(Revised 6/15/06 ML #3009)
Purpose and Mission of the Court
As designated by the Juvenile Code, the purpose of the Juvenile Court is to "provide for the care, protection, moral, mental, and physical development of children, to remove the taint of criminality and consequences of criminal behavior from children committing criminal acts, to achieve these purposes in a family environment whenever possible, and to provide a simple judicial procedure while protecting the parties legal and constitutional rights”.
Jurisdiction of the Court
The Juvenile Court has exclusive jurisdiction over children under 18 years of age. In cases where a child has been determined to be delinquent for an act committed while under eighteen years of age, jurisdiction can be extended to age 20.
A child under the age of 21 can voluntarily remain in foster care, however, the child has to be willingly request that they be considered to be within the jurisdiction of the court as a deprived child so they can stay in their foster care placement. Consult with the Regional Supervisors for more details on this option.
If a child between the ages of 14 and 18 has committed an offense which would be considered a crime if committed by an adult, the child may be tried as an adult in the district court if;
The Hearing Process
The first step in the hearing process, after the court is informed that a child appears to be under the jurisdiction of the court, is to hold a preliminary inquiry to determine the facts and whether the interests of the public or of the child require further action.
The type of hearings which the court may hold include:
If the juvenile has been taken into detention, is in need of protection because of an emergency safety-related situation and placed in a shelter care facility, foster care home, or another facility the juvenile court must hold a detention or shelter care hearing within ninety-six hours. This is held to determine if there is probable cause to hold the child in protective custody or in a facility until the formal adjudicatory hearing.
Formal Hearing
A formal hearing is initiated by filing a petition alleging the child to be deprived, unruly and/or delinquent.
In some situations involving alleged unruly youth, an informal adjustment hearing can be held by the juvenile supervisor or other officer of the court to give counsel and advice to the parties and impose conditions for the conduct and control of a child. This type of proceeding can take place when the facts of the case are admitted; when this special proceeding would be in the best interest of the child; or when the child and parent(s)/guardian consent to this process.
Once a petition is filed, the case proceeds to the formal fact-finding and hearing procedure. There are two phases of the formal hearing procedure; these phases may be addressed consecutively in the same hearing or separately in two hearings.
The ADJUDICATORY phase is conducted to determine if the juvenile youth or his/her parents have committed acts alleged in the petition (deprivation-abuse/neglect; unruly or status offenses; or delinquency/criminal offenses) which allow the court to take jurisdiction over the child.
If the allegations are found to be true, the hearing enters phase two, the DISPOSITIONAL phase. In the dispositional phase, the court decides the most appropriate means to address the problem. This may include commitment to a public or private agency for placement or supervision, examination by a psychiatrist or psychologist, participation in counseling, or any number of other dispositions. This is the fact-finding phase of the hearing.
Permanency hearings are formal hearings required at least every twelve months to assure the plan for the youth includes a move to a permanent home/family. Refer to NDCC 27-20 for scope of permanency hearing.
This is a formal legal proceeding which considers the need to sever the legal ties of a child from his/her biological parents, adoptive parents, or guardian.
In order to terminate the parental rights of a child, sufficient proof/evidence must be given to the court to show that the parent has abandoned the child; that the child is currently deprived and the causes of the deprivation are likely to continue and because of this, the child will therefore suffer physical, mental, moral, or emotional harm; or that the parent has consented to the termination.
This is a formal legal proceeding that considers a petition to adopt a child, determines the suitability of the prospective adoptive family, and grants temporary or final legal custody of a child for the purpose of adoption.
Other matters may be heard by the court upon a petition by the parent, guardian, legal custodian, spouse, relative or next friend. For example, a petition to establish a legal guardianship between the child and a third party.
Witnesses and Records
When the juvenile court receives a referral, at times the juvenile youth and/or parent will deny the report or facts related to the incident. When this occurs, a formal contested hearing is set and witnesses are subpoenaed. Witnesses may include social work, human services personnel, school personnel, medical personnel, the police, agency staff, etc.
