2.232 Criteria for Taking a Juvenile Into CustodyNoncriminal Misbehavior

Whenever practicable, an order issued by the family court judge should be obtained prior to taking into custody a juvenile alleged to have engaged in noncriminal misbehavior. An order should not be issued nor a juvenile taken into custody without an order unless there is probable cause to believe that the circumstances set forth in Standard 2.12 exist, and it is determined that there is no person willing and able to provide supervision and care for the juvenile and the juvenile is unable to care for himself/herself, or that issuance of a citation or summons would not adequately protect the juvenile from an imminent danger of serious bodily harm. In making this determination, a family court judge or law enforcement officer should consider:

a. The nature and seriousness of the alleged conduct; b. The juvenile's age and maturity;

c. The nature and number of contacts with the law enforcement agency or the family court which the family has had;

d. The outcome of those contacts;

e. The existence of circumstances which present an imminent threat of serious physical injury to the juvenile; and

f. The availability of noncustodial alternatives including the presence of a parent, guardian, or other suitable person able and willing to provide supervision and care for the juvenile.

Written rules and regulations should be developed to guide custody decisions in noncriminal misbehavior matters.

Sources:

National Advisory Committee on Criminal Justice Standards and Goals, Report of the Task Force on Juvenile Justice and Delinquency Prevention, Standard 12.8 (1976) [hereinafter cited as Report of the Task Force]; Institute of Judicial Administration/American Bar Association Joint Commission on Juvenile Justice Standards, Standards Relating to Noncriminal Misbehavior, Standard 2.1; Standards Relating to Interim Status, Standard 5.7; Standards Relating to Police Handling of Juvenile Problems, Standard 2.5(c)(1) and (2) (tentative drafts, 1977) [hereinafter cited as IJA/ABA, Noncriminal Misbehavior, IJA/ABA, Interim Status, and IJA/ABA, Police Handling, respectively].

Commentary

This standard sets out the criteria applicable in determining whether a child accused of engaging in noncriminal misbehavior should be taken into custody. Noncriminal misbehavior is defined in Standards 2.12 and 3.112. It is intended to apply to the decisions by family court judges whether or not to issue an order to take a juvenile into custody, as well as to decisions by law enforcement officers in the field. In keeping with current practice, the term "take into custody" is used rather than arrest. See Commentary to Standard 2.231. The generic term "take into custody" encompasses the concept of protective custody traditionally applicable to juveniles. See IJA/ABA, Police Handling, supra at 60-62. The term is wholly appropriate as applied here to cases of noncriminal misbehavior, since under these standards the sole purpose for police intervention in such cases is to protect the child from bodily harm or lack of adequate care. See also Standard 2.12; cf. Standard 2.231.

The broader arguments for and against the assertion of any form of juvenile court jurisdiction over noncriminal misbehavior are covered in the Commentary to Standard 3.112. The National Advisory Committee-like the Task Force but unlike the IJA/ABA Joint Commission-recommends retention of a highly circumscribed version of family court jurisdiction over children who display noncriminal misbehavior. See Standard 3.112; accord, Report of the Task Force, supra at Standards 10.1 and 10.3-10.8; contra, IJA/ABA, Noncriminal Misbehavior, supra at Standard 1.1. In keeping with that position, strict limits are placed on the manner and occasions in which a child may be taken into custody for alleged acts of misbehavior that do not violate the criminal law. Briefly, these safeguards include: obtaining a custody order "whenever practicable;" requiring probable cause to believe that an act of noncriminal misbehavior has been committed before a child is taken into custody; permitting the child to be taken into custody only if no less restrictive alternative will protect him/her from imminent bodily harm, or if the child suffers from inadequate care; and providing a set of specific criteria to hedge in the custody decision.

The standard expresses a clear preference for obtaining a court order before taking a juvenile into custody. See Johnson v. United States, 333 U.S. 10, 13-14 (1948), and the Commentary to Standard 2.231. A custody order must be obtained "whenever practicable." See Terry v. Ohio, 392 U.S.

1 (1968). Consistent with the recommendation against the use of quasi-judicial decision makers, such orders are to be issued by family court judges and not a referee or magistrate. See Standard 3.124.

