February 13, 2015
Honorable Gerald W. VandeWalle, Chief Justice
North Dakota Supreme Court
600 East Boulevard Avenue
Bismarck, ND 58505-0530
Re: Proposed Amendments to North Dakota Rules of Juvenile Procedure and North Dakota Unified Judicial System Policies
Dear Chief Justice:
In a letter dated September 10, 2014, the Supreme Court referred the Juvenile Policy Board's proposed amendments to the North Dakota Rules of Juvenile Procedure and the North Dakota Unified Judicial System Policies to the Joint Procedure Committee for review and recommendations. The board proposes that the procedural elements contained in the 400 series of the Judicial System Policies be transferred to the Rules of Juvenile Procedure.
The committee discussed the board's proposed amendments at its September 2014 and January 2015 meetings. Here are the committee's recommendations:
Rule 2, N.D.R.Juv.P., Hearing Time
The board proposed that Rule 2 be amended to require the court to make findings on alternatives to detention; to require an additional detention hearing if a case is not disposed of within 60 days and the child remains in detention; and to clarify that petition hearings are optional in continued foster care matters under N.D.C.C. § 27-20-30.1. The committee reviewed the board's amendments and proposes that additional language be added to Rule 2 to allow hearings and other proceedings involving children to be conducted using contemporaneous audio or audiovisual transmission by reliable electronic means. The board had originally placed proposed language on electronic means hearings in Rule 10.
Rule 3, N.D.R.Juv.P., Contents of Petition
The board proposed that Rule 3 be amended to clarify that the names and residence addresses of the parents, guardian, or custodian of the child are not included in the petition for a continued foster care matter under N.D.C.C. § 27-20-30.1., and to incorporate language from Policy 408 of the Unified Judicial System Policy Manual limiting juvenile court officers from acting as petitioners. The committee discussed the board's proposed amendments and concurs with them.
Rule 5, N.D.R.Juv.P., Summons
The board proposed that Rule 5 be amended to clarify that issuance of a summons and the child's presence at a hearing is not required in a continued foster care matter under N.D.C.C. § 27-20-30.1. The committee discussed the board's proposed amendments and concurs with them.
Rule 10, N.D.R.Juv.P., Presence, Default
The board proposed that Rule 10 be amended to clarify that the child has the right to be present at hearings in continued foster care matters under N.D.C.C. § 27-20-30.1, but the parents, guardian, or custodian of the child are not required to appear at these hearings. In addition, the board proposed that a new subdivision be added allowing interactive television, telephone, or other reliable electronic means to be used in proceedings involving children who have legal representation.
The committee discussed at length whether electronic means hearings should be barred if the child is not represented. The committee eventually concluded that the court should have discretion to allow an electronic means hearing regardless of whether the child is represented. Committee members said that in two common types of hearings that are frequently conducted by electronic means, detention hearings and shelter care hearings, the child is usually not yet represented by counsel.
The committee proposes that the representation requirement be removed from the electronic means hearing provision and that the provision itself be moved to Rule 2 so it will be clear it applies to all types of juvenile hearings. The committee further proposes that electronic means hearing language based on the Court's new language in N.D.R.Crim.P. 43 be added to Rule 10.
Rule 17, N.D.R.Juv.P., Juvenile Court Lay Guardian Ad Litem
The board proposed that Rule 17 be amended to specify that a person is not eligible for service as a lay guardian ad litem if the person has been convicted of a felony. The committee discussed this proposal and proposes that additional language be added to the rule specifying that persons convicted or adjudicated of sex offenses of any level and persons who have a substantiated instance of child abuse (regardless of whether charged or convicted of it) should also be ineligible for lay guardian ad litem service.
Rule 18, N.D.R.Juv.P., Disposition; Conditions
The board proposed that a new Rule 18 be created to consolidate provisions previously contained in the Unified Judicial System Policy Manual. Proposed subdivisions (b) and (c) of the new rule are derived from Policy 404 on Restitution and Community Service, proposed subdivision (d) is derived from Policy 401 on Screening and Testing Juveniles for Drug and Alcohol Use, and proposed subdivision (e) is derived from Policy 407 on Electronic Monitoring. Proposed subdivision (f) was added by the board to clarify that the treatment of children ordered to participate in Juvenile Drug Court Program is governed by N.D. Sup. Ct. Admin. R. 56. The committee discussed the board's proposed new rule and concurs with it.
Rule 19, N.D.R.Juv.P., Juvenile Records
The board proposed that a new Rule 19 be created to consolidate provisions previously contained in the Unified Judicial System Policy Manual. Proposed subdivisions (a), (b) and (c) of the new rule are derived from Policy 402 on Juvenile Court Records and proposed subdivision (d) is derived from Policy 403 on Expungement. The committee discussed the board's proposed new rule and found that much of the policy language that had been incorporated in it was taken directly from N.D.C.C. § 27-20-51, the juvenile records confidentiality statute. The committee proposes that the statutory language be removed from the rule proposal and be replaced by cross-references to the statute.
Unified Judicial System Policy 401
The board proposed that 400 series policy language not transferred to the juvenile rules be consolidated in Policy 401. The committee briefly reviewed the proposed amendments to Policy 401 and desires to express concern about language in Policy 401(IV)(C)(3) that bars the juvenile court from collecting money for "insurance companies, banks or credit card companies" absent a court order. These institutions can be classified as crime victims under North Dakota law and should not be barred from seeking restitution for injury in juvenile court.
Rule 1101, N.D.R.Ev., Applicability of Rules
After the board submitted its proposed amendments to the Court, an issue arose related to the applicability of the Rules of Evidence in shelter care hearings. The board discussed this issue and asked the committee to consider whether shelter care hearings should be added to the exempt proceedings listed in Rule 1101. The committee discussed the board's suggestion, drafted proposed amendments to Rule 1101, and decided to forward these amendments to the Court because the amendments are related to the proposed juvenile rule amendments discussed above.
Copies of the amendments proposed by the Juvenile Policy Board, with further proposed amendments by the Joint Procedure Committee, are attached. Thank you for referring this matter to the committee.
Dale V. Sandstrom
Chair, Joint Procedure Committee