CHAPTER 149
(SB 202)
Juvenile detention requirements revised.
ENTITLED, An Act to
revise certain provisions to comply with the requirements of the Juvenile
Justice and Delinquency Act.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF SOUTH DAKOTA:
Section
1.
That
§
26-7A-1
be amended to read as follows:
26-7A-1.
Terms used in this chapter and in chapters 26-8A, 26-8B, and 26-8C mean:
(1)
"Abused or neglected child," a child as defined in
§
26-8A-2;
(2)
"Adjudicatory hearing," a hearing to determine whether the allegations of a petition
alleging that a child is abused or neglected are supported by clear and convincing
evidence or whether the allegations of a petition alleging a child to be in need of
supervision or a delinquent are supported by evidence beyond a reasonable doubt;
(3)
"Adult," a person eighteen years of age or over, except any person under twenty-one
years of age who is under the continuing jurisdiction of the court or who is before the
court for an alleged delinquent act committed before the person's eighteenth birthday;
(4)
"Advisory hearing," the initial hearing conducted by the court to inform the child and the
child's parents, guardian, custodian, or other interested parties of their statutory and
constitutional rights;
(5)
"Association," an association, institution, or corporation which includes in its purposes
the care or disposition of children coming within the provisions of this chapter or chapter
26-8A, 26-8B, or 26-8C;
(6)
"Child," a person less than eighteen years of age and any person under twenty-one years
of age who is under the continuing jurisdiction of the court or who is before the court
for an alleged delinquent act committed before the person's eighteenth birthday;
(7)
"Child in need of supervision," a child as defined in
§
26-8B-2;
(8)
"Commit," to transfer custody of a person;
(9)
"Conservator," a conservator of a child as defined in
§
29A-1-201;
(10)
"Court" or "juvenile court," the circuit court;
(11)
"Custodian," any foster parent, employee of a public or private residential home or
facility, other person legally responsible for a child's welfare in a residential setting, or
person providing in-home or out-of-home care; for purposes of this definition,
out-of-home care means any day care as defined in
§
§
26-6-14, 26-6-14.1, and
26-6-14.8;
(12)
"Delinquent child," a child as defined in
§
26-8C-2;
(13)
"Department of Social Services" or "department," the South Dakota Department of
Social Services;
(14)
"Deprivation of custody," transfer of custody of a child by the court from the child's
parents, guardian, or other custodian to another person, agency, department, or
institution;
(15)
"Detention," the temporary custody of a child in secured physically restricting facilities
for children, sight and sound separated from adult prisoners
;
(16)
"Detention facility," a secured, physically-restricting facility
where
designed, staffed, and
operated for
children
are physically
and
separated
by sight and sound
from adult
prisoners
or a facility for children in the same building or secure perimeter as an adult
jail or lockup, where children are sight and sound separated from adult prisoners, where
staff in the detention facility are trained and certified by the entity operating facility to
work with children, and the facility had been approved as a collocated facility by the
Office of Juvenile Justice and Delinquency Prevention
;
(17)
"Dispositional hearing," a hearing after adjudication at which the court makes an interim
or final decision in the case;
(18)
"Guardian," a guardian of a child as defined in
§
29A-1-201;
(19)
"Guardian ad litem," a representative of a child as defined in subdivision 15-6-17(c),
including a court-appointed special advocate for a child;
(20)
"Intake officer," a judge of a circuit court or the court's designee who may not be a court
services officer, law enforcement officer, or prosecuting attorney. For purposes of
chapters 26-7A, 26-8A, 26-8B, and 26-8C, intake officers may administer oaths or
affirmations as provided by chapter 18-3;
(21)
"Minor," a person who has not reached his or her eighteenth birthday;
(22)
"Parents," biological or adoptive parents of a child, including either parent, any single
or surviving parent, and any custodial or noncustodial parent, jointly or severally;
(23)
"Protective supervision," a legal status created by court order under which an alleged or
adjudicated abused or neglected child is permitted to remain in the home of the child's
parents, guardian, or custodian or is placed with a relative or other suitable person and
supervision and assistance is provided by the court, Department of Social Services, or
another agency designated by the court;
(24)
"Qualified mental health professional," a person as defined in
§
27A-1-3;
(25)
"Shelter," a physically-unrestricting home or facility for temporary care of a child;
(26)
"Temporary care," the care given to a child in temporary custody;
(27)
"Temporary custody," the physical and legal control of a child prior to final disposition.
