BP BHEAD INT H

AN ACT Relating to parental supervision of children; amending RCW 13.40.080 and 13.40.190; reenacting and amending RCW 13.04.030; adding a new section to chapter 9A.64 RCW; creating a new section; and prescribing penalties.

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

NEW SECTION. Sec. 1. A new section is added to chapter 9A.64 RCW to read as follows:

(1) A person commits the crime of failing to supervise a child if the person is the parent, lawful guardian, or other person lawfully charged with the care or custody of a child under fifteen years of age, fails to take reasonable steps to control the child's conduct, and the child:

(a) Commits an offense as defined by RCW 13.40.020 that brings the child within the jurisdiction of the juvenile court under chapter 13.40 RCW; or

(b) Violates a curfew law of a county or other political subdivision.

"Fails to take reasonable steps to control the child's conduct" means that (i) the child has engaged in conduct within the same zone of behavior as the offense or curfew violation the child committed when the person failed to supervise the child; (ii) the person knew that the child had engaged in that conduct; (iii) the person had the opportunity and knew of the necessity to control the child's conduct; and (iv) the person's failure to exercise reasonable care, supervision, protection, and control of the child was a gross departure from the conduct of a reasonable parent.

(2) Nothing in this section applies to an agency, as defined under RCW 74.15.020(3), that cares for children, expectant mothers, or the developmentally disabled. Nothing in this section applies to foster parents.

(3) A person may not be prosecuted for failing to supervise a child under subsection (1)(a) of this section, if the person:

(a) Is the victim of the offense; or

(b) Reported the offense to the appropriate authorities.

(4) If a person is convicted of failing to supervise a child and the person has not previously been convicted of failing to supervise a child, the court:

(a) Must warn the person of the penalty for future convictions of failing to supervise a child;

(b) Must order the person to pay restitution to the victim of any offense committed by a child that resulted in a charge against the person under this section. Restitution ordered under this subsection may not exceed two thousand five hundred dollars; and

(c) May suspend imposition of the fine, place the person on community supervision for a period up to one year, and order the person to complete either a parent effectiveness program approved by the court, or complete up to fifty community service hours, or both. Upon the person's completion of the parent effectiveness program or community service hours to the court's satisfaction, and payment of restitution, the court may discharge the person. If the person fails to complete the parent effectiveness program or the community service hours to the court's satisfaction, or pay restitution, the court may impose the fine authorized by this section.

(5) The court may not suspend a sentence under subsection (4)(c) of this section if the person has previously been convicted under this section.

(6) The juvenile court has jurisdiction over a person charged with failing to supervise a child.

(7) Failing to supervise a child is punishable by a fine of not more than one thousand dollars and supervision of up to one year but is not punishable by imprisonment.

(8) If the person willfully fails or refuses to pay the fine, the court may proceed against the person for contempt.

(9) Collection of restitution under this section shall not preclude the victim from pursuing other remedies available at law.

(10) Restitution collected under this section must be credited towards restitution the child is required to pay under a diversion agreement, disposition, or deferred adjudication under chapter 13.40 RCW, unless the court does not order the child to make full restitution to the victim because the child lacks the ability to pay full restitution. In that case, only the amount paid under this section that exceeds the full amount of restitution due may be credited against the child's restitution obligation.

Sec. 2. RCW 13.04.030 and 1995 c 312 s 39 and 1995 c 311 s 15 are each reenacted and amended to read as follows:

(1) Except as provided in subsection (2) of this section, the juvenile courts in the several counties of this state((~~, shall~~)) have exclusive original jurisdiction over all proceedings:

(a) Under the interstate compact on placement of children as provided in chapter 26.34 RCW;

(b) Relating to children alleged or found to be dependent as provided in chapter 26.44 RCW and in RCW 13.34.030 through 13.34.170;

(d) To approve or disapprove out-of-home placement as provided in RCW 13.32A.170;

(e) Relating to juveniles alleged or found to have committed offenses, traffic infractions, or violations as provided in RCW 13.40.020 through 13.40.230, unless:

(i) The juvenile court transfers jurisdiction of a particular juvenile to adult criminal court pursuant to RCW 13.40.110; or

(ii) The statute of limitations applicable to adult prosecution for the offense, traffic infraction, or violation has expired; or

