HB646 (2018) Detail

Relative to the placement and detention of a minor in a secure facility.


HB 646-FN - AS AMENDED BY THE HOUSE

 

15Feb2017... 0347h

2017 SESSION

17-0653

05/04

 

HOUSE BILL 646-FN

 

AN ACT relative to the placement and detention of a minor in a secure facility.

 

SPONSORS: Rep. Kurk, Hills. 2; Rep. Wallner, Merr. 10; Rep. M. Smith, Straf. 6; Rep. Kotowski, Merr. 24; Sen. Bradley, Dist 3; Sen. Reagan, Dist 17

 

COMMITTEE: Children and Family Law

 

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AMENDED ANALYSIS

 

This bill:

 

I.  Limits the cases for which secure detention may be ordered under RSA 169-B.

 

II.  Requires the commissioner of health and human services to maintain certification of at least one residential treatment facility.

 

III.  Limits the period of secure detention following an adjudicatory hearing under RSA 169-B.

 

IV.  Requires most delinquency cases, other than those involving serious violent offenses, to be closed within 2 years of adjudication.

 

V.  Provides for the release of a child from the youth services center 3 months from the date of commitment, unless a longer commitment period is required to protect the safety of the child or community, in which case, the board shall periodically review the case and appoint counsel for the child.

 

VI.  Requires the department of health and human services to review the case of every child committed to the youth services center on a quarterly basis to determine whether a less restrictive placement is possible.

 

VII.  Reduces the capacity of the youth services center and increases placement of children under RSA 169-B at alternative shelters and facilities.

 

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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Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.

15Feb2017... 0347h 17-0653

05/04

 

STATE OF NEW HAMPSHIRE

 

In the Year of Our Lord Two Thousand Seventeen

 

AN ACT relative to the placement and detention of a minor in a secure facility.

 

Be it Enacted by the Senate and House of Representatives in General Court convened:

 

1  Statement of Findings.  The general court finds that:

I.  Placement in corrections settings can be harmful to children and lead to increased delinquency and adult criminal behavior.  It should therefore be reserved for those circumstances in which the safety of a child or of the community requires such confinement.

II.  Corrections placements are the most expensive treatment for court-involved juveniles, in part because such placements are largely not eligible for Medicaid and other federal financial participation;

III.  Although in the last several years New Hampshire has experienced a loss of residential and community treatment capacity, it continues to have sufficient licensed residential treatment capacity which, if supported by proper staffing ratios and payment rates, is available for alternative placement for minors currently being placed at the Sununu youth services center (SYSC) who are not serious violent offenders; and

IV.  Placement of children who are not serious violent offenders in settings other than SYSC would be less expensive and lead to better outcomes for children, their families, and the community.

2  New Subparagraph; Delinquent Children; Release or Detention Pending Adjudicatory Hearing.  Amend RSA 169-B:14, I(e) by inserting after subparagraph (2) the following new subparagraph:

(3)  Secure detention shall not be ordered for delinquency charges based on violations of RSA 637, possessory offenses without the intent to sell under RSA 318-B, or violations of RSA 262, 634, 635, 641, or 644, which would be a misdemeanor if committed by an adult.

3  Dispositional Hearing.  Amend RSA 169-B:19, VI to read as follows:

VI.  A minor committed to the youth development center for the remainder of minority may be placed at any facility certified by the commissioner of the department of health and human services for the commitment of minors.  The commissioner of the department of health and human services shall be responsible for notifying the court, within 5 business days, of any such placement and of any subsequent changes in placement made within 60 days of the original placement.  The commissioner shall maintain certification of at least one Medicaid-eligible residential treatment facility for the transfer pursuant to this paragraph of non-violent offenders beginning January 1, 2018, and no fewer than 2 such facilities no later than July 1, 2018.

