52-5-129. Hearing on alleged violation of aftercare agreement -- right to appeal outcome. (1) When it is alleged by an aftercare counselor that a youth has violated the terms of the youth's aftercare agreement, the youth must be granted a hearing at the site of the alleged violation or in the county in which the youth is residing or is found within 10 days after notice has been served on the youth or the youth is detained, whichever is earlier. The purpose of the hearing is to determine whether the youth committed the violation and, if so, whether the violation is of such a nature that the youth should be returned to the youth correctional facility from which the youth was released or a different plan for treatment should be pursued by the department of corrections.
     (2) The youth, upon advice of an attorney, may waive the right to a hearing.
     (3) With regard to this hearing, the youth must be given:
     (a) written notice of the alleged violation of the aftercare agreement, including notice of the purpose of the hearing;
     (b) disclosure of the evidence against the youth and the facts constituting the alleged violation;
     (c) opportunity to be heard in person and to present witnesses and documentary evidence to controvert the evidence against the youth and to show that there are compelling reasons that justify or mitigate the violation;
     (d) opportunity to have the referee subpoena witnesses;
     (e) the right to confront and cross-examine adverse witnesses;
     (f) the right to be represented by an attorney;
     (g) a record of the hearing; and
     (h) notice that a written statement as to the evidence relied upon in reaching the final decision and the reasons for the final decision will be provided by the referee.
     (4) The department shall appoint a referee, who may not be an employee of the department, to conduct the hearing. In the conduct of the hearing, the department may request the county attorney's assistance as necessary. The department shall adopt rules necessary to effect a prompt and full review.
     (5) If the referee finds, by a preponderance of the evidence, that the youth did in fact commit the violation, the referee shall make a recommendation to the department for the placement of the youth. In making this recommendation, the referee may consider mitigating circumstances. Final approval rests with the department and must be made within 10 days of the referee's recommendation.
     (6) The youth may appeal from the decision at the hearing to the district court of the county in which the hearing was held by serving and filing a notice of appeal with the court within 10 days of the department's decision. The youth may obtain a written transcript of the hearing from the department by giving written notice of appeal. The district court, upon receipt of a notice of appeal, shall order the department to promptly certify to the court a record of all proceedings before the department and shall proceed to a prompt hearing on the appeal based upon the record on appeal. The decision of the department may not be altered except for abuse of discretion or manifest injustice.
     (7) Pending the hearing on a violation and pending the department's decision, a youth may not be detained except when the youth's detention or care is required to protect the person or property of the youth or of others or the youth may abscond or be removed from the community. The department shall determine the place and manner of detention and is responsible for the cost of the detention. Procedures for taking into custody and detention of a youth charged with violation of the youth's aftercare agreement are as provided in 41-5-303, 41-5-306, 41-5-311, and 41-5-314.
     (8) If the decision is made to return the youth to the youth correctional facility from which the youth was released and the youth appeals that decision, the youth shall await the outcome of the appeal at the facility.

     History: (1), (3) thru (7)En. 80-1414.1 by Sec. 2, Ch. 429, L. 1975; amd. Sec. 1, Ch. 231, L. 1977; Sec. 80-1414.1, R.C.M. 1947; (2)En. Sec. 1, Ch. 158, L. 1969; amd. Sec. 48, Ch. 120, L. 1974; amd. Sec. 1, Ch. 429, L. 1975; Sec. 80-1414, R.C.M. 1947; R.C.M. 1947, 80-1414(part), 80-1414.1; (8)En. Sec. 1, Ch. 242, L. 1979; amd. Sec. 31, Ch. 465, L. 1983; amd. Sec. 13, Ch. 475, L. 1987; amd. Sec. 111, Ch. 609, L. 1987; amd. Sec. 11, Ch. 434, L. 1989; Sec. 53-30-229, MCA 1989; redes. 52-5-129 by Code Commissioner, 1991; amd. Sec. 11, Ch. 547, L. 1991; amd. Sec. 386, Ch. 546, L. 1995.