3.1813 Enforcement of Dispositional OrdersNeglect and Abuse Any of the parties to the dispositional hearing following adjudication of a neglect and abuse petition should be authorized to apply to the family court if it appears that there has been a willful failure to comply with 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 the dispositional order was violated and the violation was 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 dispositional orders be made up; and b. To modify existing conditions or impose measures calculated to induce compliance, if it appears that a warning will be sufficient. A verbatim record should be made of all enforcement proceedings. Sources: None of the standards or reports reviewed address the criteria and alternatives that should apply to enforcement of dispositional orders in neglect and abuse proceedings. The available for enforcement of dispositional orders in neglect and abuse cases. As in the provision on enforcement in noncriminal misbehavior matters, the juvenile, the parent, or the state may initiate the enforcement action, and the family court's contempt powers are intended to serve as a prime means for securing compliance when a public agency fails to provide services ordered by the family court. See Standard 3.1811 and Commentary; see also Standards 3.189 and 3.1812. Like Standard 3.1810, it provides for notice of the alleged violation; for a hearing at which the violation must be proven by a preponderance of the evidence; for the rights of the juvenile and the juvenile's parents, guardian, or primary caretaker to counsel, to compulsory process, to present evidence and cross-examine witnesses; for imposition of the least intrusive alternative likely to induce compliance; and for an explanation of the terms of and reasons for any modification of the dispositional order. See Standards 3.132, 3.133, 3.171, and 3.188. It also recommends that modifications should be designed to induce compliance with the dispositional order and reduce the potential for harm to the child. The term "measures to induce compliance" is intended to include removal of a child from his/her home for foster care placement when the criteria for removal set forth in Standard 3.184 are met. See Standard 3.1810; but see Standard 3.1811. The standard does not recommend that a new complaint be filed when the conduct constituting the alleged violation also constitutes a new instance of abuse of neglect. Such a provision is unnecessary because of the lack of time limits on dispositional orders in neglect and abuse cases and the higher level of proof required for removal under Standard 3.184(b). But cf. Standards 3.1810 and 3.1811. procedures are based on those recommended for delinquency Related Standards proceedings by: Institute of Judicial Administration/American Bar Association Joint Commission on Juvenile Justice Standards, Standards Relating to Dispositions, 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 2.13 2.233 2.33 3.113 3.154 Intervention to Protect Against Harm Criteria for Taking a Juvenile Into Emergency Jurisdiction Over Neglect and Abuse Criteria and Procedures for Imposition of Protective Measures in Neglect and Abuse Cases Rights of the Parties 3.19 Appellate Procedures 3.191 Right to Appeal The respondent in a delinquency, noncriminal misbehavior, or neglect and abuse proceeding should be entitled to appeal to the appropriate appellate court to review the family court's adjudication or dispositional order. Respondents should also be entitled to appeal interlocutory orders that impose significant restraints on their liberty. Appeals of other interlocutory orders should be permitted by leave of the appropriate appellate court. The state should be entitled to appeal the adjudication or dispositional order in neglect and abuse proceedings and the following types of orders in delinquency and noncriminal misbehavior cases: a. Orders that declare a statute unconstitutional; b. Orders that dismiss a case on such grounds as double jeopardy, failure to comply with the time limits specified in Standard 3.161, or failure of the petition to state a cause of action under the applicable statute; c. Orders that by suppressing state evidence are likely to result in dismissal of the case; or d. Orders that deny transfer of the case to a court of general jurisdiction. Other parties should be entitled to appeal dispositional orders that materially affect their liberty or interests. Source: See generally Institute of Judicial Administration/American Bar Association Joint Commission on Juvenile Justice Standards, Standards Relating to Appeals, Standards 1.2(a), 2.2, and 2.3 (tentative draft, 1977) [hereinafter cited as IJA/ABA, Appeals]. Commentary This standard outlines the right to appeal afforded in delinquency, noncriminal misbehavior, and neglect and abuse proceedings. In general, it recognizes the principle adopted in the IJA/ABA, Appeals, supra at Standard 1.2(a) that: In order to recognize the goals of the entire juvenile justice system, it is essential that there be one appeal of right afforded to all parties materially affected by a juvenile court order, to review the facts found, the law applied, and the disposition ordered. It is contemplated that appeals from family court