CHAPTER SEVEN DELINQUENCY Division II, Chapter 232

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1 CHAPTER SEVEN DELINQUENCY Division II, Chapter 232 A. INTAKE...4 APPENDIX SECTION A - INTAKE...5 B. INFORMAL ADJUSTMENT INTAKE ACTION CONDITIONS FOR INFORMAL ADJUSTMENT DURATION TERMINATION OF AGREEMENT FILING OF PETITION...7 APPENDIX SECTION B - INFORMAL ADJUSTMENT...7 C. DELINQUENCY PETITION AUTHORITY TO FILE CONTENTS OF PETITION VENUE THE OFFENSE DETAILED SETTING HEARING AND PROVIDING FOR NOTICE SUMMONS NOTICE COUNSEL FOR CHILD PRESENCE OF PARENT...15 APPENDIX SECTION C - PETITION...16 D. WAIVER OF JURISDICTION TRADITIONAL WAIVER TO ADULT COURT...17 CHECKLIST SECTION D(1) TRADITIONAL WAIVER...30 APPENDIX SECTION D(1) - TRADITIONAL WAIVER WAIVER AS A YOUTHFUL OFFENDER...32 CHECKLIST SECTION D(2) - YOUTHFUL OFFENDER WAIVER...35 APPENDIX SECTION D(2) - YOUTHFUL OFFENDER WAIVER REVERSE WAIVER TO JUVENILE COURT...37 CHECKLIST SECTION D(3) - REVERSE WAIVER...38 E. DETENTION AND SHELTER PLACEMENT DETENTION PLACEMENT...39 CHECKLIST SECTION E(1) - DETENTION HEARING SHELTER CARE PLACEMENT...47 CHECKLIST SECTION E(2) - SHELTER CARE HEARING...51 PROTOCOL...52 APPENDIX SECTION E - DETENTION & SHELTER...55 F. CONTINUANCE FOR PROBATION TERMS PRIOR TO ADJUDICATORY HEARING PROBATION ARRANGEMENTS CONDITIONS...56

2 4. SUSPENSION OF TIME LIMIT REQUEST FOR ADJUDICATORY HEARING EXPIRATION OF TERM OF CONTINUANCE...57 CHECKLIST SECTION F - MAKING PROBATION TERMS...58 APPENDIX SECTION F PROBATION TERMS...59 G. CONSENT DECREE ENTRY OF CONSENT DECREE PRIOR TO ADJUDICATION WAIVER OF JURISDICTION WITHHELD BURDEN OF PROOF SPEEDY HEARING COLLOQUY TERMS AND CONDITIONS SUCCESSFUL COMPLETION VIOLATION OR UNSUCCESSFUL COMPLETION...63 CHECKLIST SECTION G - CONSENT DECREE...64 APPENDIX SECTION G - CONSENT DECREE...65 H. DELINQUENCY ADJUDICATION BURDEN OF PROOF RULES OF EVIDENCE AIDING AND ABETTING JOINT CRIMINAL CONDUCT JUSTIFICATION MOTION FOR ACQUITTAL TRIAL TO THE COURT REOPENNING THE EVIDENCE GUILTY PLEA ENTRY OF ADJUDICATION FINGERPRINTING REFERRALS FOR PLACEMENT TRANSFER OF VENUE...85 APPENDIX SECTION H - ADJUDICATION...88 I. LESSER INCLUDED OFFENSES GENERALLY CHECKLIST OF LESSER INCLUDED OFFENSES...90 J. PHYSICAL, MENTAL OR CHEMICAL DEPENDENCY EXAMINATIONS PRE-ADJUDICATORY EXAMINATIONS POST-ADJUDICATORY EXAMINATIONS...97 CHECKLIST SECTION J - EXAMINATIONS...99 APPENDIX SECTION J - EXAMINATIONS K. DELINQUENCY DISPOSITION SCHEDULING DISPOSITIONAL HEARING ADJUDICATION AND DISPOSITION MERGED CONSENT PRE-ADJUDICATORY PRE-DISPOSITION REPORT ADMISSIBILITY OF EVIDENCE BURDEN AND STANDARD OF PROOF

3 6. DISPOSITIONAL ORDER DISPOSITIONAL ALTERNATIVES PLACEMENT AND CASE PLANNING DURATION OF DISPOSITIONAL ORDERS CHECKLIST SECTION K - DISPOSITION APPENDIX SECTION K - DISPOSITION L. DELINQUENT ACTS - CLASSIFICATION OF OFFENSES PER THE ADULT CRIMINAL CODE EFFECT OF CRIMINAL PENALTIES ON DISPOSITION CLASSIFICATION OF OFFENSES M. RESTITUTION AND VICTIM S RIGHTS RESTITUTION AS A DISPOSITIONAL REQUIREMENT VICTIM S RIGHTS CHECKLIST SECTION M - RESTITUTION APPENDIX SECTION M - RESTITUTION N. REVIEW, MODIFICATION, AND PERMANENCY REVIEW TERMINATION, MODIFICATION OR VACATION TEMPORARY TRANSFERS MITTIMUS ISSUES ON PRIOR DISPOSITION PERMANENCY APPENDIX SECTION N - REVIEW, MODIFICATION, PERMANENCY O. SEALING OF JUVENILE RECORDS APPLICATION REQUIRED QUALIFICATIONS NOTICE OF HEARING SEALING ORDER CHECKLIST SECTION O - SEALING OF RECORDS APPENDIX SECTION O - SEALING OF RECORDS P. EXCLUSION OF PUBLIC FROM HEARINGS APPENDIX SECTION P - EXCLUSION OF PUBLIC FROM HEARING Q. EXPANDED MEDIA COVERAGE R. CHILD VICTIM PROTECTION CHILD VICTIMS DEFINED PRIVACY PROTECTED GUARDIAN AD LITEM APPOINTED FOR CHILD VICTIM LIMITATIONS ON THE DURATION OF TESTIMONY JUVENILE S RIGHT TO CONFRONTATION * Appendices referencing forms are located at the end of each section of this chapter. 3

