REVITALIZING THE CODE:Delinquency and Competency

Randee J. Waldman | Barton Child Law & Policy Center

GCWLA – August 6, 2013

ARTICLE 6:DELINQUENCY

Article 6 – Purpose

The purpose of this article is:

Consistent with the protection of the public interest, to hold a child committing delinquent acts accountable for his or her actions, taking into account such child’s age, education, mental and physical condition, background, and all other relevant factors, but to mitigate the adult consequences of criminal behavior;

To accord due process of law to each child who is accused of having committed a delinquent act;

To provide for a child committing delinquent acts with supervision, care, and rehabilitation which ensure balanced attention to the protection of the community, the imposition of accountability, and the development of competencies to enable such child to become a reasonable and productive member of the community;

To promote a continuum of services for a child and his or her family from prevention of delinquent acts aftercare, considering, whenever possible, prevention, diversion, and early intervention, including an emphasis on community based alternatives;

To provide effective sanctions to acts of juvenile delinquency; and

To strengthen families and to successfully reintegrate delinquent children into homes and communities.

15-11-470

Article 6 – The Parties

Parties are: Alleged delinquent child The StateParent, guardian, or legal custodian:

Right to notice Right to be present in the courtroom Opportunity to be heard at all stages

DJJ: Notice of the disposition hearing

15-11-474

Article 6 – Role of Prosecutor Prosecuting attorney shall conduct

delinquency proceedings on behalf of the State. Entitled to complete access to all court

files, probation files, hearing transcripts, delinquency reports, and any other juvenile court records.

Filing of petition (“attorney”)

15-11-473

Article 6 – Defense Attorney

Right to counsel Right to represented by an attorney at all

proceedings Parent may not waive right to be represented Child may not waive if liberty is in jeopardyAccess to records Judge shall issue an order for dependency,

school and health or mental healthcare records Upon motion Written consent of child

15-11-475

Chapter 6 – Delinquency Case Timelines

Petition Alleging DelinquencyWithin 30 days of complaint or 30 days after

release

Arraignment HearingWithin 30 days of filing the petition

Adjudication HearingWithin 60 days of filing the petition

Disposition HearingWithin 30 days of adjudication hearing

If Child Is Not In Custody: If Child Is In Custody:

Detention Hearing(arrest warrant = 5 business days)

(no arrest warrant = 2 business days)

Petition Alleging DelinquencyWithin 72 hours of detention hearing

Adjudication HearingWithin 10 days of filing the petition

Disposition HearingWithin 30 days of adjudication hearing

15-11-472

Complaint/Intake

Article 6 - Intake15-11-510

At intake, child shall be informed of: Contents of complaint Nature of the proceedings Possible consequences or dispositions Due process rights

Right to an attorney Privilege against self-incrimination Right to remain silent Right to confront and cross-examine witnesses Right to testify Right to compel other witnesses to attend and testify Right to speedy adjudication hearing Right to appeal and be provided with transcripts

Article 6 – Detention Assessment15-11-505

Detention assessment must be administered by intake officer 'Detention assessment' means an actuarial tool,

approved by the board and validated on a targeted population, used to make detention decisions and that identifies and calculates specific factors that are likely to indicate a child's risk to public safety pending adjudication and the likelihood that such child will appear for juvenile proceedings for the act causing the detention decision to be made. (49-4A-1)

Article 6 – Place of Detention 15-11-504

May be detained in: Licensed foster home Home approved by the court Home of non-custodial parent or relative Facility operated by licensed child welfare

agency Secure or non-secure residential facility If 15 or older, may be held in jail for up to 24

hours if certain conditions are met Placement shall be in the least restrictive

facility

Article 6 – Detention Hearing 15-11-506

Shall be held no later than: 2 business days if custody without arrest warrant 5 business days if custody with arrest warrant Probable cause “review” within 48 hours

At detention hearing, court shall inform child of: Contents of complaint or petition Nature of the proceedings Right to make an application for bail Possible consequences or dispositions Due process rights

Article 6 – Detention Decision 15-11-

503

Probable cause Clear and convincing evidence that

freedom should be restrained, that no less restrictive alternatives will suffice, and that: May inflict serious bodily harm Demonstrated pattern of theft or

destruction of property such that detention is required to protect the property of others

Secure his or her presence in court

Article 6 - Bail15-11-507

Same right to bail as adults Only at intake or detention hearing

May release on bail if the court finds: Poses no significant risk of fleeing jurisdiction or

failing to appear in court Poses no significant threat or danger to any person,

to the community or to any property in the community.

