5.2 Detention and Shelter Care

• Library: Juvenile Law and Practice in Virginia (Virginia CLE) (2018 Ed.)

5.2 DETENTION AND SHELTER CARE

5.201 General Information and Practices. Juvenile pretrial detention remains one of the most challenging problems for the juvenile justice system. Although children are widely acknowledged to be more adversely affected by placement in a secure setting than are adults, more juveniles

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are placed in secure detention each year. These placements can have an adverse psychological impact on the child, depending on the minor's age, mental state, and prior experience with the system. These placements also tend to bias the subsequent stages of the process by preventing the juvenile from assisting in the investigation of the case, by practically foreclosing the availability of some dispositional alternatives, and by creating an inertia in the court process that leads to a more serious and restrictive disposition. Pursuant to section 16.1-266(B), a child who is detained is presumed to be indigent, and the court must appoint counsel for the child before the commencement of the detention hearing.

The United States Supreme Court held in Schall v. Martin ³⁰ that preventive detention—placement in a secure setting to prevent the juvenile from committing other delinquent acts while awaiting trial—is constitutional, as is detention to insure the juvenile's presence at trial. The Court did note, however, that this ruling was in the context of the strict procedural requirements in the challenged New York law. The linkage between procedural safeguards and preventive detention enunciated in Schall suggests that the lawyer should insist on strict adherence to the Virginia Code in detention decision-making.

The Virginia Code distinguishes between detention, which is placement in a secure facility resulting in a loss of physical freedom, and shelter care, which is the temporary care of children in physically unrestricting facilities such as referral to a group home or placement in foster care, neither of which results in physical restraint. ³¹

The preferred course in practically every situation should be unconditional release of the juvenile. The order of alternatives in the Virginia Code for placement or detention suggests this presumption. The decision to detain must be predicated on (i) securing the juvenile's presence at trial; (ii) reducing the likelihood that serious harm will be inflicted on the person or property of others; or (iii) protecting the juvenile from serious harm to his or her life or health. ³² Detention is not intended to allow parents to shirk their responsibilities or for pre-adjudication punishment of the child. The decision to detain must also be individualized and not based on a judge's instructions that all drug abusers or children possessing weapons at school are to be locked up before trial regardless of the particular child's characteristics. ³³

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Virginia also requires that the parents be notified "in the most expeditious manner practicable" and that the child be taken "with all practicable speed" to the intake officer or the judge if not released to the parents. ³⁴

While the criteria for detaining juveniles are delineated in the Virginia Code, ³⁵ judges and intake officers in different jurisdictions have varying attitudes about whether a juvenile should be detained before adjudication or disposition. Because the juvenile's detention is completely within the judge's discretion, practices vary throughout the state. For example, in some jurisdictions a juvenile charged with a weapons offense is usually detained before adjudication. In other jurisdictions, less serious offenses may be treated as grounds for detaining the juvenile. The promulgation of state-wide risk assessment instruments by the Department of Juvenile Justice has created more uniformity in detention decisions across the state. ³⁶

The commonwealth's attorney has discretion whether to appear at a detention hearing. Commonwealth's attorneys in some jurisdictions routinely attend those hearings, and if a juvenile is charged with an offense involving violence or weapons, or another serious charge, a commonwealth's attorney will likely participate at the detention hearing. The commonwealth's attorney may appeal a decision not to detain a juvenile in certain delineated situations that are similar in some ways to those that would support an appeal of an adult's pretrial release. ³⁷

5.202 Criteria for Detention. The Virginia Code states that a juvenile taken into custody "shall immediately be released, upon the ascertainment of the necessary facts, to the care, custody and control of such juvenile's parent, guardian, custodian or other suitable person able and willing to provide supervision and care for such juvenile." ³⁸ But the statute then lists criteria for detention of the juvenile if there is probable cause to believe that:

1. The juvenile (i) committed an act that is either a felony or a Class 1 misdemeanor, (ii) the juvenile is alleged to have violated the terms of his or her probation or parole pursuant to a disposition based on a charge that was a

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felony or a Class 1 misdemeanor, or (iii) violated any provisions of section 18.2-308.7 and there is clear and convincing evidence that:

		a.	Considering the seriousness of the current offense or offenses and other pending charges, the seriousness of prior adjudicated offenses, the juvenile's legal status, and any aggravating and mitigating circumstances, the liberty of the juvenile constitutes a clear and substantial threat to the person or property of others;
b.	The liberty of the juvenile would present a clear and substantial threat of serious harm to the juvenile's life or health; or
c.	The juvenile has threatened to abscond from the court's jurisdiction during the pendency of the proceedings or has a record of willful failure to appear at a court hearing within the immediately preceding 12 months.

		2.	The juvenile has absconded from a detention home or facility where he or she has been directed to remain by the lawful order of a judge or intake officer;
3.	The juvenile is a fugitive from a jurisdiction outside the Commonwealth and subject to a verified petition or warrant, in which case the juvenile may be detained for a period not to exceed that provided by statute 39 while arrangements are made to return the juvenile to the lawful custody of a parent, guardian, or other authority in another state;
4.	The juvenile has failed to appear in court after having been duly served with a summons in any case in which it is alleged that the juvenile has committed a delinquent act or that the child is in need of services or is in need of supervision. A child alleged to be in need of services or in need of supervision may be detained for good cause only until the next day upon which the court

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		sits within the county or city in which the charge against the juvenile is pending, and under no circumstances longer than 72 hours from the time he or she was taken into custody. If the 72-hour period expires on a weekend, holiday, or day upon which the court is lawfully closed, the time is extended to the next day the court is open; or
5.	The juvenile failed to adhere to the conditions imposed on him or her by the court, intake officer, or magistrate following the juvenile's release upon a Class 1 misdemeanor charge or a felony charge.

The Department of Juvenile Justice has established a uniform risk assessment instrument for use in making detention decisions pursuant to section 16.1-248.1 of the Virginia Code and for use during detention hearings. ⁴⁰

5.203 Place of Confinement. If a juvenile is ordered to be placed in detention or shelter care pursuant to section 16.1-248.1, the juvenile may be detained, pending a court hearing, in the following places: (i) an approved foster home or home otherwise authorized by law to provide that care; (ii) a facility operated...