Hearings — Judicial Diversion — Findings — Disposition of Child
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If a child alleged to be delinquent or unruly enters a plea of guilty or no contest, or after an adjudicatory hearing, the court may defer further proceedings and place the child on judicial diversion and probation subject to reasonable conditions, which may include completion of substance abuse and mental health treatment services where appropriate, without entering a judgment of guilty and with the consent of the child. For delinquent offenses, such reasonable conditions must be consistent with a validated risk and needs assessment. Probation conditions must not include a period of detention or placing the child in custody of the department, but may include a transfer or grant pursuant to § 37-1-131(a)(1). A child must not be placed on judicial diversion if the delinquent act alleged is an offense described in § 37-1-153(b)(2), if the child has previously been adjudicated delinquent for such an offense, or if the matter is dismissed after a hearing on the merits.
A judicial diversion agreement shall remain in force for a maximum of six (6) months unless the child is discharged sooner by the court, subject to this subdivision (a)(2). Before expiration of the six-month period, and after notice and a hearing, the court may extend judicial diversion for an additional period not to exceed six (6) months, but only if the court finds and issues a written order that:
States that it is in the best interest of the child that a condition or conditions of judicial diversion remain in effect; and
Specifies the condition or conditions that shall remain in effect and why that continued effectiveness is in the best interest of the child.
If the supervising authority finds that the child has violated the terms or conditions of judicial diversion, the supervising authority may file a petition alleging a violation of the terms or conditions of judicial diversion with the court; provided, that the court, in its discretion, may direct the supervising authority that, in some or all circumstances, such a petition should be filed only if the supervising authority makes and documents attempts to address the noncompliant behavior and determines and documents the reasons for which court intervention is needed to address the noncompliance.
If a violation of any of the terms of judicial diversion probation is alleged, the child shall be given notice of the violation and an opportunity to be heard concerning the alleged violation. If, after a hearing, the court determines that a violation has occurred, the court may enter an adjudication of guilty and proceed to a dispositional hearing. If no violation is found, the court may continue the period of probation or may dismiss the petition.
If, during the period of probation, the child does not violate any of the conditions of the probation, then upon expiration of the period, the court shall discharge the child and dismiss the proceedings against the child.
If an adjudicatory hearing is held, the court shall make and file its findings as to whether the child is a dependent and neglected child, or, if the petition alleges that the child is delinquent or unruly, whether the acts ascribed to the child were committed by that child. If the court finds that the child is not a dependent or neglected child or that the allegations of delinquency or unruly conduct have not been established, it shall dismiss the petition and order the child discharged from any detention or other restriction theretofore ordered in the proceeding.
If the petition alleged the child was dependent and neglected as defined in § 37-1-102(b)(13)(G), or if the court so finds regardless of the grounds alleged in the petition, the court shall determine whether the parents or either of them or another person who had custody of the child committed severe child abuse. The court shall file written findings of fact that are the basis of its conclusions on that issue within thirty (30) days of the close of the hearing or, if an appeal or a petition for certiorari is filed, within five (5) days thereafter, excluding nonjudicial days. If the court finds the child is dependent and neglected, a dispositional hearing shall be held. In scheduling the hearing, the court shall give priority to proceedings in which a child has been removed from the child's home before an order of disposition has been made.
If the petition alleged the child was delinquent or unruly and the court finds that the child committed the alleged delinquent or unruly acts, the court shall further determine whether the child is in need of treatment or rehabilitation and make and file its findings thereon. In the absence of evidence to the contrary, evidence of the commission of acts that constitute a felony or that reflect recidivistic delinquency is sufficient to sustain a finding that the child is in need of treatment or rehabilitation. If the court finds the child is in need of treatment and rehabilitation, a dispositional hearing shall be held. If the court finds the child is not in need of treatment or rehabilitation, it shall dismiss the petition and discharge the child from any detention or other restriction. If the court continues its determination of whether the child is in need of treatment and rehabilitation or the dispositional hearing, it shall make an appropriate order for detention of the child or the child's release from detention, subject to supervision of the court during the period of the continuance. In scheduling the hearings, the court shall give priority to proceedings in which a child is in detention or has otherwise been removed from the child's home before an order of disposition has been made. The court shall minimize the use of detention between adjudication and disposition. In no event shall a dispositional hearing be postponed or continued because there is a waitlist for a suitable placement unless the child and, if applicable, the child's attorney, agree to the postponement or continuance in writing.
Any order of the court that places custody of a child with the department shall empower the department to select any specific residential or treatment placements or programs for the child according to the determination made by the department, its employees, agents or contractors.
The court may review the residential or treatment placement of a child placed in the department's custody, and within ninety (90) days of the placement, the court may, on its own motion, order a hearing to receive evidence and testimony with regard to the appropriateness of the child's residential or treatment placement. The court shall provide notice of the hearing to the department, to the child's biological parent or parents, and any other person who has been primarily responsible for the care of the child during the twelve (12) months prior to the child's placement in the department's custody. The court shall allow thirty (30) days from the time such notices are sent before the hearing date is set. The court shall issue a placement recommendation based on a preponderance of the evidence to the department within ten (10) days after the conclusion of the hearing. Upon receiving the court's recommendation, the department shall issue a determination as to the child's placement within fifteen (15) days. The department shall notify the court, the child's biological parent or parents, and any other person who has been primarily responsible for the care of the child during the twelve (12) months prior to the child's placement.