Poses no significant risk of committing any felony pending trial

Poses no significant risk of intimidating witnesses or otherwise obstructing administration of justice

Article 6 - Petition15-11-520-523

Shall be filed by an attorney (prosecuting attorney or designee)

Timing: No later than 72 hours after detention hearing Within 30 days of filing of complaint

Contents (new requirements): Place of detention at time taken into custody If child is charged with Class A or Class B designated

felony act Amendments:

Prior to hearing After jeopardy, shall not be amended to include new

charges

Article 6 - Arraignment15-11-511

Shall be scheduled within 30 days of the filing of the petition (non-detained)

Court shall inform child of: Contents of petition Nature of the proceedings Possible consequences or dispositions Due process rights

Represented child may enter an admission Child whose liberty is not in jeopardy may

waive right to counsel

Article 6 – Failure to Appear15-11-532

Parent fails to appear or bring child Court may issue a rule nisi ordering person

to show cause Failure to appear in response to order to

show cause results in bench warrant Child 16 or older

Bench warrant Child 14 or 15 who willfully refuses to

appear Bench warrant

Article 6 – SB44015-11-560

No change to exclusive jurisdiction offenses

Voluntary manslaughter, aggravated sodomy, aggravated child molestation or aggravated sexual battery may be transferred to juvenile court by Superior Court judge. Treated as Class A designated felony act Appealable by the State

Article 6 – Transfer to Superior Court15-11-562

Factors for the Court to consider in making transfer decision: Age Seriousness Protection of community Violence or aggressive or premeditated manner Culpability of child (level of planning and participation) Repetitive pattern of offenses indicating beyond rehabilitation

in JJ Record and history Sophistication and maturity Program and facilities available Whether child can benefit from treatment or rehabilitative

programs available to juvenile court

Article 6 – Transfer to Superior Court15-11-562-564

Reports/Evaluations Probation report developing available information

relevant to transfer criteria Court may order transfer evaluation of clinical

statusAdmissibility Statements made during evaluation or at hearing

only used as impeachment or rebuttal evidenceAppeals Decision to transfer is an interlocutory judgment

and may be appealed by either party

Article 6 - Adjudication15-11-580 &

582

Timing If detained, within 10 days after the filing of

petition If not detained, within 60 days after the filing of

petitionUnderstandable Language Court shall address the child in language

understandable to the child in order to determine whether the child is capable of understanding such statements about his or her rights If capable, denial or admission

Chapter 6 – Disposition Options

Every

one

Order for dependent child - not temp DFCS custody

Counseling for child and parent/guardian

Supervised probation including probation management

Unsupervised probation

Studies High School diploma or equivalent

Community service

Restitution

Fines (traffic offenses)

Suspension of driver’s license

15-11-601

Article 6 – Disposition Options 15-11-

601

Felo

ny/

Mis

dem

ean

or(

+)

“Everyone” options

Facility/institution/camp for delinquent children

Commitment to DJJ

Up to 30 days in secure residential facility or treatment program provided by DJJ or

juvenile court

**Applicable for felonies and misdemeanors if child has at least one prior felony adjudication and at least three other prior adjudications for a delinquent act.

Article 6 – Designated Felonies 15-11-602

Order made within 20 days of disposition hearing Risk assessment to be completed Order to include:

Finding, based on preponderance of evidence, whether restrictive custody required

If low risk, written findings as to why placement in restrictive custody is necessary

Written findings as to each of the following factors: Age and maturity Needs and best interest of child Record, background and risk level of child Nature and circumstances of offense Need for protection of community Age and physical condition of the victim

15-11-475

Article 6 – Designated Felonies

Behavioral Health Evaluations: The Court SHALL order and give

consideration to the results before ordering a DF child to restrictive custody

15-11-477

Article 6 – DF Disposition Options15-11-602

Class B Designated Felony

If restrictive custody not required

felony/misd.(+) options

Initial DJJ custody up to 36 months, no more than 18

months in restrictive custody

Moderate/High Risk Child at least half of period in secure residential facility, remainder at DJJ discretion

Low Risk Child non-secure residential facility (“shall” or “may”?)

