WSR 98-22-100

PROPOSED RULES

DEPARTMENT OF

SOCIAL AND HEALTH SERVICES

(Juvenile Rehabilitation Administration)

[Filed November 4, 1998, 10:40 a.m.]

Original Notice.

Preproposal statement of inquiry was filed as WSR 97-19-103.

Title of Rule: Chapter 275-30 WAC, Juvenile parole revocation.

Purpose: Chapter 275-30 WAC, Juvenile parole revocation, establishes the Juvenile Rehabilitation Administration's (JRA) parole revocation process as authorized in RCW 13.40.210.

Statutory Authority for Adoption: RCW 72.01.090, 72.05.130.

Statute Being Implemented: RCW 13.40.210.

Summary: The rules are amended to include revocation requirements associated with possession of firearms or use of deadly weapons; and to meet regulatory improvement requirements by streamlining the revocation process through the consolidation of forms, eliminating the need for unnecessary petition files, and improving clarity of procedural expectations which results in the repeal of two WACs. Form consolidation also allows development of a "parole arrest warrant" which can be more easily recognized by law enforcement personnel based on its consistency with the residential "arrest warrant" used by JRA. These changes benefit all involved in the process.

Reasons Supporting Proposal: Chapter 275-30 WAC is being amended to reflect statutory changes in RCW 13.40.210, update procedural changes, and meet the requirements of Executive Order 97-02, Regulatory Improvement.

Name of Agency Personnel Responsible for Drafting: Cheryl Colglazier, P.O. Box 45720, Olympia, WA 98504, (colglcl@dshs.wa.gov), (360) 902-8081; Implementation and Enforcement: Robin Cummings, P.O. Box 45720, Olympia, WA 98504, (cummirj@dshs.wa.gov), (360) 902-8080.

Name of Proponent: Department of Social and Health Services, governmental.

Rule is not necessitated by federal law, federal or state court decision.

Explanation of Rule, its Purpose, and Anticipated Effects: These rules establish requirements for issuing parole arrest warrants and conducting the parole revocation process. The rules are being amended to include statutory revocation requirements associated with possession of firearms or use of deadly weapons; and to meet regulatory improvement requirements by streamlining the revocation process and improving clarity of procedural expectations. It is anticipated users (JRA and juvenile court staff, defense attorneys, administrative law judges, law enforcement personnel, and juvenile parolees and their parents/guardians) and other customers will benefit from the proposed amendments through increased public safety, staff efficiency, and effectiveness of the process.

Proposal Changes the Following Existing Rules: In addition to format changes to make the rules more user-friendly, changes include: WAC 275-30-010, updates and clarifies definitions, WAC 275-30-030, clarifies requirements for issuing a "parole arrest warrant" and conducting the informal hearing for continued detention; and reflects changes associated with replacing the "parole suspension, arrest, and detention" form with the "parole arrest warrant," WAC 275-30-040, updates the section to reflect changes made to the "parole revocation petition" form and associated procedures, including integrating the hearing waiver, WAC 275-30-050, repealed, needed information included in the petition form and process, WAC 275-30-060, text clarification, WAC 275-30-070, provides clarification and consistency with RCW by cross-referencing the definition of "detention facility" and identifying where a juvenile parolee's confinement must be served; and integrates authority for reinstatement of parole (WAC 275-30-080) following confinement, and WAC 275-30-080, repealed, needed information included in juvenile parolee confinement requirements.

No small business economic impact statement has been prepared under chapter 19.85 RCW.

RCW 34.05.328 applies to this rule adoption. Since the proposed amendments "make significant amendments to a policy or regulatory program" (see RCW 34.05.328 (5)(c)(iii)), JRA has determined the proposed rules to be "significant" as defined by the legislature. A copy of the required cost benefit analysis (CBA) may be requested by contacting Cheryl Colglazier at Juvenile Rehabilitation Administration, P.O. Box 45720, Olympia, WA 98504, (360) 902-8081 or (colglcl@dshs.wa.gov).

Hearing Location: Lacey Government Center (behind Tokyo Bento Restaurant), 1009 College Street S.E., Room 104-B, Lacey, WA 98503, on December 8, 1998, at 10:00 a.m.

Assistance for Persons with Disabilities: Contact Paige Wall by November 30, 1998, phone (360) 902-7540, TTY (360) 902-8324, e-mail pwall@dshs.wa.gov.

Submit Written Comments to: Identify WAC Numbers, Paige Wall, Rules Coordinator, Rules and Policies Assistance Unit, P.O. Box 45850, Olympia, WA 98504-5850, fax (360) 902-8292, by December 8, 1998.

Date of Intended Adoption: December 14, 1998.

October 30, 1998

Marie Myerchin-Redifer, Manager

Rules and Policies Assistance Unit

SHS-2491.4

AMENDATORY SECTION (Amending Order 2709, filed 10/5/88)

WAC 275-30-010  Definitions. (((1))) "Department" means the department of social and health services.

(((2))) "Juvenile parole officer" means a state employee, or person under contract to the state, whose responsibilities include supervising ((juveniles on parole)) juvenile parolees.

