2.322 Criteria for Referral to Intake Neglect and Abuse

Agencies authorized to intervene under Standard 2.31 should promulgate written regulations for guiding decisions to refer to the intake unit families of juveniles alleged to have been neglected or abused.

In determining whether referral best serves the interests of the juvenile, the family, and the community, agency personnel should consider whether there is probable cause to believe that the family is subject to the jurisdiction of the family court over neglect and abuse, and:

a. Whether a complaint has already been filed;

b. The seriousness of the alleged neglect or abuse and the circumstances in which it occurred;

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

d. The outcome of those contacts;

e. The availability of appropriate services outside the juvenile justice system which do not involve removal of the juvenile from the home; and

f. The willingness of the family to accept those services. The matter should not be referred to the intake unit solely because the alleged neglect or abuse is denied.

Source:

See generally U.S. Department of Health, Education and Welfare, Proposed Model Child Protection Act, §16(b) (draft, 1977).

Commentary

This standard recommends the criteria which officials of child protective services agencies, public schools, and other designated governmental agencies providing services to juveniles and their families should use in deciding to refer a neglect or abuse matter to the intake unit following to the intake unit following intervention. Unlike Standard 2.33-Criteria for Taking Juveniles into Emergency Protective Custody, this provision is written in terms of neglect or abuse rather than juveniles "alleged to have been harmed or in danger of harm," since only cases involving juveniles who are endangered by acts or omissions of their parents, guardian, or primary caretaker are subject to the family court's jurisdiction over neglect and abuse. See Standard 3.113. However, pursuant to the

recommendations in Standard 2.13, officials of the public agencies enumerated under Standard 2.31 may intervene in a broader range of cases-e.g., children who have become separated from their parents in a crowd-and even take them into emergency protective custody in order to take them home or to an appropriate nonsecure shelter or medical facility, without invoking the jurisdiction of the family court, so long as services other than emergency medical treatment are provided on a voluntary basis. See Standards 2.343 and 2.344. This distinction explains the use of the probable cause level of certainty in this provision, and the lower "reasonable belief" level of certainty in Standard 2.33.

Like Standard 2.321, this provision recommends that written regulations should be issued to assist in making referral decisions. To the greatest extent possible, agencies in areas served by a single family court should develop regulations cooperatively so as to promote consistency. The development process should also include consultation and coordination with the family court, law enforcement agencies, programs affected by referral decisions, representative citizen task forces including juveniles, and youth advocacy groups. The National Advisory Committee recommends the development of rules and guidelines governing referral decisions as an action which agencies can take immediately, without a major reallocation of resources, to improve the administration of juvenile justice.

Since it is anticipated that individuals, employed by the types of agencies covered in this standard, who are authorized to intervene, will have more specialized training and experience in child neglect and abuse care than law enforcement officers, a more extensive list of factors to be weighed is recommended in this provision than that proposed in Standard 2.223. No one of the criteria contained in paragraphs (a)-(f) is intended to predominate. Each should be weighed and balanced against the others in order to determine the least intrusive and restrictive approach which will adequately protect the juvenile from the actual or threatened harms, the interests of the parents in raising their child, see Griswold v. Connecticut, 381 U.S. 479 (1965), and the interest of the community in preventing harm to children. In so doing, the provision recognizes that unnecessary or overly intrusive intervention as well as failure to intervene can result in harm to a child. See A. Schuchter, Prescriptive Package: Child Abuse Intervention 3-4 (1976); National Advisory Committee on Criminal Justice Standards and Goals, Report of the Task

Force on Juvenile Justice and Delinquency Prevention, Standard 11.16 and Commentary (1976); Institute for Judicial Administration/American Bar Association Joint Commission on Juvenile Justice Standards, Standards Relating to Abuse and Neglect, Standard 1.3 and Commentary (tentative draft, 1977).

The term "seriousness" in paragraph (b) is intended to refer to the severity of the harm to the juvenile and to the likelihood and immediacy of any threatened harm. See Standard 3.113. Like the provision on referral decisions in noncriminal misbehavior cases, the standard focuses on the family and is intended to channel as many cases as possible to services outside the juvenile justice system.

Hence, among the factors to be considered in making the intake decisions are listed the family's prior contacts, if any, with the intake unit or the family court, and the results of those contacts-e.g., dismissal of the complaint without referral to services, referral to services and cooperation of the family with those services, or the disposition imposed following adjudication of a petition; the availability of services offered by public or private agencies that are not components of the juvenile justice system; and the willingness of the family to cooperate with those services. See Standard 2.321.

2.33 Criteria for Taking Juveniles 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 or harm.

An order should not be used 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, family court judges or authorized child protective services personnel 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.

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 (1977) [hereinafter cited as Report of the Task Force].

Commentary

This standard sets forth principles and criteria to assist family court judges in deciding whether to order that a child be taken into emergency protective custody and to provide a guide for personnel of child-protective services agencies and

other designated governmental agencies providing protective services to juveniles and their families. Protective services agencies should develop and maintain a capacity to respond 24-hours-per-day, seven-days-per-week to report that a child is in danger of harm.

