where parental visitation is thus curtailed, speedy review by the family court of the initial custody decision is imperative. See Standard 3.155. Accord, Proposed Model Child Protection Act, supra. A report by the law enforcement officer explaining the reasons for intervention and for referral to the intake unit is also required. In addition, the officer should file a complaint if one has not been filed previously. A copy of the report and complaint should be promptly given to the intake unit and the protective services agency to provide the initial basis for further action. If the case is petitioned, the report and complaint should be made available during discovery to counsel for the individuals charged with neglect or abuse. See Standard 3.167. neglected or abused children taken into custody should be 2.13 2.21 2.223 2.233 Intervention to Protect Against Harm Authority to Intervene (Law Enforcement Agencies) Criteria for Referral to Intake-Neglect and Abuse (Law Enforcement Agencies) Criteria For Taking Juveniles Into Emergency Protective Custody (Law Enforcement Agencies) 2.242 Procedures Following a Decision to Refer to Intake— Delinquency (Law Enforcement Agencies) 2.243 Procedures Following a Decision to Refer to Intake- 2.245 Procedures When a Juvenile is in Need of Immediate 2.248 2.343 Notice is required to parents who were not at home at the time of the child's removal, or in circumstances where the neglect or abuse occurs or is discovered outside the homee.g., at school or some other institution. The standard specifies that the intervening officer should report to the parent the fact that the child is in custody, the reasons for custody, and the intake unit that is handling the matter. However, it does not require a police officer to disclose the exact location where the child is being held as part of the initial notice to the parent, since there are some cases, such as where there is unusual or severe abuse or neglect, or reason to believe the parent or primary caretaker may attempt forcibly to regain custody of the child, when it may be necessary initially to limit contact between the parent and child, until appropriate counseling may take place. But cf. Standards 2.242 and 2.243. The Proposed Model Child Protection Act, supra follows this limitation upon parental notice. The Proposed Model Child Protection Act, Commentary to Section 9(e). Particularly 4.27 Procedures Upon Taking a Neglected or Abused 3.113 Jurisdiction Over Neglect and Abuse 3.133 Representation by Counsel-For the Parents 3.141 Organization of Intake Units 3.142 Review of Complaints 3.154 Criteria and Procedures For Imposition of Protective 4.25 Foster Homes Shelter Care Facilities 2.245 Procedures When a Juvenile is in Need of Immediate Medical Care If a law enforcement officer has probable cause to believe that a juvenile whom the officer has taken into custody is in immediate need of medical care, the officer should take the juvenile or arrange to have the juvenile taken to a medical facility which has been authorized to provide emergency examinations and treatment. The officer should assure that prompt notice of the juvenile's condition and location is given to the juvenile's parents, guardian, or primary caretaker in addition to any information required under Standards 2.242-2.244. If the emergency medical care can be provided on an outpatient basis and custody is not required, the juvenile should be released to his/her parent, guardian, or primary caretaker, or if such persons are not available, to another adult who is willing and able to provide supervision and care, and with whom the juvenile has substantial ties. If out-patient care is provided and custody is required, the juvenile should be taken directly to the intake unit, or, pursuant to Standard 2.244, to a facility designated to provide care to juveniles who have been neglected or abused. A report should be prepared describing the facts and circumstances requiring emergency medical care and the reasons for the actions taken. A copy of the report should be provided to the juvenile's parent, guardian, or primary caretaker, and, if the juvenile is to be referred, a copy should also be promptly provided to the intake unit. Source: See generally Office of Youth Development, Department of Health, Education and Welfare, Model Act for Family Courts, §19(g) (1974). Commentary This standard sets out the procedures applicable when a law enforcement officer discovers a child who is malnourished, injured, or otherwise seriously ill, during the course of duty or during an investigation of delinquent conduct, noncriminal misbehavior, or neglect and abuse. For analogous provisions, see Institute of Judicial Administration/American Bar Association Joint Commission on Juvenile Justice Standards, Standards Relating to Neglect and Abuse, Standard 4.1 (tentative draft, 1976), and Standards Relating to Noncrimi nal Misbehavior, Standard 6.1 (tentative draft, 1977) [hereinafter cited as IJA/ABA, Neglect, and IJA/ABA, Noncriminal Misbehavior, respectively]; and the Model Act for Family Courts, supra. Cf. Institute of Judicial Administration/American Bar Association Joint Commission on Juvenile