Revision: March 18, 2013, midnight
SB 129-FN –AS AMENDED BY THE SENATE
03/14/13 0743s
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, relative to the children in need of services (CHINS) program, and establishing a committee to study programs for children in need.
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.
VII. Expands the definition of a child in need of services under RSA 169-D and revises the procedure for filing a CHINS petition and the circumstances under which the court may order various services or placements.
VIII. Adds requirements to truancy policies adopted by school boards.
IX. Establishes a committee to develop a program to address children in need.
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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Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.
03/14/13 0743s
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, relative to the children in need of services (CHINS) program, and establishing a committee to study programs for children in need.
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. 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. 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, pursuant to paragraph I, 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.
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 Rules Adopted by the Juvenile Parole Board. Amend RSA 170-H:4, III(d) and (e) to read as follows:
(d) Procedures for revocation of parole[; and]
(e) Conditions under which the department may return a parolee to a secure facility pending action by the board[.] ; and
(f) 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.
9 Definition of Child in Need of Services. RSA 169-D:2, II is repealed and reenacted to read as follows:
II. “Child in need of services” means a child under the age of 18:
(a) Who is subject to compulsory school attendance, and who is habitually, willfully and without good and sufficient cause truant from school;
(b) Who habitually runs away from home, or who repeatedly disregards the reasonable and lawful commands of his or her parents, guardian or custodian and places himself or herself or others in unsafe circumstances;
(c) Who has exhibited willful repeated or habitual conduct constituting offenses which would be violations under the criminal code of this state if committed by an adult or, if committed by a person 16 years of age or older, would be violations under the motor vehicle code of this state; or
(d) With a diagnosis of severe emotional, cognitive, or other mental health issues who engages in aggressive, fire setting, or sexualized behaviors that pose a danger to the child or others and who is otherwise unable or ineligible to receive services under RSA 169-B or RSA 169-C.
10 Definition of Out-of-Home Placement. Amend RSA 169-D:2, XI to read as follows:
XI. “Out-of-home placement” means when a minor, as the result of a [delinquent] child in need of services petition, is removed from a biological parent, adoptive parent, or legal guardian of the minor and placed in substitute care with someone other than a biological parent, adoptive parent, or legal guardian. Such substitute care may include placement with a custodian, guardian, relative, friend, group home, crisis home, shelter care, or a foster home.
11 Children in Need of Services; Petition. Amend RSA 169-D:5, I to read as follows:
I.(a) A petition alleging that a child is in need of services under RSA 169-D:2, II(a) may be filed by a truant officer or school official from the school district where the child is attending school with a judge or clerk of the court in the judicial district where the child is found or resides. In accordance with RSA 189:36, II, a truant officer or school official shall not file a petition alleging that a child is in need of services under RSA 169-D:2, II(a) until all steps in the school district’s intervention process under RSA 189:34, II have been followed.
(b) A petition alleging that a child is in need of services under RSA 169-D:2, II(b) or RSA 169-D:2, II(c) may be filed by a parent, legal guardian or custodian, school official, or law enforcement officer with a judge or clerk of the court in the judicial district in which the child is found or resides.
(c) A petition alleging that a child is in need of services under RSA 169-D:2, II(d) may, with the consent of the department, be filed by a parent, legal guardian or custodian, school official, or law enforcement officer with a judge or clerk of the court in the judicial district in which the child is found or resides.
I-a. The petition shall be in writing and verified under oath. The following notice shall be printed on the front of the petition in bold in no smaller than 14 point font size: “See back for important information and financial obligations.” The back of the petition shall include a notice of liability for parents and other individuals chargeable by law for the child’s support and necessities.
12 Children in Need of Services; Release Prior to Initial Appearance. Amend RSA 169-D:10, II and III to read as follows:
II. Pending the initial appearance, the court shall release the child to one of the following, which in the court’s opinion is the least restrictive and most appropriate:
(a) A parent or guardian;
(b) A relative or suitable adult;
(c) Where there are reasonable grounds to believe that the child is a runaway under RSA 169-D:2, II(b) or that the child is a child in need of services under RSA 169-D:2, II(d), the custody of department of health and human services for placement in a foster home, as defined in RSA 169-C:3, XIII, a group home, a crisis home, or a shelter care facility with expenses chargeable as provided in RSA 169-D:29; or
(d) [Repealed.]
(e) An alcohol crisis center certified to accept juveniles.
III. Where there are reasonable grounds to believe that the child is a runaway under RSA 169-D:2, II(b) or that the child is a child in need of services under RSA 169-D:2, II(d) and [Should] there [be] is no shelter care/detention bed available, nor an appropriate parent, guardian, or custodian as defined in paragraph II of this section available, the court or the officer taking the child into temporary custody shall notify the department. If the child cannot be referred to an alternative to secure detention, the court shall make an order authorizing the department to place the child. The department shall then promptly arrange for placement of the child.
13 Children in Need of Services; Release Pending Adjudicatory Hearing. Amend RSA 169-D:13, I to read as follows:
169-D:13 Release Pending Adjudicatory Hearing.
I. Following the initial appearance, a child alleged to be in need of services may be ordered by the court subject to such conditions as the court may order, to be:
(a) Retained in the custody of a parent, guardian, or custodian; or
(b) Released in the supervision and care of a relative; or
(c) Where the petition alleges that the child is a habitual runaway under RSA 169-D:2, II(b) or that the child is a child in need of services under RSA 169-D:2, II(d), released to the custody of the department of health and human services for placement in a foster home, as defined in RSA 169-C:3, XIII, a group home, a crisis home, or a shelter care facility with expenses chargeable as provided in RSA 169-D:29.
