Del. Code 10, § 1009 : Courts And Judicial Procedures — The Family Court Of The State Of Delaware — Procedure — Adjudication; disposition following adjudication; commitment to custody of department of services for children, youth and their families; effect

2 Sep 2016

Current through 2016 Legislative Session, Act 399

(a) Where the evidence supports such holding, the Court may declare a child to be dependent, neglected, abused, as those terms are defined by § 902(1) of Title 16, or delinquent. In declaring a child to be dependent, neglected or abused pursuant to this section, the Court shall give priority to ensuring the well-being and safety of the child.

(b) Following an adjudication by the Court in which it declares a child to be dependent or neglected, the Court may:

(1) Defer proceedings pending further investigation, medical or other examinations, or where the interests of the child will thereby be served;

(2) Allow a child to remain in his or her own home with or without Court supervision;

(3) Grant custody of a child to any person or agency where satisfactory arrangements can be made but, in the event the child is placed in a home of an adult individual who fails to meet the definition of a relative in §901 of this Title, Section 351 of Title 31 shall apply.

(4) Refer the child to the Department of Services for Children, Youth and Their Families for protective supervision;

(5) Grant custody of a child to the Department of Services for Children, Youth and Their Families for foster home placement;

(6) Grant the care or custody of a child to any licensed child-placing agency in this State that will accept the child, provided satisfactory arrangements can be made;

(7) Grant the care or custody of a child to any division of the Department of Services for Children, Youth and Their Families provided by the State for the care of children;

(8) Grant the care or custody of a child to any private institution within or without the State that cares for children, provided satisfactory arrangements can be made;

(9) Grant the care or custody of a child to any religious child-caring agency or institution, preferably of the child's religious faith or that of the parents, or either of them, within or without the State provided satisfactory arrangements can be made;

(10) Commit a child with a mental disorder or incapacity, or child with an intellectual disability for observation or treatment to any appropriate institution within the State, or to any institution without the State provided satisfactory arrangements can be made;

(11) Order such other treatment, rehabilitation or care as in the opinion of the Department of Services for Children, Youth and Their Families would best serve the needs of the child and society.

(1) Defer proceedings pending further investigation, medical or other examinations, or where the interests of the child will thereby be served, and release the child upon the child's own recognizance or upon the recognizance of a custodian or near relative, or upon bond with surety, to appear whenever and wherever notified to do so, or where the required bond is not provided, detain the child in a facility of the Department of Services for Children, Youth and Their Families;

(2) Allow a child to remain in the child's own home with or without Court supervision;

(3) Place a child on probation;

(4) Fine a child;

(5) Order a child to make monetary restitution in whole or in part as the Court determines for out-of-pocket costs, losses or damages caused by the delinquent act of the child where the amount thereof can be ascertained;

(6) Award a judgment in favor of any municipal corporation, county, town, school district or agency of the State, or any person, partnership, corporation or association, or any religious organization whether incorporated or not, and against the parents or guardians of the delinquent child for the same or greater amount ordered against the delinquent child but not to exceed $5,000, provided that the Court finds by a preponderance of the evidence presented that:

a. The parents or guardians knew of the child's delinquent nature; and

b. The parents or guardians failed to take reasonable measures to control the child;

(7) Require that any restitution ordered against the delinquent child precede the liability of the parents or guardians for the monetary damages caused by the child's delinquent act;

(8) Require, in the absence of objections by the victim of the delinquent act of the child, that any restitution ordered against the delinquent child may be discharged in an appropriate community service arrangement with the understanding that failure to complete the community service work in good faith shall result in the reversion of this obligation to the monetary basis originally ordered by the Court;

(9) Award custody of a child to the Department of Services for Children, Youth and Their Families;

(11) Grant the care or custody of a child to any private institution within or without the State that cares for children, provided satisfactory arrangements can be made;

(12) Order the Motor Vehicle Division of the Department of Transportation to:

a. Revoke or suspend the driving privileges or operator's license possessed by the child;

b. Postpone the child's eligibility to obtain driving privileges or an operator's license if the child does not possess such privilege or license; or

c. Enter immediately all traffic, alcohol and/or drug adjudications of any minor on a driving record created by the Division of Motor Vehicles notwithstanding the minor's drivers license status, age and/or eligibility for a driver's license

in any case for a period not less than 3 months nor more than 4 years;

(13) Grant custody of a person who is charged with an act of delinquency prior to reaching the age of 18 years but becomes 18 years of age prior to disposition of the charge, to the Department of Services for Children, Youth and Their Families;

(14) Order the child to be placed under house arrest under the same requirements set forth in § 4332 and Subchapter IX of Chapter 43 of Title 11 of the Delaware Code;

(15) Order such other treatment, rehabilitation or care as in the opinion of the Department of Services for Children, Youth and Their Families would best serve the needs of the child and society.