Justice Standards, Standards Relating to Interim Status, Standard 4.5 A.1.b.; and Standards Relating to Rights of Minors, Standard 4.5 (tentative drafts, 1977) [hereinafter cited as IJA/ABA, Interim Status, and IJA/ABA, Rights of Minors, respectively]; and the National Advisory Committee on Criminal Justice Standards and Goals, Report of the Task Force on Juvenile Justice and Delinquency Prevention, Standards 12.9 and 12.10 (1976). A number of safeguards are required whenever a law enforcement officer seeks to take a child in his/her custody directly to any medical facility. These provisions include: the officer must first have probable cause to believe that a medical emergency exists; the child's medical needs must be urgent and immediate; a court hearing should be held within at least 24 hours after the child is taken into custody; and a written notice and report explaining the actions taken must be promptly communicated to the parent or other primary caretaker. These important safeguards are more fully explained below. A law enforcement officer who takes a child to a medical facility pursuant to this standard, must first have probable cause to believe that a medical emergency exists, i.e., the officer must be aware of facts and circumstances "sufficient to warrant a prudent... [person] in believing that..." the juvenile is in immediate need of medical care. See, e.g., Beck v. Ohio, 379 U.S. 89, 91 (1964); see also Standards 2.231, 2.232, and 3.157; accord, IJA/ABA, Neglect, supra at Standard 4.1. In contrast, the standard in the IJA/ABA volume on noncriminal misbehavior which deals with medical emergencies caused by mental or emotional disorders, requires only "reasonable cause" to believe there is "an immediate need for emergency medical care." IJA/ABA, Noncriminal Misbehavior, supra at Standard 6.1. The Model Act for Family Courts, supra requires only a belief that the child is "suffering from a serious mental health condition, illness, or injury, which requires either prompt treatment or prompt diagnosis for evidentiary purposes..." The requirement of probable cause rather than a mere "reasonable belief" of immediate medical necessity is intended to prevent any tendency to interpret this standard as a catchall provision justifying emergency custodial intervention even where the child's health is not seriously impaired or threatened and no independent basis for custody exists. Unlike Standard 6.1 in IJA/ABA, Noncriminal Misbehavior, supra, this standard does not give a law enforcement officer an independent basis to intervene or to take a child into custody. For example, under related standards, an officer may intervene and take a child into emergency protective custody based upon the officer's reasonable belief that the child's physical or emotional health is seriously impaired, and that no measure other than intervention can adequately protect the child. See Standards 2.13 and 2.233. If such independent criteria for intervention and custody were satisfied, this standard would authorize the officer to take the child directly to an appropriate medical facility, if, in addition, the officer had probable cause to believe the child needed immediate medical care. Removing children from their home or even taking a child into custody outside the home can often prove extremely traumatic for both the child and the parent. See Commentary to Standards 2.233 and 2.33. Even a brief stay by the child in a medical facility can compound this trauma, particularly where the facility is a mental hospital or a similar institution. Therefore, this standard requires that before taking a child to a medical facility, a law enforcement officer must have an independent basis to intervene (based upon Standards 2.11, 2.12, or 2.13); an independent basis to take the youth into custody (based upon Standard 2.231, 2.232, or 2.233); and, in addition, probable cause to believe that the youth is in immediate need of medical care (based upon this standard). In protective custody cases, it is anticipated that the facts which give an officer "probable cause" to take a child directly to a medical facility will frequently be identical to the facts which originally gave the officer a "reasonable belief" that the child must be taken into emergency protective custody in order to prevent serious impairment of the child's physical or emotional health. See Standards 2.13 and 2.233. While the term "immediate need for medical care" compasses serious manifestations of mental disorder as well as physical illness, it is not intended to authorize emergency medical custody where a child merely "acts out" or is upset emotionally. Similarly, Standard 2.13(b) does not authorize initial intervention to protect a child against emotional harm unless the child's emotional or mental health is already seriously impaired. Where evidence of a medical or emotional disorder, or of drug intoxication, is the basis for emergency medical custody under this standard, the law enforcement officer should have probable cause to believe that the juvenile is suicidal, or is seriously assaultive or seriously destructive toward others, or otherwise similarly shows an immediate need for medical