(d) [Repealed.]
I-a. Where the petition alleges that the child is a habitual truant under RSA 169-D:2, II(a), that the child repeatedly disregards the reasonable and lawful commands of his or her parents guardian or custodian under RSA 169-D:2, II(b), or that the child repeatedly or habitually engages in conduct that constitutes violation level offenses under RSA 169-D:2, II(c), the court shall not order the out of home placement of the child.
14 Children in Need of Services; Dispositional Hearing. Amend RSA 169-D:17, I to read as follows:
I. If the court finds the child is in need of services, it shall order the least restrictive and most appropriate disposition considering the facts in the case, the investigation report, and the dispositional recommendations of the parties and counsel. The dispositional recommendation of the department of health and human services shall include the costs of the recommended services, placements, and programs. Such disposition may include:
(a) Permitting the child to remain with a parent, guardian, relative or custodian, subject to such limitations and conditions as the court may prescribe, including:
(1) Ordering the child or parent, guardian, relative or custodian, or both, to accept individual or family counseling;
(2) Placing the child on conditional release for a term of 2 years or less.
(b)(1) Releasing the child in the supervision and care of a relative or suitable adult; or
(2) (A) Where the petition alleges that the child is a habitual runaway under RSA 169-D:2, II(b) or that the child is a child in need of services under RSA 169-D:2, II(d), releasing the child to the custody of the department of health and human services for placement in a foster home, as defined in RSA 169-C:3, XIII, a group home, a crisis home, or a shelter care facility with expenses charged in accordance with RSA 169-D:29.
(B) Notwithstanding subparagraph (A), where the petition alleges that the child is a habitual truant under RSA 169-D:2, II(a), that the child repeatedly disregards the reasonable and lawful commands of his or her parents, guardian, or custodian under RSA 169-D:2, II(b), or that the child repeatedly or habitually engages in conduct that constitutes violation level offenses under RSA 169-D:2, II(c), the court shall not order the out of home placement of the child.
(c) Imposing a fine or restitution, or both, on a child who has committed an offense which, if committed by an adult, would be a violation under the criminal code of this state; or has committed an offense which, if committed by a person 16 years of age or older, would be a violation under the motor vehicle code of this state; or has violated an ordinance or bylaw of a city or town. Such fine shall not exceed the fine which may be imposed against an adult for the same offense.
(d) Ordering the minor to perform up to 50 hours of uncompensated public service subject to the approval of the elected or appointed official authorized to give approval of the city or town in which the offense occurred. The court’s order for uncompensated public service shall include the name of the official who will provide supervision to the minor. However, no person who performs such public service under this subparagraph shall receive any benefits that such employer gives to its other employees, including, but not limited to, workers’ compensation and unemployment benefits and no such employer shall be liable for any damages sustained by a person while performing such public service or any damages caused by that person unless the employer is guilty of gross negligence.
(e) Requiring any child to attend structured after-school or evening programs which address some of the child’s compliance issues, as well as supervise the child during the time of the day in which the child most values his or her freedom and the time which is most often used to perform unruly acts. The cost of said programs shall be paid by private insurance, if available, or otherwise by the child, parent, guardian, or person having custody of the child, or may be available to the child free of charge based on the limited means of the family or based on the program’s receipt of other funding. Payment shall be made pursuant to RSA 169-D:29 only for those programs that have been certified pursuant to RSA 170-G:4, XVIII.
15 School Board Truancy Policy. Amend RSA 189:34, II(b) to read as follows:
(b) A process for intervention designed to address individual cases of truancy as quickly as possible and to reduce the number of habitual truants in the school district. The process shall consider and document the effect, if any, on the child’s attendance of the following: inconsistent and ineffective school attendance policies; poor record keeping; notification provided to parents or guardians of the child’s absences; unsafe school environment; poor school climate; poor relations with teachers; and the adequacy of the identification of the child’s special education needs. The board shall provide for the participation of parents in the development of the policy. The policy shall include early parental involvement in the intervention process. The policy shall also designate an employee in each school as the person responsible for truancy issues.
16 Committee Established. There is established a committee to study and develop a program to address children in need.
17 Membership and Compensation.
I. The members of the committee shall be as follows:
(a) Five members of the house of representatives, appointed by the speaker of the house of representatives.
(b) One member of the senate, appointed by the president of the senate.
II. Members of the committee shall receive mileage at the legislative rate when attending to the duties of the committee.
18 Duties. The committee shall study and develop a program to address children in need. The committee shall:
I. Consult with the National Conference of State Legislatures on best practices for serving children in need, examine similar programs from other states, and review the CHINS (children in need of services) program under RSA 169-D as previously implemented.
II. Identify a program model or structure appropriate for New Hampshire and draft recommendations for a program to address children in need.
III. Solicit information and testimony from any individual or entity with experience or expertise relevant to the study.
19 Chairperson; Quorum. The members of the study committee shall elect a chairperson from among the members. The first meeting of the committee shall be called by the first-named house member. The first meeting of the committee shall be held within 45 days of the effective date of this section. Three members of the committee shall constitute a quorum.
20 Report. The committee shall report its findings and any recommendations for proposed legislation to the speaker of the house of representatives, the president of the senate, the house clerk, the senate clerk, the governor, the chief justice of the supreme court, and the state library on or before November 1, 2013.
21 Effective Date.
I. Sections 16-20 of this act shall take effect upon its passage.
II. The remainder of 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.