In addition, the standard applies to noncriminal misbehavior cases the "probable cause" level of certainty which is constitutionally required before an adult alleged to have committed a criminal offense may be arrested. See Standard 2.231; Gerstein v. Pugh, supra, 420 U.S. at 111; see also Cupp v. Murphy, 412 U.S. 291 (1973); and Beck v. Ohio, 379 U.S. 89 (1964). The Supreme Court has defined probable cause in terms of facts and circumstances "sufficient to warrant a prudent man in believing that the [suspect] had committed or was committing an offense." Gerstein v. Pugh, 420 U.S. 103, 111-112; Beck, 379 U.S. at 91. Courts considering the issue since In re Gault, 387 U.S. 1 (1967) have consistently required probable cause in delinquency cases before a child may be taken into custody. See Standard 2.231 D. Besharov, Juvenile Justice Advocacy, 104-105 (1974). There appears to be little justification for applying a lesser standard than "probable cause" to custody decisions in noncriminal mishavior cases. See Standard 3.155.

It should be noted that although "probable cause" is required before a child is taken into custody, Standard 2.222 would permit an officer to intervene-short of the point of custody-upon a "reasonable belief" that the youth has misbehaved noncriminally. For example, an officer may intervene-short of taking custody-to escort a child home or back to school. See Standards 2.12(b) and (c), or to suggest that an intoxicated and rowdy teenager should stop drinking and "cool off." See Standard 2.12(d). However, if at any point the child is no longer free to leave the officer's presence, the point of custody is reached and “probable cause" is required to justify custody.

As indicated above, this standard would permit an officer to take a child directly into custody for alleged noncriminal misbehavior, where it is not practicable to seek a custody order from a judge. Professor Samuel Davis, on the other hand, has argued that law enforcement officers should never take a child into custody without a court custody order where the child is accused merely of noncriminal misbehavior, rather than with a criminal offense, unless the juvenile's safety is in immediate peril. S.M. Davis, Rights of Juveniles: The Juvenile Justice System, 48 (1974). Accord, New York Family Court Act, § 1024 (McKinney Supp. 1974). The National Advisory Committee believes that the restrictions set out in this standard and in Standard 2.12 provide adequate safeguards against possible abuse.

The standard also urges that a juvenile alleged to have engaged in noncriminal misbehavior should only be taken into custody when no less restrictive alternative will protect him/her from imminent bodily harm, or when there is no person willing to provide supervision and care for the child, and the child is unable to care for him/herself. Standard 3.153 provides that children charged with noncriminal misbehavior should only be placed by the court in the least restrictive shelter facility, and never in a secure detention facility. See §42 U.S.C. 5633(a)(12) (Supp. 1979). The Task Force is in general

accord: police authority to take a child charged with noncriminal misbehavior into custody "should not include the authority to place that youth in a police detention," Report of the Task Force, supra at Commentary to Standard 5.6; only the least restrictive shelter care placement may be utilized, id. at Standards 5.6 and 12.8; and even shelter care should not be used unless "clearly necessary to protect the child from bodily harm and unless there is no other available alternative. Id. at 12.8. A similar philosophy is expressed in IJA/ABA, Police Handling, supra at Standards 2.5(C)(1) and (2). Although the IJA/ABA Joint Commission rejected formal court jurisdiction over children alleged to have engaged in noncriminal misbehavior, IJA/ABA, Noncriminal Misbehavior, supra at Standard 1.1, it nonetheless sanctions "limited" policy custody of such children. This form of "limited custody" would permit an officer to take custody of a child for up to six hours-to transport the child home or to a "temporary nonsecure residential facility"-where the officer "reasonably determines" that custody is required to safeguard the child from a "substantial and immediate danger" to his/her physical safety. Id. at 2.1.

Finally, to guide individual custody decisions, the standard lists a set of criteria and recommends that written rules and regulations be developed. See Commentary to Standard 2.231. In making the custody decision, the criteria to be applied are similar to those recommended in Standards 3.153 and 2.222. No one factor is intended to predominate. The existence of circumstances which present an imminent threat of serious physical injury to the juvenile is added in this standard as a criterion to emphasize that custody in noncriminal misbehavior cases is intended to protect solely the child-not the community at large. See IJA/ABA, Interim Status, supra at Standard 5.7.

In developing rules and regulations to guide decisions to take a child into custody, law enforcement agencies in areas served by a single family court, should work together to make their policies as consistent as possible. The development process, especially for the provisions addressing noncriminal misbehavior, should also include consultation and coordination with the family court, the agencies and programs affected by custody decisions, representative citizen task forces, and youth advocacy groups. The National Advisory Committee recommends the development of rules and guidelines governing decisions to take a juvenile into custody, as an action which can be taken immediately, without a major recollection of resources, to improve the administration of juvenile justice.

