HOUSE BILL NO. 146
INTRODUCED BY J. SHOCKLEY
AN ACT REVISING THE YOUTH COURT ACT TO GENERALLY REVISE LAWS RELATING TO THE DETENTION AND PLACEMENT OF YOUTH; AMENDING SECTIONS 41-5-103, 41-5-203, 41-5-206, AND 52-5-129, MCA; AND PROVIDING AN EFFECTIVE DATE.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MONTANA:
Section 1. Section 41-5-103, MCA, is amended to read:
"41-5-103. Definitions. As used in the Montana Youth Court Act, unless the context requires otherwise, the following definitions apply:
(1) "Adult" means an individual who is 18 years of age or older.
(2) "Agency" means any entity of state or local government authorized by law to be responsible for the care or rehabilitation of youth.
(3) "Assessment officer" means a person who is authorized by the court to provide initial intake and evaluation for a youth who appears to be in need of intervention or an alleged delinquent youth.
(4) "Commit" means to transfer to legal custody of a youth to the department or to the youth court.
(5) "Correctional facility" means a public or private, physically secure residential facility used for the placement of
delinquent youth or individuals convicted of criminal offenses under contract with the department and operated solely for
the purpose of housing adjudicated delinquent youth.
(6) "Court", when used without further qualification, means the youth court of the district court.
(7) "Criminally convicted youth" means a youth who has been convicted in a district court pursuant to 41-5-206.
(8) "Custodian" means a person, other than a parent or guardian, to whom legal custody of the youth has been given but does not include a person who has only physical custody.
(9) "Delinquent youth" means a youth who is adjudicated under formal proceedings under the Montana Youth Court Act as a youth:
(a) who has committed an offense that, if committed by an adult, would constitute a criminal offense; or
(b) who has been placed on probation as a delinquent youth or a youth in need of intervention and who has violated any condition of probation.
(10) "Department" means the department of corrections provided for in 2-15-2301.
(11) "Department records" means information or data, either in written or electronic form, maintained by the department
pertaining to youth who are committed to the department under 41-5-1512(3) or 41-5-1513(1)(b) or (1)(c) or who are under
parole supervision. Department records do not include information provided by the department to the department of public
health and human services' management information system.
(12) "Detention" means the holding or temporary placement of a youth in the youth's home under home arrest or in a facility other than the youth's own home for:
(a) the purpose of ensuring the continued custody of the youth at any time after the youth is taken into custody and before final disposition of the youth's case;
(b) contempt of court or violation of a valid court order; or
(c) violation of a youth parole agreement.
(13) "Detention facility" means a physically restricting facility designed to prevent a youth from departing at will. The term includes a youth detention facility, short-term detention center, and regional detention facility.
(14) "Emergency placement" means placement of a youth in a youth care facility for less than 45 days to protect the youth when there is no alternative placement available.
(14)(15) "Family" means the parents, guardians, legal custodians, and siblings or other youth with whom a youth
ordinarily lives.
(15)(16) "Final disposition" means the implementation of a court order for the disposition or placement of a youth as
provided in 41-5-1422, 41-5-1503, 41-5-1504, 41-5-1512, 41-5-1513, and 41-5-1522 through 41-5-1525.
(16)(17) "Foster home" means a private residence licensed by the department of public health and human services for
placement of a youth.
(17)(18) "Guardian" means an adult:
(a) who is responsible for a youth and has the reciprocal rights, duties, and responsibilities with the youth; and
(b) whose status is created and defined by law.
(18)(19) "Habitual truancy" means recorded absences of 10 days or more of unexcused absences in a semester or
absences without prior written approval of a parent or a guardian.
(19)(20) "Holdover" means a room, office, building, or other place approved by the board of crime control for the
temporary detention and supervision of youth in a physically unrestricting setting for a period not to exceed 24 hours while
the youth is awaiting a probable cause hearing, release, or transfer to an appropriate detention or shelter care facility. The
term does not include a jail.
(20)(21) "Jail" means a facility used for the confinement of adults accused or convicted of criminal offenses. The term
includes a lockup or other facility used primarily for the temporary confinement of adults after arrest but does not include a
collocated juvenile detention facility that complies with 28 CFR, part 31.
(21)(22) "Judge", when used without further qualification, means the judge of the youth court.
(22)(23) "Juvenile home arrest officer" means a court-appointed officer administering or supervising juveniles in a
program for home arrest, as provided for in Title 46, chapter 18, part 10.
(23)(24) "Law enforcement records" means information or data, either in written or electronic form, maintained by a law
enforcement agency, as defined in 7-32-201, pertaining to a youth covered by this chapter.
(24)(25) (a) "Legal custody" means the legal status created by order of a court of competent jurisdiction that gives a
person the right and duty to:
(i) have physical custody of the youth;
(ii) determine with whom the youth shall live and for what period;
(iii) protect, train, and discipline the youth; and
(iv) provide the youth with food, shelter, education, and ordinary medical care.
(b) An individual granted legal custody of a youth shall personally exercise the individual's rights and duties as guardian unless otherwise authorized by the court entering the order.
(25)(26) "Necessary parties" includes the youth and the youth's parents, guardian, custodian, or spouse.
(26)(27) "Parent" means the natural or adoptive parent but does not include a person whose parental rights have been
judicially terminated, nor does it include the putative father of an illegitimate youth unless the putative father's paternity is
established by an adjudication or by other clear and convincing proof.
(27)(28) "Probable cause hearing" means the hearing provided for in 41-5-332.
(28)(29) "Regional detention facility" means a youth detention facility established and maintained by two or more
counties, as authorized in 41-5-1804.
(29)(30) "Restitution" means payments in cash to the victim or with services to the victim or the general community
when these payments are made pursuant to a consent adjustment, consent decree, or other youth court order.
(30)(31) "Running away from home" means that a youth has been reported to have run away from home without the
consent of a parent or guardian or a custodian having legal custody of the youth.
(31)(32) "Secure detention facility" means a public or private facility that:
(a) is used for the temporary placement of youth or individuals accused or convicted of criminal offenses or as a sanction for contempt of court, violation of a parole agreement, or violation of a valid court order; and
(b) is designed to physically restrict the movements and activities of youth or other individuals held in lawful custody of the facility.
(32)(33) "Serious juvenile offender" means a youth who has committed an offense that would be considered a felony
offense if committed by an adult and that is an offense against a person, an offense against property, or an offense involving
dangerous drugs.
(33)(34) "Shelter care" means the temporary substitute care of youth in physically unrestricting facilities.
(34)(35) "Shelter care facility" means a facility used for the shelter care of youth. The term is limited to the facilities
enumerated in 41-5-344 41-5-347.
(35)(36) "Short-term detention center" means a detention facility licensed by the department for the temporary
placement or care of youth, for a period not to exceed 10 days excluding weekends and legal holidays, pending a probable
cause hearing, release, or transfer of the youth to an appropriate detention facility, youth assessment center, or shelter care
facility.
(36)(37) "State youth correctional facility" means a residential facility used for the placement and rehabilitation of
delinquent youth, such as the Pine Hills youth correctional facility in Miles City or the Riverside youth correctional facility
in Boulder.
(37)(38) "Substitute care" means full-time care of youth in a residential setting for the purpose of providing food,
shelter, security and safety, guidance, direction, and, if necessary, treatment to youth who are removed from or are without
the care and supervision of their parents or guardians.
(38)(39) "Victim" means:
(a) a person who suffers property, physical, or emotional injury as a result of an offense committed by a youth that would be a criminal offense if committed by an adult;
(b) an adult relative of the victim, as defined in subsection (38)(a) (39)(a), if the victim is a minor; and
(c) an adult relative of a homicide victim.
(39)(40) "Youth" means an individual who is less than 18 years of age without regard to sex or emancipation.
(40)(41) "Youth assessment" means a multidisciplinary assessment of a youth as provided in 41-5-1201.
(41)(42) "Youth assessment center" means a staff-secured location that is licensed by the department of public health
and human services to hold a youth for up to 10 days for the purpose of providing an immediate and comprehensive
community-based youth assessment to assist the youth and the youth's family in addressing the youth's behavior.
(42)(43) "Youth care facility" has the meaning provided in 41-3-1102.
(43)(44) "Youth court" means the court established pursuant to this chapter to hear all proceedings in which a youth is
alleged to be a delinquent youth, a youth in need of intervention, or a youth in need of care and includes the youth court
judge, probation officers, and assessment officers.
(44)(45) "Youth court records" means information or data, either in written or electronic form, maintained by the youth
court pertaining to a youth under jurisdiction of the youth court and includes reports of preliminary inquiries, petitions,
motions, other filed pleadings, court findings, verdicts, orders and decrees, youth assessment materials, predispositional
studies, and supervision records of probationers. Youth court records do not include information provided by the youth
court to the department of public health and human services' management information system.
(45)(46) "Youth detention facility" means a secure detention facility licensed by the department for the temporary
substitute care of youth that is:
(a) (i) operated, administered, and staffed separately and independently of a jail; or
(ii) a collocated secure detention facility that complies with 28 CFR, part 31; and
(b) used exclusively for the lawful detention of alleged or adjudicated delinquent youth or as a sanction for contempt of court, violation of a parole agreement, or violation of a valid court order.
(46)(47) "Youth in need of care" has the meaning provided for in 41-3-102.
(47)(48) "Youth in need of intervention" means a youth who is adjudicated as a youth and who commits an offense
prohibited by law that if committed by an adult would not constitute a criminal offense, including but not limited to a youth
who:
(a) violates any Montana municipal or state law regarding alcoholic beverages;
(b) continues to exhibit behavior, including running away from home or habitual truancy, beyond the control of the youth's parents, foster parents, physical custodian, or guardian despite the attempt of the youth's parents, foster parents, physical custodian, or guardian to exert all reasonable efforts to mediate, resolve, or control the youth's behavior; or
(c) has committed any of the acts of a delinquent youth but whom the youth court, in its discretion, chooses to regard as a youth in need of intervention."
Section 2. Section 41-5-203, MCA, is amended to read:
"41-5-203. Jurisdiction of court. (1) Except as provided in subsection (2) and for cases filed in the district court under 41-5-206, the court has exclusive original jurisdiction of all proceedings under the Montana Youth Court Act in which a youth is alleged to be a delinquent youth, a youth in need of intervention, or a youth in need of care or concerning any person under 21 years of age charged with having violated any law of the state or any ordinance of a city or town other than a traffic or fish and game law prior to having become 18 years of age.
(2) Justice Justices', municipal, and city courts have concurrent jurisdiction with the youth court over all alcoholic
beverage, tobacco products, and gambling violations alleged to have been committed by a youth.
(3) The court has jurisdiction to:
(a) transfer a youth court case to the district court after notice and hearing; and
(b) with respect to extended jurisdiction juvenile cases:
(i) designate a proceeding as an extended jurisdiction juvenile prosecution;
(ii) conduct a hearing, receive admissions, and impose upon a youth who is adjudicated as an extended jurisdiction juvenile a sentence that may extend beyond the youth's age of majority;
(iii) stay that portion of an extended jurisdiction sentence that is extended beyond a youth's majority, subject to the performance of the juvenile portion of the sentence;
(iv) continue, modify, or revoke the stay after notice and hearing;
(v) after revocation, transfer execution of the stayed sentence to the department;
(vi) transfer supervision of any juvenile sentence if, after notice and hearing, the court determines by a preponderance of the evidence that the juvenile has violated or failed to perform the juvenile portion of an extended jurisdiction sentence; and
(vii) transfer a juvenile case to district court after notice and hearing.; and
(c) impose criminal sanctions on a juvenile as authorized by the Extended Jurisdiction Prosecution Act, Title 41, chapter 5, part 16."
Section 3. Section 41-5-206, MCA, is amended to read:
"41-5-206. Filing in district court prior to formal proceedings in youth court. (1) The county attorney may, in the county attorney's discretion and in accordance with the procedure provided in 46-11-201, file with the district court a motion for leave to file an information in the district court if:
(a) the youth charged was 12 years of age or older at the time of the conduct alleged to be unlawful and the unlawful act would if it had been committed by an adult constitute:
(i) sexual intercourse without consent as defined in 45-5-503;
(ii) deliberate homicide as defined in 45-5-102;
(iii) mitigated deliberate homicide as defined in 45-5-103;
(iv) assault on a peace officer or judicial officer as defined in 45-5-210; or
(v) the attempt, as defined in 45-4-103, of or accountability, as provided in 45-2-301, for either deliberate or mitigated deliberate homicide; or
(b) the youth charged was 16 years of age or older at the time of the conduct alleged to be unlawful and the unlawful act is one or more of the following:
(i) negligent homicide as defined in 45-5-104;
(ii) arson as defined in 45-6-103;
(iii) aggravated assault as defined in 45-5-202;
(iv) assault with a weapon as defined in 45-5-213;
(v) robbery as defined in 45-5-401;
(vi) burglary or aggravated burglary as defined in 45-6-204;
(vii) aggravated kidnapping as defined in 45-5-303;
(viii) possession of explosives as defined in 45-8-335;
(ix) criminal distribution of dangerous drugs as defined in 45-9-101;
(x) criminal production or manufacture of dangerous drugs as defined in 45-9-110;
(xi) attempt, as defined in 45-4-103, of or accountability, as provided in 45-2-301, for any of the acts enumerated in subsections (1)(b)(i) through (1)(b)(iii) and (1)(b)(v) through (1)(b)(xii);
(xii) use of threat to coerce criminal street gang membership or use of violence to coerce criminal street gang membership, as defined in 45-8-403;
(xiii) escape as defined in 45-7-306.
(2) The county attorney shall file with the district court a petition for leave to file an information in district court if the youth was 17 years of age at the time the youth committed an offense listed under subsection (1).
(3) The district court shall grant leave to file the information if it appears from the affidavit or other evidence supplied
by the county attorney that there is probable cause to believe that the youth has committed the alleged offense. Within 30
days after leave to file the information is granted, the district court shall conduct a hearing to determine whether the matter
must be transferred back to the youth court, unless the hearing is waived by the youth or by the youth's counsel in writing or
on the record. The hearing may be continued on request of either party for good cause. The district court may not transfer
the case back to the youth court if unless the district court finds, by a preponderance of the evidence, that:
(a) a youth court proceeding and disposition will not serve the interests of community protection and;
(b) that the nature of the offense does not warrant prosecution in district court; and
(c) it would be in the best interests of the youth, and that, considering the seriousness of the offense, the case should
remain in the district court if the matter was prosecuted in youth court.
(4) The filing of an information in district court terminates the jurisdiction of the youth court over the youth with respect to the acts alleged in the information. A youth may not be prosecuted in the district court for a criminal offense originally subject to the jurisdiction of the youth court unless the case has been filed in the district court as provided in this section. A case may be transferred to district court after prosecution as provided in 41-5-208 or 41-5-1605.
(5) An offense not enumerated in subsection (1) that arises during the commission of a crime enumerated in subsection (1) may be:
(a) tried in youth court;
(b) transferred to district court with an offense enumerated in subsection (1) upon motion of the county attorney and order of the district court. The district court shall hold a hearing before deciding the motion.
(6) If a youth is found guilty in district court of an offense enumerated in subsection (1), the court shall sentence the youth pursuant to 41-5-2503 and Titles 45 and 46. A youth who is sentenced to the department or a state prison must be evaluated and placed by the department in an appropriate juvenile or adult correctional facility. The department shall confine the youth in an institution that it considers proper, including a state youth correctional facility under the procedures of 52-5-111. However, a youth under 16 years of age may not be confined in a state prison facility. During the period of confinement, school-aged youth with disabilities must be provided an education consistent with the requirements of the federal Individuals With Disabilities Education Act, 20 U.S.C. 1400, et seq.
(7) A youth whose If a youth's case is filed in the district court and remains in the district court after the transfer
hearing, the youth may not be detained or otherwise placed in a jail or other adult detention facility before pending final
disposition of the youth's case unless:
(a) alternative facilities do not provide adequate security; and
(b) if the youth is kept in an area that provides physical separation as well as sight and sound separation from adults
accused or convicted of criminal offenses."
Section 4. Section 52-5-129, MCA, is amended to read:
"52-5-129. Hearing on alleged violation of parole agreement -- right to appeal outcome. (1) When it is alleged by a
juvenile parole officer that a youth has violated the terms of the youth's parole 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. At the discretion of the hearings officer,
this hearing may be held by means of interactive video transmission. 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 a
youth correctional facility from which the youth was released or whether a different plan for custody and supervision of the
youth should be pursued by the department of corrections.
(2) 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 when the youth may abscond or be removed from the community. The department shall determine the place and manner of detention pursuant to 41-5-348 and is responsible for the cost of the detention. Procedures for taking a youth into custody and detention of a youth charged with violation of the youth's parole agreement are as provided in 41-5-321.
(2)(3) The youth, upon advice of an attorney, may waive the right to a hearing.
(3)(4) With regard to this hearing, the youth must be given:
(a) written notice of the alleged violation of the parole agreement, including notice of the purpose of the hearing;
(b) a disclosure of the evidence against the youth and the facts constituting the alleged violation;
(c) the opportunity to be heard in person or by interactive video transmission 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) the opportunity to have the hearings officer subpoena witnesses;
(e) the right to confront and cross-examine adverse witnesses in person or by means of interactive video transmission;
(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 hearings officer.
(4)(5) The department shall provide a hearings officer to conduct the hearing. The department shall adopt rules
necessary to effect a prompt and full review.
(5)(6) If the hearings officer finds, by a preponderance of the evidence, that the youth did in fact commit the violation,
the hearings officer shall make a recommendation to the department decision for the placement of the youth. In making this
recommendation decision, the hearings officer may consider mitigating or aggravating circumstances. The youth or the
youth's attorney may appeal the hearings officer's decision to the department director. The appeal must be made in writing
within 5 days of the hearing. The department director or designee shall grant or deny the appeal within 5 days of receipt of
the appeal.
(6)(7) The youth may appeal the decision of the department director 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 director'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 pursuant to
41-5-348 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 parole agreement are as provided in 41-5-321.
(8) If the decision is made under subsection (6) is to return the youth to the a 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.
(9) If a decision is made under subsection (6) to revoke the parole of a youth who was placed in and released from an alternative facility under 41-5-355 because of overcrowding in a state youth correctional facility, the youth may be placed in a state youth correctional facility if the state youth correctional facility is no longer overcrowded."
Section 5. Severability. If a part of [this act] is invalid, all valid parts that are severable from the invalid part remain in effect. If a part of [this act] is invalid in one or more of its applications, the part remains in effect in all valid applications that are severable from the invalid applications.
Section 6. Effective date. [This act] is effective July 1, 2001.
- END -
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