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South Dakota juvenile court system guidebook, second edition, still
lacking
Minimal changes made in second edition
Posted to SDPSG by Marletta Pacheco
A COLUMN
By Hazel Bonner
A revision of the juvenile court handbook for parents and youth,
published in November 2001 was announced after Thanksgiving in 2002.
A review of the first edition and the revised addition show changes
that are minimal. An additional piece of information is found on
page 13 following the address of the juvenile corrections monitor.
That piece of information simply adds: "You may also contact the
South Dakota Department of Social Services. Child Protection Office
in your area."
Other edits include minor wording changes and clarification under
Who may know about my case? How cooperative must I be with the
police? What is a diversionary Program? and How can the records of
my involvement with the juvenile justice system be sealed? The
chart showing Juvenile Corrections Facilities removed the Plankinton
facilities that have been closed and added West Farm which changed
from an adult facility to a juvenile facility and added living
center B to the Custer facilities. In addition the second edition
brought the Guidebook up to date with a change that was made in
state law effective July 1, 2002. That change raised the limit for
of a lien placed on the property of a parent of a juvenile for legal
fees from $1,000 to $1,500.
The first edition of the guidebook was funded by the Midcontenent
Media Foundation, Sioux Falls Area Community Foundation, the South
Dakjota Community Foundation and the John T. Vucurevich Foundation.
Second Edition printing was funded by the U.S. Department of
Justice, Office of Juvenile Justice and Delinquency Prevention and
the Nonparticipating States Grant to the South Dakota Coalition for
Children. Three members of the workgroup who developed the guidebook
are identified as JD and are attorneys and three are identified as
PhD, including Susan M. Randall, Editor. Two persons with no
identification as far as status are listed.
Overall the guidebook is well done and contains a great deal of
excellent information and advice. This column is meant to give
additional information and to clarify some information that is in
the guidebook. It is written in the interest of giving parents and
youth information that is not available from the guidebook, and to
explain that things don't always work the way the law says they
should.
Nothing in this column is to be taken as legal advice. It is an
explanation of information found in the state law and a discussion
about procedures followed, especially in Pennington County. The
author has a JD but is not a licensed attorney. The author has
taught secondary school and college classes since 1965 in Minnesota,
Iowa and South Dakota. She specializes in classes teaching civil
rights, sociological research, and information on the criminal and
juvenile systems.
Some items informing parents of their rights remain missing from the
revised edition. Also, I disagree with some statements in the
guidebook.
A major one is the statement on p. 2, which states "The police have
the general right to stop you for questioning and to ask for an
explanation of your behavior." In order to stop a person for
questioning about their behavior, whether juvenile or adult, there
needs to exist a reasonable suspicion that can be articulated that
the individual is engaged, or has recently been engaged, in illegal
behavior. Reasonable suspicion is defined as a standard of proof
that is more than just a "gut feeling." It includes the ability to
articulate reasons for the suspicion. With reasonable suspicion, a
law enforcement officer is legally permitted to stop and question a
subject. With only mere suspicion or "gut feeling" an officer cannot
even stop and question a suspect. (Intro. To Criminal Justice,
1999). Parents can challenge the reason for the stop that brought
their child into the system.
Another statement is found on page 7. That statement is the fact
that a court may proceed immediately with the dispositional hearing
(sentencing) once a youth is adjudicated at an adjudicatory hearing.
The statement is "sometimes the court proceeds immediately with the
Dispositional Hearing as long as the state's attorney, the child,
the child's parents, and the child's attorney agree." The actual
terminology of the statute found at SDCL § 26-7A-87 states that the
dispositional may occur immediately only if the consent of state,
the child and the child's parents, guardian, or custodian is
obtained. That implies that each party involved must be asked if
they consent to proceed immediately with sentencing. In order to
give a knowing and voluntary consent you must know what options are
available to you and should be able to ask questions regarding that.
Parents in Rapid City have complained that the hearings move too
quickly and that the entire process from adjudicatory to disposition
can be over in a matter of minutes. There is generally a delay
between the advisory and the follow-up hearings. Parents have also
said that in one court in Rapid City Indian parents are told to shut
up if they try to speak without being addressed by the judge and in
that courtroom they say the sentencing hearing goes ahead without
the parents being allowed to object.
Requirements of South Dakota Law are ignored in some instances, at
least in Pennington County. Juvenile hearings are supposed to be
closed to the public, unless the child is accused of a violent crime
or a crime involving a drug offense when the youth is sixteen or
older. (SDCL 26-7A-36) Thus all appearances for youths under the
age of 16 should be held in private.
In Pennington County for youths who are held in detention, their
initial appearance occurs during initial appearances of adults held
in jail. Until this court started doing initial appearances of
adults held in jail by video remote from the jail, the juveniles and
adults appeared in the same courtroom.
I have personally monitored in-custody hearings for weekend arrests
for nerly two years. Over 85 percent of youth who appeared in open
adult court in the past 18 months following a weekend detention in
Pennington County have been Native American. They rarely appear with
an attorney and about half the time their parents are not present.
Parents have complained that they receive no notice of this hearing.
