Today s Agenda. Hon. Donald Owens. Juvenile Rules moved. Effective Date. From Chapter 5 to Chapter 3 of MCR

Transcription

1 The Michigan Judicial Institute presents: Today s Agenda REVIEW OF THE NEW JUVENILE PROCEEDINGS RULES Faculty: Hon. Donald Owens Mr. William Bartlam Mr. Tobin Miller 8:30 am 10:00 am 12:00 noon 2:30 pm 3:00 pm General Rules Child Protective Proceedings Delinquency, Minor PPO s and Designated Cases Automatic Waivers Additional Questions 1 2 Hon. Donald Owens Michigan Court of Appeals Former Chair, Juvenile Court Rules Committee Member and Co-Chair, Family Division Joint Rules Committee A probate and juvenile court judge for 25 years The Michigan Judicial Institute presents: REVIEW OF THE NEW JUVENILE PROCEEDINGS RULES Child Protective Proceedings General Rules MCR Effective Date Juvenile Rules moved From Chapter 5 to Chapter 3 of MCR 5 6

2 3.901 Applicability of Rules (A)(3) Evidence General applicability of MRE Statutory exception re: privileges Definitions Deleted Child born out of wedlock Juvenile Court Concerned person General Definitions Added 9 (A) (1) Case (A) (8) File (A) (11) Guardian (A) (13) Legal Custodian (A) (14) Legally Admissible Evidence (A) (25) Register of Actions Child Protection Definitions Added 10 (C) (3) Contrary to the welfare of the child (C) (5) Lawyer guardian ad litem (C) (6) Nonparent adult General Definitions Modified Child Protection Definitions Modified (A) (3) Confidential file (A) (7) Father (A) (17) Parent (A) (18) Party (C) (4) Foster Care (C) (8) Placement (C) (10) Respondent 11 12

3 3.911 JURY Judge (B) (3) Time to demand (A) (4) (B) (2) Minor PPO Time to demand Referees (A) (2) (b) Non-attorney referee authority Attorneys (B) (1) (B) (2) (B) (2) (b) (D) Nonparent adults Lawyer GAL Attorney for child Withdrawal Court Appointed Special Advocate (CASA) 17 (A) Appointment (B) Qualifications (C) Duties (D) Term (E) Access to information Service of Process (B) (2) (b) Summons / Notice - Respondent - Non-respondent parent, guardian, or legal custodian - Person with custody (3) (b) No right to jury at termination hearing (4) (b) Substituted service - Testimony or motion and affidavit 18 - ex parte order

4 3.920 Service of Process (F) Subsequent notice - In re Atkins (1999) (G) Waiver of Notice Defects - Court advise if no attorney Service of Process (H) Proof of Service (1) Summons (2) Other Papers (3) Publication (4) Content (5) Failure to file Persons Entitled to Notice (B) (1) (C) Generally Putative father procedure - Discretionary (1) Contents of notice (2) (b) Mother joining in acknowledgement of parentage Pretrial Procedures (A) Discovery (1) Time (3) Depositions (4) Sanctions (E) Notice of Intent (C) Motion To Suppress (1) (a) Support person (1) (b) Special arrangements (1) (c) Video deposition (1) (d) Tender years evidence (2) Opposition to motion or rebuttal testimony (3) Shorten time for good cause 23 24

5 3.923 Miscellaneous Procedures (F) Impartial questioner (G) Adjournments Information Furnished on Request by Court Records Transfer of Jurisdiction (B) (E) Record of Proceedings Destruction of Records (1) General Rule (3) Child Protective Files and Records (B)To county of residence (1), (2) Factors to determine county of residence (3) Non-establishment of residence (E) Bifurcated Proceeding (F) Transfer of Records Contempt CHILD PROTECTIVE PROCEEDINGS Review of Referee Recommendations, Rehearings and Appeals MCR

