Revision: Jan. 29, 2013, midnight
SB 129-FN –AS INTRODUCED
2013 SESSION
05/04
SENATE BILL 129-FN
AN ACT relative to court-ordered placements in shelter care facilities and at the Sununu Youth Services Center.
SPONSORS: Sen. Odell, Dist 8; Sen. Kelly, Dist 10; Rep. Harding, Graf 13
This bill:
I. Limits the commitment of children to the youth development center to cases where a court is presented with evidence that a juvenile is dangerous.
II. Provides a definition for shelter care facility in cases involving juvenile delinquency and children in need of services.
III. Requires that the department make treatment available in both non-secure and secure settings.
IV. Creates a presumption of parole after 6 months for children at the youth development center for non-violent offenses.
V. Provides for a right to counsel for children facing revocation of their parole from the youth development center, which cannot be waived if the child has a disability.
VI. Provides for periodic court review of cases where a juvenile is held at the youth development center for more than 6 months.
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Explanation: Matter added to current law appears in bold italics.
Matter removed from current law appears [in brackets and struckthrough.]
Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.
13-0845
05/04
STATE OF NEW HAMPSHIRE
In the Year of Our Lord Two Thousand Thirteen
AN ACT relative to court-ordered placements in shelter care facilities and at the Sununu Youth Services Center.
Be it Enacted by the Senate and House of Representatives in General Court convened:
1 Delinquent Children; Dispositional Hearing; Commitment. Amend RSA 169-B:19, I(j) to read as follows:
(j) Commit the minor to the custody of the department of health and human services for the remainder of minority. Commitment under this subparagraph may only be made following written findings of fact by the court, supported by clear and convincing evidence, that commitment is necessary to protect the safety of the minor or of the community. Commitment may include, but is not limited to, placement by the department of health and human services at a facility certified for the commitment of minors pursuant to RSA 169-B:19, VI, administrative release to parole pursuant to RSA 621:19, or administrative release consistent with the cap on youth development center population under RSA 621:10, provided that the appropriate juvenile probation and parole officer is notified.
2 New Paragraph; Delinquent Children; Definition of Shelter Care Facility. Amend RSA 169-B:2 by inserting after paragraph XIII the following new paragraph:
XIV. “Shelter care facility” means a non-secure or staff-secure facility for the temporary care of children no less than 11 nor more than 17 years of age. Shelter care facilities may be utilized for children prior to or following adjudication or disposition. Programming at shelter care facilities is focused on providing a safe, supervised, homelike environment to allow for support and stabilization of youth who may have been removed from their families. Programming also may include education, assessment, and family intervention with access to health care and mental health services. Each facility may provide care for no more than 20 children at any one time. A shelter care facility may not be operated in the same building as a facility for architecturally secure confinement of children or adults.
3 New Paragraph; Children in Need of Services; Definition of Shelter Care Facility. Amend RSA 169-D:2 by inserting after paragraph XIII by following new paragraph:
XIV. “Shelter care facility” means a non-secure or staff-secure facility for the temporary care of children no less than 11 nor more than 17 years of age. Shelter care facilities may be utilized for children prior to or following adjudication or disposition. Programming at shelter care facilities is focused on providing a safe, supervised, homelike environment to allow for support and stabilization of youth who may have been removed from their families. Programming also may include education, assessment, and family intervention with access to health care and mental health services. Each facility may provide care for no more than 20 children at any one time. A shelter care facility may not be operated in the same building as a facility for architecturally secure confinement of children or adults.
4 New Paragraph; New Hampshire Youth Development Center; Treatment Services in Least Restrictive Environment. Amend RSA 621:1 by inserting after paragraph II the following new paragraph:
III. To ensure that juveniles are placed in the least restrictive environment consistent with their treatment needs, their safety, and the safety of the community, the department shall not establish treatment services at the youth development center or other architecturally secure facility which are not also available to children living in the community or in settings other than architecturally secure settings.
5 New Paragraph; Release and Discharge from Youth Development Center. Amend RSA 621:19 by inserting after paragraph I the following new paragraph:
I-a. The board shall release any child committed to its care for a delinquency adjudication based on an offense other than a violent crime as defined in RSA 169-B:35-a no later than 6 months following the child's commitment pursuant to RSA 169:19, I(j). Release is not required under this paragraph during the period that a child is the subject of a delinquency petition which is awaiting adjudication or disposition. The department may seek a waiver of this provision from the court which ordered the commitment of the child, which may be granted by the court following written findings of fact supported by clear and convincing evidence that continued commitment is necessary to protect the safety of the minor or of the community. Such a waiver may be granted for up to 90 days. The number of waivers which may be granted in a particular case is not limited.
6 New Section; Parole of Delinquents; Right to Counsel of Children Subject to Parole Revocation. Amend RSA 170-H by inserting after section 10 the following new section:
170-H:10-a Right to Counsel of Children Subject to Parole Revocation.
I. Every child subject to revocation of parole has the right to the assistance of counsel, which may not be waived except following consultation between the child and a parent or counsel. Consultation between a child and parent is not sufficient to support waiver under this section if the parent was a victim or complainant in the underlying proceeding or is a witness or provided information in support of the basis for revocation in the parole revocation proceeding. Children known to the department or the board to have an emotional disorder, intellectual disability, or any other condition which may be expected to interfere with a child's ability to understand the proceedings, make decisions, or otherwise handle the proceedings without the assistance of counsel may not waive their right to counsel.
II. For purposes of this section, a child shall be considered a child who is subject to a parole revocation proceeding if the child has been released pursuant to RSA 170-H:5 or RSA 621:19, I for longer than a total of 30 days during one or more periods of release and is subject to return under RSA 621:25.