care. IJA/ABA, Noncriminal Misbehavior, supra at Standard 6.1. However, commission of specific acts (other than those which are prerequisites to initial intervention and custody under Standards 2.11-2.13 and 2.231-2.233, respectively) are not required before a juvenile whom the officer has taken into custody may be taken for emergency psychiatric medical care. Accord, IJA/ABA, Noncriminal Misbehavior, supra at Standard 6.1 and Commentary. It may, for example, be sufficient that a youth convincingly threatens suicide or a serious assault, or arms him/herself with a deadly weapon. Even under such circumstances, the officer should never automatically refer the child to any psychiatric facility in the absence of probable cause to believe that an immediate medical need for treatment exists. The option of "predictive intervention" should be sparingly exercised. Accord, IJA/ ABA, Noncriminal Misbehavior, supra at Standard 6.1 and Commentary. Rarely, if ever, should an officer take a youth directly to a mental health facility where the assertedly suicidal, destructive, or assaultive behavior, or asserted threats of such behavior, were made outside the presence of a law enforcement officer, and where the youth, while in custody, does not exhibit an immediate need for psychiatric care. Unlike the Model Act for Family Courts, supra at §19(g), this standard does not authorize an officer to take a child in custody directly to a medical facility for the mere purpose of obtaining a "diagnosis for evidentiary purposes" in the absence of an immediate need for medical care or treatment. These standards take the position that emergency custody for "evidentiary" or "diagnostic" purposes only, without probable cause for immediate medical treatment, is inappropriate at least in the absence of a court order. The IJA/ABA draft standards on noncriminal misbehavior are in general accord with this position, and require an "immediate need for emergency psychiatric or medical evaluation and possible care" before a child may be taken to a psychiatric or medical facility. IJA/ABA, Noncriminal Misbehavior, supra at Standard 6.1 (emphasis added). The standard requires that an officer who takes a youth to a medical facility must assure that prompt notice of the juvenile's condition and location is given to the youth's parents, guardian, or primary caretaker, in addition to any information to which such persons are promptly entitled under Standards 2.242-2.244. Accord, IJA/ABA, Noncriminal Misbehavior, supra at Standard 6.2. See IJA/ABA, Rights of Minors, supra at Standards 4.2 and 4.5 B. Where a child is in need of emergency medical care but his/her life is not immediately threatened, parental consent may be necessary before treatment, and the requirement for prompt notice will facilitiate timely parental consent. Also, a parent or custodian has a right to know about substantial dangers to the child, and such dangers would always exist whenever action is appropriate under this standard. Each juvenile admitted to a medical facility after action by a law enforcement officer under this standard should be evaluated as as possible and should be offered appropriate medical care. The juvenile's informed consent should be obtained before any treatment is given, unless it is the professional opinion of the attending physician that the youth is incapable of rationally judging whether or not to accept treatment. When a youth's condition prevents him/her from giving consent, the informed consent of the youth's parent, guardian, or next of kin (if the youth is emancipated) should be sufficient. No consent should be required to treatment deemed necessary to save a child's life. See IJA/ABA, Rights of Minors, supra at Standard 4.5. Where appropriate consent cannot be obtained prior to emergency medical treatment, consent should be obtained for any further Related Standards The third paragraph of the standard explains what action is required when the attending physician determines either that the necessary medical care can be provided on an out-patient basis, or that no medical care is in fact necessary. In such instances, the law enforcement officer should release the juvenile into the care of a parent or other suitable caretaker with whom the child has substantial ties if custody is not required under the criteria set out in Standard 2.231, 2.232, or 2.233. This is in keeping with the principle throughout these standards limiting the occurrence and scope of intervention into the lives of juveniles. If out-patient care is appropriate but custody is required on some basis independent of the child's medical needs, the juvenile should be taken directly from the medical facility either to the intake unit or to a facility designated to provide care to neglected or abused children. See Standards 2.242-2.244. 