After taking a juvenile into custody, a law enforcement officer should immediately explain to the juvenile his/her right to remain silent, and rights to an attorney, and the fact that any statements made may be used against him/her. These explanations should be in language which the juvenile is able to understand. Following these warnings, the juvenile should be taken to the intake unit without delay unless emergency medical treatment is required, and the juvenile's parents, guardian, or primary caretaker should be notified of the reasons the juvenile has been taken into custody, of the juvenile's whereabouts, and of the rights to which the juvenile

is entitled. A report explaining the reasons for intervention, referral and custody should be prepared and a copy given to the intake unit. See Standard 2.243.

As noted above subsequent standards prohibit placement of juveniles alleged to have engaged in noncriminal misbehavior in any secure detention facility, and strictly limit placement even in shelter facilities to instances of danger of imminent bodily harm. See Standard 3.153. In addition, these standards provide for an independent decision by the intake officer whether such juveniles taken into custody by a law enforcement officer should be placed in a shelter facility, and, if so, in what type of facility they should be placed. If the juvenile is placed in a shelter facility, review hearings before a family court judge should be held at least every seven days "or whenever new circumstances warrant an earlier review," to assure that custody is still warranted and to encourage prompt adjudication. See Standard 3.158.

Related Standards

1.53 Confidentiality of Records.

2.233 Criteria for Taking a Juvenile Into Emergency Protective Custody

Whenever practicable, an order should be obtained from a family court judge prior to taking into emergency custody a juvenile alleged to have been harmed or to be in danger of harm.

An order should not be issued nor a juvenile taken into emergency protective custody without an order unless there is a reasonable belief that any of the circumstances set forth in Standard 2.13 (a)-(c) exist, and it is determined that no other measure can provide adequate protection or that issuance of a summons or citation is inadequate to protect the jurisdiction or process of the family court.

In making this determination, a family court judge or law enforcement officer should consider:

a. The nature and seriousness of the harm or threatened harm;

b. The juvenile's age and maturity;

c. The nature and number of contacts with the law enforcement agency, child protective service agency, or family court which the juvenile or family has had; d. The presence of a parent, guardian, relative, or other person with whom the juvenile has substantial ties, willing and able to provide supervision and care; and e. The family's record of willful failures to appear following issuance of a summons or citation.

Written rules and regulations should be developed to guide decisions regarding taking juveniles into emergency protective custody. These regulations should be developed in close cooperation with the agencies responsible for providing protective services.

Sources:

See generally National Advisory Committee on Criminal Justice Standards and Goals, Report of the Task Force on Juvenile Justice and Delinquency Prevention, Standards 5.3, 12.9, and 12.10 (1976); [hereinafter cited as Report of the Task Force]; Institute of Judicial Administration/American Bar Association Joint Commission on Juvenile Justice Standards, Standards Relating to Police Handling of Juvenile Problems, Standard 2.5 (c) (tentative draft, 1977) [hereinafter cited as IJA/ABA, Police Handling].

Commentary

Although agencies responsible for providing protective services for children should develop and maintain the capacity to respond to reports that a juvenile is in danger at any time, day or night, seven-days-per-week, in many communities law enforcement officers are frequently called upon to make the often difficult decision to take a child into emergency protective custody. While law enforcement personnel should ordinarily allow protective service agencies to handle such matters, see Standard 2.33, this standard sets out principles and criteria to assist family court judges and police officers in those communities in which law enforcement agencies are the only entities able to respond to such emergency situations.

A child may be taken into emergency protective custody under this standard only when there is a reasonable belief that a child has been sexually abused, that a child's emotional or physical health is seriously impaired, or that a child's physical health is likely to become seriously impaired, see Standard 2.13 (a)-(c), and where it appears that no other measure short of custody can adequately protect the child or preserve family court jurisdiction. See Standards 2.33 and 3.152.

The term "emergency protective custody" means such temporary care and control as is appropriate to the condition of the endangered child. For example, emergency protective custody includes initial emergency care by a law enforcement or protective services officer, and the emergency placement of a child in a hospital or other facility designed for the care of such children. See Standard 2.245.

Most instances of emergency protective custody will involve alleged abuse or neglect. However, this and related standards also cover other situations in which a child's health is seriously impaired or endangered, such as instances in which small children have become separated from their parents in a crowd or a traffic accident in which the child is injured. See Report of the Task Force, supra. In such cases, emergency protective custody will be required solely to take the child home or to a hospital, and no court action will be necessary.

Like the other provisions in this series, Standard 2.233 states a preference for obtaining an order from the family court before taking a juvenile into custody, but would not preclude action by law enforcement officers when there is no time to obtain such an order. Accord, U.S. Department of Health, Education and Welfare, Proposed Model Child