3.157 Initial Review of Emergency Custody Decisions Upon determining that a juvenile subject to the jurisdiction of the family court over neglect and abuse should be retained in emergency custody, the intake officer should file a written notice with the family court together with a copy of the complaint. The notice should specify the basis for retaining the juvenile in emergency custody, and the less restrictive alternatives, if any, that may be available. A copy of the notice should be given to the family court section of the prosecutor's office, the juvenile, and the juvenile's attorney and parents, guardian, or primary caretaker. Unless the juvenile is returned home earlier, a hearing should be held before a family court judge no more than twenty-four hours after the juvenile has been taken into custody. At that hearing, the state should be required to establish that there is probable cause to believe that the juvenile has been neglected or abused in any of the ways set forth in Standard 3.113. If probable cause is established, the court should determine whether under the criteria set forth in Standard 3.154, continued emergency custody is necessary to protect the juvenile from any of the harms or risks of harm specified in Standard 3.113(a)-(h). At the inception of the hearing, the judge should assure that the parties understand their right to counsel and should appoint an attorney to represent a party who is not already represented by counsel and meets the eligibility requirements set forth in Standard 3.132 or 3.133. If emergency custody is continued, the judge should explain, on the record, the reasons for rejecting less restrictive alternatives. No decision should be made on the basis of a fact or opinion that has not been disclosed to counsel for the state, for the juvenile, and for the juvenile's parents, guardian, or primary caretaker. Sources See generally Institute of Judicial Administration/American Bar Association Joint Commission on Juvenile Justice Standards, Standards Relating to Neglect and Abuse, Standards 4.3 and 5.2 (tentative draft, 1977) [hereinafter cited as IJA/ABA, Neglect]; see also National Advisory Committee on Criminal Justice Standards and Goals, Report of the Task Force on Juvenile Justice and Delinquency Prevention, Standard 12.11 (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 Interim Status, Standards 4.3 and 7.7, Standards Relating to Dispositional Procedures, Standard 2.4(a) (tentative drafts, 1977). Commentary This standard recommends that the decision to place in emergency protective custody a juvenile alleged to have been neglected or abused should be reviewed within twenty-four hours of the time at which the juvenile was taken into custody. Like the standard on review of detention decisions, it recommends further that this review take place at a hearing at which the juvenile and the juvenile's parents, guardian, or primary caretaker are entitled to counsel, and at which the state is required to prove that there is probable cause to believe that the allegations contained in the complaint are true and to demonstrate that continued emergency custody is necessary. The principle of a prompt hearing to review decisions to place a juvenile in emergency custody has been endorsed by all of the recent national standards-setting and model legislative groups that have addressed the issue. U.S. Department of Health, Education and Welfare, the Model Act for Family Courts, Section 23 (1975); and the Report of the Task Force, supra at Standards 12.9 and 12.10 recommend that a hearing to review the initial emergency custody decision be held within twenty-four hours of the filing of the petitioni.e., within forty-eight hours of being taken into custody. Both the Model Act for Family Courts, supra, and the Report of the Task Force, supra do not exclude weekends and holidays from the prescribed time periods. National Conference of Commissioners on Uniform State Laws, the Uniform Juvenile Court Act, Section 17(b) (1968) requires a hearing within. seventy-two hours. The provision adopted by the IJA/ABA Joint Commission recommends that a hearing be held no later than the next business day. IJA/ABA, Neglect, supra. The National Advisory Committee concluded that the time period for the initial judicial review of detention decisions in delinquency and noncriminal misbehavior and the time period for initial judicial review of decisions to place a child in emergency custody should be the same. Although the recommended 24-hour limit may cause some difficulties, especially in rural areas, the emotional impact on a juvenile of removal from even a bad home requires that the mechanism for correcting improper emergency custody decisions be available as quickly as possible. See