6 3.991 Review of Referee Recommendations Rehearings; New Trial (A) (B) (E) Procedure Time and Service Action by Judge (A) Time for filing Appeals (C) (2) Use of Minor s Initials CHILD PROTECTIVE PROCEEDINGS Specific Rules MCR Initiating Child Protective Proceedings (B) Content of Petition (6) Specifically state request for: (a) Removal of child (b) Removal of a parent (c) Termination of rights at initial disposition Preliminary Inquiry (B) Recording; presence of parties 35 36

7 3.963 Protective Custody of Child (A) Without court order (B) With court order (2) Order must include: - contrary to welfare of child - basis for that determination (C) (6) Custody Statement Preliminary Hearing (A)Time for hearing 38 (1) Child in protective custody (2) Child not in protective custody but severely physically injured or sexually abused (B) Procedure 39 (1) Parent not present (2)& (3) When distribute copy of petition (5) Attorney for respondent (8) Jurisdiction in another court (9) Indian Child Welfare Act (10) Adjournment (11) Authorizing petition (12) Release or placement (C) Pretrial Placement (2) Criteria for placement [abuse:mcl 712A.13a(5)] (3) Findings (4) Relatives (5) Bail (6)(a) Parenting time (6)(b) Visitation by guardian or legal custodian (7) Medical Information (8) Review of placement order and ISP (D) Reasonable Efforts Determination (E) Advice re: ISP (1) Time (2) When not required (4) Motion for review 41 42

8 3.966 Other Placement Review Proceedings (A) Removal of child after preliminary hearing (B) Review of agency s placement decision (C) Agency v Foster Care Review Board Pleas (B) (4) Consequences of plea by parent (C) (2) Required finding Trial 45 (A) (B) (2) Child not in placement Not explain nature of proceedings Trial (C) Evidence (2) Tender years exception - Under 10 years of age - Under 18 years of age w / DD - Describing v regarding - Neglect as well as abuse 46 (a) Child available or not - Corroboration - Substantive evidence (b) Child testified: impeachment (c) Child did not testify: impeachment Trial Dispositional Hearing [formerly 5.973(A)] (D)Verdict recommendation by lawyer-gal (E) Form of verdict Former is now

9 3.973 Dispositional Hearing 49 (D) (E) Presence of parties (1) Child s attorney or lawyer-gal Evidence; reports Former (4) (d) moved to (1) (F)(4) Release of medical information: child in foster care (G) Subsequent reviews Dispositional Hearing (H) Allegations of additional abuse or neglect (1) Request for termination (2) No request for termination - Child at home - Child in foster care Post-Disposition: Child At Home [formerly 5,973(D) & (E)] 51 (A) (1) (A) (3) (B) Progress review Removal if no emergency Removal if emergency (1) Temporary removal (3) Hearing procedure Post-Disposition: Child In Foster Care [formerly 5.973(B)] (C)Time for dispositional review hearing (1) General rule (2) Exception; permanent placement (G)Dispositional review orders 52 (2) Remove child (3) Change placement Permanency Planning Hearings [ formerly (C) ] Permanency Planning Hearings (A)Permanency plan Reasonable efforts to finalize plan (1) (5) Alternatives to be considered (B)Time (2), (3) General rule; change of worker (1) Exception (D) (E) Hearing procedure (1) What is not a PPH Permanency Options (3) (b) Long-term foster care 53 54

10 3.977 Termination of Parental Rights [formerly 5.974] (A) (1) American Indian children Dual findings (D) Suspension of parenting time (E) Termination at initial disposition (3) Grounds; when proven; justify termination; best interest: standard of proof Termination of Parental Rights (F) Termination on basis of different circumstances (b) (ii) Grounds; sufficient for termination (1) (b) Best interest: standard of proof (G) Termination: Other (including following progress review) 56 (1) Time (a) Filing petition (3) Grounds; sufficient for termination; best interest: standard of proof Post-Termination Review Hearings [formerly 5.974(J)] (A) Time - General Rule 57 - Exception for permanent foster / relative care (B) Notice; right to be heard American Indian Children 58 (B) Emergency removal (C) Removal hearing When required Emergency (also State hearing) (1) (a) Non-emergency May combine with any other hearing (1) (b) Qualifications of expert witnesses (D) Termination of parental rights Dual findings QUESTIONS? Additional Notes If this is the last portion of the program you will be viewing, please click the link in the window below and complete the 59 If you are continuing on with the next portion of the program, please stand by. 60

11 Additional Notes The Michigan Judicial Institute presents: REVIEW OF THE NEW JUVENILE PROCEEDINGS RULES Updated Court Rules for Delinquency, Designated Cases, And Minor PPOs 61 Mr. William Bartlam Deputy Court Administrator, Oakland County Probate Court Involved with Juvenile Justice for more than two decades Served as Assistant Prosecuting Attorney, Defense Attorney, and a variety of assignments within the courts Rules Covered Definitions and General Rules Delinquency Proceedings (14) Designated Cases (6) Minor PPO Enforcement (9) Key Definitions & Terms Now Deleted Variations on Current Definitions Major Offense Reportable Juvenile Offense Expunge Confidential File Party in Delinquency Proceedings Parent Prosecutor in PPO Enforcement proceedings 65 66

12 NEW Definitions Used In Delinquency Case Guardian Legal Custodian Register of Actions Pre-trial Procedural Changes Expanded Discovery Limit on Depositions Sanctions for failure to provide discovery Notice of Intent Destruction of Court Records 69 Destruction v Expungement Permanent Register of Actions Consent Calendar case destruction A 16 year-old juvenile - Larceny in a Building. SCENARIO Which is NOT accurate? #1 1. There will always be a public record if the juvenile is adjudicated and disposition is made. 2. All public records will be destroyed at 30, including the Register of Actions. 3. If the juvenile is placed on the Consent Calendar, the records will be destroyed and the RA, if any, will be non-public. 4. The court records may be destroyed for good cause because Larceny in a Building is NOT an adjudicated offense described in MCL 712A.18e. 5. If the juvenile s case is diverted, there will be no RA and the record will be destroyed within 28 days 70 of juvenile s 17 th birthday. Inter Circuit Transfers Delinquency Rules 71 Determining Residence Child placed in county by court order or agency Bifurcated proceedings and transfer of records Preliminaries Pleas and Trials Disposition and post-disposition proceedings.950 Traditional Waiver

13 Preliminaries - I Initiating Proceedings.931 Initiating Proceedings.932 Summary Proceedings.933 Physical Control.934 Court Appearance Citation or Appearance Ticket (MCL 764.9) Petition Summary Initial Proceedings Preliminary Inquiry Crime Victims Rights Act CVRA Consent Calendar Formal Calendar.932 Summary Initial Proceedings CVRA REQUIREMENTS Proceedings on record Notice & opportunity to be heard Restitution (C) Consent Calendar - I 77 CHANGES Petition not authorized Transfer back possible from formal calendar No plea No adjudication.932(c) Consent Calendar - II 78 MORE CHANGES Conference (not hearing) Case Plan No disposition Closure Confidentiality

14 A juvenile charged with Malicious Destruction of a Building / damage $1, Petition authorized. Juvenile pleads guilty, court adjudicates and schedules disposition. Defense requests transfer to Consent Calendar. If judge grants request, which is NOT true? SCENARIO #2 1. The plea and adjudication vacated 2. The authorization of petition set aside 3. There would be NO restitution 4. The Register of Actions would become non-public 5. A Consent Calendar case plan would be adopted A juvenile is charged in a petition with Assault and Battery. What must the Court do before placing the case on the Consent Calendar? SCENARIO #3 1. Give the prosecutor notice of intent to remove the case from the adjudicative process 2. Schedule a hearing, and permit the Victim and the Prosecutor to address the court. 3. Order the juvenile or parents to make full restitution 4. Obtain the juvenile and the parent s consent 5. All of the above Preliminaries - II.935 Preliminary Hearing - I Physical Control Arranging Court Appearance Circumstance for detention expanded 82 Time Procedure Determination Release/Detain Detention Release - Conditions Bail.935 Preliminary Hearing - II.935 Preliminary Hearing - III CURRENT A juvenile shall not be removed from the parent unless 83 NEW in determining whether the juvenile is to be released, with or without conditions, or detained 84 DETENTION Circumstances expanded Evidence Findings

15 .935 Preliminary Hearing - IV A juvenile is released from detention after preliminary hearing on condition that he be at home when not in school, and that he not associate with 3 co-defendants named in now -authorized petition. Police see him with co-defendants on street. Which COULD apply? 85 RELEASE Conditions (compare to MCR 6.106(D)) Violation of Conditions of Release Court could order immediate apprehension and detention 2. Court could hold detention hearing and modify conditions of release including bail 3. Court could detain the juvenile until further order, but ONLY if juvenile is given hearing on violation 4. All of the above 5. A & B Only SCENARIO #4 Preliminaries - III Fingerprinting Juvenile Offense defined in MCL Reportables.939 District Court Transfers Pleas & Trials Pleas.942 Trials Residence / Venue / Transfer / Bifurcation At a pretrial on the formal calendar, juvenile wants to enter no contest plea. Which of the following statements is NOT accurate? 89 SCENARIO # 5 1. Court must always record the plea, including any agreement with or objection to it 2. Court may accept plea even if it is conditioned on preserving an issue for appellate review 3. Court must make sure juvenile is understandingly and voluntarily making plea 4. Court may only accept plea if there is parental support for it 5. Court must find support for plea by means other that questioning the juvenile A juvenile who lies in Berrien County is detained in Marquette County for armed robbery. The Marquette Prosecutor files a petition which is authorized. Trial must occur: 90 SCENARIO # 6 1. In Marquette Co. if prosecutor designates the case 2. In Berrien Co. or other county if Marquette Co. transfers the case to county of residence 3. In Marquette Co., if after transfer the receiving court changes venue for convenience of witnesses 4. In Marquette Co, with the disposition in the county of residence, if the judges of the transferring and receiving courts agree to bifurcate the proceedings 5. All of the above are possible

16 Disposition & Post-Disposition.943 Dispositional Hearing Dispositional Hearing.944 Probation Violation.945 Dispositional Review.946 Post-Dispositional Secure Detention Pending Return 92 Evidence Graduated Sanctions Crime Victims Rights Act assessment Secretary of State abstract Which of the following must be completed before the court may enter a disposition following an adjudication of 4 th degree criminal sexual conduct (2 yr. Misdemeanor if committed by an adult)? 93 SCENARIO # 7 1. Juvenile must be tested for HIV and counseled 2. Juvenile must register as a sex offender 3. Juvenile must be fingerprinted 4. 1 and 2 only 5. 1, 2, and 3 In making a second or subsequent disposition on an adjudicated juvenile, which of the following options is NOT available to the court? 94 SCENARIO # 8 1. Waiver of jurisdiction to the adult criminal court 2. Additional conditions of or extending the term of probation 3. Ordering a juvenile residing at home into an out-of-home placement 4. Ordering a more restrictive placement 5. Ordering state wardship for a juvenile not previously a state ward Supplemental Dispositions Dispositional Rehearings Violations of Probation Supplemental Dispositions; Dispositional Re-hearings Dispositional Review Post-Dispositional Secure Detention Pending Return.944 Probation Violation 96 Petition Detention Hearing Probation Violation Hearing Pleas Disposition; reporting

17 If a Probation Officer files a supplemental petition which alleges a juvenile violated probation, the court: 97 SCENARIO # 9 1. Must hold a detention hearing if the juvenile is apprehended 2. Must schedule a violation hearing for detained probation violators who deny the violation or who remain silent 3. Must conduct a non-jury violation hearing for probation violators who appear after notice and who deny the violation 4. Record the findings as a violation of probation only if the violation is proven 5. Must do all of the above.945 Dispositional Review 98 Dispositional Review Hearings Hearing to Extend Jurisdiction Review of Extended Jurisdiction cases Conditional Release A juvenile is committed to a county facility as a disposition for an offense. Juvenile is conditionally released home. If the juvenile reportedly violates conditions of release - which of the following is true? SCENARIO # Juvenile can be immediately returned to the facility until next dispositional review (with no hearing), if specified in court s original order 2. Juvenile can immediately be placed out of home with no hearing required until next review as long as the new placement is not more physically restrictive 3. Juvenile who allegedly violates conditional release is entitled to the same procedures as a probation violator 4. Court can summarily enter a supplemental 99 disposition 5. Any of the above may apply in this situation.946 Post-Dispositional Secure Detention 100 General Time for Detention Hearing Procedure A juvenile placed out of the home by the court or FIA for a non-status juvenile offense and who then leaves that placement without authority will: SCENARIO # Traditional Waiver 1. Be detained without bail after being apprehended if the court approves detention and declines to set bail 2. Be given 48-hour detention hearing unless a preliminary hearing on new petition was filed 3. Alternately be given the 48-hour detention hearing unless a probation violation petition is filed 4. Be detained until return to placements if court holds 48-hour detention hearing Find that all of the above procedures may apply 102

18 Designated Proceeding Rules Initiating Designation Hearing Preliminary Examination Trial Sentencing/Disposition Probation Violation Minor PPO Rules - I Issuance, et al Enforcement Initiation of Contempt by Supplemental Petition A 16-year old juvenile is a respondent in a PPO action. The PPO prohibits juvenile from going to the petitioner s house. Juvenile has been served but goes to house and police detain him. Which is true? SCENARIO # Juvenile can be charged and prosecuted for criminal contempt or violating PPO 2. Juvenile can be jailed for 93 days if violation proven 3. Juvenile may be fingerprinted if found guilty 4. Juvenile can receive juvenile disposition under MCL 712A.18 if found guilty 5. 1,3, and 4 are possible Minor PPO Rules - II Apprehension Preliminary Hearing Pleas Violation Hearing Minor PPO Rules - III Dispositional Hearing Supplemental Dispositions Summary Rules effective May 1, 2003 Govern Family Division procedure in Juvenile Proceedings Consider legal requirements Create Questions & Answers

19 QUESTIONS? If this is the last portion of the program you will be viewing, please click the link in the window below and complete the Additional Notes: 109 If you are continuing on with the next portion of the program, please stand by. 110 Additional Notes: The Michigan Judicial Institute presents: REVIEW OF THE NEW JUVENILE PROCEEDINGS RULES Automatic Waivers Mr. Tobin Miller Publications Manager for the Michigan Judicial Institute Author of Juvenile Justice Benchbook and Child Protective Proceedings Benchbook Contributing Editor of Guidelines for Achieving Permanency for Children SUBCHAPTER 6.900: Automatic or Prosecutorial Waiver Proceedings

20 General: 115 Changes conform rules to legislation and case law Procedures apply to juveniles who commit a specified juvenile violation on or after their 14 th birthday but before their 17 th birthday (6.903(E)) GENERAL (continued) 116 Specified juvenile violations listed in 6.903(H) Note changes to MCL (2)(a)(i) and (2)(a)(i): 1000 grams or more (6.903(H)(16)) Effective March 1, 2003 Juvenile Sentencing Hearing Juvenile Sentencing Hearing only held for offenses not listed in MCL 769.1(a)-(l) (6.931(A)) Only best interest of public considered Court must impose adult sentence unless a preponderance of the evidence shows that the best interest of the public would be served by probation and commitment (6.931(E)(2)) NEW CRITERIA USED FOR PROBATION / COMMITMENT OR SENTENCING DECISION (6.931(E)(4)) Probation Revocation Mandatory probation revocation warning (6.933(B)(1)(b) and People v Stanley, 200 Mich App 300,307 (1994)) Court no longer required to continue probation for violations other than commission of felony (6.933(B)(2) and MCL 771.7(2)) LIMITATIONS ON SENTENCE LENGTH FOLLOWING REVOCATION (6.933 (C) and People v Valentin, 457 Mich 1, 11, 14 (1998))

21 Reviews Court may commit juvenile to DOC based on reviews Hearing required under to order more restrictive placement or treatment plan FINAL REVIEW HEARINGS QUESTIONS? If this is the last portion of the program you will be viewing, please click the link in the window below and complete the Additional Notes: 123 If you are continuing on with the next portion of the program, please stand by. 124 Additional Notes: 125