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A FAMILY COURT PRIMER FOR THE CRIMINAL ARENA Lisa A. Minutola Public Defender’s Office A FAMILY COURT PRIMER FOR THE CRIMINAL ARENA Lisa A. Minutola Public Defender’s Office Chief of Legal Services

JUVENILE DELINQUENCY JUVENILE DELINQUENCY

Cardinal Rules for Defense Attorneys • The juvenile is your client, not the parent. Cardinal Rules for Defense Attorneys • The juvenile is your client, not the parent. While the parent will have input regarding the pending case, when there is conflict you must follow the wishes of the juvenile. • Your role is to honor the express interests of the juvenile and not what may be in their best interest.

JURISDICTION • 10 Delaware Code Section 921 confers original CIVIL jurisdiction on Family Court JURISDICTION • 10 Delaware Code Section 921 confers original CIVIL jurisdiction on Family Court for juvenile delinquency matters. See handout pages 1 -2. (Relevant portions cited) • 10 Delaware Code Section 927 delineates the motor vehicle offense under Title 21 over which Family Court has jurisdiction for juveniles. See handout pages 3 -5. • The Justice of the Peace Court has limited jurisdiction over juveniles for Criminal Contempt of a Truancy Court orders under 14 Delaware Code Section 2731. See handout page 6.

CONSTITUTIONAL PROVISIONS • The U. S. Supreme Court held in the case of In CONSTITUTIONAL PROVISIONS • The U. S. Supreme Court held in the case of In Re Gault, 387 U. S. 1 (1967), that proceedings for juveniles had to comply with the requirements of the Fourteenth Amendment. This requirement includes the right to counsel, the right against self-incrimination, and the right to confrontation and cross-examination of witnesses.

CONSTITUTIONAL PROVISIONS • Miranda v. Arizona, 384 U. S. 436 (1966) applies to juveniles CONSTITUTIONAL PROVISIONS • Miranda v. Arizona, 384 U. S. 436 (1966) applies to juveniles but can be a double edged sword as it is the juvenile’s right and not the parent’s right as to whether or not to invoke Miranda. • In Fare v. Michael C. , 442 U. S. 707 (1979), the U. S. Supreme Court ruled that a totality of the circumstances test is adequate to determine a valid waiver of Miranda rights during an interrogation of a juvenile.

CUSTODY/INITIAL APPERANCE • If a juvenile is taken into custody, the arresting peace officer CUSTODY/INITIAL APPERANCE • If a juvenile is taken into custody, the arresting peace officer must immediately notify the juvenile’s parent/guardian. • If the parent/guardian refuses to take custody of the child, cannot be located or cannot provide the necessary care and the juvenile is charged with a delinquent act, the officer must take the juvenile directly before court and file a compliant forthwith pursuant to 10 Delaware Code 1004. See handout page 7.

BAIL • 10 Delaware Code Section 1007 governs bail for juveniles. See handout page BAIL • 10 Delaware Code Section 1007 governs bail for juveniles. See handout page 8 -9. • This section defines which offenses and under which circumstances the court may legally detain a juvenile. • Generally, juveniles may not be detained for violations or misdemeanors. The exceptions are: Assault 3 rd, Unlawful Imprisonment 2 nd, Vehicular Assault 1 st, Indecent Exposure 1 st, Unlawful Sexual Contact 3 rd, and Carrying a Concealed Deadly Weapon.

BAIL • Both the Justice of the Peace Court and Family Court utilize a BAIL • Both the Justice of the Peace Court and Family Court utilize a Risk Assessment Instrument as a guideline for determining if a juvenile should be detained or released based on the nature of the offense and individual characteristics of the juvenile. See individual handout. • Through the efforts of the Juvenile Detentions Alternative Initiative which began operating in Delaware in 2002, inappropriate and unlawful detentions in the State have decreased significantly.

BAIL • If committed to secure detention, juveniles in New Castle County are sent BAIL • If committed to secure detention, juveniles in New Castle County are sent to the New Castle County Detention Center (NCCDC). Juveniles in Kent or Sussex Counties are sent to the Stevenson House. • If committed to non-secure detention, juveniles are sent to either Camelot (all boys) or People’s Place (both boys and girls).

BAIL • If a parent/guardian is unable or unwilling to take a juvenile home BAIL • If a parent/guardian is unable or unwilling to take a juvenile home after the Court has released the child, the Court may appoint the Division of Family Services (DFS) as the juvenile’s custodian and place the juvenile into foster care. • The juvenile may be released to a parent/guardian with bail conditions imposed such as house arrest, Pre-Trial Supervision or Project Stayfree (PFS) with either Detention Intervention or Electronic Monitoring. The Court may also impose these conditions if a juvenile is released after posting secured bail.

ADJUDICATIONS • 10 Delaware Code Section 1009 governs adjudications of juvenile delinquency. See handout ADJUDICATIONS • 10 Delaware Code Section 1009 governs adjudications of juvenile delinquency. See handout pages 10 -18. • This statute gives Family Court broad discretion over juvenile sentencing matters. The options for sentencing range from allowing a juvenile to remain at home with a parent/guardian with no court supervision to an indefinite commitment to supervised juvenile facility.