(((3))) "Juvenile parolee" means a person under age twenty-one released from a juvenile ((correctional)) rehabilitation administration residential facility and placed under the supervision of a juvenile parole officer.

(((4))) "Modification of parole conditions" means a change in the order of parole conditions provided by the juvenile parole officer with full knowledge of the change by the juvenile parolee.

(((5))) "Parole" means a period of supervision following release from a juvenile ((correctional)) rehabilitation administration residential facility, during which time certain parole conditions ((must)) are to be ((adhered to or consequences from a predetermined list may be invoked)) followed.

(((6))) "Parole conditions" mean interventions or expectations listed in RCW 13.40.210, intended to facilitate the juvenile parolee's reintegration into the community and/or to reduce the likelihood of reoffending.

"Secretary" means secretary of the department of social and health services or his or her designee.

(((7))) "Violation" means behavior by a juvenile parolee contrary to written parole conditions which may result in sanctions that include, but are not limited to, modification of parole conditions and/or confinement.

[Statutory Authority: RCW 13.40.210. 88-20-083 (Order 2709), § 275-30-010, filed 10/5/88.]

AMENDATORY SECTION (Amending Order 2709, filed 10/5/88)

WAC 275-30-030  Parole ((suspension,)) arrest((, and detention)) warrant. (1) ((When)) A juvenile parole officer ((believes)):

(a) Must issue a parole arrest warrant when he/she has reason to believe a juvenile parolee ((has violated a condition of parole, the officer may issue an order of parole suspension, arrest, and detention if:

(a) The juvenile parolee poses an imminent danger to himself or herself or other persons)) possessed a firearm or used a deadly weapon during the parole period; or

(b) ((The)) May issue a parole arrest warrant when he/she has reason to believe a juvenile parolee ((is unlikely to voluntarily appear at a parole revocation hearing, considering such factors as whether the juvenile parolee has failed to appear at other judicial or administrative hearings)) has violated a condition of parole, other than possession of a firearm or use of a deadly weapon.

(2) The ((order of)) parole ((suspension,)) arrest((, and detention)) warrant, on department forms, ((shall)) must include a ((complete)) statement of the nature of the violation(s) and the date ((thereof, and shall inform the juvenile parolee of his or her right to be represented by an attorney. Copies of the order of parole suspension, arrest, and detention shall be sent to the appropriate local law enforcement agencies, to the detention facility, and to the secretary)) it occurred.

(3) A juvenile parolee held in detention for an alleged violation of parole conditions is entitled((, within twenty-four hours (excluding Saturdays, Sundays, and holidays) of being placed in detention,)) to an informal hearing to determine whether there is probable cause to believe a parole violation occurred and whether continued detention pending a parole revocation hearing is necessary. The hearing ((shall)) must be:

(a) Held within twenty-four hours (excluding Saturdays, Sundays, and holidays) of being placed in detention; and

(b) Conducted by a parole supervisor or designee not directly involved in the case. The parole supervisor or designee ((shall)) must:

(i) Interview both the juvenile parolee and ((the)) a juvenile parole ((officer suspending the parole. Immediately following the hearing, the parole supervisor or designee shall)) staff with knowledge of the alleged violation(s). If such a parole staff is unavailable, documentation of the allegation(s) may be reviewed in place of the staff interview; and

(ii) Issue a decision, immediately following the hearing, with reasons((, on department forms,)) for either releasing the juvenile parolee or authorizing continued detention. The decision must be documented on department forms. In no event shall a juvenile parolee be held in detention longer than seventy-two hours (excluding Saturdays, Sundays, and holidays) without a parole revocation petition being filed pursuant to WAC 275-30-040.

[Statutory Authority: RCW 13.40.210. 88-20-083 (Order 2709), § 275-30-030, filed 10/5/88.]

AMENDATORY SECTION (Amending Order 2709, filed 10/5/88)

WAC 275-30-040  Parole revocation petition. (1) ((If a)) The juvenile parole officer ((believes a)):

(a) Must initiate a parole revocation petition if he/she has reason to believe the juvenile parolee ((has violated a condition of parole, the juvenile parole officer may file a parole revocation petition)) possessed a firearm or used a deadly weapon during the parole period; or

(b) May initiate a parole revocation petition if he/she has reason to believe the juvenile parolee has violated a condition of parole, other than possession of a firearm or use of a deadly weapon.

(2) The petition, on department forms, ((shall)) must include ((the following)):

(a) A statement of the nature of the violation and the date ((thereof)) it occurred;

(b) The ((number of days of confinement sought)) relief requested by the juvenile parole officer as a result of the violation; and

(c) ((Notice of the time, date, and location of the parole revocation hearing; and

(d))) Notice of the juvenile parolee's right to be represented by an attorney, either one of his or her own choosing or one appointed at public expense.

(((2) The parole revocation petition shall be filed with the local office of the state office of administrative hearings.))

