CHAPTER 13

FORMERLY

SENATE BILL NO. 56

AS AMENDED BY SENATE AMENDMENT NOS. 1 AND 2

AN ACT TO AMEND SECTIONS 937(b)(14), 937(g) AND 933(1), TITLE 10 OF THE DELAWARE CODE WITH REFERENCE TO THE MIXING OF CHILDREN CHARGED WITH OR ADJUDICATED DELINQUENT WITH DEPENDENT OR NEGLECTED CHILDREN.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF DELAWARE:

Section 1. Amend Title 10, Chapter 9 of the Delaware Code, by striking §937(g) and substituting in lieu thereof a new subsection which shall read as follows:

"(g) Mixing of Children Charged with or Adjudicated Delinauent with Dependent or Neglected Children

(1) For the purpose of this subsection, the following definitions shall apply:

(a) "Level 1 Juvenile Offense" means any delinquent act constituting a felony under the laws of this State, any other State and the United States.

(b) "Level 2 Juvenile Offense" means any delinquent act constituting a Class A or a Class B misdemeanor, under the laws of this State, any other State and the United States.

(c) "Level 3 Juvenile Offense" means any delinquent act constituting a Class C or an unclassified misdemeanor under the laws of this State, any other State and the United States.

(d) "Mixing" means placement of any child charged with a Level 1 Juvenile Offense or found to have committed any delinquent act, in the same facility with dependent or neglected children.

(e) "Facility" means any shelter, group home, foster home, treatment center, institution, or any other place designated as a temporary or permanent placement for children, excluding accredited hospitals.

(a) "Repeat Offender" means any child adjudicated delinquent for 3 or more separate delinquent acts, not including Class C or unclassified misdemeanors, occurring within any period of twelve months.

(2) No dependent or neglected child shall be placed in a secure detention facility or a secure correctional facility unless charged with or found to have committed a delinquent act. No child shall be placed in an adult correctional or adult detention facility.

(3) There shall be no mixing unless the following requirements are met:

(a) When a child is charged with or found to have committed a Level 1 Juvenile Offense or is a Repeat Offender, the Department must obtain a Court order authorizing such placement, after the Secretary or a Division Director of the Department of Services for Children, Youth and Their Families shall recommend such placement in writing. Before authorizing mixing, the Family Court must specifically find that the proposed placement of the child offender does not represent a physical risk to others, and that the placement is not contrary to the best interests of the other children in the facility.

(b) When a child who is not a repeat offender is found to have committed a Level 2 Juvenile Offense, no mixing shall occur unless the Secretary or a Division Director of the Department of Services for Children, Youth and Their Families, after review of the case, certifies in writing that the proposed placement of the child offender does not represent a physical risk to others, and that the placement is not contrary to the best interests of the other children in the facility.

(c) When a child who is not a repeat offender is found to have committed a Level 3 Juvenile Offense, the Department of Services for Children, Youth and Their Families, may mix that child subject to its regulations, provided that

such placement is not contrary to the best interests of the other children in the facility.

(4) All placements which result in mixing of Level 1 or Level 2 child offenders shall be reviewed within 72 hours by the Department. Subsequently, such placement shall be reviewed after two months, and regularly thereafter. The two month review shall be made by the Foster Care Review Board. The purpose of the review shall be to determine whether, under the placement, the child offender continues not to represent a physical risk to others, and that such placement is not contrary to the best interests of the other children in the facility.

(5) The Department shall promulgate regulations in accordance with this Chapter within 60 days of the effective date of this Act."

Section 2. Amend Title 10, Chapter 9 of the Delaware Code, by striking §933(1) and enacting a new §933(1) which shall read as follows:

"(1) When the child is not charged with a delinquent act, immediately contact the Division of Child Protective Services of the Department of Services for Children, Youth and Their Families, who shall be responsible for further pursuing the whereabouts of the custodian or providing shelter and care for the child in a shelter home, foster home, group home, private agency home or other appropriate facility for children. The child shall be placed in a manner consistent with 10 Del. C. Sec. 937(g). After making every reasonable effort to locate the custodian, the Division of Child Protective Services of the Department of Services for Children, Youth and Their Families may release the child to the child's custodian or forthwith file with the Court a petition for custody alleging dependency or neglect."

Section 3. Amend Title 10, Chapter 9 of the Delaware Code, by striking §937(b)(14) and enacting a new §937(b)(14) which shall read as follows:

"(14) May commit a mentally ill, retarded or disturbed child for observation or treatment to any appropriate institution within the State, or to any institution without the State which will consent to receive the child, any other provision of this Chapter notwithstanding."

Section 4. If any provision of this Act or application thereof to any person or circumstance is held unconstitutional and therefore invalid, such invalidity shall not affect other provisions or applications of the Act, which can be given effect without the invalid provision or application, provided the basic purposes of this Act can still be served and to that end the provisions of this Act are declared to be severable.

Approved May 5, 1987