H-3667.1  _______________________________________________

                          HOUSE BILL 2804

          _______________________________________________

State of Washington      53rd Legislature     1994 Regular Session

By Representatives Morris, Long, Chappell, Johanson, Eide, Conway, Campbell, Wineberry, Brough, B. Thomas, Fuhrman, Talcott, Rayburn, Van Luven, Jones, Lemmon, Flemming, Casada, Silver, Basich, Moak, Quall, Karahalios, Springer and Mielke

Read first time 01/24/94.  Referred to Committee on Corrections.

Providing for parental involvement in juvenile justice.

    AN ACT Relating to juvenile offenders; amending RCW 13.40.080 and 13.04.040; creating a new section; and prescribing penalties.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:

NEW SECTION. Sec. 1.  The legislature finds that an effective juvenile justice system requires significant parental participation.  Requiring a parent to be a party to a child's diversion or community supervision agreement will encourage parents to take additional responsibility for the child's criminal behavior.  Parental involvement will aid the juvenile's rehabilitation, and will decrease the likelihood of recidivism.

    Sec. 2.  RCW 13.40.080 and 1992 c 205 s 108 are each amended to read as follows:

    (1) A diversion agreement shall be a contract between a juvenile accused of an offense and a diversionary unit whereby the juvenile agrees to fulfill certain conditions in lieu of prosecution.  Such agreements may be entered into only after the prosecutor, or probation counselor pursuant to this chapter, has determined that probable cause exists to believe that a crime has been committed and that the juvenile committed it.  Such agreements shall be entered into as expeditiously as possible.  The juvenile's custodial parent or parents or legal guardian shall be made parties to the diversion agreement.

    (2) A diversion agreement shall be limited to:

    (a) Community service not to exceed one hundred fifty hours, not to be performed during school hours if the juvenile is attending school;

    (b) Restitution limited to the amount of actual loss incurred by the victim, and to an amount the juvenile has the means or potential means to pay;

    (c) Attendance at up to ten hours of counseling and/or up to twenty hours of educational or informational sessions at a community agency:  PROVIDED, That the state shall not be liable for costs resulting from the diversionary unit exercising the option to permit diversion agreements to mandate attendance at up to ten hours of counseling and/or up to twenty hours of educational or informational sessions; and

    (d) A fine, not to exceed one hundred dollars.  In determining the amount of the fine, the diversion unit shall consider only the juvenile's financial resources and whether the juvenile has the means to pay the fine.  The diversion unit shall not consider the financial resources of the juvenile's parents, guardian, or custodian in determining the fine to be imposed.

    (3) In assessing periods of community service to be performed and restitution to be paid by a juvenile who has entered into a diversion agreement, the court officer to whom this task is assigned shall consult with victims who have contacted the diversionary unit and, to the extent possible, involve members of the community.  Such members of the community shall meet with the juvenile and advise the court officer as to the terms of the diversion agreement and shall supervise the juvenile in carrying out its terms.

    (4) A diversion agreement may not exceed a period of six months and may include a period extending beyond the eighteenth birthday of the divertee.  Any restitution assessed during its term may not exceed an amount which the juvenile could be reasonably expected to pay during this period.  If additional time is necessary for the juvenile to complete restitution to the victim, the time period limitations of this subsection may be extended by an additional six months.

    (5) The juvenile shall retain the right to be referred to the court at any time prior to the signing of the diversion agreement.

    (6) Divertees and potential divertees shall be afforded due process in all contacts with a diversionary unit regardless of whether the juveniles are accepted for diversion or whether the diversion program is successfully completed.  Such due process shall include, but not be limited to, the following:

    (a) A written diversion agreement shall be executed stating all conditions in clearly understandable language;

    (b) Violation of the terms of the agreement shall be the only grounds for termination;

    (c) No divertee may be terminated from a diversion program without being given a court hearing, which hearing shall be preceded by:

    (i) Written notice of alleged violations of the conditions of the diversion program; and

    (ii) Disclosure of all evidence to be offered against the divertee;

    (d) The hearing shall be conducted by the juvenile court and shall include:

    (i) Opportunity to be heard in person and to present evidence;

    (ii) The right to confront and cross-examine all adverse witnesses;

    (iii) A written statement by the court as to the evidence relied on and the reasons for termination, should that be the decision; and

    (iv) Demonstration by evidence that the divertee has substantially violated the terms of his or her diversion agreement.