YRS SERVICES • The Division of Youth Rehabilitative Services (YRS) is charged with providing YRS SERVICES • The Division of Youth Rehabilitative Services (YRS) is charged with providing services to delinquent youth. YRS uses a mix of instate and out of state providers based on the juvenile’s needs. • These services include Probation (Level II and III), Intensive Community Based services (Level IIIA), Boot Camp, Inpatient treatment, Behavioral Modification facilities such as Grace and Snowden (Level IV), and Secure treatment and Behavioral Modification facilities such at Ferris (Level V).

CMH Services • The Division of Child Mental Health (CMH) provides assessment, treatment and CMH Services • The Division of Child Mental Health (CMH) provides assessment, treatment and services for juveniles suffering from mental health and substance abuse issues. • The services range from outpatient treatment to intensive in patient programs.

EXTENDED JURISDICTION • Family Court may extend jurisdiction over a juvenile to age 21 EXTENDED JURISDICTION • Family Court may extend jurisdiction over a juvenile to age 21 in certain circumstances under 10 Delaware Code Section 928. See handout pages 19 -20. • Other juvenile justice partners, however, are not able to supervise juveniles for the same time period. – YRS will only provide services up to age 19 – CMH will only provide services up to age 18

DIVERSIONARY PROGRAMS • Family Court diversionary programs include: – Mental Health Court – Adjudicated DIVERSIONARY PROGRAMS • Family Court diversionary programs include: – Mental Health Court – Adjudicated Drug Court – Arbitration – School Diversion – Probation Before Adjudication

EXPUNGEMENT • Juveniles may be able to have their adjudications expunged under certain circumstances. EXPUNGEMENT • Juveniles may be able to have their adjudications expunged under certain circumstances. Juvenile expungements are governed by 10 Delaware Code 1001. See handout pages 21 -22. • The expungement statute differs from the adult statute which only allows expungements when the charge has been dismissed or a nolle prosequi filed.

TRANSFER TO ADULT COURT • In certain instances, a juvenile’s case may be transferred TRANSFER TO ADULT COURT • In certain instances, a juvenile’s case may be transferred to Superior Court (felonies) or the Court of Common Pleas (misdemeanors) for prosecution under adult law. • Transfers to adult court happen in one of two ways pursuant to 10 Delaware Code 1010. See handout page 23 -25. – Original Jurisdiction wherein by statute, certain offenses are within the Superior Court’s jurisdiction, even if the individual charged is a juvenile. – Amenability hearings wherein after a hearing, a Family Court hearing officer determines that the juvenile is no longer amenable to the rehabilitative processes of Family Court.

REVERSE AMENABILITY • A charge for which there is original jurisdiction for a juvenile REVERSE AMENABILITY • A charge for which there is original jurisdiction for a juvenile in Superior Court may be returned to Family Court by stipulation among the parties or by a Reverse Amenability Hearing. • Reverse Amenability Hearings are governed by 10 Delaware Code 1011. See handout page 26. • Motion for a Reverse Amenability Hearing must be filed within 30 days of arraignment.

EXCEPTIONS • Possession of a Deadly Weapon During Commission of a Felony under 11 EXCEPTIONS • Possession of a Deadly Weapon During Commission of a Felony under 11 Delaware Code 1447 which states under subsection (d) that “[e]very person charged under this section over the age of 16 years shall be tried as an adult, notwithstanding any contrary provision of statutes governing the Family Court or any other state law. ” • Possession of a Firearm During Commission of a Felony under 11 Delaware Code 1447 A which states under subsection (f) that “[e]very person charged under this section over the age of 15 years shall be tried as an adult, notwithstanding any contrary provisions or statutes governing the Family Court or any other state law. ”

SENTENCING AS AN ADULT • If a juvenile’s case remains in Superior Court, the SENTENCING AS AN ADULT • If a juvenile’s case remains in Superior Court, the juvenile is treated as an adult for sentencing purposes and is subject to the same penalties as adults, except in the case of Murder 1 st. • Under Roper v. Simmons, 543 U. S. 551, 568 (2005), the U. S. Supreme Court abolished the death penalty as a sentencing option for any juvenile who was under 18 at the time of the commission of the offense.

CUSTODIAL CONSIDERATIONS • Once it is decided that a juvenile’s case will remain in CUSTODIAL CONSIDERATIONS • Once it is decided that a juvenile’s case will remain in Superior Court, any detainee aged 16 or older must be transferred from the custody of the Department of Services for Children, Youth and their Families (DSCYF) to the Department of Corrections (DOC) pursuant to 11 Delaware Code Section 2103 A. See handout page 27. • Any juvenile who is sentenced to a period of incarceration as an adult will serve that sentenced at a DOC institution once they reach their 16 th birthday pursuant to 11 Delaware Code 4204 A. See handout page 28.