(16) Following an adjudication in which the Court declares that a child is delinquent and sentences the child to participate in the Family Court Adjudicated Drug Court Program, the Court may impose such conditions upon the parent, guardian or custodian of the person adjudicated as the Court deems necessary to assist the person adjudicated in receiving all the treatment, rehabilitation or care ordered by the Court as best serving the needs of the child and society under this section or, in the opinion of the Court, as will enhance the ability of such parent, guardian or custodian in providing the child with adequate support, guidance and supervision necessary to meet the child's physical, mental or emotional health and well-being, provided that such parent, guardian or custodian has been previously served by summons in accordance with § 1006 of Title 10;

(17) When the Court sentences a child to participate in counseling, mental health treatment or to a Division of Prevention and Behavioral Health Services consultation or assessment as required, the Court shall be authorized, in addition to any other disposition authorized by this section, to order such child's parents, guardian or custodian to participate in counseling as determined by the Court or as recommended by the Division of Prevention and Behavioral Health Services. Such counseling shall be designed to assist in deterring future delinquent or unruly actions or other conduct or conditions which would be harmful to the child or society. If the child is Court-ordered into a detention facility or residential treatment facility, the Court may order the parents, guardian or custodian to participate in any treatment or counseling program recommended by the facility.

(18) Order any and all registrations or relief therefrom as required under § 4123 of Title 11 where the juvenile has been adjudicated delinquent of an offense that would otherwise render the juvenile a sex offender under § 4121(a)(4) of Title 11.

(19) Notwithstanding any provision of law or Court rule to the contrary, and except for any assessment imposed pursuant to Chapter 90 of Title 11, waive or suspend payment of any fine, cost or penalty assessment, including those otherwise deemed mandatory or not subject to waiver or suspension, as part of the sentence imposed on a delinquent child.

The authority given the Court by paragraphs (c)(5), (6), (7) and (8) of this section shall be in addition to any other existing statutory or common law remedy.

(d) For the purposes of this section, the phrase "provided satisfactory arrangements can be made" shall mean that the Department of Services for Children, Youth and Their Families has approved payment for the placement of a child based upon a contract between an agency or institution and the Department or that such a placement can provide a child with the necessary and/or appropriate treatment and/or rehabilitation in the judgment of the Department of Services for Children, Youth and Their Families.

(e) Subject to the provisions governing amenability pursuant to § 1010 of this title, the Court shall commit a delinquent child to the custody of the Department of Services for Children, Youth and Their Families under such circumstances and for such periods of time as hereinafter provided:

(1) Any child who has been adjudicated delinquent by this Court of 1 or more offenses which would constitute a felony were the child charged as an adult under the laws of this State, and who shall thereafter within 12 months commit 1 or more offenses occurring subsequent to the said adjudication which offense or offenses would constitute a felony were the child charged as an adult under the laws of this State, and thereafter be adjudged delinquent of said offense or offenses, is declared a child in need of mandated institutional treatment, and this Court shall commit the child so designated to the Department of Services for Children, Youth and Their Families for at least a 6-month period of institutional confinement;

(2) A child committed to the custody of the Department of Services for Children, Youth and Their Families pursuant to this subsection shall not be released from institutional confinement on pass, on extended leave or to aftercare during the first 6 months of said commitment unless the Director of Youth Rehabilitation Services, in the Director's discretion, determines that it is in the best interest of the child's treatment to participate in programs which may require the child to leave the institution; thereafter, a child committed to the Department of Services for Children, Youth and Their Families pursuant to this subsection shall not be released from institutional confinement on pass, on extended leave or to aftercare, unless the Judge of the Family Court who originally executed the commitment order or a Judge of the Family Court designated by the Chief Judge shall, upon a petition filed by the Department of Services for Children, Youth and Their Families (or its duly authorized representative), the child, the parent(s) or guardian of said child, or by the Court's own initiative, with notice to the Attorney General, determine by a preponderance of the evidence presented at a hearing that the child has so progressed in a course of mandated institutional treatment that release would best serve both the welfare of the public and the interest of the child or unless the Director of Youth Rehabilitation Services, in the Director's discretion, determines that it is in the best interest of the child's treatment to participate in programs which may require the child to leave the institution;