III. The commissioner shall adopt rules, pursuant to RSA 541-A, to establish procedures for providing effective notice to children subject to parole revocation proceedings of the right to counsel, for determining if a waiver of the right to counsel by a child is knowing, voluntary, and intelligent, and for the accurate determination of the existence of a disability which would interfere with a child's ability to understand the proceedings, make decisions, or otherwise handle the proceedings without the assistance of counsel.
7 Delinquent Children; Case Closure and Review of Disposition. Amend RSA 169-B:31 to read as follows:
169-B:31 Case Closure and Review of Disposition. Upon making a finding that the purposes of this chapter have been met with regard to the minor named in the petition, or for such other reason the court may deem appropriate and consistent with the purposes of this chapter, the court may order a case closed. Any case remaining open for 12 months after the date of the disposition shall be reviewed by the court annually and closed, unless the court finds by a preponderance of the evidence that the continued provision of services and court involvement are necessary and shall be fruitful to rehabilitate the minor or protect the public interest. All such findings shall be in writing and shall include the basis upon which those findings were made. Upon request by the child, the court shall also review any case in which the child remains at the youth development center more than 6 months after the order of commitment without having been released on parole or having been returned to the youth development center following revocation of parole. Successive requests for review shall be granted upon request by the child but the court may deny such requests without a hearing if a review was held less than 90 days prior to receipt of a request for review.
8 Effective Date. This act shall take effect 60 days after its passage.
LBAO
13-0845
Revised 01/29/13
SB 129 FISCAL NOTE
AN ACT relative to court-ordered placements in shelter care facilities and at the Sununu Youth Services Center.
FISCAL IMPACT:
The Department of Health and Human Services, Judicial Branch, and Judicial Council state this bill, as introduced, will increase state expenditures by an indeterminable amount in FY 2014 and in each year thereafter. There will be no fiscal impact on state, county, and local revenue, or county and local expenditures.
METHODOLOGY:
The Department of Health and Human Services states this bill would make the following changes to the current law concerning court ordered placements:
• Requires the courts, when committing a child to the Sununu Youth Services Center (SYSC), to make written findings of fact, by clear and convincing evidence the committal necessary to protect the safety of the minor or the community. The Department assumes this standard is not substantially different from the current standard employed by the courts and expects the change would have little impact on the number of committals, or expenditures of the SYSC.
• Creates a new definition of “shelter care facility” for Delinquents and Children in Need of Services (CHINS). The definition would limit the use of shelter care based on the age of the child and the stage of the proceeding. The bill would define a programming focus for shelter care, list programming possibilities, provide for a census cap at shelter care facilities, and place restrictions on the type of facilities that could provide the services. The Department is not able to determine how this will impact existing shelter care arrangements or impact the cost of providing shelter care services.
• Prohibits the Department from developing treatment services at the SYSC unless those services are also available in the community. The Department assumes this requirement would be prospective and would require the Department to ensure any new treatment services at SYSC would also be made available in the community. The Department assumes there would be additional costs associated with duplicating services in the community, but the cost would depend on the type and cost of the particular service and cannot be determined.
• Requires the Juvenile Parole Board release certain youth within 6 months of committal unless waived by the court. Upon petition, the requirement to release the child could be further waived by the court at successive 3-month intervals. The Department states the additional procedural requirements would increase the workload of the Department and court personnel, but assumes the requirements will not substantially alter the length of commitments.
• Creates a statutory right to counsel for youths at parole revocation hearings. The Department assumes these costs would be borne by the Judicial Branch or Judicial Council and the requirement would have no fiscal impact on the Department.
• Provides for mandatory court review, upon request of the child, in instances where the child remains a SYSC for more than 6 months from committal. Subsequent reviews, upon request of the child, would be required up to every 3 months thereafter. The Department assumes attendance at the reviews and the outcome of the reviews will have a fiscal impact on personnel and fiscal resources. The Department is not able to project the number of reviews or the number of youths who may be released from SYSC and cannot estimate the fiscal impact.
The Judicial Branch states this bill would amend several statutes regarding court-ordered placements in shelter care facilities and at the Sununu Youth Service Center, but it would not add new juvenile delinquency or CHINS cases to the system. The Branch indicates there is no fiscal impact associated with the written findings of fact, by clear and convincing evidence before commitment to the Department of Health and Human Services as this is already being done by the court. The Branch states the discharge and waiver provisions will result in a limited number of additional hearings before the family division of the circuit court. The Branch assumes any fiscal impact related to these additional hearings will be small since the number of children committed to the SYSC is small and the hearings are not complex. The Branch states the amendment to RSA 169-B:31 regarding case closure and review could result in a very limited number of additional hearings which are not complex.
The Judicial Council states there currently is no statutory right to the assistance of counsel for a juvenile subject to a revocation of parole from the SYSC and the New Hampshire Public Defender is not notified of allegations of parole violations in juvenile matters and does not participate in revocation of parole proceedings. The Council states the bill expressly creates a right to the assistance of counsel for juveniles in parole revocation proceedings and a right to review of a juvenile’s detention status after 6 months, but the bill does not address which entity would be financially responsible for the cost. The Council assumes, because parallel adult parole board proceedings involve the Public Defender Program, a similar procedure would be instituted as a result of this bill to provide for the appointment of counsel for juveniles. The Council assumes the Public Defender Program would work with the Juvenile Parole Board to develop procedures in parole revocation matters whereby the parole board would process a financial affidavit and request for appointment of counsel to be submitted to the court that ordered the child placed at the SYSC. The Council assumes the courts would be responsible for appointments and the Judicial Council would be responsible for payment. The Council states the cost for a parole board case would be $206.25 if handled by a public defender and if the case were to go to assigned council the cost would be $60 per hour with a fee cap of $1,700. The Council is not able to determine how many juvenile parole matters would require the appointment of counsel.