4 A. INTAKE Oral and written complaints of actions by minors which would be public offenses were the minor an adult are referred to intake officers, who in most jurisdictions are Juvenile Court Officers. Iowa Code Section (1), (2). The intake officer then proceeds to such investigation of the matter as appropriate to determine an appropriate disposition of the matter, called intake. The intake may include interviews with the complainant, victim, witnesses and other persons with knowledge of the minor, the minor s parents; investigation of records and physical evidence; and consultation with the county attorney. Iowa Code Section (3), (4). A victim may file a victim impact statement which is to be considered by the intake officer in disposing of the complaint. Iowa Code Sections (11), A, 910A.5. Typically, the juvenile court officer will contact the child and the child s parents in writing requesting that they meet with the officer for an intake conference. The participation of the family at the conference is voluntary and the child has the right to counsel at the conference. Iowa Code Section (6). The conference may result in the recommendation for an informal adjustment agreement rather than formal referral of the matter to the juvenile court by the filing of a petition. See Section B - Informal Adjustment, hereafter. If the facts are not sufficient for filing a petition, the complaint is dismissed by the intake officer. Iowa Code Section (7). If the intake officer finds the facts would establish the jurisdiction of the juvenile court and there exists probable cause to believe the child committed a delinquent act, the officer then must determine whether in the best interest of the child AND the public the matter should be: [1] complaint dismissed; [2] informal adjustment agreement made; or [3] petition be filed. Iowa Code Section (6). Complaints of delinquency against minors ten (10) years of age and older are public records and are not confidential. Iowa Code Section (10). The intake officer may disclose the identity of the child and the nature of the complaint to persons who inquire. The Iowa Juvenile Court may receive a transfer of venue of a delinquency case from a neighboring state in a situation where the child resides in Iowa but is alleged to have committed a delinquent act in another state. If the complaint is filed and a juvenile action is begun in another state which then transfers the case to Iowa in advance of adjudication, the Iowa court may wish to refer the matter for intake to juvenile court services. To do otherwise tends to circumvent the Iowa method of intake by juvenile court services and referral when appropriate to the county attorney. It is the Iowa County Attorney only who finally determines whether a delinquency petition is filed in the Iowa juvenile court. Iowa Code Section (1). Note, that the Iowa Juvenile Court does have jurisdiction over Iowa children who commit delinquent acts in another state. Iowa Code Section 232.2(12)(b). 4

5 SEE APPENDIX FORM DEL101 ORDER FOR INTAKE UPON TRANSFER OF VENUE FROM ANOTHER STATE APPENDIX SECTION A - INTAKE CHAPTER SEVEN - DELINQUENCY FORM TITLE (Word Version) (Adobe pdf read only Version) DEL101 ORDER FOR INTAKE UPON TRANSFER OF VENUE FROM ANOTHER STATE 5

6 B. INFORMAL ADJUSTMENT 1. INTAKE ACTION Prior to the filing of a delinquency petition, the juvenile court officer may determine it appropriate to dispose of a delinquency complaint by an informal adjustment. If successful, the court will not be involved in the matter. An informal adjustment is not appropriate following the filing of the delinquency petition. 2. CONDITIONS FOR INFORMAL ADJUSTMENT In order for an informal adjustment to be used, the conditions set forth in Iowa Code Section (1) must be met: a. CHILD ADMITS INVOLVEMENT. The child must admit his or her involvement in the delinquent act alleged to the juvenile court officer. This shows the child s acceptance of responsibility for the act and establishes probable cause for the officer to believe a delinquent act was committed and that the child committed the same. [Note: The child s statement to the juvenile court officer if made without the presence of counsel is not admissible into evidence in a later juvenile court proceeding concerning the offense unless the child and child s counsel agree. Iowa Code Section (7)(a).] b. ADVISE RIGHT TO REFUSE AND DEMAND PETITION. The juvenile court officer must advise the child and the child s parent of their right to refuse to handle the matter through an informal adjustment and to demand that a delinquency petition be filed. c. VOLUNTARY AND INTELLIGENT AGREEMENT. The child must either enter into the informal adjustment with the advice of his or her attorney or if not represented at intake with the consent of the child s parent. d. TERMS IN WRITING. The terms of the informal adjustment must be in writing and clearly stated. The terms may include prohibitions of the minor s driving privileges, community service or work assignment of value to the state, and restitution. e. SIGNED BY ALL PARTIES. The informal adjustment agreement must be signed by all parties, including the child, child s parent, child s attorney [if any], and the juvenile court officer. f. COPY PROVIDED TO ALL PARTIES. The juvenile court officer should provide a copy of the informal adjustment agreement to the child, child s parent, and child s attorney [if any]. The intake officer should also retain a copy of the agreement. SEE APPENDIX - FORM DEL102 Informal Adjustment Agreement 6