(3) Where a child has been declared in need of mandated institutional treatment in accordance with paragraphs (1) and (2) of this subsection, and the child is subsequently charged with having committed 1 or more offenses which offense or offenses occurred subsequent to the child having been declared a child in need of mandated institutional treatment, the Court shall conduct a hearing to determine whether the child is amenable to the rehabilitative processes of the Court pursuant to § 1010(c) of this title. "Offense" in this paragraph shall mean all offenses which would constitute a felony were the child charged as an adult under the laws of this State, with the exception of a charge of escape pursuant to subpart E of subchapter VI of Chapter 5 of Title 11;

(4) Whenever a child appears before the Court on charges which would constitute a felony were the child charged as an adult under the laws of this State, said child and any parent, guardian or custodian of said child who is present shall be specifically advised of the operation of this subsection;

(5) Nothing hereinbefore provided shall be construed as prohibiting the Court, upon petition and recommendation of the Department of Services for Children, Youth and Their Families, from securing for any child otherwise subject to the mandatory commitment provisions of this subsection such care and treatment as it deems necessary for diagnosed mental disorders or incapacities, or intellectual disabilities, provided that the provisions for such treatment shall not deter the Court from imposing such mandatory term of commitment as is applicable under this subsection unless the same shall be sooner suspended in accordance with paragraph (e)(6) of this section;

(6) As used in this subsection, "child" shall mean any juvenile who is charged with an act or course of conduct occurring on or after the child's 14th birthday which causes this subsection to be applicable;

(7) A copy of each and every order or disposition of the Court respecting a child committed pursuant to this subsection shall be made available to the victim or victims of the delinquent acts giving rise to the commitment upon written request to the Court therefor.

(f) Following adjudication or election by the juvenile in lieu of trial pursuant to § 4177B of Title 21, the Court must order the Motor Vehicle Division of the Department of Transportation after an adjudication of delinquency in violation of § 4177 of Title 21, or election by the juvenile in lieu of trial pursuant to § 4177B of Title 21 to:

(1) Revoke or suspend the driving privileges or operator's license possessed by such child until that child reaches the age when legally allowed to consume intoxicating liquor. This revocation or suspension shall not be subject to waiver except after a minimum period of 6 months from the date of the license is received by the Motor Vehicle Division, and then only if the child successfully completes a course of instruction similar to that required by § 4177B of Title 21 and has demonstrated a critical need for the return of restricted driving privileges.

(2) A critical need shall include loss of a meaningful employment opportunity, or loss of a school opportunity, or any other urgent need of the child or the child's immediate family the continuation of which is critical to the best interests of the child but only if and for so long as no other member of the immediate family is realistically capable of satisfying such urgent need.

(3) The Division of Motor Vehicles shall promulgate such rules and regulations as are necessary to verify the existence of a critical need, to permit the return of only so much of the privileges as are necessary to reasonably satisfy such critical need.

(4) Any person whose driver's license has been revoked and to whom a conditional/restricted license has been issued, under this chapter, and who drives any motor vehicle upon the highways of this State contrary to the conditions placed upon such conditional/restricted license during the period of such conditional/restricted license, upon conviction thereof, shall be fined not less than $25 or more than $200.

(5) The Department, upon receiving a record of conviction of any person upon the charge of operating a motor vehicle in violation of the conditions imposed upon said conditional/restricted license during the period of such conditional/restricted license, shall forthwith direct such person to surrender said conditional/restricted license to the Department until the age when legally allowed to consume intoxicating liquor.

(g) A child who is adjudicated delinquent on charges which would constitute a violation of § 2701 of Title 21 if the child were charged as an adult shall be prohibited from receiving a temporary instruction permit or an operator's license until the later of the child's 17th birthday or 1 year from the date of adjudication.

(h) No adjudication upon the status of a child shall be deemed a conviction nor shall it be deemed to imply that a child is a criminal except as provided in § 1010 of this title, any other provision of this Code, any court rule or rule of procedure or otherwise as determined by any court to be warranted in the interest of justice.