proceedings will be of the same nature and directed to the same court as appeals from other divisions of the highest court of general jurisdiction and that they will be beased on the evidence adduced in the family court rather than constituting trials de novo. Although the right to appeal in criminal or juvenile proceedings has never been formally held to be guaranteed by the Constitution, it has been statutorily afforded to adult criminal defendants in every state and to juveniles adjudicated delinquent in an overwhelming majority of jurisdictions. However, as the President's Commission on Law Enforcement and Administration of Justice observed, "by and large the juvenile court system has operated without appellate surveillance," and "the quality of justice in the juvenile court system has thereby been adversely affected in several ways." Task Force Report: Juvenile Delinquency and Youth Crime, 40 (1967). The standard recommends that respondents have the right to appeal both the adjudication and the dispositional order. Review in either case aims toward the development of a greater uniformity of practices within the jurisdiction; development of a consistent rationale behind dispositional or adjudicatory decisions; and rectification of error made in individual situations. IJA/ABA, Appeals supra at Commentary to Standard 1.2.) It is anticipated, however, that the modification procedures set forth in Standard 3.189 will be the usual review mechanism for dispositional orders. The commentary to that standard contains a discussion of the criteria for review of such orders. The standard follows the IJA/ABA Joint Commission recommendations by providing for interlocutory appealsi.e., appeals of pre-adjudication orders-by respondents. It recommends that respondents should be entitled to appeal detention orders or other orders significantly restricting their liberty-e.g., commitment to a mental health facility or transfer of the case to another division of the highest court of general jurisdiction-but that review of other orders—e.g., denial of a suppression motion-prior to disposition should be left to the discretion of the appropriate appellate court. the IJA/ABA, Appeals, supra does not define this authority other than to permit the appellate court to decline review. The ABA, Standards Relating to Criminal Appeals, Section 1.3 (approved draft, 1970) permits such appeals, but indicates that they should only be used in exceptional cricumstances. The standard also recommends that the state should be entitled to appeal from final orders in neglect and abuse cases but limits the state's appeal rights in delinquency and noncriminal misbehavior cases. This reflects the traditional division between civil and criminal proceedings. The commentary to the ABA, Standards Relating to Criminal Appeals, supra at 34-35 notes that "[t]he subject of prosecution appeals has occupied more space in articles and lectures than any other topic dealing with criminal appeals . . . [and that] there are considerable differences among the states and the Federal Government as to the appropriate scope of prosecution appeals." The four grounds recommended by the standard follow those proposed by IJA/ABA, Joint Commission. See Appeals, supra; see also ABA, Standards Relating to Criminal Appeals, supra. Finally, the standard recommends that the right to appeal dispositional orders should be extended to other parties materially affected by those orders-e.g., parents or service agencies in noncriminal misbehavior cases. Consistent with. the IJA/ABA Joint Commission provision and Standard 3.133, parents should not be authorized to appeal a delinquency adjudication on their child's behalf. In order to avoid unnecessary delay and uncertainty, strict time limits on appeals are recommended in Standard 3.161. To assure the fairness and adequacy of appellate proceedings, Standard 3.192 provides for counsel on appeal and the availability of a transcript or other record of the family court proceedings. Furthermore, it is anticipated that in most cases, the order of the family court will be stayed pending appeal. The family court should be authorized to stay its order upon application by the respondent. The decision whether or not to stay a dispositional order should always take into account the safety and needs of the juvenile. Criteria to guide such decisions should be developed to promote consistency. See IJA/ABA, Appeals, supra at Standards 5.1-5.3. Paragraph (a) provides an opportunity for the state to challenge a ruling by the family court that a state statute violates the federal or state constitution. This is to assure that questions of constitutional dimension receive full review and that there will be a definitive ruling on which the public and state and local officials can base future conduct. Paragraphs (b) and (c) provide for state appeals of pretrial rulings that preclude or significantly impede prosecution of the case. Opportunity for such appeals has been recommended by the ABA, Standards Relating to Criminal Appeals, supra, and the President's Commission on Law Enforcement and Adminis- Related Standards tration of Justice, The Challenge of Crime in a Free Society, 140 (1967), as well as by the IJA/ABA, Appeals, supra. See also 18 U.S.C. Section 3734 (Supp. 1971). Paragraph (d) recommends that the state be able to appeal orders denying transfer of a delinquency case to another division of the highest court of general jurisdiction for trial as a criminal proceeding See Standard 3.116 and 3.121. It is anticipated that such appeals will take place soon after entry of the order and not after disposition in order to avoid the inherent difficulty of trying to reconstruct a transfer hearing after adjudication or trial. See IJA/ABA, Standards Relating to Waiver of Juvenile Court Jurisdiction, Standard 2.4 (tentative draft, 1977). 