7 3. DURATION An informal adjustment may be in force for a period not to exceed six months. No extensions are permitted. Any referral for services as a condition of the informal adjustment shall be for not more than six months. 4. TERMINATION OF AGREEMENT The child and the child s parents have the right to terminate the informal adjustment and request the filing of a formal delinquency petition at any time within the duration of the agreement. 5. FILING OF PETITION The juvenile court officer may request the filing of a delinquency petition concerning the offense(s) for which the informal adjustment agreement if made within six months of the execution of the informal adjustment agreement. Such request is made if the child has not complied with the terms of the agreement. If the petition is filed but the child can prove compliance with all proper and reasonable terms of the informal adjustment, the court may dismiss the petition. No petition may be filed after six months from the execution of the informal adjustment agreement. A petition filed after the six month anniversary of the informal adjustment agreement is subject to dismissal with prejudice. ****************************************************************************** APPENDIX SECTION B - INFORMAL ADJUSTMENT CHAPTER SEVEN - DELINQUENCY FORM TITLE (Word Version) (Adobe pdf read only Version) DEL102 INFORMAL ADJUSTMENT AGREEMENT 7

8 FIRST JUDICIAL DISTRICT OF IOWA IN AND FOR COUNTY (Juvenile Division) In the Interest of: * * INFORMAL ADJUSTMENT * AGREEMENT * DOB: * Offense(s): As an alternative to appearing in Juvenile Court at this time, we have been given the option of accepting this Informal Adjustment. We understand that we may consult with an attorney before signing the agreement and that the juvenile s signature below is an admission that he/she committed the offense(s) listed above. Further, we understand that if the conditions listed below are followed, a Juvenile Court hearing will not be necessary. If any condition is violated, formal court action may be initiated. If we desire a court hearing, we may refuse or withdraw from the agreement at any time. The agreement shall not exceed six months, is subject to approval by the County Attorney, and may be affected by the impact of this offense on the victim. Also, if the juvenile is 14 years or older and the above offense is an aggravated misdemeanor or felony, Juvenile Court Services is required by Iowa law to send notification of this agreement to the superintendent of the school where the juvenile attends. We understand that probation officers, law officers, and assigned case trackers will have access to confidential case information necessary to supervise compliance with this agreement and that unannounced phone calls and visits by those personnel will be made. We voluntarily and intelligently accept this agreement and will comply with the following conditions: 1) Obey all federal, state, and local laws, and promptly notify your probation officer if arrested or questioned about new law violations. 2) Abide by the following curfew:. 3) Promptly report to appointments with your probation officer as directed. 4) Complete hours of community service work as directed. Other conditions: Date agreement begins: Date agreement ends: Juvenile Date Father Date Attorney Date Mother Date I have explained this agreement and given copies to all parties. 8 Juvenile Court Officer

9 DEL102 9

10 C. DELINQUENCY PETITION 1. AUTHORITY TO FILE Only the county attorney has the authority to file a delinquency petition. This is normally done following intake by juvenile court services and their recommendation for the filing of a petition. Iowa Code Section (1). 2. CONTENTS OF PETITION A delinquency petition is to be captioned In the Interests of [Child s Name], A child. It should include according to Section the following: a. Child s name, age and residence b. Name and residence of child s living parent, guardian or custodian and guardian ad litem, if any c. If such facts are not known d. The offense SEE APPENDIX - FORM DEL103 - DELINQUENCY PETITION. 3. VENUE The delinquency petition may be filed and venue is proper in either the judicial district in which the child resides or where the delinquent act alleged occurred. Iowa Code Section Typically the petition is filed in the county of the child s residence unless there exists a substantial reason why the adjudication should take place in the district in which the delinquent act occurred, e.g., the witnesses would be required to travel substantial distance to testify at trial. This is in contrast to the venue provision in adult criminal cases which requires the case to be tried in the county in which the crime WAS allegedly committed. Iowa Code Section Rule 8.17 of the Rules of Juvenile Procedure governs venue of delinquency actions where a child is in placement outside the county of the child s residence and provides: Venue in delinquency cases where child has been placed in another judicial district. Where a juvenile has been placed in another jurisdiction and is alleged to have committed a delinquent act or acts during such placement, venue, for the purpose of conducting the adjudicatory hearing, shall be in the judicial district where the delinquent act or acts are alleged to have occurred. However, the juvenile court which originally placed the juvenile shall have the option of requesting that venue be transferred to it for the purpose of 10

11 conducting the adjudicatory proceedings. If the juvenile is adjudicated to have committed a delinquent act or acts in the judicial district of the juvenile s placement, the venue of the matter shall be transferred to the juvenile court which previously placed the child pursuant to the original dispositional order for the purpose of conducting any dispositional and subsequent review hearings. 4. THE OFFENSE DETAILED The petition should state with reasonable particularity the time, place and manner of the delinquent act alleged and the penal law violated by such act. Iowa Code Section (3)(c). There exists no requirement that minutes of testimony accompany the petition. The petition must put the child on notice, however, of the act complained of by reasonably describing the date and location of the offense and the child s actions. Traditionally, the county attorneys have used their criminal charging manual to prepare delinquency petitions. If the court finds that the petition does not provide sufficient notice to the child of the offense complained of, the court may refuse to approve the filing of the petition. Such action is not specifically provided for under Chapter 232, but is traditionally the role of the court and akin to the action of the district court which is required to approve the filing of a county attorney s information in adult criminal court pursuant to Rule 2.5(4) of the Iowa Rules of Criminal Procedure in which the court is to approve the information if the evidence, if unexplained, would warrant conviction. Rule 8.2(1) of the Rules of Juvenile Procedure allows the child s counsel discovery as to further details in the case Upon the request of counsel for a juvenile who has been referred for intake screening on a delinquency complaint, the state shall give the juvenile s counsel access to all documents, reports and records within or which come within its possession or control that concern the juvenile or the alleged offense. Some courts have attempted to expedite the process and require the provision of full discovery to counsel at the earliest possible time, i.e., with service of the petition. In such cases, attached to counsel s copies of the pleadings are police reports and witness statements in delinquency cases and child protective assessments in child in need of assistance cases. Requests for formal discovery should not be necessary. A standard order should be entered requiring the petitioner to provide counsel this information with the petition. Likewise, reciprocal discovery by the child to the petitioner should be required. SEE APPENDIX FORM DEL113 - ORDER RE: DISCOVERY (DEL) 11