(i) Neither the adjudication nor any evidence given in any case shall be admissible against such child in any future civil or criminal proceeding in any court except for the purpose of a presentence investigation ordered by this or any other court, or as provided for by any other provision of this Code, any court rule or rule of procedure or otherwise as determined by any court to be warranted in the interest of justice.

(j)

(1) For the purpose of this subsection, the following definitions shall apply:

a. "Adjudication" or "adjudicated" -- for the purposes of this subsection (j), "adjudication" or "adjudicated" shall mean any type of adjudication of delinquency contained within the definition of "conviction" or "convicted" pursuant to Chapter 9 of Title 16, and shall include a probation before adjudication plea or admission, and a mental health or drug court deferred plea regardless of whether the plea or charge was subsequently discharged or dismissed under such programs.

b. "Facility" means any residential shelter, group home, foster home, treatment center, individualized residential treatment home ("IRT"), institution or any other place designated as a temporary or permanent residential placement for children located in the State, excluding accredited or licensed hospitals.

c. "Felony level offense" means any delinquent act constituting a felony under the laws of this State, any other state or the United States.

d. "Mixing" means placement by the Department of Services for Children, Youth and Their Families of any child charged with or adjudicated of a felony level juvenile offense, or adjudicated of any serious misdemeanor level juvenile offense, in the same facility with dependent or neglected children who have not committed or been charged with any delinquent act.

e. "Repeat offender" means any child adjudicated delinquent of 3 or more serious misdemeanor level juvenile offenses occurring within 24 months of the request for mixing.

f. "Serious misdemeanor level juvenile offense" means any delinquent act constituting the following misdemeanors or any court adjudicated violation of probation or juvenile aftercare or parole in which the underlying adjudication is any of the following misdemeanors, whether under the laws of this State, any similar laws in other states, or the United States:

Section 501 of Title 11 (Criminal Solicitation in the Third Degree)

Section 601 of Title 11 (Offensive Touching)

Section 602 of Title 11 (Menacing)

Section 611 of Title 11 (Assault in the Third Degree)

Section 621 of Title 11 (Terroristic Threatening)

Section 625 of Title 11 (Unlawfully Administering Drugs)

Section 628 of Title 11 (Vehicular Assault in the Second Degree)

Section 763 of Title 11 (Sexual Harassment)

Sections 764-765 of Title 11 (Indecent Exposure in the First or Second Degree)

Section 766 of Title 11 (Incest)

Section 767 of Title 11 (Unlawful Sexual Contact in the Third Degree)

Section 781 of Title 11 (Unlawful Imprisonment in the Second Degree)

Section 804 of Title 11 (Reckless Burning or Exploding)

Section 1102 of Title 11 (Endangering the Welfare of a Child)

Section 1251 of Title 11 (Escape in the Third Degree)

Section 1257 of Title 11 (Resisting Arrest With Force or Violence)

Section 1311 of Title 11 (Harassment)

Section 1341 of Title 11 (Lewdness)

Section 1443 of Title 11 (Carrying a Concealed Dangerous Instrument).

(2) No dependent or neglected child shall be placed in a secure or nonsecure detention or correctional facility unless charged with or found to have committed a delinquent act. Except for youth placed, detained, or sentenced pursuant to § 2103A or § 4204A of Title 11 and except for youth otherwise properly proceeded against as adults in Superior Court, no child shall be placed in an adult detention or adult correctional facility.

(3) There shall be no mixing unless the following requirements are met:

a. When a child is charged with or found to have committed a felony level juvenile offense or is a repeat offender, the Department of Services for Children, Youth and Their Families must obtain a court order authorizing such placement, after the Secretary or a Division Director of the Department of Services for Children, Youth and Their Families or their designee shall recommend such placement in writing. Before authorizing mixing, the Family Court must specifically find that the proposed placement of the child offender is not expected to present an unreasonable and unmanageable physical risk to other children in the facility and that the placement is not contrary to the best interests of the other children in the facility.

b. When a child who is not a repeat offender is found to have committed a serious misdemeanor level juvenile offense, no mixing shall occur unless the Secretary or a Division Director of the Department of Services for Children, Youth and Their Families, or their designee, after review of the case, certifies in writing that the proposed placement of the child offender is not expected to present an unreasonable and unmanageable physical risk to other children in the facility and that the placement is not contrary to the best interests of the other children in the facility.

