5

Taking A Juvenile
Into Custody

Taking a juvenile into custody is one of the
most significant steps in the juvenile justice
process because of its impact on the juvenile.
"Juveniles possess unique characteristics that
demand a specialized form of handling. Youth
are very impressionable, and when they first
encounter the juvenile justice system they may
feel all alone and view the police, as well
as other forms of authority, as demanding,
judgmental and hostile."21

problem arises when a criminal act is not involved--when the offense is that commitable only by a child or there is no offense involved at all but rather a case of child abuse or neglect.

Davis in the Rights of Juveniles suggests that a summons be issued by the juvenile court before any juvenile other than one who has allegedly committed an adult crime be taken into custody. On the other side of the issue, however, is the need for prompt action when for example a child is endangered in his or her environment, or otherwise in need of services.23

A possible solution is to have the police immediately refer a child who is in need of services to an appropriate social service agency (such as an intake service center). At the very least, as suggested by the National Task Force to Develop Standards and Goals for Juvenile Justice and Delinquency Prevention, each state should "specifically set forth this authorization and guidelines for use of this authority. In other words...the scope of police authority to detain, arrest, or take juveniles into custody should be clearly based on statutes."24

As mentioned above, the decision to take a juvenile into custody is primarily a police 25 decision. In 23 states, a law enforcement officer or peace officer brings a juvenile into custody.* In 18 states, both a law enforcement and a probation officer, youth counselor, or other employee of the juvenile court brings the juvenile into custody.** The remaining states allow one or more of these to take a juvenile into custody with the addition of a representative of a government department (Alabama, Alaska, Arizona, Florida, Mississippi, North

Carolina, Tennessee) and/or any other adult (Colorado, Connecticut, Montana, New York, Oregon, Utah). An example of the latter is the Oregon provision which provides that a private person may take a child into temporary custody in circumstances where, if the child were an adult, the person could arrest the adult.26 In American Samoa and the Trust Territories, there is no provision guiding the custody process of delinquents and children in need of supervision.

*Arkansas, California, Delaware, District of
Columbia, Guam, Idaho, Illinois, Iowa, Kansas,
Kentucky, Maine, Massachusetts, Minnesota,
Nebraska, New Jersey, Puerto Rico, South Carolina,
Vermont, Virgin Islands, Washington, West
Virginia, Wisconsin, Wyoming.

**Georgia, Hawaii, Indiana, Louisiana, Maryland, Michigan, Missouri, Nevada, New Hampshire, New Mexico, North Dakota, Ohio, Oklahoma, Pennsylvania, Rhode Island, South Dakota, Texas, Virginia

A.

Bases for Taking a Juvenile into Custody In all the states and territories except American Samoa and the Trust Territories, a juvenile can be taken into custody pursuant to one or more of the following events:

(1) By court order (note that in New York, only a juvenile who has allegedly committed an adult offense may be taken into custody without a court order); (2) An alleged criminal act or status offense; (3) For the protection of the child from his or her environment, if s/he is ill neglected, or dependent.

There are usually separate provisions in the juvenile codes providing for the issuance of

court orders and emergency custody without a court order. However, most youth are taken into custody by a law enforcement officer without a court order or a warrant. Thus, as mentioned above there lies "an area of vast, almost unchecked police discretion" in deciding whether 27 to refer a case to the juvenile court.

B.

Taking of Dependent, Abused, or Neglected Juveniles into Custody

In those states that have separate provisions for dependent, abused, or neglected juveniles,* the process is essentially the same as above with perhaps more emphasis on the role of a government department in the custody process. This emphasis conforms with national standards which provide that "When removal does occur, the child should be delivered immediately to a state agency which (a) Has been previously inspected and certified as adequate to protect the physical and emotional well-being of children it receives; (b) Is authorized to provide emergency medical care in accordance with specific legislative directives; and, (c) Is required to assure the opportunity for daily visitation by the parents or other adult caretakers" 28

Depending on the state involved, the individual responsible for taking dependent, abused, or neglected juveniles into custody may be a peace officer, representative of a government social service department, a juvenile probation officer or intake worker, county attorney, physician, or other adult.

*American Samoa, California, Florida, Idaho,
Iowa, Maine, Massachusetts, Montana, New
Hampshire, New Jersey, New York, Texas, Virginia,
Washington

C. Alternatives Available When a Juvenile is
Taken into Custody

Typically, there are at least two alternatives
available to the person (usually law enforce-
ment) who takes a child into custody: release
the child to his or her parents or guardian,
with or without notice to appear before the
court or deliver the child to a place of
detention or shelter care (In some states,
these are the only alternatives).* In Kentucky,
there is a third alternative: a peace officer
may take the juvenile to a court approved center
offering voluntary services to children in lieu
of taking the child to detention or releasing
the child to his/her parents and release the
child without filing formal charges. In
Louisiana, the peace officer must place a
truant in a school facility or receiving center
designated by the parish school board or at
least question the child as to his or her
apparent truancy. In some states, in place of
delivering a juvenile to a place of detention
or shelter care, the person having custody of
the child delivers her/him to a department
officer, probation officer, or intake worker
for a decision on whether the child should be
detained (California, Florida (for dependent,
abused, or neglected juveniles and children in
need of supervision), Indiana, Maine, Montana
(for dependent, abused or neglected juveniles),
New Jersey, and West Virginia). Another alter-
native is to take the juvenile to the court
or if necessary, to a medical facility. Other
states allow a combination of all or some of the
above alternatives.** American Samoa, Iowa,
Massachusetts, New Jersey, New York, and
Virginia provide that dependent, abused, or neg-
lected juveniles are to be placed in protective

custody, shelter care, or in the custody of a government department.