The term "emergency protective custody" refers to brief periods of initial custody, which are necessary when an authorized child protective services officer determines that a child has been sexually abused, or 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); see also Standards 2.233, 2.244, 2.343, and 3.157. It covers any situation in which a child's health is seriously impaired or endangered whether or not parents or custodians are responsible. Thus, this standard governs instances in which youths are endangered outside the home-e.g., small children who have become separated from their parents in a crowd, or a traffic accident in which the child is injured, as well as cases of neglect or abuse. 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 Standards 2.231-2.233, this standard states a preference for obtaining an order from the family court before taking a juvenile into custody, but would not preclude action by designated agency personnel when there is no time to obtain such an order. Accord, U.S. Department of Health, Education and Welfare, Proposed Model Child Protection Act, §9(a) (1977); Report of the Task Force, supra at Standard 12.9. A somewhat lesser degree of certainty is required before a youth may be taken into custody than would be required under Standards 2.231 or 2.232 regarding custody in delinquency or noncriminal misbehavior cases. See Uniform Juvenile Court Act, §13 (National Conference of Commissioners on Uniform State Laws, 1968); Proposed Model Child Protection Act, supra; A. Sussman and S. Cohen, Reporting Child Abuse and Neglect: Guidelines for Legislation, §6 (1975); Institute of Judicial Administration/ American Bar Association Joint Commission on Juvenile Justice Standards, Standards Relating to Noncriminal Misbehavior, Standards 2.1 and 6.1 (tentative draft, 1977); but see Institute of Judicial Administration/American Bar Association Joint Commission on Juvenile Justice Standards, Standards Relating to Abuse and Neglect, Standard 4.1 (A) (tentative draft, 1977). The substitution of the need for a

2.34 Rights and Procedures

2.341 Procedures Following a Decision Not to Refer to Intake

An individual or family who is not referred to intake by an agency authorized to intervene under Standard 2.31, should be released without condition or ongoing supervision although the individual and his/her family may be provided with services offered on a voluntary basis or referred to or taken to community resources offering services on that basis.

Sources:

See generally National Advisory Committee on Criminal Justice Standards and Goals, Report of the Task Force on Juvenile Justice and Delinquency Prevention, Standards 5.7 and 12.9 (1976) [hereinafter cited as Report of the Task Force].

Commentary

This standard recommends against the use of "informal probation" or supervision by child protective services, or by agents of other designated agencies authorized to intervene under Standard 2.31. This policy is consistent not only with Standard 2.241, supra, but also with the limitations on informal probation recommended in the standards on intake. See Commentary to Standards 3.141 and 3.142. All other major standards-setting groups similarly recommend against attempts by police officers to compel "treatment" and "rehabilitation" through informal probation or supervision in the absence of a formal court referral. See President's Commission on Law Enforcement and Administration of Justice, Task Force Report: Juvenile Delinquency and Youth Crime, 19 (1967); National Advisory Committee on Criminal Justice Standards and Goals, Police, Standard 4.3 (1973); Report of the Task Force, supra at Standard 5.7; and Institute for Judicial Administration/American Bar Association Joint Commission Juvenile Justice Standards, Standards Relating to Police Handling of Juvenile Problems, Standard 2.4 (tentative draft, 1977) [hereinafter cited as IJA/ABA, Police Handling]. See also R. Kobetz and B. Bosarge, Juvenile Justice Administration (International Association of Chiefs of Police, 1973). But no other group directly addresses

the question of such supervision by nonlaw enforcement agencies. The National Advisory Committee concluded that it would make no more sense to vest protective services personnel with unilateral quasijudicial discretion to attempt to compel participation in probation-type programs, than it would to sanction such authority for the police. If the provision of services is called for, the subject of the complaint should be referred to the proper agency or private program and the complaint promptly dismissed unless the referral is refused, ignored, or shown to be inappropriate within thirty days. See Standard 3.142. Informal probation, despite good intentions, can result in imposing substantial constraints on liberty under threat of prosecution without adequate due process safeguards. See J.S. Gorelick, "Pretrial Diversion: The Threat of Expanding Social Control," 10 Harv. C. R.C.L.L. Rev. (1975); President's Commission on Law Enforcement and Administration of Justice, supra at 17; Kobetz and Bosarge, supra at 259; National Council on Crime and Delinquency/National Council of Juvenile Court Judges, Model Rules for Juvenile Court, 15 (1969); but see National Advisory Committee on Criminal Justice Standards and Goals, Corrections 225 (1973). Moreover, many commentators question the effectiveness of "coerced treatment." See, e.g., U.S. Department of Health, Education and Welfare, Standards for Juvenile and Family Courts, 58 (1975); and D. Fogel, We are the Living Proof: The Justice Model for Corrections (1975).

Although the standard urges that protective services agencies should not induce any individual to utilize services under threat of being referred to the intake unit and the family court, it is not intended to prohibit protective services officers from offering to make services available on a voluntary basis, or from referring or taking an individual to another agency or community resource which offers appropriate services on a voluntary, basis. As long as the provision of services is voluntary, the range of services which protective services agencies may offer to make directly available may be broad. At the lower end of the scale of possible services are the types of incidental services which even a law enforcement officer may provide without a formal referral to the court intake unit. For example, a protective services officer may-indeed,