12 5. SETTING HEARING AND PROVIDING FOR NOTICE If the court finds the petition sufficient, it should schedule an initial appearance within the guidelines set by the Iowa Supreme Court [within 15 days if the child is in detention or shelter care; otherwise within 30 days, unless an evaluation is entered and then within 45 days]. The adjudicatory hearing must be held within sixty (60) days of the filing of the petition unless the child waives that right. Rule 8.8, Iowa Rules of Juvenile Procedure. Failure to timely hold the adjudicatory hearing results in a dismissal of the petition. Id. The order scheduling the initial hearing on the petition should provide guidance as to notice upon the necessary parties. SEE APPENDIX - FORM DEL104 - ORDER SETTING HEARING AND APPOINTING COUNSEL At the time of the initial appearance on the petition, if the child denies the allegations and demands a trial, the court may use the time as an initial pre-trial conference and schedule a final pre-trial, if necessary, and the trial. It may order discovery and set deadlines for filing of affirmative defenses and motions to suppress. SEE APPENDIX - FORM DEL105 - ORDER RE: PRE-HEARING CONFERENCE 6. SUMMONS A summons requiring the child and the person with custody or control of the child to appear and notice of the proceeding must be served upon said persons at least five days prior to the initial appearance on the petition. Iowa Code Section (1). The notice is to be personally served by the sheriff pursuant to the Rules of Civil Procedure. Iowa Code Section (4). The summons, a copy of the petition, and order scheduling the hearing and appointing counsel should be served upon the child and child s custodian. If the child and custodian do not appear as summoned, the court may arrest the custodian or in the alternative cite the custodian for contempt of court and may order the child taken into custody. Iowa Code Section (5). The court may also order the child taken into custody, if it appears the custodian is about to flee the jurisdiction with the child. Iowa Code Section (6). SEE APPENDIX - FORM DEL106 - SUMMONS AND NOTICE OF DELINQUENCY Directions for service of the petition, order, summons and notice upon the child and child s parent, guardian or custodian should be provided to the sheriff or other service agent SEE APPENDIX - FORM DIRECT - DIRECTIONS FOR SERVICE - JUVENILE CASE 12

13 The parties may also accept or acknowledge service in lieu of personal service. SEE APPENDIX - FORM ACCEPT - ACCEPTANCE OF SERVICE The court may also provide the parties a copy of the Petition, Order Setting Hearing and Appointing Counsel and Summons/Notice at the time of any detention or shelter care hearing held in advance of the initial appearance on the petition. The parties may accept or acknowledge service on the record and/or the court may note their receipt of notice on a certificate of service. SEE APPENDIX - FORM CERTIF - CERTIFICATE OF SERVICE 7. NOTICE Notice of the proceedings, a copy of the petition, and order setting hearing and appointing counsel should be served personally upon all known parents, guardian or custodians of the child if not summoned. Iowa Code Section (2). SEE APPENDIX - FORM DEL107 - NOTICE OF DELINQUENCY Personal service of the notice is required unless the court determines that such service is impracticable. Such a finding is often made if the party resides outside the state of Iowa or it is extremely difficult to find the person at their residence or business. In such case, notice may be sent by certified mail to the party s last known address. Iowa Code Section (4). SEE APPENDIX - FORM DEL108 - ORDER FOR MAILED NOTICE Proof of mailing must be by affidavit of the party mailing the notice and shall have attached to it a duplicate copy of the papers referred to in the affidavit. Rule 1.308(5), Iowa Rules of Civil Procedure. See also In Interest of J.W., 498 N.W.2d 417, 421 (Iowa App. 1993). SEE APPENDIX - FORM DEL109 - Affidavit of Mailing - Delinquency In the case of a known party with unknown whereabouts, published notice would be the only method of service possible, however amendment to Section (4) deleted published notice as an alternative form of notice to a known parent without unknown whereabouts. Rule 1.310, Iowa Rules of Civil Procedure specified those actions in which the original notice may be served by publication and delinquency juvenile actions are not listed. An affidavit of a party or his/her attorney is required showing that no mailing address is known and that diligent inquiry has been made to ascertain it before published notice can be approved by the Court. Rule 1.311(1), Iowa Rules of Civil Procedure. SEE APPENDIX - FORM DEL110 - Affidavit for Published Notice 13

