House Bill No. 261
Introduced By _______________________________________________________________________________
A Bill for an Act entitled: "An Act allowing a youth court to order restitution by a person contributing to a youth's delinquency or need for supervision; requiring the department of corrections to supervise or to designate an appropriate person or entity to supervise a youth who signs an aftercare agreement or is placed elsewhere than in a facility or program operated by the department; revising income withholding as a means of payment toward the costs of a youth's delinquency or supervision by a parent or guardian; requiring the court to examine a person's ability to pay; providing that a law enforcement officer may be a probation officer; abolishing chief probation officer qualifications; giving probation officers the power to arrest and to perform other law enforcement functions related to their work; making probation officers responsible for enforcing terms of probation and supervision and for implementing youth community and work programs to help defray the costs of delinquency and supervision; removing the limit on the number of youth detention regions; and amending sections 41-5-523, 41-5-701, 41-5-702, 41-5-703, and 41-5-812, MCA."
Be it enacted by the Legislature of the State of Montana:
Section 1. Section 41-5-523, MCA, is amended to read:
"41-5-523. Disposition -- sentence to correctional facility -- commitment to department -- placement and evaluation of youth -- restrictions. (1) If a youth is found to be a delinquent youth or a youth in need of supervision, the youth court may enter its judgment making one or more of the following dispositions:
(a) retain jurisdiction in a disposition provided under subsection (1)(b) or (1)(d);
(b) place the youth on probation;
(c) subject to subsections (1)(n)(i), (2)(a), (2)(b), and (6), sentence a youth to one of the state youth correctional facilities established under 52-5-101 and, as part of the sentence, deny the youth eligibility for release without the express approval of the sentencing judge until the youth reaches 18 years of age. A youth may not be sentenced to a state youth correctional facility unless the department informs the judge that space is available for the youth at that facility. The sentencing judge may not place limitations on the release unless recommended by the youth placement committee.
(d) require a youth found to be delinquent to register as a sex offender pursuant to 46-18-254 and 46-23-506;
(e) place the youth in an in-state residence that ensures that the youth is accountable, provides for rehabilitation, and protects the public. Before placement, the sentencing judge shall seek and consider placement recommendations from the youth placement committee. The judge may not place the youth in an in-state residence unless the department informs the judge that resources are available for placement of the youth at that residence.
(f) commit the youth to the department. In an order committing a youth to the department:
(i) the court shall determine whether continuation in the youth's own home would be contrary to the welfare of the youth and whether reasonable efforts have been made to prevent or eliminate the need for removal of the youth from the youth's home;
(ii) in the case of a delinquent youth who is determined by the court to be a serious juvenile offender, the judge may specify that the youth be placed in a state youth correctional facility if the judge finds that the placement is necessary for the protection of the public. The court may order the department to notify the court within 5 working days before the proposed release of a youth from a youth correctional facility. Once a youth is committed to the department for placement in a state youth correctional facility, the department is responsible for determining an appropriate date of release into an appropriate placement.
(g) order restitution by the youth, or the youth's parents, or a person who contributed to the youth's delinquency or need for
supervision;
(h) impose a fine as authorized by law if the violation alleged would constitute a criminal offense if committed by an adult;
(i) require the performance of community service;
(j) require the youth, the youth's parents or guardians, or the persons having legal custody of the youth to receive counseling services;
(k) require the medical and psychological evaluation of the youth, the youth's parents or guardians, or the persons having legal custody of the youth;
(l) require the parents, guardians, or other persons having legal custody of the youth to furnish services the court may designate;
(m) order further care, treatment, evaluation, or relief that the court considers beneficial to the youth and the community and that does not obligate funding from the department for services outside the state of Montana without the department's approval, except that a youth may not be placed by a youth court in a residential treatment facility as defined in 50-5-101. Only the department may, pursuant to subsection (1)(f), place a youth in a residential treatment facility.
(n) commit the youth to a mental health facility if, based upon the testimony of a professional person as defined in 53-21-102, the court finds that the youth is seriously mentally ill as defined in 53-21-102. The youth is entitled to all rights provided by 53-21-114 through 53-21-119.
(i) A youth adjudicated mentally ill or seriously mentally ill as defined in 53-21-102 may not be committed or sentenced to a state youth correctional facility.