J. Goldstein, A. Freud, and A. Solnit, Beyond the Best Interests of the Child (1973); see also Standard 3.155. The notice and hearing procedures recommended in the standard are parallel to those recommended for review of detention decisions in delinquency and noncriminal misbehavior cases. See Standard 3.155. At the hearing, the family court judge should first determine whether there is probable cause to believe that a juvenile has been neglected or abused. Accord, IJA/ABA, Neglect, supra; American Indian Law Center, Model Children's Code, Section 6.7(A) (1976); cf. Gerstein v. Pugh, 420 U.S. 103 (1975). As in the other standards dealing with determinations of probable cause, Standard 3.157 does not preclude such determinations from being based in part on hearsay. See, e.g., Standards 3.155 and 3.165. If probable cause is found, the court should review the decision to retain a juvenile in emergency custody. The state should bear the burden of showing that the intake officer's 3.158 Review, A review hearing should be held at or before the end of each Sources: In accordance with a specific order of the family court, an intake officer may at any time relax conditions of release, which the court has approved or imposed, if the restrictions are no longer necessary. A notice stating the changed circumstances and the new conditions should be filed with the court and a copy sent to the juvenile, the juvenile's attorney, and parents, guardian, or primary caretaker, and to the family court section of the prosecutor's office. Secure or nonsecure detention or more stringent conditions should be imposed only by the family court following a hearing at which the circumstances justifying the additional restrictions, including a willful violation of the conditions of release or a willful failure to appear, are demonstrated by clear and convincing evidence. The decision to impose additional restrictions should be made in accordance with the criteria set forth in Standards 3.151 and 3.152 for delinquency cases and Standard 3.153 for noncriminal misbehavior cases, and in the same manner as in Standard 3.155. The subject of a complaint or petition should be entitled to appeal an order of the family court imposing or denying release from detention, or other significant restraint on liberty. The notice of appeal should include a copy of the order and of the reasons for that order given by the family court. Appeals from detention orders should be heard and decided as expeditiously as possible. The same review, modification, and appellate procedures should apply to neglect and abuse proceedings in which the juvenile has been placed in emergency custody, and the same modification and appellate procedures should be applicable to neglect and abuse proceedings in which conditions designed to protect the juvenile have been imposed on the juvenile's parents, guardian, or primary caretaker. See generally Institute of Judicial Administration/American Bar Association Joint Commission on Juvenile Justice Standards, Standards Relating to Interim Status, Standards 4.5, 7.10, 7.12, and 7.13 (tentative draft, 1977) [hereinafter cited as IJA/ABA, Interim Status]; National Advisory Committee on Criminal Justice Standards and Goals, Report of the Task Force on Juvenile Justice and Delinquency Prevention, Standard 12.11 (1976) [hereinafter cited as Report of the Task Force]. Commentary In keeping with the concern over the impact of long-term detention or emergency custody of juveniles, this standard provides for recurring review of such detention or custody. The review is intended to assure that detention or emergency custody is still warranted and to encourage prompt adjudication. The standard requires a judicial review hearing every seven days or whenever new circumstances arise. This combines the short time period recommended by the IJA/ABA Joint Commission with the more flexible criterion proposed by the Report of the Task Force, supra; IJA/ ABA, Interim Status, supra; Standard 7.10; Report of the Task Force, supra. The Wisconsin Council on Criminal Justice, Special Study Committee on Criminal Justice Standards and Goals, Juvenile Justice Standards and Goals, Section 7.3 et. seq. (1975) urges that detention in delinquency cases be reviewed every five days. The second paragraph of the standard is to encourage family court judges to identify the circumstances in which the intake officer may terminate the detention or emergency custody or may ease or void the conditions. Intake officers are not provided the power to relax the conditions of detention or release without judicial approval. However, intake officers should be authorized to seek such approval when the situation warrants. Imposition of more stringent conditions on release