4  New Section; Limits on Extended Detention.  Amend RSA 169-B by inserting after section 16 the following new section:

169-B:16-a  Limits on Extended Detention Following Adjudicatory Hearing.  Following an adjudicatory hearing, a child shall not be securely detained for a period or periods totaling longer than 42 days while awaiting disposition of a charge or charges arising out of a single incident.  The court may permit extended detention beyond this limit if it finds by clear and convincing evidence that extended detention is necessary for the safety of the child or the public and the child consents with the assistance of counsel.  In any case involving a child who is detained, the court shall ensure that the child is continuously represented by counsel during any period of detention.  In cases where extended detention is permitted, the court shall hold review hearings with the child and counsel present on a weekly basis to determine whether detention continues to be justified.

5  Dispositional Hearing.  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, and may only be made if the minor has not waived the right to counsel at any stage of the proceedings.  Commitment may not be based on a finding of contempt of court if the minor has waived counsel in the contempt proceeding or at any stage of the proceedings from which the contempt arises.  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.  Commitment under this subparagraph shall not be ordered as a disposition for a violation of RSA 637, possession of a controlled drug without intent to sell under RSA 318-B, or violations of RSA 262, 634, 635, 641, or 644, which would be a misdemeanor if committed by an adult.  However, commitment may be ordered under this subparagraph for any offense which would be a felony or class A misdemeanor if committed by an adult if the minor has previously been adjudicated under this chapter for at least 3 offenses which would be felonies or class A misdemeanors if committed by an adult.  A court may only commit a minor based on previous adjudications if it finds by clear and convincing evidence that each of the prior offenses relied upon was not part of a common scheme or factual transaction with any of the other offenses relied upon, that the adjudications of all of the prior offenses occurred before the date of the offense for which the minor is committed, and that the minor was represented by counsel at each stage of the prior proceedings following arraignment.

6  New Section; Dispositions and Case Closure in Certain Cases.  Amend RSA 169-B by inserting after section 31-b the following new section:

169-B:31-c  Dispositions and Case Closure in Certain Cases.  Notwithstanding any other provision of this chapter, the court shall close all cases other than those involving serious violent offenses no later than 2 years after the date of adjudication.  This section shall not apply if, with the assistance of counsel, the minor consents to continued jurisdiction.  In this section, "serious violent offenses" means first degree murder, second degree murder, attempted murder, manslaughter, negligent homicide under RSA 630:3, II, first degree assault, second degree assault, except when the allegation is a violation of RSA 631:2, I(d), felonious sexual assault, aggravated felonious sexual assault, kidnapping, criminal restraint, robbery punishable as a class A felony, burglary while armed or involving the infliction of bodily harm under RSA 635:1, II, or arson punishable as a felony.

7  Youth Development Center; Releases and Discharges.  Amend RSA 621:19, I-a to read as follows:

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 from the date of the child's commitment pursuant to RSA 169-B:19, I(j), unless the board determines that continued commitment is necessary in order to protect the safety of the child or the community, and in such case declines to release the child.  Such release shall occur no later than 3 months from the date of the child's commitment if the offense would be a misdemeanor if committed by an adult. If the board declines to release a child pursuant to this paragraph, it shall provide written notice to the child of his or her right to seek review of the board's decision, of his or her right to the assistance of counsel during the review process, and of the procedure the child may follow to initiate such a review.  If the board declines to release a child pursuant to this paragraph, it shall consider the child for release no later than 2 months after its initial decision, and every 2 months thereafter until the child is released.  If the board declines to release a child pursuant to this paragraph on a second or subsequent occasion, it shall notify the court that committed the child, and the court shall appoint counsel in each such case to assist the child in filing a petition pursuant to paragraph I-b. Parole review and release under this paragraph are not required during the period that a child is the subject of a delinquency petition which is awaiting adjudication or disposition.

