3.2 Noncourt Adjudicatory Proceedings Whenever a government agency, institution, or program seeks to abridge substantially a juvenile's rights, curtail essential benefits accruing to a juvenile, or impose serious sanctions against a juvenile, there should be a hearing to determine whether the allegations on which the proposed action is based are true and whether the proposed government action is appropriate. In conjunction with such a hearing, the juvenile should be entitled to: a. Timely written notice of the allegations; b. Representation; c. Present evidence and call and cross-examine witnesses; d. An impartial decision maker; whenever a significant deprivation or sanction is possible regardless of the form of purpose of the proceeding. The Supreme Court has stated on a number of occasions that "the 'right to be heard before being condemned to suffer grievous loss of any kind, even though it may not involve the stigma and hardships of a criminal conviction, is a principle basic to our society."" Joint Anti-Fascist Committee v. McGrath, 341 U.S. 123, 168 (1951) (Justice Frankfurter, concurring) as quoted in Mathews v. Eldridge, 424 U.S. 391, 333 (1976). Hence, the standard recommends that there should be a hearing whenever there is a substantial abridgment of a juvenile's rights, termination of an essential benefit to a e. Written findings delineating clearly the facts and reasons juvenile, or imposition of a more than a de minimus sanction underlying the decision; and f. An opportunity for review. Sources: See generally Goldberg v. Kelly, 397 U.S. 254 (1970); Morrissey v. Brewer, 408 U.S. 471 (1972); Institute of Judicial Administration/American Bar Association Joint Commission on Juvenile Justice Standards, Standards Relating to Schools and Education, Standards 5.1-5.3, and Standards Relating to Corrections Administration, Standard 8.9 (tentative drafts, 1977) [hereinafter cited as IJA/ABA, Education, and IJA/ABA, Corrections Administration, respectively]; National Advisory Committee on Criminal Justice Standards and Goals, Report of the Task Force on Juvenile Justice and Delinquency Prevention, Standards 20.5 and 20.6 (1976) [hereinafter cited as Report of the Task Force]. Commentary The family court is not the only forum in which juveniles may have to defend against or challenge the deprivation of their rights. Executive branch agencies are authorized to impose disciplinary measures including room confinement against juveniles in correctional facilties, See Standard 4.54, or expel juveniles from school; and to terminate welfare payments or other essential benefits accruing to juveniles. This standard sets forth the procedural rights that should apply to administrative determinations to impose such sanctions. It reflects the belief that juveniles as well as adults are entitled to those due process rights necessary to preserve fundamental fairness. The standard is intended to be broad enough to allow for the diversity of out-of-court adjudications and yet specific enough to assure that minimum safeguards are present against a juvenile by a public agency. See Goldberg; Morrissey; Goss v. Lopez, 419 U.S. 565 (1975). Whether or not this hearing must precede the agency's action depends on the interest at stake, the impact of the action on the juvenile, and the burden that such a hearing would create on the agency. Mathews, 424 U.S. at 335; see Parham v. J.R., 442 U.S. 584 (1979). The notice requirement recommended in paragraph (a) is intended to afford the juvenile an opportunity to prepare a defense to the allegations. To allow the construction of such a defense, the notice should include the reasons for the agency's action or the conduct of the juvenile on which that action is based and the procedural protections to which the juvenile is entitled throughout the proceedings. See Standard 3.164, IJA/ABA, Corrections Administration, supra; Goldberg; Morrisey; In re Gault, 387 U.S. 1 (1967); see also Goss. Paragraph (b) recommends that juveniles be entitled to representation at noncourt adjudicatory proceedings. The paragraph is not intended to suggest that such representation must be provided by an attorney. An agency staff member not involved in the preparation of the action, a volunteer from a regular volunteer program, an ombudsman, or a law student may be able to perform this advocacy role satisfactorily. See Standard 4.54; Wolff v. McDonnell, 418 U.S. 546, 592 (Justice Marshall concurring in part, dissenting in part); accord, IJA/ABA, Corrections Administration, supra; but see, IJA/ ABA, Education, supra. Although stating that a welfare recipient "must be allowed to retain an attorney if he so desires," in order to defend against a termination of welfare benefits, Goldberg, 397 U.S. at 270, the Supreme Court has held that counsel is not constitutionally required in most disciplinary proceedings, in most parole or probation revocation proceedings, or in proceedings to suspend a child from school for ten days or less. Wolff; Morrissey; Gagnon v. Scarpelli, 411 U.S. 778 (1973); Goss. Nevertheless, the National Advisory Committee concluded that at least some assistance in "delineat[ing] the factual contentions in an orderly manner, conduct[ing] cross-examination, and generally safeguard[ing] . . .," the interests in jeopardy, Goldberg, 397 U.S. at 270, is essential to assure fairness for juveniles involved in noncourt adjudicatory proceedings. Cf. Standards 3.132 and 3.134. Paragraph (c) recommends that juveniles be entitled to present evidence and to call and cross-examine witnesses. In Greene v. McElroy, 360 U.S. 474, 496-497 (1959), the Supreme Court observed that: Certain principles have remained relatively immutable in our jurisprudence. One of these is that where governmental action seriously injures an individual, and the reasonableness of the action depends on fact findings, the evidence used to prove the government's case must be disclosed to the individual so that he has an opportunity to show that it is untrue. While this is important in the case of documentary evidence, it is even more important where the evidence consists of the testimony of individuals whose memory might be faulty or who, in fact, might be perjurers or persons motivated by malice, vindictiveness, intolerance, prejudice, or jealously. We have formalized these protections in the requirements of confrontation and crossexamination. They have ancient roots. They find expression in the Sixth Amendment . . . This Court has been zealous to protect these rights from erosion. It has spoken out not only in criminal cases. . . but also in all types of cases where administrative . . . actions were under scrutiny. evidence and to call and cross-examine witnesses in situations meeting the "seriousness" requirements