ordinarily be inappropriate to order a juvenile to attend a vocational training program, for example, because of failure to report to his/her counselor each week. Finally, if neither a warning nor modification of conditions appears sufficient to gain compliance, the judge may impose the next most restrictive form of sanctions. The standard would permit, but not require, the amount of time missed from the dispositional program, time to be added to the disposition, but unlike the source provisions, it makes explicit that the statutory maxima should still apply. See Standard 3.181. them, to present evidence and witnesses on their own behalf, Upon determining that a violation has occurred and that there is no good excuse for noncompliance, the standard recommends three enforcement alternatives. As with the original dispositional decision, the choice of sanction is structured to emphasize that the least restrictive alternative likely to induce compliance should be utilized. The first alternative is simply to warn the juvenile of the consequences of further noncompliance and order him/her to make up any time or payments missed. Such a procedures has been recommended by the ABA, Standards Relating to Probation, Section 5.1 (approved draft, 1970) as well as the IJA/ABA, Dispositions, supra; the Report of the Task Force, supra; and Corrections, supra. If the family court judge concludes that a warning would be unlike to induce compliance, the next option is to modify or add to the conditions already imposed. Such modifications should be designed to encourage compliance. Hence, it would Finally, to provide the juvenile with all the procedural protections that are applicable when there are allegations of delinquent conduct, including the requirement of proof beyond a reasonable doubt, see Standards 3.171 and 3.174, and to make the imposition of limits on the length of dispositions more practicable, the standard recommends that when the alleged violations of the dispositional order constitute a delinquent offense, the matter should be handled as a new delinquency proceeding rather than as an enforcement action. IJA/ABA, Dispositions, supra; Report of the Task Force, supra. 3.111 Jurisdiction Over Delinquency 3.171 Rights of the Parties 3.176 Uncontested Adjudications 3.177 Withdrawal of Admissions 3.181 Durations of Disposition and Type of Sanction- 3.182 3.188 Criteria for Dispositional Decisions-Delinquency Review and Modification of Dispositional Decisions 3.1813 Enforcement of Dispositional Orders-Neglect and Abuse 4.33 4.54 4.71 4.72 Community Supervision-Imposition and Enforcement of Regulations Disciplinary Procedures Transfers From Less Secure to More Secure Facilities 3.1811 Enforcement of Dispositional OrdersNoncriminal Misbehavior Any of the parties to the dispositional hearing following adjudication of a noncriminal misbehavior petition should be authorized to apply to the family court if it appears that there has been a willful violation of any part of the dispositional order. A copy of the application should be served on each of the other parties and sent to their attorneys. No more than five days after the application has been filed, unless an extension has been granted under Standard 3.162, a hearing should be held to determine whether the terms of the dispositional order have been violated and, if so, whether there are any circumstances justifying the violation. The court should follow the procedures and the parties should be afforded the rights set forth in Standard 3.1810 for enforcement hearings in delinquency cases. If it is determined that a violation has occurred and that the violation is not justified, the court should be authorized: a. To warn of the consequences of continued noncompliance and order that time missed from any program specified in the dispositional order be made up; or b. Modify existing conditions or impose additional conditions calculated to induce compliance, if it appears that a warning will be insufficient. The court should be authorized to add time missed from any program specified in the dispositional order to the length of the disposition, so long as the total dispositional period does not exceed the time limits set forth in Standard 3.183. A verbatim record should be made of all enforcement proceedings. When the conduct alleged to constitute a willful failure to comply with the dispositional order also meets the definition of noncriminal misbehavior set forth in Standard 3.112, a complaint rather than an enforcement application should be filed and the matter referred to intake. Sources: None of the standards or reports reviewed address the criteria and alternatives that should apply to enforcement of dispositional orders in noncriminal misbehavior proceedings. The procedures are based on those recommended for delinquency proceedings by: Institute of Judicial Administration/American Bar Association Joint Commission on Juvenile Justice Standards, Standards Relating to Disposi tions, Standard 5.1(d) (tentative draft, 1977); National Advisory Committee on Criminal Justice Standards and Goals, Report of the Task Force on Juvenile Justice and Delinquency Prevention, Standard 14.22 (1976); see also National Advisory Committee on Criminal Justice Standards and Goals, Corrections, Section 5.4 (1973). Commentary With two exceptions, this standard parallels the provisions for enforcement of dispositional orders in delinquency cases. Like Standard 3.1810, it provides for notice of the alleged violation; a prompt hearing at which the violation must be proven by at least a preponderance of the evidence; the rights of the juvenile and the juvenile's parents, guardian, or primary caretaker to counsel, to compulsory process, and to present and cross-examine witnesses; for imposition of the least restrictive alternative likely to induce compliance; and for an explanation of the terms of and reasons underlying any modifications of the dispositional order. See Standards 3.132, 3.133, 3.171, and 3.188. It also recommends that modification of the dispositional order should be designed to induce compliance with those portions of the order that were violated, and that new instances of noncriminal misbehavior be handled through a complaint rather than through an enforcement proceeding. Filing a new complaint would allow continuation of dispositions beyond the limits proposed in Standard 3.183, but only after an adjudication proceeding at which the rights of the juvenile should be fully protected. However, in keeping with the tripartite nature of dispositional proceedings in noncriminal misbehavior cases, see Standard 3.183, any of the parties, not just the state, may bring an enforcement action to gain compliance with the dispositional order by either of the other parties. Hence, if a juvenile fails to attend any program specified in the order, either the juvenile's parents or the state may apply to