14 If the Court finds that no mailing address is known for the party and that the Petitioner has made a diligent inquiry to ascertain it but the same has been unsuccessful, the Court may order the notice provided to the party by publication. SEE APPENDIX - FORM DEL111 - Order for Published Notice Published notice is to be published three (3) consecutive weeks in a newspaper of general circulation, published in the county where the petition is filed, with the newspaper to be the one selected by the Petitioner. Rule 3.313, Iowa Rules of Civil Procedure. SEE APPENDIX - FORM DEL112 - Notice for Publication (Delinquency) Proof of publication by the publisher or an employee of the newspaper must be filed with the clerk before a default can be entered against a party served by publication. Rule 1.314, Iowa Rules of Civil Procedure. It appears well advised to publish only the child's initials as opposed to full name to protect the child from adverse notoriety prior to any adjudication of delinquency. There exists no specific statutory requirement that the child's full name not be published in delinquency notices. There also exists no authority to dispense with notice to a known party whose whereabouts are unknown. The real test for determining if means of service other than personal service or its equivalent will suffice is whether the method is reasonably calculated to give actual notice and, if there is some doubt on that point, is it at least the best possible procedure under the circumstances. Iowa Rules of Civil Procedure Annotated, West Publishing, Volume 1, 8. COUNSEL FOR CHILD The court should include a provision for the appointment of counsel for the child or that the child s parent retain counsel for the child in the order scheduling the initial hearing. The child s right to counsel at juvenile court proceedings cannot be waived by the child. Iowa Code Section (2). If the court appoints counsel for the child, it may require the child s parent to pay the cost. The child s parents may file an Application for Appointment of Counsel and Financial Affidavit requesting the court determine them indigent and require the cost of counsel to be paid in whole or in part by the public. Unless the parent files said application and is found indigent, the parent should be required to pay the entire cost of the child s representation. The child s parent has no right to court appointed counsel in a delinquency petition in contrast to a child in need of assistance proceeding. The child s parent has no right to participate as a party in delinquency hearings by themselves or by their attorney except as through the child and his or her attorney. In Interest of A.H., 549 N.W.2d 824 (Iowa 1996). SEE APPENDIX - FORM COUNSEL - APPLICATION FOR APPOINTMENT OF COUNSEL, FINANCIAL AFFIDAVIT, AND ORDER 14

15 9. PRESENCE OF PARENT Delinquency hearings are not to be held in the absence of the child s parent, guardian or custodian, unless said party was notified of the hearing and failed to appear or in such case where a reasonably diligent effort was made to notify the party but the same was unavailing. Iowa Code Section (1). 15

16 APPENDIX SECTION C - PETITION CHAPTER SEVEN - DELINQUENCY FORM TITLE (Word Version) (Adobe pdf read only Version) DEL103 DEL104 DEL105 DEL106 DIRECT ACCEPT CERTIF DEL107 DEL108 DEL109 DEL110 DEL111 DEL112 DEL113 COUNSEL DELINQUENCY PETITION ORDER SETTING HEARING AND APPOINTING COUNSEL ORDER RE: PRE-HEARING CONFERENCE SUMMONS AND NOTICE OF DELINQUENCY DIRECTIONS FOR SERVICE - JUVENILE CASE ACCEPTANCE OF SERVICE CERTIFICATE OF SERVICE NOTICE OF DELINQUENCY ORDER FOR MAILED NOTICE AFFIDAVIT OF MAILING AFFIDAVIT FOR PUBLISHED NOTICE ORDER FOR PUBLISHED NOTICE NOTICE FOR PUBLICATION DELINQUENCY ORDER RE: DISCOVERY APPLICATION FOR APPOINTMENT OF COUNSEL, FINANCIAL AFFIDAVIT, AND ORDER 16

17 D. WAIVER OF JURISDICTION 1. TRADITIONAL WAIVER TO ADULT COURT a. WAIVER GENERALLY The juvenile court has original exclusive jurisdiction concerning a minor alleged to have committed a delinquent act. Iowa Code Section 232.8(1). By waiving its jurisdiction, the juvenile court gives up its exclusive, original jurisdiction so that the minor may be tried for the offense as if an adult. Iowa Code Section Other states refer to the waiver process as transfer, certification, reference or remand. b. MOTION TO WAIVE Either the county attorney or the child may file a motion for waiver of jurisdiction designed to move the case from juvenile court to an adult criminal proceeding. The court is not allowed to make such motion sua sponte. The motion to waive jurisdiction must be filed within ten (10) days after the filing of the delinquency petition. Rule 8.9, Iowa Rules of Juvenile Procedure. There exists no good cause exception to this time requirement, although if such motion is filed by the child or not resisted by the child, it would appear that the child with the advice of counsel could waive the timely filing requirement. Normally the motion to waive, if filed by the State, is filed contemporaneously with the delinquency petition. This would obviously not be the case, however, where the child files the motion to waive jurisdiction as that could only take place following the filing of the delinquency petition and service of the same upon the child and his or her parents. SEE APPENDIX - FORM DEL120 - MOTION TO WAIVE JURISDICTION c. HEARING ON MOTION The hearing on the motion to waive jurisdiction must be held prior to any adjudicatory hearing on the merits of the petition. Iowa Code Section (1). To do otherwise and prosecute the defendant in adult criminal court after an adjudicatory proceeding in Juvenile Court violates the Double Jeopardy Clause of the Fifth Amendment, as applied to the States through the Fourteenth 17 Iowa Code Section (1) After the filing of a petition which alleges that a child has committed a delinquent act on the basis of an alleged commission of a public offense and before an adjudicatory hearing on the merits of the petition is held, the county attorney or child may file a motion requesting the court to waive its jurisdiction over the child for the alleged commission of the public offense or for the purpose of prosecution of the child as an adult or as youthful offender. Iowa Code Section (2) The court shall hold a waiver hearing on all such motions.