discussed above. See Standards 3.171 and 3.1810. The impartial decision maker called for under paragraph (d) may be an administrative board, an appointed or agreed-upon arbitrator, or a single agency officia!. The individual or individuals serving in the adjudicatory function should not have been involved in the investigation or preparation of the case or have a personal interest in its outcome. The importance of a "neutral and detailed hearing body" was stressed in both the Goldberg and Morrissey decisions. See also, Wolff; IJA/ABA, Education, supra; IJA/ABA Corrections Administration, supra; Report of the Task Force, supra; but see Goss. Paragraph (e) recommends that at the conclusion of the hearing, the decision-making body or individual prepare written findings explaining the basis for the decision. This is part of the effort throughout these standards to make discretionary decisions more consistent, comprehensible to the parties, and open to review. See, e.g., Standards 3.147, 3.1553.157, and 3.188. Each of the sources for this standard lists a written statement by the hearing board or official regarding the facts relied on and the reasons for the decision as a minimum requirement of due process. See Goldberg; Morrissey; IJA/ABA, Corrections Administration, supra; IJA/ABA, Education, supra; Report of the Task Force, supra; but see, Goss v. Lopez, supra; Parham, supra. Finally, as a means of assuring that the above rights have been afforded, that the decision is supported by the evidence, and that any action taken is in accordance with the law, paragraph (f) urges that the juvenile have a right to judicial or administrative review. Such a right to review from administrative decisions is already provided in one form or another in most states. See Standards 3.191, 4.54, 4.71, and 4.72. Report of the Task Force, supra at Standard 20.6; IJA/ABA, Education, supra; IJA/ABA, Corrections Administration, supra. See Goldberg, 397 U.S. at 270; see also Morrissey. However, As is evident from the above-cited decisions of the Supreme Court, adjudicatory decisions are made at many levels and constitutional guarantees are not limited to the courthouse. The National Advisory Committee is confident that the introduction of due process procedures whenever significant rights of or benefits to a juvenile are threatened will enhance rather than disrupt or impede the operation of schools, correctional facilities, and other agencies and thereby improve the administration of juvenile justice. 1.55 Accuracy of Records The Supervision Function Introduction A 1973 survey found 74,990 juveniles in custody on a single day in detention centers, shelter care facilities, training schools, forestry camps and ranches, group homes, and similar residential facilities throughout the United States. Children in Custody: Advance Report on the 1977 Census of Juvenile Public Facilities, 2 (1979); Children in Custody: Advance Report on the 1977 Census of Juvenile Private Facilities, 2 (1979). Thousands of other juveniles were placed in foster homes or under some form of probation or community supervision. This chapter sets forth standards concerning the responsibility for, the nature of, and the procedures that should apply to residential and nonresidential programs which supervise juveniles and families subject to the jurisdiction of the family court over delinquency, noncriminal misbehavior, and neglect and abuse. The term supervision was selected to characterize these programs, since no matter what their rationale or emphasis— treatment, punishment, or protection-each has the basic responsibility of supervising the persons placed in it by the family court. The chapter is divided into eight series of standards. The two standards in the first series, Standards 4.11-4.12, recommend that the states should assume the responsibility for providing necessary supervision programs. The second series, Standards 4.21-4.27, defines seven types of residential facilities and describes the size of the staff and services which should be available in each. The standards urge that residential facilities other than camps and ranches, be in or near the communities from which they draw their population and recommend a low treatment staff-to-youth ratio and access by juveniles placed in residential facilities to a full range of educational, counseling, health, mental health and recreational programs. The increased costs which may result from the implementation of these recommendations can be substantially offset, through the utilization of community rather than in-house services, and through placing fewer juveniles in residential programs and reducing the length of their stay in such programs in accordance with the principle, emphasized throughout these standards, of employing the least restrictive alternative. See, e.g., Standards 2.231-2.233, 3.151-3.158, 3.181-3.189, 4.219, and 4.52. It was the conclusion of the National Advisory Committee that any increased costs which are not so offset, should be considered the necessary price of realizing the rehabilitative ideal on which the juvenile justice system is based. The standards in the 4.3 series cover the organization of nonresidential programs to supervise persons subject to the jurisdiction of the family court, the services which should be available to such persons, and the imposition and enforcement of regulations by community supervision officers. The fourth series of standards in this chapter contains a list of some of the rights to which juveniles in residential facilities and under community supervision are entitled. Standards 4.41-4.411. These include the right to receive and send mail, to receive visitors, to participate in the religious observances of their choice, to have notice of the rules and regulations to which they are subject, and to a basic level of treatment and care. The provisions seek to assure as normal an environment as possible for program participants while accommodating necessary safety and administrative concerns. The remaining series of standards recommend principles and procedures governing discipline in residential programs, Standards 4.51-4.54, the use of restraints, Standards 4.61-4.62, and transfers among programs with differing levels of security or to programs provided by other agencies, Standards 4.71-4.73, as well as urging that grievance procedures and ombudsmen be available to juveniles in residential programs and subject to community supervision. Standards 4.81-4.82; see also Standard 1.126. It is anticipated that the recommended system of mutural rights and responsibilities will help program participants and staff to work together in an atmosphere of greater trust and respect than has characterized many supervisory programs in the past. |