Section
2.
That
§
26-7A-23
be amended to read as follows:
26-7A-23.
A board of county commissioners may provide and maintain at public expense
temporary care, shelter, or detention facilities,
physically
sight and sound
separated from adult
prisoners, where children coming within the provisions of this chapter or chapter 26-8A, 26-8B,
26-8C, or
§
§
26-11A-13 and 26-11A-14, may, if necessary or appropriate, be placed for temporary
care, temporary custody, shelter, or detention as designated by the court, or temporary detention
or shelter by the Department of Corrections. Sections 26-11A-19 and 26-7A-94 governs the costs
of custodial care of children.
Section
3.
That
§
26-7A-26
be amended to read as follows:
26-7A-26.
No apparent, alleged, or adjudicated abused or neglected child may be securely
detained at any time in a jail, lockup, or in any type of detention or temporary care facility
containing adult prisoners.
An apparent, alleged, or adjudicated child in need of supervision may
not be securely detained in a jail, lockup, or in any type of detention or temporary care facility
containing adult prisoners except for approved collocated detention centers as defined in
§
26-7A-1
and as authorized in
§
§
26-8B-3, 26-8B-6, and 26-7A-20.
An apparent
,
or
alleged
, or adjudicated child in need of supervision or an apparent, alleged, or
adjudicated delinquent child fourteen years of age or older may be held in detention in an adult
lockup or jail if physically separated from adult prisoners subject to any restrictions under this
chapter or chapter 26-8A, 26-8B, or 26-8C.
An apparent, alleged, or adjudicated child in need of supervision or an apparent, alleged, or
adjudicated
delinquent child may be held in an adult lockup or jail for up to six hours for purposes
of identification, processing, interrogation, transfer to juvenile facility, or release to parents if the
child is
physically
sight and sound
separated from adult prisoners.
In any area not designated as a metropolitan statistical area by the United States Bureau of the
Census, an apparent or alleged delinquent child may be held in an adult lockup or jail for up to
forty-eight hours excluding holidays and weekends or until the temporary custody hearing,
whichever is earlier, if the facility has been certified by the Department of Corrections as providing
sight and sound separation of juveniles from adults and if no suitable juvenile facility is available.
A child who has been transferred to adult court pursuant to
§
26-11-4 or a child who is being
tried in circuit court as an adult pursuant to
§
26-11-3.1 may be held
in detention
in an adult lockup
or jail if physically separated from adult prisoners.
A child who has attained the age of majority who is under the continuing jurisdiction of the
court may be held
in detention
in an adult jail or lockup.
A child under the age of eighteen years who has been transferred to adult court pursuant to
§
26-11-3.1 or 26-11-4 and who has been convicted of a felony as an adult may be held
in detention
in an adult jail or lockup.
Section
4.
That
§
26-8B-2
be amended to read as follows:
26-8B-2.
In this chapter and chapter 26-7A, the term, child in need of supervision, means:
(1)
Any child of compulsory school age who is habitually absent from school without legal
excuse;
(2)
Any child who has run away from home or is otherwise beyond the control of the child's
parent, guardian, or custodian;
(3)
Any child whose behavior or condition endangers the child's own welfare or the welfare
of others;
or
(4)
Any child who has violated any federal, state, or local law or regulation for which there
is not a penalty of a criminal nature for an adult, except violations of subdivision
34-46-2(2), or petty offenses
; or
(5) Any child who has violated
§
35-9-2
.
Section
5.
That
§
26-8B-3
be amended to read as follows:
26-8B-3.