The youth are brought into the courtroom in handcuffs and shackles
and sit in the open court with adults there to observe the initial
appearances of adults. Their charges are read in open court and they
are asked if they plead guilty or not guilty. If they plead guilty,
they often are sentenced immediately, the whole process taking a few
minutes. A juvenile being taken into custody is not an arrest
according to SDCL 26-7A-22 and does not constitute a police record.
Adjudication as a delinquent is not considered to be a conviction of
a crime. There appears to be little distinction for those youths
held in detention following a weekend arrest called taking into
detention.
The most common charges on which they appear are status offenses
involving alcohol possession or consumption. There are virtually no
initial appearances of juveniles charged with violent crimes or
controlled substances crimes and most who appear are under the age
of 16. Occasionally initial appearances are done telephonically
(which is authorized by law) at another time, but never for
juveniles who are in detention at the time of adult in-custody
appearances. I do not know if this appearance replace the temporary
custody hearing required to be held or the advisory hearing before
the adjudicatory hearing. If youths deny the allegations they are
scheduled for a dispositional conference with the prosecutor, which
is basically a plea bargaining session, just as an adult would be.
A right not mentioned in the guidebook is the right to file a motion
for a new hearing and if the motion is denied, the right to appeal
according to the rules of appellate procedure governing civil
actions. According to SDCL 26-7A-30 the youth and parents must be
advised at each hearing in juvenile court that they have a right to
file, at the conclusion of the proceeding, a motion for a new
hearing. Parents state that they are not informed of this verbally
or in writing. The rights given verbally are done in such a fashion
that little is understood or remembered.
By state law dispositional hearings must be tried to the court
(can't have a jury trial) and must be "conducted and designed to
inform the court fully of the exact status of the child and to
ascertain the history, environment and past and present physical,
mental and moral condition of the child and of the child's parents,
guardian or custodian" SDCL 26-7A-34, 90. Parents say the court
before sentencing often knows little and that even home studies done
by juvenile officers stress only the negative. Parents do not
usually see, make comment on or additions to or correct mistakes in
the report, as is required for adults. When the dispositional occurs
immediately following adjudication, the court does not have the
information needed.
A petition for new hearing on the grounds of new evidence can be
requested at any time by a youth or parents, guardian, custodian, or
guardian ad litem. SDCL 26-7A-110. If a family was homeless or
lived in substandard or overcrowding housing at the time of
disposition, and now have adequate housing, a new disposition can be
sought by petitioning the court.
If the youth goes through the juvenile court system and is not
placed in the custody of the Department of Corrections, but is not
allowed to return home, a parent, whose parental rights have not
been terminated, may file a petition for modification or termination
of a custody decree. Again this requires a change of
circumstances. SDCL 26-7A-109.
While most appeals require a final sentencing order to be entered
prior to appeal, in juvenile court an adjudication that evidence has
shown to the required level that the allegations in a CHINS or
delinquency petition are proven is considered an intermediate order
that is subject to intermediate appeal. Thus if a parent believes
the adjudication itself was not fair they can, with approval of the
court, appeal prior to disposition (sentencing). SDCL 26-7A-87.
Once a youth is placed in the custody of the Department of
Corrections, that youth can remain in their custody until they turn
21. Often, for Native American youth a determination is made that
the child does not have a suitable home to return to, even if an
intensive family services interview and plan have not been
completed. Youths may satisfactorily complete several DOC programs
and not be returned home.
Orders committing youth to the custody of DOC in most instances
require that best efforts be made to reunite the youth with his/her
family. A parent attending a recent graduation at the Custer Boot
Camp said none of the Indian graduates were returned home. They were
placed in treatment, in foster care or in Living Center B. This is
done without any further hearing. The parents are responsible for
costs of the care of their child while in the custody of the DOC,
even if no efforts are made to return the child home.
The resources for youth and parents listed are the same in both
books. Several new resources are available. Under crises hot lines a
new service is the Billy Keith Turney Memorial Suicide Prevention
Service that operates off the Pine Ridge Reservation, but serves the
entire state. That toll free number is 1-888-208-0791. Also the
American Civil Liberties Union has a website that discusses rights
if stopped by the police.
I sent a draft of this column to Susan Randall, Executive Director
of the South Dakota Coalition for Children, who responded saying
that they will add the information about requesting a new hearing
and appeals in a third edition. I am sorry that no one in the work
group saw a need to put it in the second edition.
There are many more requirements set down in state law. Parents
involved in the system need to contact the Parents who Care
Coalition a resource also not listed in the resources. The West
River coordinator is Deb Phillips. Her phone numbers are 269-2653
or 269-2251. They need to ask questions, and protect the rights of
their children. No judge should intimidate them to the extent that
they are afraid to speak in court. Too many parents have told this
writer that they are scared to speak. However, every parent needs to
cooperate with the process, and the best form of cooperation is to
be sure the court has adequate information to deal with his or her
child. If they don't, according to local parents, the child often
gets sucked into a system that doesn't let go.
Bonner is a freelance writer who writes from her home. She may be
reached electronically at hbonpidge1@hotmail.com; by mail at PO Box
3712, Rapid City, SD 57709-3712 or by phone at (605) 343-4467.
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