the court; if the parents fail to attend the counseling sessions required by the court, either the juvenile or the state may seek to enforce the order; and, if the public agency charged with providing a service to the juvenile or family fails to do so, either of the private parties may seek relief. It is anticipated that in an instance in which the state fails to comply, the modification procedure outlined in Standard 3.189 will be preferred. The family court's contempt powers are intended to be the primary means for enforcing orders directed at public agencies when the warning procedure set forth in paragraph 3.171 Rights of the Parties (a) appears unlike to gain compliance. The second distinction between this standard and Standard 3.1810 is the recommendation that imposition of the next most severe type of sanction not be available as a means of enforcing a dispositional order. Cf. Standard 3.1813. This follows from the recommendation in Standard 3.183 that in noncriminal misbehavior cases, dispositional orders and their enforcement should never result in the confinement of a juvenile in a secure detention or correctional facility or institution. A more detailed explanation of the procedures and criteria applicable in enforcement proceedings is contained in the Commentary to Standard 3.1810. Related Standards 3.112 Jurisdiction Over Noncriminal Misbehavior 3.1812 Review of Dispositional Orders— Neglect and Abuse In addition to the right to review provided by Standard 3.189, a hearing to review the dispositional decision in neglect and abuse cases should be held at least every six months to determine whether continued exercise of the family court's dispositional authority is necessary Prior to the hearing, the agency responsible for the protection, care, or custody of the juvenile should submit to the court a report on the services offered to the family; the response to those services; the prognosis for cessation of intervention; and a recommendation regarding the appropriate disposition. A copy of the report should be provided to the attorney for the juvenile, the attorney for the juvenile's parents, guardian, or primary caretaker, and to the family court section of the prosecutor's office. At the hearing, each of the parties should be afforded the opportunity to present evidence and to call and cross-examine witnesses and should be entitled to compulsory process. A verbatim record should be made of all review proceedings A juvenile in an out-of-home placement should be returned home if the preponderance of the evidence indicates that return will not subject the juvenile to any of the dangers listed in Standard 3.113. Supervision and any necessary services should continue for at least six months following return of a juvenile to his/her home. At the conclusion of the hearing, the family court judge should explain, on the record, any changes determined necessary and the facts and reasons underlying the decision. Sources: See generally Institute of Judicial Administration/American Bar Association Joint Commission on Juvenile Justice Standards, Standards Relating to Neglect and Abuse, Standards 7.4(a) and 7.5(b) (tentative draft, 1977) [hereinafter cited as IJA/ABA, Neglect]; National Advisory Committee on Criminal Justice Standards and Goals, Report of the Task Force on Juvenile Justice and Delinquency Prevention, Standards 14.30-14.31 (1976) [hereinafter cited as the Report of the Task Force]. Commentary This standard provides for automatic review of dispositions in neglect and abuse cases. As noted in the commentary to the provision adopted by the Report of the Task Force, supra: Under present practice, the purpose of providing services to the family or removing the child from the home on a "temporary" basis is to facilitate the safe reunion of parents and child. But more often than not this objective is thwarted. In establishing and executing plans to return the child, agency performance is woefully inadequate in many cases. In addition, some parents either effectively abandon the child or fail to make reasonable efforts to reunite the family. As a result children are often "lost" in the foster care system-remaining "in limbo" without a stable placement for periods of many years. The judicial oversight provided by this standard, and the procedures recommended in Standard 3.189-modification of dispositional decisions at the request of a party-Standard 3.1813-enforcement of dispositional orders and Standard 3.185-criteria for termination of parental rights-are intended to assure that neglected or abused juveniles receive the protection they need; that families of such juveniles receive the services they need; that such services continue for as long as necessary, but no longer; and that every effort is made to reunite families when a child has been removed from his/her home. The six-month time limit is intended to be a maximum. It does not represent the recommended minimum duration for dispositional orders in neglect and abuse cases. The standard provides for a report by the agency responsible for carrying out the dispositional orders indicating what has been done to protect the child; to alleviate any harm suffered; and to assist the family to overcome the problems that led to the neglect or abuse. See Standard 3.184. Like the standards on detention, pre-adjudication procedures, and predisposition reports, Standard 3.1812 recommends that the agency report be disclosed to counsel for the parties to assure its accuracy and to allow them to prepare for the hearing. See Standards 3.155-3.157, 3.167, and 3.187. Disclosure of the report should be sufficiently before the hearing to allow such preparation to occur. As in other hearings provided for throughout these standards, all parties should have the means and opportunity to present evidence and witnesses, and to cross-examine the witnesses called by other parties. See, e.g., Standards 3.171, 3.188, 3.1810, 3.1811, and 3.1813. Under Standards 3.132 and 3.133, both the juvenile and the juvenile's parents should be entitled to counsel. The standard uses the same test for returning a juvenile to 3.113 3.158 Jurisdiction Over Neglect and Abuse Review Modification and Appeal of Detention his/her home as is recommended for removal-i.e., whether Related Standards The explanation called for in the final paragraph is part of the effort in these standards to make discretionary decisions more accountable and consistent. See, e.g., Standards 3.147, 3.155-3.157, and 3.188. It is intended to help the parties understand their responsibilities as well as provide a basis for review. 3.171 3.184 3.185 3.187 3.1813 Rights of the Parties Dispositional Alternatives and Criteria- Criteria for Termination of Parental Rights Dispositional Hearings Review and Modification of Dispositional Orders Enforcement of Dispositional Orders Foster Homes Community Supervision Right to Care and Treatment |