3.158 Review Modification and Appeal of Detention Decisions 3.161 3.168 3.171 3.2 Case Processing Time Limits Extension and Computation of Case Processing Time Motion Practice Rights of the Parties Review and Modification of Dispositional Decisions 3.192 Right to Counsel and a Record of the Proceedings Parties entitled to appeal under Standard 3.191 should be entitled to be represented by counsel and to a copy of the verbatim transcript of the family court proceedings and any matter appearing in the court file. Counsel should be appointed if the party meets the criteria set forth in Standard 3.132 or Standard 3.133. The transcript and other materials should be provided at public expense if a party is unable to obtain it for financial reasons. After announcing and explaining the dispositional decision, the family court judge should inform the parties of their right to appeal, the time limits and manner in which an appeal must be taken, and their rights to counsel on appeal and to the record of the proceedings. Sources: Institute of Judicial Administration/American Bar Association Joint Commission on Juvenile Justice Standards, Standards Relating to Appeals, Standards 3.1-3.3, and 4.2 (tentative draft, 1977) [hereinafter cited as IJA/ABA, Appeals]; see also National Advisory Committee on Criminal Justice Standards and Goals, Report of the Task Force on Juvenile Justice and Delinquency Prevention, Standards 13.8 and 16.7 (1976) [hereinafter cited as Report of the Task Force]. Commentary This standard sets forth the ancillary rights required to effectuate the right of appeal. It is intended that the right to counsel and to a record of the proceedings apply when a respondent or other private party is the appellee as well as when he/she is the appellant. California, 372 U.S. 353 (1963); ABA, Standards Relating to Criminal Appeals, Section 3.2 (approved draft, 1970); IJA/ABA, Appeals, supra; Report of the Task Force, supra. Because fundamental rights are at issue in noncriminal misbehavior and neglect cases as well as in delinquency proceedings, the right to counsel on appeal is extended to parties in all three types of proceedings. Accord, Standards 3.131-3.133, and 3.171. The same reasoning applies to the provision of a full record of the proceedings. See, e.g., Griffin v. Illinois, 351 U.S. 12 (1956); ABA, supra, Section 3.3; President's Commission, supra; IJA/ABA, Appeals, supra; Report of the Task Force, supra; see also U.S. Department of Health, Education and Welfare, Model Act for Family Courts, Section 54(c) (1975). As was noted by the Supreme Court in the Gault case: Failure to make a record, may be ... to saddle the reviewing process with the burden of attempting to reconstruct a record and to impose upon the juvenile judge the unseemly duty of testifying under cross-examination as to the events that transpired in the hearings before him. In re Gault, 387 U.S. at 58. However, nothing in the standard is intended to prevent the parties from stipulating to a mutually agreeable statement of the facts and history of the case in lieu of a verbatim transcript. See IJA/ABA, Appeals, supra at Standard 4.3. The explanation called for in the second paragraph of the standard, like the notices provided for in Standards 2.2422.244, 2.247, 2.342-2.343, 3.146, 3.155-3.157, 3.166, 4.47, and 4.81, is to assure that the parties fully understand their rights. It is to be made by the family court judge immediately following the description of the terms of disposition and the statement of the facts and reasons underlying the dispositional decisions that is called for in Standard 3.188. 1.532 Access to Court Records The standard recommends that any party entitled to an Related Standards appeal under Standard 3.191 should be entitled to counsel for that appeal and to have counsel appointed if they meet the eligibility requirements set out in Standards 3.132 and 3.133. Although In re Gault, 387 U.S. 1 (1967) did not hold that the right to appeal delinquency adjudications is constitutionally required, once an appeal is provided, both the due process and equal protection clauses of the Fourteenth Amendment to the U.S. Constitution would seem to require that a fair and adequate procedure for appeal be provided. Counsel to identify and argue the issues on appeal appears essential to the fairness and adequacy of the proceedings. See, e.g., Douglas v. 3.134 3.131 3.132 Representation by Counsel-For the State Representation by Counsel-For the Juvenile 3.133 Representation by Counsel-For the Parents Role of Counsel 3.171 Rights of the Parties 3.188 Dispositional Hearings 3.191 Right to Appeal Noncourt Adjudicatory Proceedings 3.2 4.54 Disciplinary Proceedings |