or, in 3.121 Relationship to Other Courts neglect and abuse matters, on continued parental custody of Related Standards Finally, the standard provides for interlocutory appeal of decisions approving or imposing detention, emergency custody, or other significant restraints on liberty. Such appeals should be processed and decided as expeditiously as possible. It is anticipated that many appeals of detention decisions will be heard by a single appellate court judge. The provisions approved by the IJA/ABA, Interim Status, supra recommend that appeals of detention decisions be heard within twentyfour hours of the filing of the notice of appeal and decided at the conclusion of appellate argument. IJA/ABA, Interim Status, supra at Standard 7.12. 3.151 Purpose and Criteria for Detention and Conditioned 3.152 Criteria for Detention in Secure Delinquency Facilities 3.153 Criteria for Detention and Release-Noncriminal Misbehavior 3.154 3.155 3.157 3.161 Criteria and Procedures for Imposition of Protective 3.156 Review of the Conditions of Release Initial Review of Emergency Custody Decisions 3.171 Rights of the Parties 3.191 Right to Appeal 3.192 Right to Counsel and a Record of the Proceedings 3.16 Pre-Adjudication Procedures 3.161 Case Processing Time Limits In matters subject to the jurisdiction of the family court over delinquency, the following time limits should apply: a. Intake decisions, as defined in Standard 3.142, should be made within twenty-four hours after the juvenile has been taken into custody, excluding nonjudicial days, if the juvenile is detained, and within thirty calendar days of the filing of the complaint if the juvenile is not detained; b. If a juvenile is detained, the hearing to review the detention decision, as defined in Standard 3.155, should be held within twenty-four hours after a juvenile has been taken into custody; c. The decision by the family court section of the prosecutor's office to file a petition, as defined in Standard 3.163, should be made within two judicial days after receipt of the intake officer's report if the juvenile is detained, and within five judicial days after receipt of that report if the juvenile is not detained; When these time limits are not met, there should be authority to release a detained juvenile, to impose sanctions against the persons within the juvenile justice system responsible for the delay, and to dismiss the case with or without prejudice. Time limits equivalent to those recommended for delinquency cases should apply to matters subject to the jurisdiction of the family court over noncriminal misbehavior and neglect and abuse. Sources: See generally Institute of Judicial Administration/American Bar Association Joint Commission on Juvenile Justice Standards, Standards Relating to Interim Status, Standard 7.10 (tentative draft, 1977) [hereinafter cited as IJA/ABA, Interim Status]; National Advisory Committee on Criminal Justice Standards and Goals, Report of the Task Force on Juvenile Justice and Delinquency Prevention, Standard 12.1 (1976) [hereinafter cited as Report of the Task Force]. d. When a complainant resubmits a complaint dismissed by e. The arraignment hearing, as defined in Standard 3.166, f. The adjudication hearing should be held within fifteen h. Any issue taken under advisement by the family court i. Appellate courts should decide interlocutory appeals from family court decisions within thirty calendar days after the interlocutory appeal is filed; and j Appeals from final orders of the family court should be decided within ninety calendar days of filing. This standard sets forth the maximum time limits that should apply to the processing of delinquency, noncriminal misbehavior and neglect and abuse cases. In accord with the recommendations of the IJA/ABA, Interim Status, supra, the Report of the Task Force, supra, and Department of Health, Education and Welfare, the Model Act for Family Courts, Section 17 (1975), the standard recommends swifter processing of cases in which a juvenile accused of committing a delinquency act or engaging in noncriminal misbehavior is detained, or a juvenile alleged to be neglected or abused is in emergency custody. See also Wisconsin Council on Criminal Justice Special Study Commission on Criminal Justice Standards and Goals, Juvenile Justice Standards and Goals (1975); ABA, Standards Relating to Speedy Trial, Section 1.1 (approved draft, 1968). The maximum times set by the standard are intended to provide a sufficient opportunity for all parties to prepare, although assuring that cases are heard while the events are still fresh in the juvenile's mind. In cases in which a youth is detained or in emergency custody, the total time period between the date on which the child is taken into |