An apparent or alleged child in need of supervision taken into temporary custody by
a law enforcement officer prior to a temporary custody hearing shall be released to the child's
parents, guardian, or custodian unless the parents, guardian, or custodian cannot be located or in
the judgment of the intake officer are not suitable to receive the child, in which case the child shall
be placed in shelter. A child may be placed in detention for no more than twenty-four hours,
excluding Saturdays, Sundays, and court holidays, if the intake officer finds that the parents,
guardian, or custodian are not available or are not suitable to receive the child, and finds at least
one of the following circumstances exists:
(1)
The child has failed to comply with court services or a court-ordered program;
(2)
The child is being held for another jurisdiction as a parole or probation violator, as a
runaway or as a person under court-ordered detention;
(3)
The child has a demonstrated propensity to run away from the child's home, from
court-ordered placement outside of the child's home or from agencies charged with
providing temporary care for the child;
(4)
The child is under court-ordered home detention in this jurisdiction; or
(5)
There are specific, articulated circumstances which justify the detention for the
protection of the child from potentially immediate harm to the child or to others.
The shelter or detention authorized shall be the least restrictive alternative available.
The child
may be held in detention up to an additional twenty-four hours following the temporary custody
hearing pending transfer to shelter or release.
If the child is accused of or has been found in violation of a valid court order, the child may be
placed in detention for more than twenty-four hours, if a temporary custody hearing, pursuant to
§
26-7A-14, is held within twenty-four hours of the child being placed in a detention facility
, an
interview is conducted with the child, and a written assessment of the child's immediate needs is
provided at the temporary custody hearing. The interview and assessment may be conducted by law
enforcement, states attorney, court services, or other public employee. The child may not be held
in detention greater than seventy-two hours unless revocation proceedings have been initiated
.
If the child is being held for another jurisdiction as a parole or probation violator, as runaway
or as a person under court-ordered detention, the child may be placed in detention for more than
twenty-four hours, and up to seven days, if a temporary custody hearing, pursuant to
§
26-7A-14,
is held within twenty-four hours of the child being placed in a detention facility.
Section
6.
That
§
26-8B-6
be amended to read as follows:
26-8B-6.
If a child has been adjudicated as a child in need of supervision, the court shall enter
a decree of disposition according to the least restrictive alternative available in keeping with the best
interests of the child. The decree shall contain one or more of the following alternatives:
(1)
The court may place the child on probation or under protective supervision in the
custody of one or both parents, guardian, custodian, relative, or another suitable person
under conditions imposed by the court;
(2)
The court may require as a condition of probation that the child report for assignment
to a supervised work program, provided the child is not placed in a detention facility and
is not deprived of the schooling that is appropriate to the child's age, needs, and specific
rehabilitative goals. The supervised work program shall be of a constructive nature
designed to promote rehabilitation, shall be appropriate to the age level and physical
ability of the child and shall be combined with counseling by a court services officer or
other guidance personnel. The supervised work program assignment shall be made for
a period of time consistent with the child's best interests, but may not exceed ninety days;
(3)
If the court finds that the child has violated a valid court order, the court may place the
child in a detention facility, for purposes of disposition if:
(a)
The child is not deprived of the schooling that is appropriate for the child's age,
needs, and specific rehabilitative goals;
(b)
The child had a due process hearing before the order was issued;
and
(c)
Before the issuance of such order, a local interagency team, authorized pursuant
to
§
27A-15-56 shall review the behavior of the child and the circumstances under
which such child was brought before the court and made subject to such order;
determine the reasons for the behavior that caused such child to be brought before
the court and made subject to such order; determine that all dispositions,
including treatment, other than placement in a detention facility or the Department
of Corrections, have been exhausted or are clearly inappropriate; and submit to
the court a written report stating the results of the review and determinations
made
A plan of disposition from a court services officer is provided to the court
;
(4)
The court may require the child to pay for any damage done to property or for medical
expenses under conditions set by the court if payment can be enforced without serious
hardship or injustice to the child;
(5)
The court may commit the child to the Department of Corrections for placement in a
juvenile correctional facility, foster home, group home, group care center, or residential
treatment center pursuant to chapter 26-11A. Prior to placement in a juvenile
correctional facility, an interagency team comprised of representatives from the
Department of Human Services, Department of Social Services, Department of
Education and Cultural Affairs,
and
the Department of Corrections
, and the Unified
Judicial System
shall make a written finding that placement at a Department of
Corrections facility is the least restrictive placement commensurate with the best
interests of the child. Subsequent placement in any other Department of Corrections
facility may be authorized without an interagency review;
(6)
The court may place a child in an alternative educational program;
(7)
The court may order the child to be examined and treated at the Human Services Center;
(8)
The court may impose a fine not to exceed five hundred dollars;
(9)
The court may order the suspension or revocation of the child's driving privilege or
restrict the privilege in such manner as it sees fit or as required by
§
32-12-52.4;
(10)
The court may assess or charge the same costs and fees as permitted by
§
§
16-2-41,
23-3-52, 23A-27-26, and 23A-27-27 against the child, parent, guardian, custodian, or
other party responsible for the child.