8  New Paragraph; Youth Services Center; Releases and Discharges.  Amend RSA 621:19 by inserting after paragraph III the following new paragraph:

IV.  The department shall review, on a quarterly basis, the case of every child committed to the Sununu youth services center who is not a serious violent offender to determine if the child can safely be placed outside the Sununu youth services center.  The department shall petition the court to modify the disposition of those cases in which a safe placement outside of the Sununu youth services center is possible.  In this paragraph, "serious violent offender" means an offender adjudicated for a violent crime as defined in RSA 169-B:35-a, I(c) or any other felony which has as an element the actual or attempted infliction of injury upon another person within the previous 2 years or adjudicated for an offense within the last year that created a substantial risk of serious bodily injury to another.

9  Youth Services Center; Population.  Amend RSA 621:10, I to read as follows:

I.  No residential facility at or under the control of the youth development center shall exceed, for a period of more than 24 hours, Sundays and holidays excluded, the maximum capacity for the facility as fixed by a population oversight panel composed of the fire marshal, the commissioner of the department of health and human services, and the assistant commissioner of transportation; provided that, beginning September 1, 2018, such maximum capacity shall not exceed 72 residents.

10  Alternative Placement Capacity for Youth; Reporting Requirement.  The commissioner shall ensure that sufficient alternative placement capacity is in place for those children who prior to this act would have been placed at the Sununu youth services center.  On or before September 1, 2017, a plan for development of such capacity shall be provided to the fiscal committee of the general court, and the plan shall be updated on a monthly basis until it is fully implemented.  The plan shall provide for an increase in the state's capacity for placement in Medicaid-eligible settings of not less than 60 minors who will no longer be eligible for placement at the Sununu youth services center.  The increase in capacity shall be implemented no later than January 1, 2018, and include a rate structure which supports the staffing ratios and other resources necessary for the safe and effective treatment of such children in residential and other treatment settings.

11  Lease of Property; Sununu Youth Services Center.  Notwithstanding RSA 10, the commissioner of the department of administrative services shall offer for lease those portions of the Sununu youth services center building that are not needed to care for maximum capacity of 72 residents established in section 9 of this act.  The effective date of the lease shall be on or after September 1, 2018.

12  Applicability.

I.  RSA 169-B:19, I(j), as amended by section 5 of this act, shall apply to cases pending on May 1, 2018 in which a dispositional order has not yet been entered.

II.  RSA 169-B:31-c, as inserted by section 6 of this act, shall apply to cases commenced after July 1, 2016.

III.  RSA 621:19, I-a, as amended by section 7 of this act, shall apply to minors confined pursuant to a commitment order at the Sununu youth services center or any successor facility after January 1, 2018.

IV.  RSA 621:19, IV, as inserted by section 8 of this act, shall apply to cases in which a minor is committed to the Sununu youth services center or any successor facility after January 1, 2018.

13  Effective Date.

I.  Sections 2 and 5 of this act shall take effect May 1, 2018.

II.  Sections 6 and 10 of this act shall take effect upon its passage.

III.  The remainder of this act shall take effect January 1, 2018.

 

LBAO

17-0653

Amended 3/1/17

 

HB 646-FN- FISCAL NOTE

AS AMENDED BY THE HOUSE (AMENDMENT #2017-0347h)

 

AN ACT relative to the placement and detention of a minor in a secure facility.

 

FISCAL IMPACT:      [ X ] State              [    ] County               [    ] Local              [    ] None

 

 

 

Estimated Increase / (Decrease)

STATE:

FY 2018

FY 2019

FY 2020

FY 2021

   Appropriation

$0

$0

$0

$0

   Revenue

Indeterminable

Indeterminable

Indeterminable

Indeterminable

   Expenditures

Indeterminable

Indeterminable

Indeterminable

Indeterminable

Funding Source:

  [ X ] General            [    ] Education            [    ] Highway           [    ] Other

 

The Judicial Branch was originally contacted on January 4, 2017 and again on January 9, 2017, with followup on January 18, 2017 for a fiscal note worksheet, which the Branch has not provided as of  March 1, 2017.  