    (e) The prosecutor may file an information on the offense for which the divertee was diverted:

    (i) In juvenile court if the divertee is under eighteen years of age; or

    (ii) In superior court or the appropriate court of limited jurisdiction if the divertee is eighteen years of age or older.

    (7) The juvenile's custodial parent, parents, or legal guardian shall be made parties to the diversion agreement.

(a) The diversion agreement shall contain the parent or guardian's agreement to make reasonable efforts to:

(i) Ensure that the juvenile complies with the terms of the diversion agreement;

(ii) Ensure that the juvenile attends all counseling or other appointments required by the diversion agreement;

(iii) Ensure that the juvenile performs all community service required by the diversion agreement; and

(iv) Prevent the juvenile from reoffending.

(b) A parent or guardian's willful failure to comply with his or her portion of the diversion agreement constitutes contempt of court as provided in chapter 7.21 RCW.

(i) The maximum term of imprisonment that may be imposed as a punitive sanction for contempt of court under this section is imprisonment for up to seven days.

(ii) If a parent found in contempt of court under this section receives public moneys under Title 74 RCW, the portion of the parent's grant related to the juvenile offender shall be terminated during the time in which the parent is found in contempt.

(8) The diversion unit shall, subject to available funds, be responsible for providing interpreters when juveniles need interpreters to effectively communicate during diversion unit hearings or negotiations.

    (((8))) (9) The diversion unit shall be responsible for advising a divertee of his or her rights as provided in this chapter.

    (((9))) (10) The diversion unit may refer a juvenile to community-based counseling or treatment programs.

    (((10))) (11) The right to counsel shall inure prior to the initial interview for purposes of advising the juvenile as to whether he or she desires to participate in the diversion process or to appear in the juvenile court.  The juvenile may be represented by counsel at any critical stage of the diversion process, including intake interviews and termination hearings.  The juvenile shall be fully advised at the intake of his or her right to an attorney and of the relevant services an attorney can provide.  For the purpose of this section, intake interviews mean all interviews regarding the diversion agreement process.

    The juvenile shall be advised that a diversion agreement shall constitute a part of the juvenile's criminal history as defined by RCW 13.40.020(9) as now or hereafter amended.  A signed acknowledgment of such advisement shall be obtained from the juvenile, and the document shall be maintained by the diversionary unit together with the diversion agreement, and a copy of both documents shall be delivered to the prosecutor if requested by the prosecutor.  The supreme court shall promulgate rules setting forth the content of such advisement in simple language.

    (((11))) (12) When a juvenile enters into a diversion agreement, the juvenile court may receive only the following information for dispositional purposes:

    (a) The fact that a charge or charges were made;

    (b) The fact that a diversion agreement was entered into;

    (c) The juvenile's obligations under such agreement;

    (d) Whether the alleged offender performed his or her obligations under such agreement; and

    (e) The facts of the alleged offense.

    (((12))) (13) A diversionary unit may refuse to enter into a diversion agreement with a juvenile.  When a diversionary unit refuses to enter a diversion agreement with a juvenile, it shall immediately refer such juvenile to the court for action and shall forward to the court the criminal complaint and a detailed statement of its reasons for refusing to enter into a diversion agreement.  The diversionary unit shall also immediately refer the case to the prosecuting attorney for action if such juvenile violates the terms of the diversion agreement.