(3) A copy of the petition ((shall)) must:

(a) Be served either personally or by certified mail, return receipt requested, on the juvenile parolee or the juvenile parolee's attorney((, and on the juvenile parolee's parents or guardian. Another copy shall be filed with the secretary)); and

(b) Be provided to the juvenile parolee's parent/guardian.

(4) A juvenile parolee, only through an attorney, may waive the right to a parole revocation hearing and agree to the parole revocation and agreed upon relief. The decision to waive must be documented on the petition.

(5) If the juvenile parolee or his/her attorney does not waive the right to a hearing, the parole revocation petition must be filed with the local office of the state office of administrative hearings within seventy-two hours (excluding Saturdays, Sundays, and holidays) of the juvenile parolee being placed in detention. If the juvenile parolee is not detained, the petition must be filed within seventy-two hours (excluding Saturdays, Sundays, and holidays) of the petition being served. The parole revocation petition must include the time, date, and location of the parole revocation hearing, as determined by the state office of administrative hearings.

[Statutory Authority: RCW 13.40.210. 88-20-083 (Order 2709), § 275-30-040, filed 10/5/88.]

AMENDATORY SECTION (Amending Order 3091, filed 11/6/90, effective 12/7/90)

WAC 275-30-060  Parole revocation hearing. (1) ((Unless waived by the juvenile parolee)) After the petition is filed, the department ((shall)) must initiate a parole revocation hearing ((on every parole revocation petition for determining)) to determine whether the alleged parole violation occurred unless the juvenile parolee waives his/her right to a parole revocation hearing. If the juvenile parolee is held in detention as described under WAC 275-30-030, the administrative law judge ((shall)) must hold the hearing within seventy-two hours (excluding Saturdays, Sundays, and holidays) of ((service)) filing of the petition. Otherwise the administrative law judge ((shall)) must hold a hearing no sooner than seven days after service of the petition.

(2) At the parole revocation hearing, the juvenile may waive ((his or her)) the right to be represented by an attorney. A juvenile waiving the right to an attorney may either contest or agree to the parole revocation.

(3) The administrative law judge ((shall)) must conduct a parole revocation hearing in accordance with chapter 10-08 WAC ((a parole revocation hearing)). The administrative law judge ((shall)) must grant the parole revocation petition if the administrative law judge finds, by a preponderance of the evidence, the violation occurred and the violation warrants revocation. If the parole revocation petition is granted, the administrative law judge ((shall)) must order the ((period of confinement)) relief requested in the petition.

(4) The administrative law judge ((shall)) must issue an oral decision immediately following the parole revocation hearing. Within forty-eight hours of the hearing, the administrative law judge ((shall)) must issue a written decision. The decision shall constitute a final administrative decision. The administrative law judge must provide a copy of the decision to the juvenile parole officer, the juvenile parolee and his ((or))/her attorney, the juvenile parolee's parent((s or))/guardian, and the department.

[Statutory Authority: RCW 13.40.210. 90-22-072 (Order 3091), § 275-30-060, filed 11/6/90, effective 12/7/90; 88-20-083 (Order 2709), § 275-30-060, filed 10/5/88.]

Reviser's note: RCW 34.05.395 requires the use of underlining and deletion marks to indicate amendments to existing rules. The rule published above varies from its predecessor in certain respects not indicated by the use of these markings.

AMENDATORY SECTION (Amending Order 3091, filed 11/6/90, effective 12/7/90)

WAC 275-30-070  Confinement. (1) A juvenile's confinement for violating one or more conditions of parole, as alleged in a parole revocation petition, may not exceed thirty days. Confinement may be continuous, or for a portion of each day, or for certain days each week with the balance of time under supervision. The department ((shall)) must give the juvenile credit against any period of confinement for days served in detention pending a parole revocation hearing. The juvenile ((shall)) must serve his or her confinement in a county detention facility ((unless otherwise ordered by the secretary)) as defined in RCW 13.40.020, a juvenile rehabilitation administration facility, or, if the juvenile parolee is eighteen years old or older, the juvenile may serve his or her confinement in a county jail.

(2) If a juvenile's parole is revoked two or more times during one parole period, the secretary ((shall)) or designee must approve any period of confinement exceeding a combined total of thirty days.

(3) Instead of confinement under subsection (1) of this section, the secretary or designee may return the offender to confinement in an institution for the remainder of the sentence range if the offense for which the offender was sentenced is rape in the first or second degree, rape of a child in the first or second degree, child molestation in the first degree, indecent liberties with forcible compulsion, or a sex offense that is also a serious violent offense as defined under RCW 9.94A.030.

(4) Unless conditions of parole are otherwise amended, the order of parole conditions in effect at the time the parole was revoked shall be deemed reinstated immediately following any period of confinement.

[Statutory Authority: RCW 13.40.210. 90-22-072 (Order 3091), § 275-30-070, filed 11/6/90, effective 12/7/90; 88-20-083 (Order 2709), § 275-30-070, filed 10/5/88.]

REPEALER

The following sections of the Washington Administrative Code are repealed:

WAC 275-30-050 Waiver of hearing.

WAC 275-30-080 Reinstatement of parole.