CHAPTER 198

FORMERLY

SENATE BILL NO. 171

AN ACT TO AMEND TITLE 10 OF THE DELAWARE CODE RELATING TO PLACEMENT OF NEGLECTED AND DELINQUENT CHILDREN.

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

Section 1. Amend Subsection of §1009 (j) of Title 10 of the Delaware Code by deleting Subsection (j) and inserting in lieu thereof a new Subsection (j) which shall read as follows:

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

a. ‘Felony Level Offense’ means any delinquent act constituting a felony under the laws of this State, any other state or the United States.

b. ‘Repeat offender’ means any child adjudicated delinquent of three (3) or more serious misdemeanor level juvenile offenses occurring within 24 months of the request for mixing.

c. ‘Serious Misdemeanor Level Juvenile Offense’ means any delinquent act constituting the following misdemeanors or any court adjudicated violation of probation or juvenile aftercare or parole in which the underlying adjudication is any of the following misdemeanors, whether under the laws of this State, any similar laws in other states, or the United States: 11 Del. C. Sections 501(Criminal Solicitation in the Third Degree), 601(Offensive Touching), 602(Menacing), 611(Assault in the Third Degree), 621(Terroristic Threatening), 625(Unlawfully Administering Drugs), 628(Vehicular Assault in the Second Degree), 763(Sexual Harassment), 764-765(Indecent Exposure in the First or Second Degree), 766(incest), 767(Unlawful Sexual Contact in the Third Degree), 781(Unlawful Imprisonment in the Second Degree), 804(Reckless Burning or Exploding), 1102(Endangering the Welfare of a Child , 1251(Escape in the third degree), 1257(Resisting Arrest), 1311(Harassment), 1341(Lewdness), 1443(Carrying a Concealed Dangerous Instrument).

d. ‘Mixing’ means placement by the Department of Services for Children, Youth and Their Families of any child charged with or adjudicated of a Felony Level Juvenile Offense, or adjudicated of any Serious Misdemeanor Level Juvenile Offense, in the same facility with dependent or neglected children who have not committed or been charged with any delinquent act.

e. ‘Facility’ means any residential shelter, group home, foster home, treatment center, individualized residential treatment home(“IRT”), institution or any other place designated as a temporary or permanent residential placement for children located in the State of Delaware, excluding accredited or licensed hospitals.

f. ‘Adjudication’ or ‘adjudicated’ – for the purposes of subsection (j), adjudication or adjudicated shall mean any type of adjudication of delinquency contained within the definition of “conviction” or "convicted" pursuant to chapter 9 of title 16, and shall include a probation before adjudication plea or admission, and a mental health or drug court deferred plea regardless of whether the plea or charge was subsequently discharged or dismissed under such programs.

(2) No dependent or neglected child shall be placed in a secure or non-secure detention or correctional facility unless charged with or found to have committed a delinquent act. Except for youth placed, detained, or sentenced pursuant to 11 Del C. Sections 2103A or 4204A and except for youth otherwise properly proceeded against as adults in Superior Court, no child shall be placed in an adult detention or adult correctional 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 Felony Level Juvenile Offense or is a Repeat Offender, the Department of Services for Children, Youth and Their Families 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 or their designee shall recommend such placement in writing. Before authorizing mixing, the Family Court must specifically find that the proposed placement of the child offender is not expected to present an unreasonable and unmanageable physical risk to other children in the facility 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 Serious Misdemeanor Level Juvenile Offense, no mixing shall occur unless the Secretary or a Division Director of the Department of Services for Children, Youth and Their Families, or their designee, after review of the case, certifies in writing that the proposed placement of the child offender is not expected to present an unreasonable and unmanageable physical risk to other children in the facility and that the placement is not contrary to the best interests of the other children in the facility.

(4) a. A court order approving mixing may be requested via a motion in a dependency/neglect proceeding or in the delinquency proceeding concerning the child who needs to be mixed. The court may decide such motion without a hearing, and such motions may be requested, heard and decided via oral motion to the court during any hearing or trial concerning the child.

b. Where the date of placement could not have been reasonably determined in advance of placement, facilities and agencies which are subject to subsection (j) of this Section may provisionally place a child in such facility, pending a later determination by the Family Court or the Secretary or Division Director of the Department of Services for Children Youth and Their Families or their designee, whichever may be applicable. Where such provisional placement has been made, a request for mixing approval that requires a Family Court order under subsection (j) (3) a. of this Section shall be filed with the Family Court no later than the second business day after such placement is made. In all other provisional placements, the Secretary or Division Director or their designee shall make the written certifications required by subsection (j) of this Section no later than the second business day after such placement is made.

(5) All placements which result in mixing shall be reviewed within five (5) working days by the Department of Services for Children, Youth and Their Families. Subsequently, such placement shall be reviewed after two (2) months, and regularly thereafter. The 2-month review shall be made by the Child Placement Review Board. The purpose of the review shall be to determine whether, under the placement, the child offender continues to not present an unreasonable and unmanageable physical risk to other children in the facility, and that such placement is not contrary to the best interests of the other children in the facility.”

Approved March 22, 2008