Intensive supervision after confinement

(not to exceed 6 months)

Article 6 – DF Disposition Options15-11-602

Class A Designated Felony

If restrictive custody not required

felony/misd.(+) options

Initial DJJ custody up to 60 months

Confined in secure residential facility for period set by order

Intensive supervision after confinement

(not to exceed 12 months)

Article 6 – DF Disposition Options15-11-602

Developmental disability If ordered confined to restrictive custody, but diagnosed

with DD and not amendable to treatment in a secure residential facility, DJJ may transfer to non-secure residential facility Must notify prosecuting attorney and judge

Mandatory secure confinement Serious physical injury upon person 72 or olderCredit for time served All time spent in secure or non-secure residential facility

shall be counted toward confinement periodEarly release May be filed every 6 months

Article 6 – Designated Felony Classes

Class A Designated Felony Acts

Aggravated assault or assault with a deadly weapon that resulted in serious injury

Aggravated battery Armed robbery (no firearm) Arson (first degree) Attempted murder Escape if previously Class A or B Hijacking a motor vehicle Kidnapping Criminal gang activity (most

types) Trafficking of substances Fourth felony adjudication if one

was a felony crime against a person or a sexual offense

Class B Designated Felony Acts

Aggravated assault or assault with a deadly weapon that did not result in serious injury

Arson (second degree)

Attempted kidnapping

Battery against school personnel

Racketeering

Robbery

Gang related graffiti

Smash and grab burglary

Destructive device and hoax device crimes

Second car theft

Second possession of a handgun

School weapons violations

Fourth felony adjudication

15-11-2(12&13)

Additional Noteworthy Changes Law enforcement officer may detain child for reasonable

period of time sufficient to conduct interrogations or perform routine law enforcement procedures (i.e. fingerprinting and photographing) 15-11-502(b)

Victims’ rights Entitled to same rights, notices and benefits as the victim of crime

committed by adult (victim impact) 15-11-481

Notice regarding release from detention for DF acts. 15-11-508

Jeopardy attaches: Denial first witness sworn Admission Court accepts admission

11-15-480

ARTICLE 7:INCOMPETENT TO PROCEED

Article 7 – Definitions15-11-651

Incompetent to proceed: Lacking sufficient present ability to understand the

nature and object of the proceedings, to comprehend his or her own situation in relation to the proceedings, and to assist his or her attorney in the preparation and presentation of his or her case in all adjudication, disposition, or transfer hearings. Such terms shall include consideration of a child’s age or immaturity.

Competency remediation services Outpatient interventions directed only at facilitating

the attainment of the competence to proceed May include: mental health treatment to reduce symptoms

or specialized psychoeducational programming.

Article 7 – General Provisions 15-11-

652

Applicable in CHINS and delinquency proceedings

Competency evaluation may be ordered on court’s own motion or on motion of any party, GAL, parent/guardian

If child under 13 is alleged to have committed a serious violent felony, competency evaluation must be ordered

Court must appoint attorney prior to evaluation Competency evaluation stays all proceedings

Article 7 – Competency Evaluation15-11-

653

Written report shall be submitted within 30 days of court’s order (extension may be granted)

If not competent, report should include: Opinion as to primary cause of

incompetency (immaturity, mental illness, developmental disability or a combination)

Opinion as to whether substantial probability will attain competency in foreseeable future

Article 7 – Competency Hearing 15-11-655

Within 60 days after court order for evaluation

Burden on child Standard of proof preponderance of

evidence Examiner considered the court’s witness

and subject to cross-examination by child’s attorney and prosecuting attorney

Article 7 – Competence May Be Remediated15-11-656

Court may dismiss without prejudice or order competency remediation services. Court shall consider: Probable cause Nature of incompetency Age Nature of alleged act

If competency remediation services ordered, court retains jurisdiction: Felony up to 2 years with review hearings at least every 6

months Misdemeanor up to 120 days

If detained in secure or non-secure residential facility: Order releasing within 5 days

Article 7 – Unrestorably Incompetent15-11-658

Court shall: Dismiss the petition Appoint a plan manager Order that procedures that a

comprehensive services plan be initiated under Article 5 (CHINS)