2001 Montana Legislature

About Bill -- Links

HOUSE BILL NO. 278

INTRODUCED BY T. CALLAHAN



A BILL FOR AN ACT ENTITLED: "AN ACT REVISING THE DEFINITION OF "DETENTION" WITH REGARD TO A YOUTH; SETTING PRIORITIES FOR A YOUTH PLACEMENT COMMITTEE'S RECOMMENDED PLACEMENT; ALLOWING A COUNTY ATTORNEY TO REQUEST A DISTRICT COURT TRIAL AS AN ADULT FOR A 17-YEAR-OLD YOUTH WHO COMMITS A FELONY FOR WHICH AN ADULT TRIAL IS NOT MANDATED; ALLOWING A PROBATION OFFICER TO TAKE INTO CUSTODY A YOUTH WHO VIOLATES A CONSENT ADJUSTMENT, CONSENT DECREE, OR OTHER LAWFUL COURT ORDER; PROVIDING THAT A HEARING IS NOT REQUIRED FOR PLACING IN DETENTION A YOUTH WHO HAS ADMITTED A VIOLATION OF DETENTION; ALLOWING A YOUTH ALLEGED TO BE DELINQUENT WHO IS IN VIOLATION OF A CONSENT ADJUSTMENT OR CONSENT DECREE TO BE DETAINED IN A SECURE DETENTION FACILITY; ALLOWING A YOUTH DETAINED IN A JAIL TO BE CUFFED TO A RAIL OR OTHER STATIONARY OBJECT; REVISING THE DISPOSITION OF A DELINQUENT YOUTH; AND AMENDING SECTIONS 41-5-103, 41-5-123, 41-5-206, 41-5-321, 41-5-332, 41-5-341, 41-5-350, 41-5-1513, AND 41-5-1703, MCA."



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.

     (5)  "Correctional facility" means a public or private residential facility used for the placement of delinquent youth or individuals convicted of criminal offenses.

     (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; or

     (d) purposes of a disposition under 41-5-1501(1)(b) or 41-5-1513(1)(a).

     (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) "Family" means the parents, guardians, legal custodians, and siblings or other youth with whom a youth ordinarily lives.

     (15) "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) "Foster home" means a private residence licensed by the department of public health and human services for placement of a youth.

     (17) "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) "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) "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) "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) "Judge", when used without further qualification, means the judge of the youth court.

     (22) "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) "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) (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) "Necessary parties" includes the youth and the youth's parents, guardian, custodian, or spouse.

     (26) "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) "Probable cause hearing" means the hearing provided for in 41-5-332.

     (28) "Regional detention facility" means a youth detention facility established and maintained by two or more counties, as authorized in 41-5-1804.

     (29) "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) "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) "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) "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) "Shelter care" means the temporary substitute care of youth in physically unrestricting facilities.

     (34) "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) "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) "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.

     (37) "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) "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), if the victim is a minor; and

     (c)  an adult relative of a homicide victim.

     (39) "Youth" means an individual who is less than 18 years of age without regard to sex or emancipation.

     (40) "Youth assessment" means a multidisciplinary assessment of a youth as provided in 41-5-1201.

     (41) "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) "Youth care facility" has the meaning provided in 41-3-1102.

     (43) "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) "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) "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) "Youth in need of care" has the meaning provided for in 41-3-102.

     (47) "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 41-5-123, MCA, is amended to read:

     "41-5-123.  Youth placement committee to submit recommendation to department -- acceptance or rejection of recommendation by department. (1) Prior to commitment of a youth to the department pursuant to 41-5-1512 or 41-5-1513, a youth placement committee must be convened. The committee shall submit in writing to the department and to the youth court judge its primary and alternative recommendations for placement of the youth. The committee shall first consider placement of a youth in a community-based facility or program. Priority must be given to placement in a local, state, or regional facility or program. A regional placement may be considered only if it can be obtained at a cost less than or comparable to any similar in-state facility and if it is available in closer proximity to the youth's place of residence than any similar in-state facility.

     (2)  If the department accepts either of the committee's recommendations, it shall promptly notify the committee in writing.

     (3)  If the department rejects both of the committee's recommendations, it shall promptly notify the committee in writing of the reasons for rejecting the recommendations and shall make an appropriate placement for the youth.