(ii) A youth adjudicated to be mentally ill or seriously mentally ill after placement in or sentencing to a state youth correctional facility must be moved to a more appropriate placement in response to the youth's mental health needs and consistent with the disposition alternatives available in 53-21-127.
(o) place the youth under home arrest as provided in Title 46, chapter 18, part 10.
(2) When a youth is committed to the department, the department shall determine the appropriate placement and rehabilitation program for the youth after considering the recommendations made under 41-5-527 by the youth placement committee. Placement is subject to the following limitations:
(a) A youth in need of supervision or adjudicated delinquent for commission of an act that would not be a criminal offense if committed by an adult may not be placed in a state youth correctional facility.
(b) A youth may not be held in a state youth correctional facility for a period of time in excess of the maximum period of imprisonment that could be imposed on an adult convicted of the offense or offenses that brought the youth under the jurisdiction of the youth court. This section does not limit the power of the department to enter into an aftercare agreement with the youth pursuant to 52-5-126.
(c) A youth may not be placed in or transferred to a penal institution or other facility used for the execution of sentence of adults convicted of crimes.
(3) A youth placed in a state youth correctional facility or other facility or program operated by the department or who
signs an aftercare agreement under 52-5-126 must be supervised by the department. A youth who is placed in any other
placement by the department, the youth court, or the youth court's juvenile probation officer must be supervised by the
probation officer of the youth court having jurisdiction over the youth under 41-5-205 whether or not the youth is
committed to the department or by an appropriate person or entity designated by the department. Supervision by the youth
probation officer includes but is not limited to:
(a) submitting information and documentation necessary for the person, committee, or team that is making the placement recommendation to determine an appropriate placement for the youth;
(b) securing approval for payment of special education costs from the youth's school district of residence or the office of public instruction, as required in Title 20, chapter 7, part 4;
(c) submitting an application to a facility in which the youth may be placed; and
(d) case management of the youth.
(4) The youth court may order a youth to receive a medical or psychological evaluation at any time prior to final disposition if the youth waives the youth's constitutional rights in the manner provided for in 41-5-303. The county determined by the court as the residence of the youth is responsible for the cost of the evaluation, except as provided in subsection (5). A county may contract with the department or other public or private agencies to obtain evaluation services ordered by the court.
(5) The youth court shall determine the financial ability of the youth's parents to pay the cost of an evaluation ordered by the court under subsection (4). If they are financially able, the court shall order the youth's parents to pay all or part of the cost of the evaluation.
(6) The youth court may not order placement or evaluation of a youth at a state youth correctional facility unless the youth is found to be a delinquent youth or is alleged to have committed an offense that is transferable to criminal court under 41-5-206.
(7) An evaluation of a youth may not be performed at the Montana state hospital unless the youth is transferred to the district court under 41-5-206, 41-5-208, or 41-5-1105.
(8) An order of the court may be modified at any time. In the case of a youth committed to the department, an order pertaining to the youth may be modified only upon notice to the department and subsequent hearing.
(9) Whenever the court commits a youth to the department, it shall transmit with the dispositional judgment copies of medical reports, social history material, education records, and any other clinical, predisposition, or other reports and information pertinent to the care and treatment of the youth.
(10) If a youth is committed to the department, the court shall may examine the financial ability of the youth's parents or
guardians to pay a contribution covering all or part of the costs for the care, commitment, and treatment of the youth,
including the costs of necessary medical, dental, and other health care.
(11) If the court determines that the youth's parents or guardians are financially able to pay a contribution as provided in
subsection (10), the court shall order the youth's parents or guardians to pay an amount based on the uniform child support
guidelines adopted by the department of public health and human services pursuant to 40-5-209 determined after the
department conducts an investigation of ability to pay and discusses the matter with, and reaches a payment agreement
with, the parents or guardians. If an agreement cannot be reached, the court shall determine the amount to be paid.
(12) (a) Except as provided in subsection (12)(b), contributions ordered under this section and each modification of an
existing order are enforceable by immediate or delinquency income withholding, or both, under Title 40, chapter 5, part 4.
An order for contribution that is inconsistent with this section is nevertheless subject to withholding for the payment of the
contribution without need for an amendment of the support order or for any further action by the court.
(b) A court-ordered exception from contributions under this section must be in writing and be included in the order. An
exception from the immediate income withholding requirement may be granted if the court finds there is:
(i) good cause not to require immediate income withholding; or
(ii) an alternative arrangement between the department and the person who is ordered to pay contributions.
(c) A finding of good cause not to require immediate income withholding must, at a minimum, be based upon:
(i) a written determination and explanation by the court of the reasons why the implementation of immediate income
withholding is not in the best interests of the youth; and
(ii) proof of timely payment of previously ordered support in cases involving modification of contributions ordered under
this section.
(d) An alternative arrangement must:
(i) provide sufficient security to ensure compliance with the arrangement;
(ii) be in writing and be signed by a representative of the department and the person required to make contributions; and
(iii) if approved by the court, be entered into the record of the proceeding.
(13) Upon a showing of a change in the financial ability of the youth's parents or guardians to pay, the court may modify
its order for the payment of contributions required under subsection (11).
(14)(13) (a) If the court orders the payment of contributions under this section, the department shall apply to the department
of public health and human services for support enforcement services pursuant to Title IV-D of the Social Security Act.
(b) The department of public health and human services may collect and enforce a contribution order under this section that has not been timely paid by any means available under law, including the remedies provided for in Title 40, chapter 5, parts 2 and 4."
Section 2. Section 41-5-701, MCA, is amended to read:
"41-5-701. Appointment of probation officers. The youth court judge of each judicial district shall appoint such
necessary probation officers as are required to carry out the purpose and intent of this chapter. He The judge shall appoint
such part-time probation officers as shall be required. The qualifications for part-time probation officers must approximate
those required for probation officers insofar as possible. A chief probation officer must be appointed by the judge to
supervise the youth division offices in the judicial district. The judge shall also insure ensure that the youth division offices
are staffed with necessary office personnel and that the offices are properly equipped to effectively carry out the purpose
and intent of this chapter. No person while serving as a law enforcement officer may be appointed or perform the duties of
a full-time or part-time probation officer."
Section 3. Section 41-5-702, MCA, is amended to read:
"41-5-702. Qualifications of probation officers. (1) Any person appointed as a chief probation officer must have the
following qualifications:
(a) a master's degree in the behavioral sciences;
(b) a bachelor's degree from an accredited college or university in the behavioral sciences and at least 1 year's experience
in work of a nature related to the duties of a probation officer as set forth in 41-5-703; or
(c) a bachelor's degree in any field and at least 3 years' experience in work related to the duties of a probation officer as set
forth in 41-5-703.
(2) The judge may appoint any reputable person as a probation officer who has had experience in work of a nature related
to the duties of a chief probation officer, provided preference must be given to persons with the qualifications set forth in
subsection (1).
(3)(2) Each person appointed as a chief probation officer or probation officer under this section or as a deputy probation
officer under 41-5-705 must shall obtain 16 hours a year of training in subjects relating to the powers and duties of
probation officers in a program or course conducted by the department of justice or approved by the board of crime control
under 41-5-706."
Section 4. Section 41-5-703, MCA, is amended to read:
"41-5-703. Powers and duties of probation officers. (1) A probation officer shall:
(a) perform the duties set out in 41-5-401;
(b) make predisposition studies and submit reports and recommendations to the court;
(c) supervise, assist, and counsel youth placed on probation or under his the probation officer's supervision, including
enforcement of the terms of probation or supervision;
(d) implement and maintain public and private community and work projects engaged in by youth to pay off fines, make restitution, and pay any other costs ordered by the court that are associated with youth delinquency or need for supervision;
(d)(e) perform any other functions designated by the court.
(2) A probation officer shall have no power to may make arrests or to and perform any other law enforcement functions in
carrying out his the probation officer's duties except that a probation officer may take into custody any youth who violates
either his probation or a lawful order of the court."
Section 5. Section 41-5-812, MCA, is amended to read:
"41-5-812. Creation of regions -- requirements -- limitation on number of regions. (1) Counties that wish to establish a regional detention facility shall form a youth detention region.
(2) Each youth detention region must:
(a) be composed of contiguous counties participating in the regional detention facility; and
(b) include geographical areas of the state that contain a substantial percentage of the total youth population in need of detention services, as determined by the board of crime control.
(3) There may be no more than five youth detention regions established in the state at any one time."
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