative intent was continuity of juvenile court orders pending appeal. Even when the transfer decision is appealed, the transfer order remains in effect until reversed.

The physical transfer of the juvenile to an adult jail follows the same line. Section 16.1-249(D) authorizes the transfer to a jail or other adult facility when a § 16.1-269.1(A) case is transferred and the circuit court enters an order under § 16.1-269.6. Section 16.1-269.6(B) similarly authorizes the circuit court to issue an order moving the juvenile to a local adult facility upon advising the prosecutor he may seek an indictment. Neither statute directly applies to an unappealed § 16.1-269.1(A) transfer. But the AG applied the same divestiture logic: once the juvenile court has entered the transfer order, the line between "juvenile" and "adult" treatment has been crossed, and the juvenile may be moved to an adult facility. The opinion notes that this placement is discretionary, and the court may keep the juvenile in the detention facility.

Currency note

This opinion was issued in 2009. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Background and statutory framework

The juvenile transfer scheme is fragmented across several sections:

• § 16.1-269.1(A) is the discretionary transfer route. The juvenile court holds a hearing, may consider several statutory factors, and may either retain jurisdiction or transfer to circuit court.
• § 16.1-269.1(B) and (C) are mandatory or notice-driven certification routes for violent juvenile felonies. The juvenile court holds only a preliminary hearing and, if it finds probable cause, must certify the charge to the grand jury. Certification automatically divests the juvenile court of jurisdiction over the charge and ancillary charges (§§ 16.1-241(A), 16.1-269.1(D)).
• § 16.1-269.6(B) governs what the circuit court does. Under AG Opinion 09-031, it applies only when a party appeals a § 16.1-269.1(A) transfer decision.
• § 16.1-249(D) authorizes the physical transfer of the juvenile to an adult jail once the juvenile is in confinement and a triggering event has occurred (transfer order under § 16.1-269.6 following a § 16.1-269.1(A) transfer, certification under § 16.1-269.1(B) or (C), or juvenile waiver under § 16.1-270).
• § 16.1-298(A) controls the effect of appeals on juvenile court orders generally.

The opinion's contribution is filling a textual gap: what happens to juvenile court jurisdiction (and to detention placement) in the specific scenario where a § 16.1-269.1(A) transfer is not appealed. The AG resolved that gap by extending the divestiture logic from §§ 16.1-241(A) and 16.1-269.1(D) (certifications) to discretionary transfers.

Common questions

At what exact moment does the juvenile court lose jurisdiction?

When the juvenile court enters the transfer order. Not when the appeal period expires, not when the circuit court takes up the case, not when an indictment issues. The opinion is explicit: "Once the juvenile court enters an order transferring the case to the circuit court for trial as an adult, there is nothing more for the juvenile court to do in the matter."

What if the juvenile or prosecutor appeals the transfer?

The transfer order remains in effect. Section 16.1-298(A) provides that an appeal does not suspend a juvenile court order unless the juvenile court judge, the circuit court judge, or an appellate court specifically orders the suspension. Following Martin v. Bales, the AG read § 16.1-298 as expressing legislative intent that juvenile court orders continue pending appeal. So even an appealed transfer order keeps working until reversed.

Can the juvenile be moved to adult jail immediately after the transfer order is entered?

Yes. The opinion concludes that "a juvenile may be moved from a detention facility to a local correctional facility at any time after entry of the transfer order by the juvenile court." Note that placement in the adult facility is discretionary; the court may keep the juvenile in the juvenile detention facility if it wants to (see § 16.1-249(D)).

Are there limits on holding the transferred juvenile in adult jail?

Section 16.1-249(D) says the juvenile "need no longer be entirely separate and removed from adults" once transferred. So the federal "sight and sound" separation requirement that protects pre-transfer juveniles in adult facilities relaxes for transferred juveniles. Section 16.1-249(E) imposes specific limitations that can apply on motion of counsel for good cause shown. The opinion does not develop those limits in detail.

Why does § 16.1-269.6(B) matter at all if the juvenile court has already lost jurisdiction?

It matters when the transfer is appealed. Section 16.1-269.6(B) directs the circuit court (within 45 days of receipt) to review the papers, hold a hearing on whether there was substantial compliance with § 16.1-269.1(A), and enter an order either remanding the case to juvenile court or advising the prosecutor he may seek an indictment. The juvenile court is still divested of jurisdiction immediately on entry of the transfer order; § 16.1-269.6(B) governs the circuit court's role on appeal, not the juvenile court's loss of jurisdiction.