18 Amendment. Breed v. Jones, 421 U.S. 519, 541, 44 L.Ed.2d 346, 95 S.Ct. 1779, 1792, (1975). A hearing on the motion to waive jurisdiction must be held within thirty (30) days after the filing of the motion, unless good cause to the contrary is shown. Rule 8.10, Iowa Rules of Juvenile Procedure. A hearing is to be scheduled on any motion for waiver of the juvenile court jurisdiction for prosecution of a minor for the offense alleged in a delinquency petition as if an adult. Iowa Code Section (2). Notice of the waiver hearing is given in the same manner as for adjudicatory hearings. Iowa Code Section (3). The waiver hearing may itself be waived by the child upon advice of counsel and the waiver of the hearing will not serve as reversible error where the record indicates the child was not prejudiced by the giving up of that hearing. Jasper v. State, 477 N.W.2d 852, (Iowa 1991). Rule 8.9, I.R.Juv. P. A motion under Iowa Code section must be filed within ten days of the filing of the petition. Rule 8.10, I.R.Juv. P. A hearing on a motion to waive jurisdiction filed pursuant to Iowa Code section shall be held within thirty days of the filing of said motion unless good cause to the contrary is shown. SEE APPENDIX - FORM DEL121 - ORDER SETTING WAIVER HEARING, APPOINTING COUNSEL, & DIRECTING WAIVER INVESTIGATION SEE APPENDIX - FORM DEL122 - SUMMONS & NOTICE OF WAIVER HEARING SEE APPENDIX - FORM DEL123 - NOTICE OF WAIVER HEARING SEE APPENDIX - FORM DEL124 - ORDER FOR MAILED NOTICE - WAIVER SEE APPENDIX - FORM DEL125 - AFFIDAVIT OF MAILING - WAIVER SEE APPENDIX - FORM DEL126 - AFFIDAVIT OF PUBLICATION SEE APPENDIX - FORM DEL127 - ORDER FOR PUBLISHED NOTICE - WAIVER SEE APPENDIX - FORM DEL128 - NOTICE FOR PUBLICATION - WAIVER 18

19 c. PREACCUSATORIAL DELAY The claim may be made that a defendant s due process rights were violated where the filing of the delinquency petition and motion to waive were purposefully delayed by the state so that the child turns age eighteen and the case is begun in district court instead of juvenile court. State v. DeAlegandro, 492 N.W.2d 450, 451 (Iowa App. 1992). To prevail in his claim that preaccusatorial delay denied him his due process rights, the defendant must show the following: "(1) the delay was unreasonable, and (2) because of the delay his ability to present his defense actually was prejudiced." Id. citing State v. Wagner, 410 N.W.2d 207, 210 (Iowa 1987). In DeAlegandro the State conceded the delay was intentional, however, it did not concede the delay was either unreasonable or intended to give the prosecution a tactical advantage. The officer testified his motive was simply to avoid a juvenile court proceeding which he considered futile and wasted. Id. Because the court found no prejudice to the defendant, the delay was determined not to be violative of the defendant s due process rights. Id. In the Trompeter case, the State deliberately waited 3 years [until after the minor s 18th birth date] to file a sexual abuse charge against him. The defendant claimed a violation of his right to due process due to preaccusatorial delay. The same can be shown if (1) the delay was unreasonable; and (2) the defense was prejudiced thereby. With respect to the first, the court is to consider the length of the delay and the state s reason for it, i.e., the longer the delay, the better the reason must be. Prejudice was shown here as the delay was purposely used to foreclose the option of the use of juvenile court and require adult court sanctions. State v. Trompeter, 555 N.W.2d 468, 471 (Iowa 1966). In the event the State delays filing a delinquency petition and motion to waive for a substantial period for the sole purpose of making it more likely the child would be waived to adult court, the child may have a legitimate claim of prejudice with regard to the waiver decision. But note that there exists no speedy indictment rule in juvenile court. The Iowa Supreme Court believes that the omission of juvenile cases from the speedy indictment provisions of the rule was deliberate to allow for informal adjustments provided by Iowa Code Section The Court held that the forty-five-day time limitation for filing an indictment under former Rule 27(2)(a), now Rule 2.33(2)(a), Iowa Rules of Criminal Procedure does not apply to the filing of a delinquency petition under Iowa Code Section In Interest of E.P., 478 N.W.2d 402, 404 (Iowa 1991). d. EVIDENCE AT WAIVER HEARING All relevant and material evidence is admissible at the waiver hearing. Iowa Code Section (5). A juvenile has neither a statutory nor a constitutional right of confrontation in a waiver hearing. Nor is due process or fundamental fairness violated when reliable hearsay evidence is admitted in such a hearing. State v. Wright, 456 N.W.2d 661, 666 (Iowa 1990). Evidence at detention, shelter care and waiver hearings. The probable cause finding made at a shelter or detention hearing under Iowa Code section and at 19

