CHAPTER 106

AN ACT TO AMEND CHAPTER 9, TITLE 10, DELAWARE CODE, WITH 'RESPECT TO THE POWERS OF POLICE, JUSTICES OF THE PEACE, OTHER COURTS AND OTHER COMMITTING MAGISTRATES IN ISSUANCE OF PROCESS; CONDUCT OF PRELIMINARY PROCEEDINGS AND DETENTION OF CHILDREN IN. FAMILY COURT MATTERS.

Be it enacted by the General Assembly of the State of Delaware:

Section 1. Amend Title 10, Delaware Code, by striking out § 974 of Chapter 9 thereof, and enacting a new § 974 to read:

§ 974. Issuance and service of process in Family Court cases by certain officers

(a) The House Sergeant at the Police Station in the City of Wilmington with respect to offenses alleged to have been committed in said City and any Justice of the Peace or other Committing Magistrate outside said City with respect to offenses alleged to have been committed within his territorial jurisdiction may issue under his hand and seal a summons to procure the attendance, or a warrant for the arrest of any person charged on oath or affirmation before him with having committed any offense within the jurisdiction of the Family Court.

(b) Any peace or police officer possessing a warrant for the arrest of a child, issued under subsection (a) or having lawfully apprehended a child without a warrant, may, in either event, rather than arrest the child, notify the person having the care of said child to appear before the Family Court with said child when notified by said Court so to do, and shall file with said Court forthwith a petition in accordance with § 971 of this Chapter on forms furnished by said Court. The Family Court may enforce the appearance of the person having the care of said child by suitable process.

() If the Officer chooses to arrest the accused child, whether with or without a warrant, rather than use the process of notification outlined in subsection (b); and in all cases where the accused is an adult, the Officer shall take the accused forthwith before the Family Court, if it be in session, and if not, then before the Issuing Officer, or if he is not available, then before the nearest available Justice of the Peace, who shall proceed in accordance with § 975 hereof.

Section 2. Amend Title 10, Delaware Code, by striking out § 975 of Chapter 9 thereof, and enacting a new § 975 to read:

§ 975. Powers and duties of House Sergeant or Committing Magistrate in Family Court cases

I. If the accused is a child the House Sergeant or Committing Magistrate, in all Family Court cases:

(a) May release the child on his own recognizance, or on that of the person having his care, to appear before the Family Court when notified so to do; or

(b) May require the child, if the offense with which he is charged is a felony, or if he is a non-resident of Delaware, to furnish reasonable cash or property bail or other surety for his appearance before the Family Court when notified so to do; or

(c) May order the child detained by the Youth Services Commission provided that the child, after having been given ample opportunity, shall fail to furnish reasonable cash or property bail or other surety required under sub-section (b) hereof; and provided that detention appears necessary for the child's or the community's protection; and provided that such detention shall continue only until the next session of the Family Court; and provided that the Youth Services Commission may release the child before the next session of the Family Court on the recognizance of the person having said child's care to appear with the child at the next session of the Family Court;

(d) Shall notify the person having the care of the child, if his address be known, of the child's arrest, its cause, and the disposition of the matter; and

(e) Shall file with the Family Court forthwith a petition in accordance with § 971 of this chapter on forms furnished by the Family Court.

II. If the accused is an adult, the House Sergeant or the Committing Magistrate, in all Family Court cases:

(a) May release him on his own recognizance to appear before the Family Court when notified so to do; or

(b) May hold him in reasonable cash or property bail or other surety for his appearance at a session of the Family Court to be held within four days; or

(c) May commit him to the Chief of Police of the City of Wilmington, or to the Director of the State Board of Corrections, as the case may be, in default of bail or other required surety, to be delivered to the Family Court at a session within four days of the date of commitment.

III. In all Family Court cases, the House Sergeant or the Committing Magistrate:

(a) Shall provide and forward forthwith to the Family Court complete information concerning the accusation, the arrest, all proceedings before him, including his disposition, on forms furnished by the Family Court;

(b) Shall forward forthwith to the Clerk of the Family Court the cash or property bail and/or other surety in his hands properly identified, together with bail bonds and other pertinent information;

(c) May issue subpoenas to witnesses on behalf of the State or of the accused, returnable to the Family Court, and may bind material witnesses for their appearance therein.

Section 3. Amend Title 10, Delaware Code, by striking out § 976 of Chapter 9 thereof, and enacting a new § 976 to read:

§ 976. Bail; validity; forfeiture

Bail bonds and/or other surety taken as authorized herein shall be as effective as if they had been taken by the Clerk of the Court.

If the person depositing cash or property bail bond or other surety fails to appear in the Family Court as required; the Judge shall order the same forfeited and, if applicable, shall order same sold by the Sheriff at public auction, and shall distribute the proceeds of such forfeiture and/or sale with other costs and fines.

Section 4. Amend Title 10, Delaware Code, by striking out § 977 of Chapter 9 thereof, and enacting a new § 977 to read:

§ 977. Photographing; fingerprinting; incarceration; prosecution of children prohibited

(a) No Peace or Police Officer, Justice of the Peace or Committing Magistrate shall:

(1) Photograph or fingerprint any child, except with the approval of a Judge, Master or the Director first had and obtained in each instance.

(2) Incarcerate any child for any period in any police station, jail or lock-up.

(3) Hold any child "in communicado", nor for more than two hours unless permission to hold such child for more than two hours be first obtained from a Judge, Master, or the director of the Court; any general order by any Court purporting to give authority to any person to detain any child in any place other than that authorized by law to the contrary notwithstanding.

(b) No child shall be indicted by the Grand Jury or prosecuted as a criminal by the State in an adverse proceeding in any Court for any crime except murder or rape; or for any violation of the penal code, or for any unlawful or delinquent act. The Family Court shall take exclusive jurisdiction of such accused child and shall proceed "in his interest", as set forth in this chapter.

Section 5. Amend Title 10, Delaware Code, by striking out § 978 of Chapter 9 thereof, and enacting a new § 978 to read:

§ 978.Custodial care of a child pending final determination by the Family Court

During a period of continuance for investigation and study and until final determination of the case, a Judge, Master or the Director may release the child upon his own recognizance, or upon the recognizance of the person having his care, to appear before the Court when required so to do; or, following a finding of delinquency, a Judge or Master may cause the child to be detained by the Youth Services Commission until final determination of his case, unless sooner released by a Judge or Master; provided, however, that any child so detained may, upon application of the Youth Services Commission be removed from the detention care of said Commission by a Judge or Master; and such child may thereafter be detained pending further investigation and study and until final determination of his case in any manner ordered by a Judge or Master.

Section 6. Amend Title 10, Delaware Code, by striking out § 979 of Chapter 9 thereof, and enacting a new § 979 to read:

§ 979. Duties of other Courts in Family Court cases

When any person is brought before any Court charged with any matter or offense properly exclusively cognizable in the Family Court, such Court, if there is probable ground for the charge, shall proceed in accordance with § 975 hereof.

Section 7. Amend Title 10, Delaware Code, by striking out § 980 of Chapter 9 thereof, and enacting a new § 980 to read:

§ 980. Prosecution of adults by information; trial without jury

Prosecution of adults in the Family Court shall be by information without indictment by Grand Jury or Trial by Petit Jury.

Approved June 25, 1959.