Citations

• Va. Code Ann. § 16.1-241(A) (juvenile court jurisdiction; divestiture on transfer or certification)
• Va. Code Ann. § 16.1-249(D), (E) (transfer to adult jail; placement limitations)
• Va. Code Ann. § 16.1-269.1(A), (B), (C), (D) (transfer and certification provisions)
• Va. Code Ann. § 16.1-269.6(B) (circuit court review and adult-jail transfer order)
• Va. Code Ann. § 16.1-298(A) (appeal does not suspend juvenile court orders)
• Martin v. Bales, 7 Va. App. 141, 371 S.E.2d 823 (1988) (legislative intent of continuity in juvenile court orders pending appeal)
• 2009 Op. Va. Att'y Gen. No. 09-031 (companion opinion on enabling orders)

Source

• Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
• Original PDF: https://www.oag.state.va.us/files/Opinions/2009/09-045-Forehand.pdf

Original opinion text

COMMONWEALTH OF VIRGINIA
Office of the Attorney General
William C. Mims, Attorney General

September 1, 2009

The Honorable V. Thomas Forehand, Jr.
Chief Judge, First Judicial Circuit of Virginia
307 Albemarle Drive, Suite 400A
Chesapeake, Virginia 23322-5580

Dear Judge Forehand:

I am responding to your request for an official advisory opinion in accordance with § 2.2-505 of the Code of Virginia.

Issues Presented

In a recent opinion to you dated June 26, 2009 ("2009 Opinion"), I concluded that a circuit court is not required to enter an enabling order where the transfer decision of a juvenile and domestic relations district court ("juvenile court") pursuant to § 16.1-269.1(A) has not been appealed.[1] In light of the 2009 Opinion, you ask at what point the juvenile court is divested of jurisdiction in a case that is transferred to circuit court pursuant to § 16.1-269.1(A) when the transfer decision is not appealed. Further, you inquire at what point such juvenile may be moved from a juvenile detention facility to a local correctional facility.

Response

It is my opinion that a juvenile court order pursuant to § 16.1-269.1(A) immediately divests the juvenile court of jurisdiction and such juvenile may be moved from the juvenile detention facility to a local correctional facility at any time after entry of such order by the juvenile court, unless execution of the order is suspended pending an appeal.

Applicable Law and Discussion

Section 16.1-269.1(A) provides, in part, that:

if a juvenile fourteen years of age or older at the time of an alleged offense is charged with an offense which would be a felony if committed by an adult, the court shall, on motion of the attorney for the Commonwealth and prior to a hearing on the merits, hold a transfer hearing and may retain jurisdiction or transfer such juvenile for proper criminal proceedings to the appropriate circuit court having criminal jurisdiction of such offenses if committed by an adult.

Thus, it appears that under § 16.1-269.1(A), the court has the discretion to retain jurisdiction or transfer the juvenile to circuit court. I note that § 16.1-241(A) provides, in part, that:

In any case in which the juvenile is alleged to have committed a violent juvenile felony enumerated in subsection B of § 16.1-269.1, and for any charges ancillary thereto, the jurisdiction of the juvenile court shall be limited to conducting a preliminary hearing to determine if there is probable cause to believe that the juvenile committed the act alleged and that the juvenile was 14 years of age or older at the time of the commission of the alleged offense, and any matters related thereto. In any case in which the juvenile is alleged to have committed a violent juvenile felony enumerated in subsection C of § 16.1-269.1, and for all charges ancillary thereto, if the attorney for the Commonwealth has given notice as provided in subsection C of § 16.1-269.1, the jurisdiction of the juvenile court shall be limited to conducting a preliminary hearing to determine if there is probable cause to believe that the juvenile committed the act alleged and that the juvenile was 14 years of age or older at the time of the commission of the alleged offense, and any matters related thereto. A determination by the juvenile court following a preliminary hearing pursuant to subsection B or C of § 16.1-269.1 to certify a charge to the grand jury shall divest the juvenile court of jurisdiction over the charge and any ancillary charge. In any case in which a transfer hearing is held pursuant to subsection A of § 16.1-269.1, if the juvenile court determines to transfer the case, jurisdiction of the juvenile court over the case shall be divested as provided in § 16.1-269.6.

Further, you note that § 16.1-269.1(D) mirrors § 16.1-241(A) by providing, in pertinent part, that:

Upon a finding of probable cause pursuant to a preliminary hearing under subsection B or C, the juvenile court shall certify the charge, and all ancillary charges, to the grand jury. Such certification shall divest the juvenile court of jurisdiction as to the charge and any ancillary charges. Nothing in this subsection shall divest the juvenile court of jurisdiction over any matters unrelated to such charge and ancillary charges which may otherwise be properly within the jurisdiction of the juvenile court.