CUSTODIAL CONSIDERATIONS • Males are transferred to the Young Criminal Offender Program (YCOP) at CUSTODIAL CONSIDERATIONS • Males are transferred to the Young Criminal Offender Program (YCOP) at the Howard R. Young Correctional Institution. • Females generally remain at the juvenile institutions as there are no means to segregate them from the general population at the Baylor Women’s Correctional Institution.

SPECIAL POPULATIONS SPECIAL POPULATIONS

INCOMPETENT JUVENILES • Delaware does not have a different standard to determine competency for INCOMPETENT JUVENILES • Delaware does not have a different standard to determine competency for juvenile offenders. Therefore, the adult standard is used. • This standard is codified under 11 Delaware Code Section 404. See handout page 29. • Juveniles who are not competent to stand trial are a difficult population to manage.

INCOMPETENT JUVENILES • The Delaware Psychiatric Center (DPC) is not able to accept patients INCOMPETENT JUVENILES • The Delaware Psychiatric Center (DPC) is not able to accept patients under the age of 18 due their regulations, therefore juveniles cannot be sent there for competency restoration. • Delaware does not have a competency restoration program for juveniles.

INCOMPETENT JUVENILES • Commons reasons for juveniles being found not competent to stand trial INCOMPETENT JUVENILES • Commons reasons for juveniles being found not competent to stand trial are: – Mental Retardation and other Developmental Disabilities – Learning Disorders – Tender Years – Mental Health Concerns

COMPETENCY CALENDAR • Family Court recognized the difficulties in managing this population in the COMPETENCY CALENDAR • Family Court recognized the difficulties in managing this population in the juvenile justice system and developed the Competency Calendar to handle these cases. • Once the issue of Competency has been raised, an evaluation is generally conducted by either CMH or a hired expert. Either side may request an additional evaluation to challenge the initial report. • The report is reviewed by the prosecution and defense. The parties may stipulate that the juvenile is competent, stipulate that juvenile is incompetent, continue the matter for additional information or treatment, or set the matter for a competency hearing.

COMPETENCY CALENDAR • If the juvenile is found to be incompetent, the State may COMPETENCY CALENDAR • If the juvenile is found to be incompetent, the State may enter a nolle prosequi or may continue the case for additional status reviews to allow additional services to be put into place to attempt to restore the juvenile’s competency. • The findings regarding adolescent brain development are currently evolving. Research indicates that the brain does not fully mature until age 25. This body of research led to the Supreme Court’s decision in Roper to abolish the death penalty for juveniles. Additionally, states are beginning to revise their competency statutes and standards as they relate to juveniles.

INAPPROPRIATE SEXUAL BEHAVIORAL • Generally, juveniles in Delaware charged with inappropriate sexual behavior are INAPPROPRIATE SEXUAL BEHAVIORAL • Generally, juveniles in Delaware charged with inappropriate sexual behavior are treated no differently than adult sex offenders under 11 Delaware Code Section 4121. Their Sex Offender tier designation and length of registration are tied to the offense for which they are convicted. The court has no discretion with regard to registration, as it is prescribed by statute. • 11 Delaware Code Section 4121 (d)(6) provides a mechanism for relief from registration in limited instances with a slightly expanded exception for juveniles. See handout page 30.

INAPPROPRIATE SEXUAL BEHAVIORAL • The recent Delaware Supreme Court decision in State v. Fletcher, INAPPROPRIATE SEXUAL BEHAVIORAL • The recent Delaware Supreme Court decision in State v. Fletcher, 2009 WL 1524937, Del. Supr. , May 27, 2009 (NO. 84, 2008, 147, 2008) held that if a juvenile’s petition for expungement for an adjudication on a sex offense is granted, all indicia of arrest, including registration on the sex offender registry, must be destroyed.

INAPPROPRIATE SEXUAL BEHAVIORAL • YRS has created an special probation unit to supervise this INAPPROPRIATE SEXUAL BEHAVIORAL • YRS has created an special probation unit to supervise this population. This unit has been provided specialized training to assist these juveniles.

ADULT CRIMINAL MATTERS ADULT CRIMINAL MATTERS

JURSIDICTION • 10 Delaware Code Section 922 confers jurisdiction on Family Court for adults JURSIDICTION • 10 Delaware Code Section 922 confers jurisdiction on Family Court for adults charged with misdemeanors against family members or minors. See handout page 31 -32. • 10 Delaware Code 901(12) defines the term “family”. See handout page 33.

SPECIAL PROGRAMS • For domestic violence first time offenders, a diversionary program for certain SPECIAL PROGRAMS • For domestic violence first time offenders, a diversionary program for certain domestic violence misdemeanors under 10 Delaware Code Section 1024 may be afforded. See handout pages 34 -35. • For other first time adult offenders that do not fit under the Domestic Violence First Offenders Program, they may be afforded Probation Before Judgment under 11 Delaware Code Section 4218. See handout paged 36 -38.