    (((13))) (14) A diversionary unit may, in instances where it determines that the act or omission of an act for which a juvenile has been referred to it involved no victim, or where it determines that the juvenile referred to it has no prior criminal history and is alleged to have committed an illegal act involving no threat of or instance of actual physical harm and involving not more than fifty dollars in property loss or damage and that there is no loss outstanding to the person or firm suffering such damage or loss, counsel and release or release such a juvenile without entering into a diversion agreement.  A diversion unit's authority to counsel and release a juvenile under this subsection shall include the authority to refer the juvenile to community-based counseling or treatment programs.  Any juvenile released under this subsection shall be advised that the act or omission of any act for which he or she had been referred shall constitute a part of the juvenile's criminal history as defined by RCW 13.40.020(9) as now or hereafter amended.  A signed acknowledgment of such advisement shall be obtained from the juvenile, and the document shall be maintained by the unit, and a copy of the document shall be delivered to the prosecutor if requested by the prosecutor.  The supreme court shall promulgate rules setting forth the content of such advisement in simple language.  A juvenile determined to be eligible by a diversionary unit for release as provided in this subsection shall retain the same right to counsel and right to have his or her case referred to the court for formal action as any other juvenile referred to the unit.

    (((14))) (15) A diversion unit may supervise the fulfillment of a diversion agreement entered into before the juvenile's eighteenth birthday and which includes a period extending beyond the divertee's eighteenth birthday.

    (((15))) (16) If a fine required by a diversion agreement cannot reasonably be paid due to a change of circumstance, the diversion agreement may be modified at the request of the divertee and with the concurrence of the diversion unit to convert an unpaid fine into community service.  The modification of the diversion agreement shall be in writing and signed by the divertee and the diversion unit.  The number of hours of community service in lieu of a monetary penalty shall be converted at the rate of the prevailing state minimum wage per hour.

    (((16))) (17) Fines imposed under this section, including fines collected for contempt of court under subsection (7)(b) of this section, shall be collected and paid into the county general fund in accordance with procedures established by the juvenile court administrator under RCW 13.04.040 and may be used only for juvenile services.  In the expenditure of funds for juvenile services, there shall be a maintenance of effort whereby counties exhaust existing resources before using amounts collected under this section.

    Sec. 3.  RCW 13.04.040 and 1983 c 191 s 14 are each amended to read as follows:

    The administrator shall, in any county or judicial district in the state, appoint or designate one or more persons of good character to serve as probation counselors during the pleasure of the administrator.  The probation counselor shall:

    (1) Receive and examine referrals to the juvenile court for the purpose of considering the filing of a petition or information pursuant to RCW 13.34.040, 13.34.180, and 13.40.070 as now or hereafter amended, and RCW 13.32A.150;

    (2) Make recommendations to the court regarding the need for continued detention or shelter care of a child unless otherwise provided in this title;

    (3) Arrange and supervise diversion agreements as provided in RCW 13.40.080, as now or hereafter amended, and ensure that the requirements of such agreements are met except as otherwise provided in this title;

    (4) Prepare predisposition studies as required in RCW 13.34.120 and 13.40.130, as now or hereafter amended, and be present at the disposition hearing to respond to questions regarding the predisposition study:  PROVIDED, That such duties shall be performed by the department of social and health services for cases relating to dependency or to the termination of a parent and child relationship which is filed by the department of social and health services unless otherwise ordered by the court; and

    (5) Supervise court orders of disposition to ensure that all requirements of the order are met.

    All probation counselors shall possess all the powers conferred upon sheriffs and police officers to serve process and make arrests of juveniles under their supervision for the violation of any state law or county or city ordinance.

    The administrator may, in any county or judicial district in the state, appoint one or more persons who shall have charge of detention rooms or houses of detention.

    The probation counselors and persons appointed to have charge of detention facilities shall each receive compensation which shall be fixed by the legislative authority of the county, or in cases of joint counties, judicial districts of more than one county, or joint judicial districts such sums as shall be agreed upon by the legislative authorities of the counties affected, and such persons shall be paid as other county officers are paid.

    The administrator is hereby authorized, and to the extent possible is encouraged to, contract with private agencies existing within the community for the provision of services to youthful offenders and youth who have entered into diversion agreements pursuant to RCW 13.40.080, as now or hereafter amended.

    The administrator shall establish procedures for the collection of fines assessed under RCW 13.40.080 (2)(d) and (((13))) (14) and for the payment of the fines into the county general fund.

                            --- END ---