20 waiver of jurisdiction hearings under Iowa Code section shall be based upon substantial evidence, which may be hearsay in whole or in part, provided there is a substantial basis for believing the source of the hearsay to be credible and for believing that there is a factual basis for the information furnished. The juvenile defendant may crossexamine witnesses and may introduce evidence in his or her own behalf. Rule 8.16, Iowa Rules of Juvenile Procedure. Before a juvenile court may enter a valid waiver order, due process requires an investigation, a statement by the juvenile court of its reasons for waiving jurisdiction, an opportunity for a hearing which may be informal, and a right to counsel at the waiver hearing. Kent v. U.S., 383 U.S. 541, 561, 86 S.Ct. 1045, 1057, 16 L.Ed.2d 84, 97 (1966). The United States Supreme Court has stated that waiver of juvenile court jurisdiction involves a critically important proceeding. But the Court significantly said in Kent: We do not mean by this to indicate that the [waiver] hearing to be held must conform with all the requirements of a criminal trial or even of the usual administrative hearing; but we do hold that the hearing must measure up to the essentials of due process and fair treatment. State v. Wright, supra at 660 citing Kent, supra at 562, 86 S.Ct. at 1057, 16 L.Ed.2d at 97-98; accord In re Gault, 387 U.S. 1, 56, 87 S.Ct. 1428, 1459, 18 L.Ed.2d 527, 562 (1967). e. WAIVER INVESTIGATION AND REPORT Prior to the hearing on the motion for waiver of jurisdiction, the court is to order Juvenile Court Services to complete a waiver investigation and make recommendations to the court and counsel concerning the motion. Iowa Code Section (4). The direction or authorization for completion of the waiver investigation and report is typically given in the order scheduling the waiver hearing itself. The investigation report should include the information that will enable the court to make a factual determination of the issues relevant to the waiver of jurisdiction. Iowa Code Section (5) does not confer an obligation on the state to present all material evidence to the juvenile court in a waiver hearing. Rather, the Supreme Court found that section (5) is an evidentiary section, establishing admissibility of all relevant and material evidence at a waiver Prior to the waiver hearing, the juvenile probation officer or other person or agency designated by the court shall conduct an investigation for the purpose of collecting information relevant to the court s decision to waive its jurisdiction over the child for the alleged commission of the public offense and shall submit a report concerning the investigation to the court. The report shall include any recommendations made concerning waiver. Prior to the hearing the court shall provide the child s counsel and the county attorney with access to the report and to all written material to be considered by the court. Iowa Code Section (4) hearing. See State v. Wright, 456 N.W.2d 661, 662, 664 (Iowa 1990). A waiver hearing is dispositional, not adjudicatory. Id. at The court stated that if the State were 20

21 required to present every piece of relevant and material evidence at the waiver hearing, this would effectively transform the hearing into an adjudicatory trial and undermine the dispositional purpose of waiver hearings. Where the child knew about and had the opportunity to present the exculpatory evidence not presented by the State, the Court of Appeals found no prejudice in lack of evidence for the child in the state s case. State v. Coffman, 562 N.W.2d 766, 768 (Iowa App. 1997). The minor s counsel should be given access to the minor s records and an opportunity to examine and refute information presented therein as well as to present independent evidence. Kent, supra at 563. f. CONSIDERATIONS WITH RESPECT TO THE WAIVER DECISION Before the juvenile court may waive its jurisdiction over a minor for prosecution of a delinquent act as if an adult, the court must make written findings of fact as to the reasons for the waiver. Iowa Code Section (8). The minor must be at least fourteen years of age at the time of the waiver hearing; there must be established either at the waiver hearing or at a prior detention hearing probable cause to believe the minor committed the offense(s) alleged in the petition; and there must be established that there exist no reasonable prospects for rehabilitating the child if the juvenile court retains jurisdiction, and that waiver is in the best interest of the child and the community. Iowa Code Section (6). The burden of proof is upon the moving party, the State or the child. The statute is silent, however, as to the standard of proof. While proof beyond a reasonable doubt is not necessary, proof concerning prospects for rehabilitation should be at least by clear and convincing evidence. 29 Drake Law Review 405, 422 (1979). At the conclusion of the waiver hearing the court may waive its jurisdiction over the child for the alleged commission of the public offense if all of the following apply: (a) The child is fourteen years of age or older. (b) The court determines, or has previously determined in a detention hearing under section , that there is probable cause to believe that the child has committed a delinquent act which would constitute the public offense. (c) the court determines that the state has established that there are not reasonable prospects for rehabilitating the child if the juvenile court retains jurisdiction over the child and the child is adjudicated to have committed the delinquent act, and that waiver of the court s jurisdiction over the child for the alleged commission of the public offense would be in the best interests of the child and the community. Iowa Code Section (6) 21

22 In making the determination required by subsection 6, paragraph c, the factors which the court shall consider include but are not limited to the following: (a) The nature of the alleged delinquent act and the circumstances under which it was committed. (b) The nature and extent of past contacts with juvenile authorities, including past efforts of such authorities to treat and rehabilitate the child and the response to such efforts. (c) The programs, facilities and personnel available to the juvenile court for rehabilitation and treatment of the child, and the programs, facilities and personnel which would be available to the court that would have jurisdiction in the event the juvenile court waives its jurisdiction so that the child can be prosecuted as an adult. Iowa Code Section (8) In making the latter determination, the court may consider [but is not limited to] the factors described in Section (8) as follows: (1) Nature of the Delinquent Act - the seriousness of the act as determined by its criminal classification, i.e., felony, misdemeanor; consequences of the offense - serious injury or death to the victim or serious property damage; repeated nature of the offense; potential future danger to persons or property. Greater weight is often given to offenses against persons, especially if injury or death resulted. Note, however that where the child in interest is not yet fourteen years of age, no waiver of jurisdiction may be made even where the offense alleged is as serious as murder. In Interest of M.M.C., 564 N.W.2d 9, 10 (Iowa 1997). Note: HF 723 effective 7/1/00 makes animal torture a criminal offense - See Sections and 717B.3A, which prohibit waiver of a minor under age 17 to adult court for such offenses. (2) Circumstances Under Which the Act was Committed whether the juvenile acted alone or in concert with others, whether the juvenile was leader or follower, whether the juvenile was under the influence of drugs or alcohol at the time of the offense; whether the act was committed in an aggressive, violent, premeditated or willful manner, and any other aggravating or mitigating circumstances. (3) Nature and Extent of Prior Contacts - prior referrals to Juvenile Court Services, prior adjudications of delinquency including number, type, seriousness, repetitive nature. Some other state waiver or certification statutes allow the court to consider only prior adjudications and not merely referrals, without a finding of guilt. The Iowa statute discusses contacts which would appear broader than adjudications or findings of guilt. These contacts could well include juvenile authorities in other states if the child was previously a resident or visitor there. (4) Past rehabilitative Efforts - prior attempts at supervision including informal adjustment, consent decree, and formal probation; treatment services in-home and residential, family therapy, individual counseling, substance abuse treatment; and the child s response - whether services were completed, was the minor cooperative. 22