(iii) The alleged offense or infraction is a traffic, fish, boating, or game offense or traffic infraction committed by a juvenile sixteen years of age or older and would, if committed by an adult, be tried or heard in a court of limited jurisdiction, in which instance the appropriate court of limited jurisdiction ((~~shall have~~)) has jurisdiction over the alleged offense or infraction((~~: PROVIDED, That~~)). If ((~~such~~)) an alleged offense or infraction and an alleged offense or infraction subject to juvenile court jurisdiction arise out of the same event or incident, the juvenile court may have jurisdiction of both matters((~~: PROVIDED FURTHER, That~~)). The jurisdiction under this subsection does not constitute "transfer" or a "decline" for purposes of RCW 13.40.110(1) or (e)(i) of this subsection((~~: PROVIDED FURTHER, That~~)). Courts of limited jurisdiction ((~~which~~)) that confine juveniles for an alleged offense or infraction may place juveniles in juvenile detention facilities under an agreement with the officials responsible for the administration of the juvenile detention facility in RCW 13.04.035 and 13.20.060; or

(iv) The juvenile is sixteen or seventeen years old and the alleged offense is: (A) A serious violent offense as defined in RCW 9.94A.030 committed on or after June 13, 1994; or (B) a violent offense as defined in RCW 9.94A.030 committed on or after June 13, 1994, and the juvenile has a criminal history consisting of: (I) One or more prior serious violent offenses; (II) two or more prior violent offenses; or (III) three or more of any combination of the following offenses: Any class A felony, any class B felony, vehicular assault, or manslaughter in the second degree, all of which must have been committed after the juvenile's thirteenth birthday and prosecuted separately. In such a case the adult criminal court shall have exclusive original jurisdiction.

If the juvenile challenges the state's determination of the juvenile's criminal history, the state may establish the offender's criminal history by a preponderance of the evidence. If the criminal history consists of adjudications entered upon a plea of guilty, the state shall not bear a burden of establishing the knowing and voluntariness of the plea;

(f) Under the interstate compact on juveniles as provided in chapter 13.24 RCW;

(g) Relating to termination of a diversion agreement under RCW 13.40.080, including a proceeding in which the divertee has attained eighteen years of age;

(h) Relating to court validation of a voluntary consent to an out-of-home placement under chapter 13.34 RCW, by the parent or Indian custodian of an Indian child, except if the parent or Indian custodian and child are residents of or domiciled within the boundaries of a federally recognized Indian reservation over which the tribe exercises exclusive jurisdiction; and

(i) Relating to petitions to compel disclosure of information filed by the department of social and health services ((~~pursuant to~~)) under RCW 74.13.042.

(2) The family court ((~~shall have~~)) has concurrent original jurisdiction with the juvenile court over all proceedings under this section if the superior court judges of a county authorize concurrent jurisdiction as provided in RCW 26.12.010.

(3) A juvenile subject to adult superior court jurisdiction under subsection (1)(e)(i) through (iv) of this section, who is detained pending trial, may be detained in a county detention facility as defined in RCW 13.40.020 pending sentencing or a dismissal.

(4) A parent, lawful guardian, or other person lawfully charged with the care and custody of a child under age fifteen is subject to the jurisdiction of the juvenile court under section 1 of this act.

Sec. 3. RCW 13.40.080 and 1994 sp.s. c 7 s 544 are each amended to read as follows:

(1) A diversion agreement ((~~shall be~~)) is 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~~)) The agreements may be entered into only after the prosecutor, or probation counselor ((~~pursuant to~~)) under this chapter, has determined that probable cause exists to believe that a crime has been committed and that the juvenile committed it. ((~~Such~~)) The agreements ((~~shall~~)) must be entered into as expeditiously as possible.

(2) A diversion agreement shall be limited to one or more of the following:

(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. The diversion contract must specify the full amount of restitution due even if the juvenile does not have the means or potential to pay the full amount;

(c) Attendance at ((~~up to~~)) either a maximum of ten hours of counseling ((~~and/or~~)) or up to twenty hours of educational or informational sessions at a community agency, or both. The educational or informational sessions may include sessions relating to respect for self, others, and authority; victim awareness; accountability; self-worth; responsibility; work ethics; good citizenship; and life skills. For purposes of this section, "community agency" may also mean a community-based nonprofit organization, if approved by the diversion unit. The state ((~~shall~~)) is not ((be)) liable for costs resulting from the diversionary unit exercising the option to permit diversion agreements to mandate attendance at ((~~up to~~)) either a maximum of ten hours of counseling ((~~and/or~~)) or up to twenty hours of educational or informational sessions, or both;

(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; and

(e) Requirements to remain during specified hours at home, school, or work, and restrictions on leaving or entering specified geographical areas.