     (4)  Within 72 hours after making a decision on a placement or change of placement, the department shall notify the youth court of the decision and of the placement or change of placement."



     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). The county attorney may 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 other than one listed under subsection (1) and the offense is a felony.

     (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 the district court finds, by a preponderance of the evidence, that a youth court proceeding and disposition will not serve the interests of community protection and the best interests of the youth, and that, considering the seriousness of the offense, the case should remain in the district 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 case is filed in the district court may not be detained or otherwise placed in a jail or other adult detention facility before final disposition of the youth's case unless:

     (a)  alternative facilities do not provide adequate security; and

     (b)  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 41-5-321, MCA, is amended to read:

     "41-5-321.  Taking into custody. (1) A youth may be taken into custody under the following circumstances:

     (a)  by a law enforcement officer pursuant to a lawful order or process of any a court;

     (b)  by a law enforcement officer pursuant to a lawful arrest for violation of the law;

     (c)  by a law enforcement officer, agent of the department, county attorney, or a person or physician treating a youth when there is reason to believe that the youth is a youth in need of care and that the residence of the youth or the custody by the person legally responsible for the youth presents an imminent danger to the life or health of the youth;

     (d)  by a juvenile home arrest officer or an officer listed in subsections (1)(a) through (1)(c) if a youth placed under a home arrest program has violated a condition of the placement and the home arrest officer or law enforcement officer has direct knowledge of the violation or a juvenile probation officer has provided the juvenile home arrest officer notice of a violation;

     (e) as provided in 41-5-1703.

     (2)  The taking of a youth into custody is not an arrest except for the purpose of determining the validity of the taking under the constitution of Montana or the United States."



     Section 5.  Section 41-5-332, MCA, is amended to read:

     "41-5-332.  Custody -- hearing for probable cause. (1) When a youth is taken into custody for questioning, a hearing to determine whether there is probable cause to believe the youth is a delinquent youth or a youth in need of intervention must be held within 24 hours, excluding weekends and legal holidays. A hearing is not required if the youth is released prior to the time of the required hearing.

     (2)  When a youth is taken into custody for a violation of placement under a home arrest program, a hearing to determine whether a violation occurred must be held within 24 hours, excluding weekends and holidays.

     (3)  The probable cause hearing required under subsection (1) may be held by the youth court, a justice of the peace, a municipal or city judge, or a magistrate having jurisdiction in the case as provided in 41-5-203. If the probable cause hearing is held by a justice of the peace, a municipal or city judge, or a magistrate, a record of the hearing must be made by a court reporter or by a tape recording of the hearing.

     (4)  A probable cause hearing may be conducted by telephone if other means of conducting the hearing are impractical. All written orders and findings of the court in a hearing conducted by telephone must bear the name of the judge or magistrate presiding in the case and the hour and date the order or findings were issued.

     (5)  A hearing is not required for a youth placed in detention for an alleged:

     (a) parole violation; or

     (b) violation of detention, if the youth admits the violation."



     Section 6.  Section 41-5-341, MCA, is amended to read:

     "41-5-341.  Criteria for placement of youth in secure detention facilities. A youth may be placed in a secure detention facility only if the youth:

     (1)  has allegedly committed an act that if committed by an adult would constitute a criminal offense and the alleged offense is one specified in 41-5-206;

     (2)  is alleged to be a delinquent youth and:

     (a)  has escaped from a correctional facility or secure detention facility;

     (b) has violated a consent adjustment, consent decree or other valid court order, or a parole agreement;

     (c) the youth's detention is required to protect persons or property;

     (d) the youth has pending court or administrative action or is awaiting a transfer to another jurisdiction and may abscond or be removed from the jurisdiction of the court;

     (e)  there are not adequate assurances that the youth will appear for court when required; or

     (f) the youth meets additional criteria for secure detention established by the youth court in the judicial district that has current jurisdiction over the youth; or

     (3)  has been adjudicated delinquent and is awaiting final disposition of the youth's case."



     Section 7.  Section 41-5-350, MCA, is amended to read:

     "41-5-350.  Permitted acts -- detention of youth in law enforcement facilities -- criteria. (1) Nothing in this chapter precludes the detention of youth in a police station or other law enforcement facility that is attached to or part of a jail if:

     (a)  the area where the youth is held is an unlocked, multipurpose area, such as a lobby, office, interrogation room, or other area that is not designated or used as a secure detention area or that is not part of a secure detention area, or, if part of such an area, that is used only for the purpose of processing, such as a booking room;

     (b)  the youth is not secured to a cuffing rail or other stationary object during the period of detention;

     (c)  use of the area is limited to ensuring custody of the youth for the purpose of identification, processing, or transfer of the youth to an appropriate detention or shelter care facility;

     (d)(c)  the area is not designed or intended to be used for residential purposes; and

     (e)(d)  the youth is under continuous visual supervision by a law enforcement officer or by facility staff during the period of time that the youth is held in detention.

     (2)  For purposes of this section, "secure detention" means the detention of youth or confinement of adults accused or convicted of criminal offenses in a physically restricting setting, including but not limited to a locked room or set of rooms or a cell designed to prevent a youth or adult from departing at will."



     Section 8.  Section 41-5-1513, MCA, is amended to read:

     "41-5-1513.  Disposition -- delinquent youth -- restrictions. (1) If a youth is found to be a delinquent youth, the youth court may enter its judgment making one or more of the following dispositions:

     (a)  any one or more of the dispositions provided in 41-5-1501(1)(b) and 41-5-1512;

     (b)  subject to 41-5-1504, 41-5-1512(15)(a), and 41-5-1522, commit the youth to the department for placement in a state youth correctional facility and recommend to the department that the youth not be released until the youth reaches 18 years of age. The court may not place a youth adjudicated delinquent in a state youth correctional facility for an offense that would be a misdemeanor if committed by an adult unless the court finds that the youth presents a danger to the public safety and that the placement is recommended by a mental health professional after evaluation of the youth youth is adjudicated to be a habitual misdemeanor offender. A youth committed as a habitual misdemeanor offender must be returned to the youth court for further supervision upon release from the commitment. A youth who violates a condition of probation may not be committed to a state youth correctional facility unless the probation resulted from an adjudication for an offense that would be a felony if committed by an adult. For purposes of this subsection (1)(b), a "habitual misdemeanor offender" is a youth who has been found to have committed four or more misdemeanor offenses in the last 12 months. Related offenses committed during the same 24-hour period are considered a single offense for purposes of the definition.

     (c)  require a youth found to be a delinquent youth, as the result of the commission of an offense that would be a sexual offense or violent offense, as defined in 46-23-502, if committed by an adult, to register as a sexual or violent offender pursuant to Title 46, chapter 23, part 5. The youth court shall retain jurisdiction in a disposition under this subsection.

     (d)  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, subject to the provisions of subsection (2), 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 or an alternative placement.

     (e)  impose a fine as authorized by law if the violation alleged would constitute a criminal offense if committed by an adult.

     (2)  If a youth has been adjudicated for a sex offense, the youth court may require completion of sex offender treatment before a youth is discharged."



     Section 9.  Section 41-5-1703, MCA, is amended to read:

     "41-5-1703.  Powers and duties of probation officers. (1) A probation officer shall:

     (a)  perform the duties set out in 41-5-1302;

     (b)  make predisposition studies and submit reports and recommendations to the court;

     (c)  supervise, assist, and counsel youth placed on probation or under the probation officer's supervision, including enforcement of the terms of probation or intervention;

     (d)  assist any public and private community and work projects engaged in by youth to pay fines, make restitution, and pay any other costs ordered by the court that are associated with youth delinquency or need for intervention;

     (e)  perform any other functions designated by the court.

     (2)  A probation officer does not have power to make arrests or to perform any other law enforcement functions in carrying out the probation officer's duties, except that a probation officer may take into custody any a youth who violates either the youth's probation, a consent adjustment, or a consent decree or other lawful order of the court."

- END -




Latest Version of HB 278 (HB0278.01)
Processed for the Web on January 12, 2001 (3:23PM)

New language in a bill appears underlined, deleted material appears stricken.

Sponsor names are handwritten on introduced bills, hence do not appear on the bill until it is reprinted. See the status of this bill for the bill's primary sponsor.

Status of this Bill | 2001 Legislature | Leg. Branch Home
All versions of this bill (PDF Format)
Authorized print version w/line numbers (PDF format)

Prepared by Montana Legislative Services

(406)444-3064