 

METHODOLOGY:

This bill addresses the placement and detention of minors in secure facilities by implementing several changes to the delinquent children statute.  The Department of Health and Human Services states that several of these changes may result in indeterminable cost savings, while two will result in cost increases identified below.  The following sections contain changes that, according to the Department, will have a fiscal impact.

 

  • Section 2: prohibits the detention of youth who are charged with certain misdemeanor-level offenses.  This section changes the current criteria for detention (which is currently based on the court's assessment of the youth's flight risk or risk of harm to self or others) to an offense-based system in which the crime charged would determine the youth's eligibility for detention.  The Department states that while the bill would reduce the number of detentions for particular offenses, it is unclear whether other or enhanced charges would be brought in order to make these youth eligible for detention in appropriate circumstances.  The Department nonetheless assumes this section will decrease costs by an indeterminable amount.

 

  • Section 3: requires that the commissioner maintain certification of not less than two Medicaid-eligible residential treatment facilities for the transfer of non-violent offenders who have been committed to the Sununu Youth Services Center (SYSC).  The Department assumes that it would either need to build the facilities required by the bill or contract with private providers to provide this service. For the purposes of this fiscal note, the Department assumes it would contract with private providers, and estimates the costs as follows: a per-person, per-day cost of $1,002 (existing program rate of $615.80, plus $126.20 for certification as a short-term crisis treatment facility, plus a 35% rate increase of $259.70), totaling $10,020 per day for ten individuals, resulting in a yearly cost of $3,657,300. The 35 percent rate increase was determined following discussions with  interested residential providers, who indicated that serving this population would require a significant rate increase.

 

  • Section 4: limits the use of secure detention of a youth following an adjudicatory hearing to 42 days, absent a waiver by the child with the assistance of counsel. The bill provides that where extended detention is authorized, the court is required to hold weekly review hearings to assess the continued need for detention. The Department states that these weekly reviews will create an additional administrative burden, resulting in an indeterminable increase in costs.

 

  • Section 5: prohibits the commitment of youth who are charged with certain misdemeanor-level offenses.  This section would change the current eligibility standard (which is based on the court's assessment of the need for commitment to protect the safety of the minor or the community) to an offense-based system in which the crime charged would determine the youth's eligibility for commitment. The Department states that while the bill would reduce the number of commitments for particular offenses, it is unclear whether other or enhanced charges would be brought in order to make these youth eligible for commitment in appropriate circumstances.  The Department nonetheless assumes this section will decrease costs by an indeterminable amount.

 

  • Section 6: requires that the courts close all cases involving nonviolent offenses within two years of adjudication unless the minor consents to the court's continued jurisdiction. The Department assumes this section will result in an indeterminable cost decrease, the amount of which may potentially be offset by changes in law enforcement charging practices.  For example, the Department notes that as a result of this change, violent offenses may no longer be reduced to nonviolent offenses for plea purposes, so that the court system will maintain continued jurisdiction over a youth.

 

  • Section 7: reduces the current requirement for automatic parole from six months to three months for youth committed to the SYSC for a misdemeanor-level offense.  Parole would not be required if the parole board determines that continued commitment is necessary to protect to the safety of the child or the community. If the board declines to release the child, the board would be required to reconsider its decision every two months until the child is released.  The Department assumes that this section will result in a decrease in the population of youth committed to the facility for a misdemeanor-level offense, resulting in an indeterminable decrease in cost.

 

  • Section 8: requires the Department to conduct quarterly reviews of all youth committed to the facility for a nonviolent offense and to petition the court for a change in disposition when the Department believes an alternative placement is more appropriate.  The Department assumes that the requirements in the section can be met with existing resources.

 

  • Section 9: caps the population of the SYSC at 72, effective September 1, 2018.  The Department assumes that since the current population is below this cap, this section will have no fiscal impact.

 

  • Section 10: requires the Department to develop alternative placement capacity for not less than 60 minors who will no longer be eligible for placement at the SYSC.  Based on its recent request for proposals for shelter care services, the Department estimates that the cost to develop this capacity will be approximately $5.4 million per year.  This is based on the current shelter care contract of $1,365,350 for 15 beds.   

 

  • Section 11: requires the Department to lease that portion of the SYSC that is not needed to care for the maximum capacity of 72.  The Department assumes that this section will result in an indeterminable increase in both costs and revenue depending on who leases the property, for what purpose, and for what amount. In addition, the Department notes that any change in the facility's usage will require approval by the Department of Justice, as the facility was built in part with the use of DOJ VOI/TIS funds (Violent Offender Incarceration and Truth-in-Sentencing Incentive), and could require the state to repay some or all of the $13.4 million in federal funds that were used to build the facility.  

 

The Judicial Council states that while it will have the responsibility of ensuring that any juveniles facing delinquency allegations who are unable to afford the assistance of counsel are provided a lawyer at state expense, there will likely not be a significant impact on expenditures.  While there may be an increase in certain hearings as a result of the bill's provisions, another provision eliminating certain charges for which secure detention can be sought may offset any expenditure increase.   

 

AGENCIES CONTACTED:

Department of Health and Human Services, Judicial Branch, and Judicial Council

 

Links

HB646 at GenCourtMobile

Action Dates

Date Body Type
Jan. 31, 2017 House Hearing
Feb. 7, 2017 House Exec Session
Feb. 15, 2017 House Floor Vote
March 13, 2017 House Exec Session
Nov. 8, 2017 House Exec Session
Jan. 3, 2018 House Floor Vote

Bill Text Revisions

HB646 Revision: 2538 Date: March 1, 2017, 10:57 a.m.
HB646 Revision: 2539 Date: Jan. 25, 2017, 11:23 a.m.

Docket

Date Status
Jan. 5, 2017 Introduced 01/05/2017 and referred to Children and Family Law HJ 3 P. 23
Jan. 31, 2017 Public Hearing: 01/31/2017 01:00 PM LOB 206
Feb. 7, 2017 Full Committee Work Session: 02/07/2017 10:00 AM LOB 206
Feb. 7, 2017 Executive Session: 02/07/2017 01:00 PM LOB 206
Feb. 15, 2017 Committee Report: Ought to Pass with Amendment # 2017-0347h for 02/15/2017 (Vote 14-0; RC) HC 11 P. 17
Feb. 15, 2017 Amendment # 2017-0347h: AA VV 02/15/2017 HJ 7 P. 21
Feb. 15, 2017 Ought to Pass with Amendment 0347h: MA VV 02/15/2017 HJ 7 P. 21
Feb. 15, 2017 Referred to Finance 02/15/2017 HJ 7 P. 21
March 1, 2017 Division III Work Session: 03/01/2017 10:00 AM LOB 210-211
March 6, 2017 ==CANCELLED== Division III Work Session: 03/06/2017 10:00 AM LOB 210-211
March 7, 2017 ==RESCHEDULED== Division III Work Session: 03/07/2017 10:00 AM LOB 210-211
March 13, 2017 ==CANCELLED== Division III Work Session: 03/13/2017 10:00 AM LOB 210-211
March 13, 2017 ==CANCELLED== Division III Work Session: 03/13/2017 01:00 PM LOB 210-211
March 13, 2017 Executive Session: 03/13/2017 10:00 AM LOB 210-211
Retained in Committee
Sept. 28, 2017 Division III Retained Bill Work Session: 09/28/2017 01:00 PM LOB 212
Nov. 8, 2017 Executive Session: 11/08/2017 10:00 AM LOB 210-211
Jan. 3, 2018 Committee Report: Inexpedient to Legislate for 01/03/2018 (Vote 26-0; CC)
Jan. 3, 2018 Inexpedient to Legislate: MA VV 01/03/2018 HJ 1 P. 35