(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 the juvenile's custodial parent or parents or guardian and victims who have contacted the diversionary unit and, to the extent possible, involve members of the community. ((~~Such~~)) The 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~~)) that 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~~)) retains 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~~)) includes, but is 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~~)) and the hearing ((~~shall~~)) must 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 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) The diversion unit ((~~shall be~~)) is responsible for advising a divertee of his or her rights as provided in this chapter.

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

(10) 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). A signed acknowledgment of ((~~such~~)) the 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~~)) adopt rules setting forth the content of ((~~such~~)) the advisement in simple language.

(11) 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;

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

(e) The facts of the alleged offense.

(12) 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~~)) the 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~~)) the juvenile violates the terms of the diversion agreement.

(13) 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~~)) the 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~~)) A 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~~)) constitutes a part of the juvenile's criminal history as defined by RCW 13.40.020(9). A signed acknowledgment of ((~~such~~)) the advisement ((~~shall~~)) must 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~~)) adopt rules setting forth the content of ((~~such~~)) the advisement in simple language. A juvenile determined to be eligible by a diversionary unit for release as provided in this subsection ((~~shall~~)) retains 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) A diversion unit may supervise the fulfillment of a diversion agreement entered into before the juvenile's eighteenth birthday ((~~and which includes~~)), including a period extending beyond the divertee's eighteenth birthday.

(15) 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~~)) must be converted at the rate of the prevailing state minimum wage per hour.

(16) Fines imposed under 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. 4. RCW 13.40.190 and 1995 c 33 s 5 are each amended to read as follows:

(1) In its dispositional order, the court shall require the respondent to make restitution to any persons who have suffered loss or damage as a result of the offense committed by the respondent. In addition, restitution may be ordered for loss or damage if the offender pleads guilty to a lesser offense or fewer offenses and agrees with the prosecutor's recommendation that the offender be required to pay restitution to a victim of an offense or offenses ((~~which, pursuant to~~)) that, under a plea agreement, are not prosecuted. The payment of restitution shall be in addition to any punishment ((~~which~~)) that is imposed ((~~pursuant to~~)) under the other provisions of this chapter. The court may determine the amount, terms, and conditions of the restitution including a payment plan extending up to ten years if the court determines that the respondent does not have the means to make full restitution over a shorter period. Restitution may include the costs of counseling reasonably related to the offense. If the respondent participated in the crime with another person or other persons, all ((~~such~~)) the participants ((~~shall be~~)) are jointly and severally responsible for the payment of restitution. For the purposes of this section, the respondent shall remain under the court's jurisdiction for a maximum term of ten years after the respondent's eighteenth birthday. The court may not require the respondent to pay full or partial restitution if the respondent reasonably satisfies the court that he or she does not have the means to make full or partial restitution and could not reasonably acquire the means to pay ((~~such~~)) the restitution over a ten-year period. In cases where an offender has been committed to the department for a period of confinement exceeding fifteen weeks, restitution may be waived. In all cases, the court must indicate the full amount of restitution due, and the amount, if any, the respondent is required to pay.

(2) Regardless of the provisions of subsection (1) of this section, the court shall order restitution in all cases where the victim is entitled to benefits under the crime victims' compensation act, chapter 7.68 RCW. If the court does not order restitution and the victim of the crime has been determined to be entitled to benefits under the crime victims' compensation act, the department of labor and industries, as administrator of the crime victims' compensation program, may petition the court within one year of entry of the disposition order for entry of a restitution order. Upon receipt of a petition from the department of labor and industries, the court shall hold a restitution hearing and shall enter a restitution order.

(3) If an order includes restitution as one of the monetary assessments, the county clerk shall make disbursements to victims named in the order. The restitution to victims named in the order shall be paid prior to any payment for other penalties or monetary assessments.

(4) Restitution received under section 1 of this act must be credited against the restitution the respondent is required to pay under the disposition, unless the court did not order the respondent to make full restitution. In that case, only the amount received under section 1 of this act that exceeds the full amount of restitution due should be credited against the respondent's restitution obligation.

(5) A respondent under obligation to pay restitution may petition the court for modification of the restitution order.

NEW SECTION. Sec. 5. This act applies to offenses and curfew violations committed by a juvenile on or after the effective date of this act.

NEW SECTION. Sec. 6. If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected.