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SPONSOR: |
HJC |
DATE TYPED: |
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HB |
507/HJCS |
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SHORT TITLE: |
Amend Delinquency Act |
SB |
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ANALYST: |
Maloy |
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APPROPRIATION
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Appropriation
Contained |
Estimated
Additional Impact |
Recurring or
Non-Rec |
Fund Affected |
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FY03 |
FY04 |
FY03 |
FY04 |
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NFI |
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NFI |
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Responses
Received From
Office
of the Attorney General
Criminal
and Juvenile Justice Coordination Council
Children,
Youth and Families Department
Administrative
Offices of the District Attorney
Juvenile
Parole Board
Adult
Parole Board
Office
of Indian Affairs
SUMMARY
Synopsis of Bill
The House Judiciary
Committee Substitute for House Bill 507 makes numerous changes to the
Children's Code. The significant changes
proposed by this bill are as follows, and included are some comments by the reviewing
agencies:
1.
The focus of the Act is reinforced
through the express statement that the purpose of the Delinquency Act is to “strengthen
families and to successfully reintegrate children into homes and communities”.
2.
The focus is also on placing children,
under permanency plans, with willing and fit relatives, rather than placing the
child in the sole custody of the Children, Youth and Families Department
(“department”) until the age of majority.
3.
The bill adds domestic violence and
violation of an order of protection to the types of offenses that a child may
commit.
·
This is a loop-hole in the law that has
long-needed to be addressed. Right now, an order of protection issued against a
minor child (17 years old) has no effect and will not be enforced by the police
or courts. Stalking or other threatening
behavior where there is no physical contact becomes nearly impossible to effectively
address.
4. The bill keeps returning to a common theme
that children should not be incarcerated when another option is available and
preferable. The bill focuses on
requiring the department complete the risk assessment instrument before confining
a child. The bill expressly provides
that if the criteria for detention of an alleged delinquent child are not met,
the child shall be released from custody.
Criteria for detaining a child would include:
·
Alleged violation of the Children’s Code;
·
Alleged parole violation;
·
The child poses a threat to himself;
·
The child poses risk of substantial harm
to others; and
·
The child has demonstrated that he may
leave the jurisdiction.
4.
In an effort to be proactive in
addressing “causes” to delinquency and detention needs, the department is
instructed to collect data from the risk assessment instruments and to report
their findings and analyses to the Legislature in a written report by
5.
The bill creates an additional placement
option for “detaining” a child. In
addition to fostercare, a child welfare services agency, a shelter-care
facility, or detention facility, a child may also be returned home, with
conditions and restrictions placed on him by the court.
6.
The bill provides that a child may be
detained pending a court hearing in a suitable place, other than a facility to
which children adjudicated as delinquent children may be confined.
7.
The bill includes new provisions intended
to protect staff in detention facilities against violent delinquents. In the event that a child is violent toward
staff, he may be transferred to a local jail facility until a hearing is held
on the matter. However, the director of
the jail facility shall presume the child is particularly vulnerable to victimization
and shall take measures appropriate to protect the child.
The
bill also provides that a child who has been previously housed in an adult jail
facility, or has been incarcerated as an adult, shall not be detained in a
juvenile detention facility in the event of subsequent offenses.
The
bill is careful to note that in no instance shall the child’s civil rights be
less than those existing for an incarcerated adult.
8.
The bill keeps the 48-hour from the time
of detention probable cause determination deadline, but shortens the timeframe
for filing a petition from 48 hours to 24 hours from time of detention. Failure to file a petition within the stated
time shall result in the child’s release.
If a petition is filed, a detention hearing is to be held within 24
hours.
·
By the wording of these sections, it is
presumed that the petition relates to detention vs. release. Does it make sense to have the probable cause
hearing after the detention vs. release petition is pursued?
9.
If a child is not released at the
detention hearing, the child’s detention may be subsequently reviewed by the
court, or may be addressed at the pre-trial conference.
10. The
bill adds a provision stating that, if a child is not placed within 10 days
after a disposition hearing, the child may be released and placed under
appropriate supervision.
11. The
bill includes a new, express statement that nothing in the Delinquency Act
shall limit the right of a child to file a writ of habeas corpus.
12. The
bill includes a new, rebuttable presumption for the sentencing of delinquents
as adults. If a child has previously
been sentenced as an adult, on subsequent charges, the judge shall presume that
the child is not amenable to treatment or rehabilitation.
13. The
bill removes the oversight authority of the juvenile parole board for child
offenders who complete a short-term commitment of one year and who is
subsequently placed on parole. The bill
changes the oversight authority to the department.
·
This amendment, as a practical matter,
more accurately reflects what is already happening and would possibly result in
less administrative paperwork.
·
The bill provides for 90 supervision by
the department (CYFD). The department
notes that a more appropriate period of supervision would be 1 year. Such a period of supervision would impose an
additional burden on CYFD, but it is thought that the benefits outweigh the
cost.
14. A new provision to the Act provides
that a person “who is not the subject of a delinquency petition or a person who
is determined to not be a delinquent offender” shall have his files and records
AUTOMATICALLY SEALED by the Court. Also,
it is provided that child’s records and files shall be AUTOMATICALLY SEALED if
the child has not received any new allegations of delinquency in the two years
following his release from custody and supervision.
FISCAL IMPLICATIONS
There are no direct
fiscal implications related to the enactment of HB 507. However, there may be secondary FTE and
budget implications, including:
SJM/njw