No adjudicated child in need of supervision may be incarcerated in a detention facility except
as provided in subdivision (3) or (5) of this section.
Section
7.
That
§
26-8C-2
be amended to read as follows:
26-8C-2.
In this chapter and chapter 26-7A, the term, delinquent child, means any child ten
years of age or older who, regardless of where the violation occurred, has violated any federal,
state, or local law or regulation for which there is a penalty of a criminal nature for an adult, except
state or municipal hunting, fishing, boating, park, or traffic laws that are classified as misdemeanors,
or petty offenses
or any violation of
§
35-9-2
.
Section
8.
That
§
26-11-1
be amended to read as follows:
26-11-1.
If any child under the age of eighteen years is arrested, with or without a warrant, for
a
violation of any law or municipal ordinance for which the child is not subject to proceedings as
a
child in need of supervision as defined in
§
26-8B-2 or a
delinquent child as defined in
§
26-8C-2
or for
a
violation of subdivision 34-46-2(2), the child shall be brought before the judge of a court
having jurisdiction over the offense and proceedings shall be conducted as though the child were
eighteen years of age or older.
A child under the age of eighteen years, subject to proceedings pursuant to this section and
accused of a Class 2 misdemeanor, may be held in or sentenced to
an adult lockup or jail or
a
detention or temporary care facility for up to seven days if
physically
sight and sound
separated
from adult prisoners.
No child may be held in or sentenced to a detention facility for a violation of
subdivision 34-46-2(2).
A child under the age of eighteen years, subject to proceedings pursuant to this section and
accused of a Class 1 misdemeanor, may be held in or sentenced to
an adult lockup or jail or
a
detention or temporary care facility for up to thirty days if
physically
sight and sound
separated
from adult prisoners.
Section
9.
That
§
24-11-1
be amended to read as follows:
24-11-1.
The
word "jail"
term, jail,
as used in this chapter includes any building or place
provided or used by any county, municipality, or civil township for the detention of
adult
persons
convicted or accused of the violation of any law of this state, any ordinance or bylaw of any
municipality
,
or civil township, or any rule or regulation of any board, commission, or public officer
having the effect of law; or for the detention of
adult
persons held as witnesses or committed for
contempts, except juvenile detention facilities located outside jails and lockups
and approved
collocated detention facilities
operated by counties. The governing body or commission responsible
for the operation of a jail shall classify its jails based upon the types of persons detained therein and
the maximum length of detention of persons in such jails.
Section
10.
That
§
24-11-16
be amended to read as follows:
24-11-16.
The sheriff or other officer having charge of any jail shall keep jail records. These
records shall be carefully kept and preserved and delivered to such officer's successor in office.
Such
The
officer shall exhibit these records to any judge of the circuit court
when
, if
requested to
do so
, and to the Department of Corrections for the purposes on monitoring compliance with the
requirements of the Juvenile Justice and Delinquency Prevention Act pursuant to
§
1-15-28
.
Section
11.
That
§
32-12-52.4
be amended to read as follows:
32-12-52.4.
Upon a first conviction or a first adjudication
of delinquency
as a child in need of
supervision
for
a
violation of
§
35-9-2 while in a motor vehicle, the court shall suspend the driver
license or driving privilege of any driver of a vehicle who was under the age of twenty-one when
the offense occurred, for a period of six months.