As discussed in the 2009 Opinion, § 16.1-269.6(B) applies only to cases coming before the circuit court on appeal from the juvenile court's transfer order.[2] However, §§ 16.1-241(A) and 16.1-269.1(D) are silent regarding the point at which the juvenile court is divested of jurisdiction of a case transferred pursuant to § 16.1-269.1(A) which is not appealed by either party.

Juvenile court orders that are appealed to the circuit court are not suspended pending an appeal except in circumstances which are not relevant to your question.[3] Therefore, even when the transfer decision under § 16.1-269.1(A) is appealed, the transfer order remains in effect until it is affirmed or reversed by the circuit court. Once the juvenile court enters an order transferring the case to the circuit court for trial as an adult, there is nothing more for the juvenile court to do in the matter.[4]

You further ask at what point a juvenile, who is transferred to circuit court for trial as an adult under § 16.1-269.1(A) and who does not appeal the transfer order, may be moved from the juvenile detention home to a local correctional facility. Section 16.1-249(D) provides, in part, that:

When a case is transferred to the circuit court in accordance with the provisions of subsection A of § 16.1-269.1 and an order is entered by the circuit court in accordance with § 16.1-269.6, or in accordance with the provisions of § 16.1-270 where the juvenile has waived the jurisdiction of the district court, or when the district court has certified a charge to the grand jury pursuant to subsection B or C of § 16.1-269.1, the juvenile, if in confinement, may be transferred to a jail or other facility for the detention of adults and need no longer be entirely separate and removed from adults.

Further, § 16.1-269.6(B) provides, in part, that:

Upon advising the attorney for the Commonwealth that he may seek an indictment, the circuit court may issue an order transferring the juvenile from the juvenile detention facility to an appropriate local correctional facility where the juvenile need no longer be entirely separate and removed from adults, unless, upon motion of counsel, good cause is shown for placement of the juvenile pursuant to the limitations of subdivision E (i), (ii), and (iii) of § 16.1-249.

Although neither § 16.1-249(D) nor § 16.1-269(B) specifically apply to a transfer decision under § 16.1-269.1(A) that is not appealed, the analysis regarding divestiture of juvenile court jurisdiction as discussed herein applies to this question. Once the juvenile court enters an order transferring the case to circuit court, the order effectively draws the dividing line between treatment of the defendant as a juvenile and his treatment as an adult. Therefore, a juvenile may be moved from a detention facility to a local correctional facility at any time after entry of the transfer order by the juvenile court.[5]

Conclusion

Accordingly, it is my opinion that a juvenile court order pursuant to § 16.1-269.1(A) immediately divests the juvenile court of jurisdiction and such juvenile may be moved from the juvenile detention facility to a local correctional facility at any time after entry of such order by the juvenile court, unless execution of the order is suspended pending an appeal.

Thank you for letting me be of service to you.

Sincerely,

William C. Mims

1. See 2009 Op. Va. Att'y Gen No. 09-031, *1, available at http://www.vaag.com/OPINIONS/2009opns/09-031-Forehand.pdf.
2. Id. at *2-3.
3. See VA. CODE ANN. § 16.1-298(A) (Supp. 2009) (providing that "a petition for or the pendency of an appeal or writ of error shall not suspend any judgment, order or decree of the juvenile court nor operate to discharge any child concerned or involved in the case from the custody of the court or other person, institution or agency to which the child has been committed unless so ordered by the judge of the juvenile court, the judge of a circuit court or directed in a writ of supersedeas by the Court of Appeals or the Supreme Court or a judge or justice thereof"); see also Martin v. Bales, 7 Va. App. 141, 145, 371 S.E.2d 823, 825 (1988) (holding that § 16.1-298 "provides that an appeal shall not suspend any order of the juvenile court unless ordered by the judge of the juvenile court or circuit court, or directed by an appellate court .... It is obvious that the legislature intended continuity of such orders pending appeal.").
4. Since a transfer under § 16.1-269.1(B) or (C) divests the juvenile court of jurisdiction, it appears that a transfer under § 16.1-269.1(A) likewise would divest the juvenile court of jurisdiction.
5. Placement in a local correctional facility for adults is discretionary, and the court may keep the juvenile in the detention facility for juveniles. See §§ 16.1-249(D), 16.1-269.6(B) (Supp. 2009).