23 (5) Services Available in Juvenile Court - consider programs, services, and personnel available to rehabilitate the minor within the duration of the dispositional order in juvenile court; would such services have a reasonable chance at successfully rehabilitating the minor and reducing the chance of recidivism. (6) Services Available in Adult Court - consider programs, services, and personnel available to rehabilitate the minor in adult criminal court and would such services have a better chance of success than those available in juvenile court. The court must require Juvenile Court Services to become acquainted with potential sentences and correctional services available in the adult court and those most likely to be used given the offense and the minor s prior record, if any. Despite prohibitions to adults, minors waived to adult court for offenses, other than class A felonies, are eligible for either a suspended sentence or deferred judgment. Iowa Code Section 232.8(3). (7) Other Factors - does the minor live at home with parent, guardian or custodian or does he or she live independently; minor is a parent; other factors involving the child s sophistication or maturity, minor is [not] enrolled in an educational program; minor is [not] employed; minor has [no] supportive parents, guardian or custodian; criminal record of parent, guardian or custodian or other siblings. (8) Waiver in Best Interest of Minor - this may be difficult to demonstrate where an adult convicted of the offense would be subject to mandatory imprisonment. Rehabilitation of the minor is the key and thus it may be found that adult sanctions and supervision will best serve to rehabilitate the child by deterring future delinquency. (9) Waiver in Best Interest of Community - the waiver to adult court may better protect the community from the minor s dangerousness or potential recidivism. g. CASE(S) - WAIVER FOUND INAPPROPRIATE After reviewing the record and considering the factors listed in former Iowa Code Section (7), now Section (8), the Supreme Court concluded that the Associate Juvenile Judge did not abuse his discretion in denying the State's motion to waive jurisdiction under the following circumstances. The child had no previous juvenile record. He did well in school and other than his acts of sexual abuse, he had not engaged in antisocial behaviors. The child and his parents had been cooperative in his treatment and the child made good progress in the short time he was treated in Texas. The witnesses who testified at the waiver hearings were overwhelmingly in favor of the child remaining in the juvenile system. More important, however, there was testimony to support a conclusion that the juvenile system offered prospects of rehabilitation for the child. Finally, several witnesses testified that the child would not do well in an adult treatment program because of his emotional immaturity. The State's primary concern with leaving the child in the juvenile court system was the possibility he could not complete a treatment program before he reached his majority and the court lost its jurisdiction over him. The juvenile court noted 23

24 that the child was aware that the State may file another petition against him alleging that he sexually abused his younger sister. The prospect of another prosecution in adult court would provide motivation for the child to complete a treatment program despite the juvenile court's loss of jurisdiction over him. In Interest of C.W.R., 518 N.W.2d 780, (Iowa 1994). h. CASE(S) - WAIVER WAS FOUND APPROPRIATE In the case of State v. Bickell, 493 N.W.2d 100 (Iowa App. 1992), the child admitted criteria (a) and (b) of Iowa Code Section (6) had been met. The child challenged the third criteria for waiving jurisdiction under this section. The juvenile court considered the fact the child had no prior juvenile court involvement; however, the court also considered the nature and circumstances of the case. The juvenile court noted the dispositional options available to the juvenile court were limited due to the overcrowding at the Boys Training School and the fact most group homes would not accept the child due to the nature of the offense. The juvenile court rejected the child s suggestion of placement in the Glen Mills Schools in Pennsylvania because of the type of children in the program and the fact it did not offer psychological or counseling programs. At the time of the trial, there were approximately only fifteen months until the child would become eighteen years of age. The juvenile court expressed concern over the fact if it retained jurisdiction this period of time would be insufficient to provide the child with the needed services. Based upon these facts, the juvenile court found it would be in the best interests of the child and the community for the juvenile court to waive its jurisdiction. The court stated that Iowa Code Section (7) (1991)"confers broad discretion upon the court to consider such factors as it deems relevant in determining whether it ought to waive jurisdiction in a particular case." Citing In re T.D., 335 N.W.2d at 639. The Iowa Court of Appeals interpreted Iowa Code Section in State v. Greiman, 344 N.W.2d 249 (Iowa 1984). The court stated "[a]ll [the statute] requires is a weighing of the respective prospects for rehabilitation offered by the juvenile and adult systems." Id. at 251. In determining whether to waive its jurisdiction, the juvenile court properly considered all of the following factors in reaching its decision: the nature of the offenses of first-degree murder and terrorism, the child s lack of previous contact with the juvenile court, the limited rehabilitative alternatives available to the juvenile court, evidence showing the child s need for professional psychological treatment, and the short period of time during which rehabilitation could occur. Id. The Court of Appeals in the Bickell case determined that the juvenile court's consideration of the alleged offenses was proper. In fact, the Iowa Supreme Court has stated "the nature of the act weighs strongly in favor of waiver." Id. As stated in Greiman, the juvenile court officer's recommendation should be entitled to considerable weight. Id. In this case, the juvenile court officer recommended waiver. In addition, the juvenile court expressed concern it would be unable to retain jurisdiction long enough to ensure the child received rehabilitative treatment. At the time of the hearing, the child was sixteen years 24

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