2.11 2.13 2.21 2.221 Intervention for Commission of a Delinquent Act Authority to Intervene (Law Enforcement Agencies) 2.222 Criteria for Referral to Intake-Noncriminal Misbe- 2.223 2.231 2.232 2.233 2.241 Criteria for Referral to Intake-Neglect and Abuse Criteria for Taking Juveniles Into Custody- Criteria for Taking Juveniles Into Custody— Criteria for Taking Juveniles Into Emergency Protec- 2.242 Procedures-Following a Decision to Refer to 2.244 The fourth paragraph of this standard requires that a full report be given to the parent explaining why emergency medical action was taken. It is anticipated that in many cases the taking of a juvenile into custody in order to secure emergency medical care will not require or result in referral to the intake unit. For example, in the "lost child" situation where a child is injured after being separated from parents, both emergency custody and emergency hospitalization are necessary although no court action is contemplated or required. See also Standards 2.242-2.244. Therefore this standard provides that a copy of the law enforcement officer's report should always go directly to the parent or caretaker, and that an additional copy should go to the intake unit only if the youth is in fact referred to intake. When a referral is made, the "notice" and the "report" required by this standard should be in combined form where possible for reasons of efficiency. 4.27 2.248 Procedures Following a Decision to Refer to Intake— 2.344 Procedures When a Neglected or Abused Juvenile is in Need of Immediate Medical Care (Nonlaw Enforcement Agencies) 3.141 Organization of Intake Units 4.25 Foster Homes Shelter Care Facilities 2.246 Procedures for Law enforcement agencies should promulgate regulations Commentary A juvenile's fingerprints or photograph should only be taken A photograph taken of a juvenile under the above-described circumstances should be maintained in essentially the same manner as a juvenile's fingerprints. Such a photograph should be destroyed if a petition is not filed or if the juvenile is not adjudicated delinquent. Fingerprints and photographs which are not destroyed as set forth above, should be maintained in accordance with the principles and limits contained in Standards 1.51-1.53, and 1.54-1.56. Access to such materials should be limited to law enforcement officers when essential to conducting an ongoing investigation, to a member of the clerical or administrative staff of the maintaining court or agency for authorized internal administrative purposes, the juvenile, his/her counsel, and the juvenile's parents, guardian, or primary caretaker. Sources: See generally National Advisory Committee on Criminal Justice Standards and Goals, Report of the Task Force on Juvenile Justice and Delinquency Prevention (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 Records and Information Systems, Standard 19.6 (tentative draft, 1977) [hereinafter cited as IJA/ABA Information Systems]; U.S. Department of Health, Education and Welfare, Model Act for Family Courts and State-Local Children's Programs, §§47, 48 (1974). This standard restricts the collection, use, dissemination and retention by the government of fingerprints and photographs of juveniles. It should be read in conjunction with standards pertaining to the collection, retention, maintenence, accessibility, and destruction of juvenile records. Fingerprints and photographs are important tools of law enforcement which facilitate the identification of suspects in criminal and delinquency cases. Nonetheless, the use of fingerprints and photographs by law enforcement agencies is subject to abuse. For example, such "evidence” may be used deliberately or inadvertently to psychologically reinforce tentative eyewitness identification of suspects. Photographs may distort or conceal physical characteristics. Photographic identification procedures are often unnecessarily suggestive, and can lead to the tragic and often irreparable identification of the wrong person. Also, whenever law enforcement agencies keep a juvenile's photographs or fingerprints on file— e.g., in a "mug-shot" book-the youth's photos and prints may be repeatedly used, with little or no justification, for comparisons in later delinquency or criminal investigations. This practice not only exposes the youth to a high statistical risk of mistaken identification as a culprit, but may also label the youth as a likely suspect in the eyes both of investigating officers and of citizens. See generally Manson v. Braithwaite, 432 U.S. 98 (1977); Simmons v. United States, 390 U.S. 377 (1968); see also United States v. Ash, 413 U.S. 300 (1973); Wall, Eyewitness Identification in Criminal Cases (1968); Note, "The Psychology of Criminal Identification: The Gap from Wade to Kirby," 121 U. Pa. L. Rev. 1079 (1973); Buckout, "Eye Witness Testimony," 231 Scientific American, 23 (1974). The National Advisory Committee recognized both the dangers and the utility of fingerprints and photographic identification procedures. It therefore recommends that such procedures should be permitted only in the limited circumstances, and only with the safeguards described in this standard and commentary. The standard permits the taking of a juvenile's fingerprints or photograph only when such action is essential to establishing the juvenile's identity during an ongoing investigation where the act alleged would be a crime if committed by an adult. This "when essential" test is intended to ensure that there is a specific and compelling law enforcement purpose |