Upon a second or subsequent conviction or a second or subsequent adjudication
of delinquency
as a child in need of supervision
for
a
violation of
§
35-9-2 while in a motor vehicle, the court shall
suspend the driver license or driving privilege of any driver of a vehicle who was under the age of
twenty-one when the offense occurred, for a period of one year. For any offense under this section,
the court may issue an order permitting the person to operate a motor vehicle for purposes of the
person's employment, attendance at school, or attendance at counseling programs.
Notwithstanding the provisions of chapters 26-7A, 26-8A, 26-8B, and 26-8C, the Unified
Judicial System shall notify the Department of Commerce and Regulation of any conviction or
adjudication for a violation, while in a motor vehicle, of
§
35-9-2 or chapter 32-23. The period of
suspension shall begin on the date the person's suspended driver license is received by the court or
the Department of Commerce and Regulation. At the expiration of the period of suspension, a
person may make application to have the license reinstated and pay the license fee as prescribed in
§
32-12-47.1.
Section
12.
That
§
26-7A-15
be amended to read as follows:
26-7A-15.
The officer or party who takes a child into temporary custody, with or without a
court order, except under a court order issued during a noticed hearing after an action has been
commenced, shall immediately, without unnecessary delay in keeping with the circumstances,
inform the child's parents, guardian, or custodian of the temporary custody and of the right to a
prompt hearing by the court to determine whether temporary custody should be continued. If the
child's parents, guardian, or custodian cannot be located after reasonable inquiry, the officer or
party taking temporary custody of the child shall report that fact and the circumstances immediately
to the state's attorney. The state's attorney shall notify the child's parents, guardian, or custodian,
without unnecessary delay, of the time, date, and place of the temporary custody hearing. The
hearing shall be held within forty-eight hours if it concerns any apparent abused or neglected child
or if it concerns any apparent delinquent child pursuant to
§
26-8C-3
or within twenty-four hours
if it concerns
any apparent delinquent child pursuant to
§
26-8C-3 or
any apparent child in need of
supervision pursuant to
§
26-8B-3, excluding Saturdays, Sundays, and court holidays, after taking
the child into temporary custody, unless extended by order of the court. Failure to notify the child's
parents, guardian, or custodian of the temporary custody hearing is not cause for delay of the
hearing if the child is represented by an attorney at the hearing.
Section
13.
That
§
26-7A-20
be amended to read as follows:
26-7A-20.
If the child is an apparent, alleged, or adjudicated child in need of supervision, after
the temporary custody hearing the court shall release the child from temporary custody to the child's
parents, guardian, or custodian, with or without restriction or condition or upon written promise
of the parents, guardian, or custodian regarding care and supervision of the child, unless the court
finds that the child should continue to be held in temporary custody for any of the following
reasons:
(1)
The child has failed to comply with court services or a court-ordered program;
(2)
The child is being held for another jurisdiction as a parole or probation violator, as a
runaway, or as a child under other court-ordered detention;
(3)
The child has a demonstrated propensity to run away from the child's home, from
court-ordered placement outside of the child's home, or from agencies charged with
providing temporary care for the child;
(4)
The child is under court-ordered home detention in this jurisdiction;
(5)
There are specific, articulated circumstances which justify the detention for the
protection of the child from potentially immediate harm to the child's self or to others;
or
(6)
The child is a material witness, the detention is necessary because of implications of
tampering with the child, and an affidavit so stating is filed with the court.
An apparent, alleged, or adjudicated child in need of supervision may not be placed in detention
for longer than twenty-four hours
after the temporary custody hearing unless the child has been
accused of or has been found in violation of a valid court order.
Section
14.
That
§
26-9-2
be amended to read as follows:
26-9-2.
When any person is prosecuted under
§
26-9-1, and the charge against such person
concerns the abuse or neglect of a child, the offense for convenience may be termed contributory
abuse or contributory neglect.
When
If
it concerns the delinquency of a child, for convenience it
may be termed contributory delinquency.
If it concerns a child in need of supervision, for
convenience it may be termed contributing to the child's status as a child in need of supervision.