*Illinois, Iowa, Kentucky, Louisiana, Massachussetts, Minnesota, Mississippi, Missouri, Montana, Oklahoma, Oregon, South Dakota, Washington.

**Alaska, Alabama, Arizona, Arkansas, Colorado, Connecticut, Delaware, District of Columbia, Florida, Georgia, Guam, Hawaii, Idaho, Kansas, Maryland, Michigan, Nebraska, Nevada, New Hampshire, New Mexico, New York, North Carolina, North Dakota, Ohio, Pennsylvania, Puerto Rico, Rhode Island, South Carolina, Tennessee, Texas, Utah, Virgin Islands, Virginia, Vermont, Wisconsin, Wyoming.

D. Authority for Detention

others.

Although typically a peace officer brings a juvenile into custody, s/he may not have the authority to make a decision to detain the juvenile pending the juvenile court hearing or more likely, s/he will share that authority with In most states, it may be one or more of the following who has the authority to detain a juvenile once s/he has been taken into custody. the juvenile court, an intake officer, probation officer, representative of a government agency, youth counselor, or law enforcement officer. In Connecticut, Michigan, New Hampshire, Vermont, and Virginia and Washington (for dependent, abused, or neglected juveniles only), only the juvenile court can authorize detention or shelter care. In Delaware, any of those listed above may authorize detention plus any judge of any court (including justices of the peace). There is no provision or the law is unclear in American Samoa, Ohio, and the Trust

Territories.

As with the initial custody decision, there is a good deal of controversy as to who should have the authority to detain a juvenile prior to the detention hearing. National standards provide that in the case of an arrested juvenile who is brought to a juvenile facility, the intake worker should make any subsequent detention/release decisions subject to review by the juvenile court.29 This is perhaps the most practical approach given that the court is not always available to make such emergency decisions and that the intake workers are more experienced with working with juveniles in these situations. Review by the juvenile court would presumably check any arbitrary use of authority by the intake workers.

is the situation where due to intra-family conflict, a juvenile does not want his or her parents notified. Should the juvenile have the right to prevent notification? The commentary suggests that this decision be left to the court--the prevailing view being that "arresting officers and intake officials should make every effort to contact the parents of an accused juvenile."31

This issue is somewhat analogous to the minor's abortion decision in which the court decides whether or not a minor is mature enough to make the decision herself precluding the veto power of her parents. Here, the court could decide whether or not a juvenile is mature enough not only to prevent notification but perhaps to choose emancipation--this alternative is available in a limited number of states.

E. Notification to Parent of Detention or
Shelter Care

National standards provide as a procedural re-
quirement that a parent be notified of the arrest
of a juvenile. Further, "if the arresting
officer has been unable to contact a parent, the
intake official should make every effort to
effect such contact. If the official decides
that the juvenile should be released, he or
she may request a parent to come to the facility
and accept release" (see the following sub-
division as to release on recognizance).30
Consistent with this standard, the majority of
states statutorily require that a parent or
guardian be notified that his or her child is in
custody.

However, on the other side of the issue, as

pointed out in the commentary to the standards,

F.

Bail Provision and Release on Recognizance (Promise to Appear)

Although the majority of states do not provide for bail for juveniles, they do provide for release on the parent's, guardian's, custodian's, or in addition, in Arkansas, California, Delaware, Maine and Nebraska, the child's promise to appear at juvenile court hearings. Of those states allowing bail for juveniles* some allow it for all groups of children (Louisiana, for example), some for only adult-type offenders, some for both adult-type offenders and children in need of supervision, or some if the juvenile is over a certain age. Of those states with separate laws for dependent, abused or neglected juveniles, only California, Montana, and New York provide for release on the parent's or child's recognizance.

As a final note, although bail may not be provided for specifically in the statutes, court interpretation of a statute may provide the right. As in Maine, for example, where the court stated in State v. Gleason, Me., 404A.2d 573 (1979), "The Maine Juvenile Code does not proscribe release on money bail. In permitting release 'upon such other prescribed conditions as may be reasonably related to securing the juvenile's presence in court' the Code impliedly empowers the Juvenile Court to release a juvenile on simple money bail." (582)

*Arkansas, Colorado, Connecticut, Delaware,
Georgia, Louisiana, Maryland, Massachusetts,
Michigan, Minnesota, Nebraska, Oklahoma,
South Dakota, Tennessee, Vermont, Virgin Islands,
Virginia, Washington, West Virginia.

G. Criteria for Detention

According to the Basic Principles of the
Institute of Judicial Administration-ABA's
Juvenile Justice Standards:

Restraints on the freedom of accused juveniles pending trial and disposition are contrary to public policy. The preferred course in each case should be unconditional release. 32 The Standards provide further that a minimal category of juvenile offenders only may be detained: (1) those charged with murder, (2) those on conditional release (pretrial release, or probation or parole) whose release may be revoked for misconduct, (3) escapees from posttrial placement facilities, and (4) those whose demonstrated record of flight makes it likely that they would fail to appear in court if released.33

Although these criteria appear fairly general, the statutes of Louisiana, Missouri, Nevada, Oklahoma, and West Virginia are much more general using language such as when it is impracticable, inadvisable, or inappropriate to release a juvenile. (Although there may be no criteria for use by law enforcement, the court may be required as in Louisiana to consider the above criteria before it can authorize continued custody.) This type of language gives much more discretion to the law enforcement officer or whoever takes the child into custody: the decision is much more arbitrary than when specific criteria are listed. The codes of the District of Columbia, Iowa, Montana, New Jersey, and Wisconsin, however, enumerate detailed and different criteria for detention or shelter care thus attempting to ensure a less arbitrary,