Rule 5.760.Detention hearing; report; grounds; determinations; findings; orders; factors to consider for detention; restraining orders

This is the long rule at the centre of delinquency detention. The court considers the probation officer’s written report and any other evidence, and may examine the child, a parent or guardian, or anyone with relevant knowledge.

Where the probation officer has reason to believe the child is at risk of entering foster care, the report must cover seven things: why the child was removed; any prior abuse or neglect referral and any prior dependency petition; the need for continued detention; available services to facilitate return; whether any relatives are able and willing to provide effective care and control; documentation that staying home is contrary to the child’s welfare; and documentation of the reasonable efforts made to avoid removal and what those services produced.

The child must be released unless the court finds that continuance in the home is contrary to their welfare and one of five grounds exists: violation of a court order, escape from a commitment, likelihood of flight, immediate and urgent necessity for the child’s protection, or reasonable necessity to protect another person or their property.

Two protections follow. A child who is also a dependent may not be detained because of that status or because the child welfare department cannot find a placement. And where the court releases a dependent child, it must order the department either to have the current caregiver take physical custody or to take custody itself and place the child.

Before detaining, the court must determine — case by case, stating the evidence it relied on — whether staying home is contrary to the child’s welfare and whether services exist that would prevent further detention. If services would allow the child to go home, the court must release the child and order probation to provide them. If not, it must state the facts detention rests on.

Detention requires three findings on the record and in the written order, with a reference to the report or evidence relied on: that staying home is contrary to the child’s welfare; that temporary placement and care are the probation officer’s responsibility; and that reasonable efforts were, or were not, made to avoid removal. Two orders go with them: that probation provide services as soon as possible to help the parent obtain what they need to care for the child at home, and that the child’s placement and care rest with probation pending disposition.

Each ground then has its own list of factors. For a violation of a court order: how specific the order was, the nature, circumstances, severity and gravity of the violation, whether it endangered anyone, the child’s history of obeying orders, whether the child’s attendance can be secured without detention, the conduct that brought them to court, and the likelihood of removal at disposition. For escape: whether the child was committed to a named facility and escaped from it or from lawful custody.

For flight risk: prior flight or failure to appear, means of ensuring attendance without detention, whether the child promises to appear, a history of disobeying orders, residence in the county, whether the alleged conduct or the instability of the home makes flight likely — and, notably, whether an adult in the same position would be released on modest bail or their own recognizance, absent danger to the child.

For the child’s own protection: whether the child’s care and protection can be secured until the next appearance, whether the child is addicted to or in imminent danger from a controlled substance or alcohol, and whether other compelling circumstances make detention reasonably necessary. For protecting others: whether the alleged offense involved physical harm to a person or property, whether the child’s history shows such harm or a substantial threat of it, and any other compelling circumstances.

As a condition of release or home supervision the court may issue juvenile restraining orders, or orders barring the child from molesting, attacking, striking, sexually assaulting, battering or having any contact with an alleged victim or their family; from being near a particular area or building; or from associating with or contacting an alleged companion in the offense.