(4)

a. A court order approving mixing may be requested via a motion in a dependency/neglect proceeding or in the delinquency proceeding concerning the child who needs to be mixed. The court may decide such motion without a hearing, and such motions may be requested, heard and decided via oral motion to the court during any hearing or trial concerning the child.

b. Where the date of placement could not have been reasonably determined in advance of placement, facilities and agencies which are subject to this subsection (j) may provisionally place a child in such facility, pending a later determination by the Family Court or the Secretary or Division Director of the Department of Services for Children Youth and Their Families or their designee, whichever may be applicable. Where such provisional placement has been made, a request for mixing approval that requires a Family Court order under paragraph (j)(3)a. of this section shall be filed with the Family Court no later than the second business day after such placement is made. In all other provisional placements, the Secretary or Division Director or their designee shall make the written certifications required by this subsection (j) no later than the second business day after such placement is made.

(5) All placements which result in mixing shall be reviewed within 5 working days by the Department of Services for Children, Youth and Their Families. Subsequently, such placement shall be reviewed after 2 months, and regularly thereafter. The 2-month review shall be made by the Child Placement Review Board. The purpose of the review shall be to determine whether, under the placement, the child offender continues to not present an unreasonable and unmanageable physical risk to other children in the facility, and that such placement is not contrary to the best interests of the other children in the facility.

(k) Subject to the provisions governing amenability pursuant to § 1010 of this title, the Court shall commit a delinquent child to the custody of the Department of Services for Children, Youth and Their Families if the child who has been adjudicated delinquent by this Court of 1 or more offenses which would constitute either possession of a firearm during the commission of a felony or robbery first degree (where such offense involves the display of what appears to be a deadly weapon or involves the representation by word or conduct that the person was in possession or control of a deadly weapon or involves the infliction of serious physical injury upon any person who was not a participant in the crime) were the child charged as an adult under the laws of this State. Such child is declared a child in need of mandated institutional treatment, and this Court shall commit the child so designated to the Department of Services for Children, Youth and Their Families for at least a 12-month period of institutional confinement.

Del. C. § 1009

Amended by Laws 2013, ch. 371,s 7, eff. 7/29/2014.

Amended by Laws 2013, ch. 303,s 1, eff. 7/15/2014.

Amended by Laws 2013, ch. 206,s 2, eff. 4/8/2014.

Amended by Laws 2013, ch. 123,s 1, eff. 10/16/2013.

10 Del. C. 1953, § 937; 58 Del. Laws, c. 114, § 1; 59 Del. Laws, c. 307, § 1; 60 Del. Laws, c. 657, § 1; 60 Del. Laws, c. 658, §§ 1, 2; 61 Del. Laws, c. 334, § 3; 61 Del. Laws, c. 377, § 1; 62 Del. Laws, c. 331, §§1, 2; 63 Del. Laws, c. 87, §1; 64 Del. Laws, c. 108, §§6, 8, 20, 22 - 24; 65 Del. Laws, c. 506, §§1, 2; 66 Del. Laws, c. 13, §§1, 3; 66 Del. Laws, c. 125, §§1 - 3; 66 Del. Laws, c. 234, §3; 66 Del. Laws, c. 424, §1; 67 Del. Laws, c. 410, §§1 - 5; 67 Del. Laws, c. 429, §3; 69 Del. Laws, c. 335, §1; 70 Del. Laws, c. 13, § 1; 70 Del. Laws, c. 102, § 1; 70 Del. Laws, c. 186, § 1; 70 Del. Laws, c. 445, § 1; 71 Del. Laws, c. 199, § 14; 72 Del. Laws, c. 77, § 1; 72 Del. Laws, c. 338, § 4; 73 Del. Laws, c. 408, § 3; 74 Del. Laws, c. 106, § 27; 74 Del. Laws, c. 110, §§ 2, 3, 138; 74 Del. Laws, c. 345, § 3; 75 Del. Laws, c. 369, §§ 1, 2; 75 Del. Laws, c. 390, § 1; 76 Del. Laws, c. 198, § 1; 77 Del. Laws, c. 327, § 210; 78 Del. Laws, c. 179, §§ 19 - 21.;