The Expert Witness
Agency staff may be requested or required to testify in court to the facts of a case as a lay witness (as described above) or in the role of an expert witness. Unlike a lay witness, expert witnesses' opinions are admissible when it has been established that the witness is professionally acquainted with, skilled, or trained in some field (i.e., child welfare, child custody) and therefore has knowledge or experience in matters generally not familiar to the public. For this reason, prior to testimony, agency staff may be asked to state their educational background, experience, credentials, etc. While agency staff may testify to matters which pertain to the "best interests of the child," they are generally not qualified to testify to matters beyond their scope of expertise (medical opinions, mental condition/diagnosis of the parent, etc.)
Legal Rights
Certain legal rights in terms of the integrity of the family have been established by the US Supreme Court or through legislative process. Such rights include, but are not limited to:
In 1967 in In re Gault, the United States Supreme Court ruled that the Fourteenth Amendment to the United State Constitution and the Bill of Rights applied in juvenile cases where a minor was alleged to have committed a delinquent offense. Because of this court ruling, youth have some distinct constitutional rights ( right to counsel, due process).
Under the Uniform Juvenile Court Act in North Dakota, (Chapter 27-20 of the ND Century Code) parties (parent and/or child) are entitled to an attorney for all Juvenile Court proceedings; if a party requests counsel and is unable to employ counsel because of the cost, the court can arrange for an appointment of counsel. Counsel must be provided for a child not represented by his/her parents or guardian.
The court, in every case involving an abused or neglected child which results in a judicial proceeding, must appoint a guardian ad litem (GAL) for the child in those proceedings. In other cases, the court may appoint a guardian ad litem to represent the child's best interest. It is important to remember that while counsel represents the child's wishes, a guardian ad litem represents the child's best interests.
Rights of the Child and Family
Family law, within the context of protective services and custody, is based upon the English Common Laws principle of "parents patriae." Historically, under the doctrine of "parens patriae," a court could declare a child a ward of the “Crown” when the parents had failed to maintain the child's welfare.
Modern legal interpretation focuses on the sanctity of the family. Children, because of their age, are always in someone’s custody. Typically they are in their parents custody. When there is an intervention and removal, they then may be placed in the State’s custody. The court is empowered to protect "the best interests of the child." In this context, the court will place substantial weight on the following considerations:
Parental Responsibilities
The integrity of the family is protected by both legal and ethical rights. In contracts, parents have responsibilities as well as rights. When the welfare of the child is endangered, the state assumes the right to intervene. Children have a need for safety, care, and protection. Within their ability and available resources, parents have a responsibility to provide:
Recent Legislation that Impacts the Juvenile Court Process when Children and Families are involved
ICWA (Indian Child Welfare Act) - Federal Legislation that mandates that deprived children who are eligible for enrollment must have a special legal recognition. This includes notification of officials from the child’s tribe of any state court proceedings, placement preferences and processes to maintain the child’s cultural heritage and ties to tribal community and extended family.
ASFA(Adoption and Safe Families Act)- Federal legislation (and state law) that requires agencies and courts to follow permanency mandates or timelines of child in agency custody. Children must have permanency plans (developed at Foster Care Child and Family Team meetings) and a Permanency Hearing every 12 months they are in care to assure planning for the child’s permanence is progressing. This Legislation also requires that every child in care for 15 out of the past 22 months must have either a termination of parental rights (TPR) or established “compelling reasons” documented to indicate why a TPR would not be in the best interests of the child at this time.
“Reasonable Efforts”- Federal legislation and regulations that require agencies to make “reasonable efforts” to: 1) preservation and provide services toward preservation prior to removal if possible, given the need to protect the child; and/or 2) make “reasonable efforts” to reunify child with family (again, with emphasis on child safety). Courts will ask agency personnel to document and testify those efforts made to either preserve or reunify, depending on the situation. For children whom ICWA applies, there must be documentation and a show of proof that efforts were “active”, one step above “reasonable” because of the need to maintain a child’s cultural ties.
Sources:
Legal Rights of Children, Horowitz and Davidson. Missouri ..
North Dakota Century Code Chapters 50-25.1 and 27.20.
