Commission Established to Study the New Hampshire Juvenile Diversion Law

Commission Established to Study the New Hampshire Juvenile Diversion Law

HB 342, Chapter 281:1, Laws of 2009

Final Report

November 1st, 2009

Commission Members

Rep. Beth Arsenault, Chair

Rep. Julie Brown

Sen. Matthew Houde

Judge Paul Lawrence, Goffstown District Court

Dan French, JPPS, DJJS (Lakes Region)

Todd Neumann, JPPS Supervisor, DJJS (Nashua)

Andre Blais, JPPS, DJJS (North Country)

Cathy Steers, Carroll County Restorative Justice Center

Brian Loanes, BelknapCounty Restorative Justice

Peter Brigham, Office of Youth Services, Hillsboro

James Carroll Esq. Belknap County Attorney

Cristine Brooks, Merrimack County Attorneys Office

Donna Esposito Esq., NH Public Defenders Office

This Commission was established to study the current New Hampshire juvenile court diversion statute and make recommendations for changes to the law as needed.

1.“Court Approved” Diversion Programs – The current statute does not define a “court approved” diversion program. The commission recommends removing the words “court approved” from the statute and adding languageto better define the standards, objectives, and desired outcomesof diversion programs. It was further recommended that diversion programs that receive referrals from the court become“certified” by the State Division of Juvenile Justice Services. The commission recommends that another commission or committee be established to develop a process for diversion program certification. It is expected that such a process would involve program specialists from DJJS, juvenile justice stakeholders, community members andthe NH Juvenile Court Diversion Network. The certification of diversion programs will lead to the use of best practices, evidence-based methodology and the implementation of an evaluation process.

2. LSR (Legislative Service Request) submitted – The commission supports achange in the diversion statutewhich had previously been recommended by a 2008 study committee (HB 1290). The change would limit liability for diversion programs, non-profit employers and other community service sites who supervise community service for juveniles participating in diversion. The change recommended by the HB 1290 study committee is consistent with language that already exists in the law for employers and service sites that supervise community service for court-involved youth.

3.Diversion funding -There was considerable discussion among commission members about the intent of the legislature in passingHB-2 (Chapter 263, 2007 session) and some of the unintended consequences of this change in funding juvenile services. Many believe that because juvenile diversion is included as an option within the statute that the state has the responsibility to support and sustain these programs. The commission acknowledges that there is little incentive for towns, cities and counties to continue funding diversion programs now that the state has become responsible for the cost of all juvenile services. In order for diversion programs to remain as a viable and cost-effective alternative to court involvement, the commission sees the need for a more consistent funding stream. Funding options discussed by the commission include:

1. Diversion program fees levied by the court or diversion programs.

2. A recommendation that state incentive funds give priority to certified diversion

programs.

3. Certified diversion programswould eventuallybecome eligible to be certified

providers for the state.

4. Parental Responsibility – The commission felt strongly that diversion be added to several areas of existing statute in an effort to increase parent involvement and responsibility in the diversion process.

5. Diversion Time Limits– Research into best practices from other states and from OJJDP (Office of Juvenile Justice Delinquency Prevention) indicatesthat the optimal time frame for involvement in diversion is 6 months. The current statute does not make allowances for participation in diversion beyond 6 months. The commission recognizes that there are situations where a young person is actively and meaningfully involved in diversion process beyond 6 months. The commission recommends a change in the statute allowing any party to the case to motion the court for an extension beyond 6 months in orderfor a child to successfully complete the requirements of diversion.

6. Screening delinquency petitions for Diversion prior to filing with the court

The commission recognizes that the best opportunity for accountability and the greatest cost savings are realized when a juvenile offender avoids or has minimal contact with the court system. Direct referrals from police departments to diversion programs save an estimated $537 in court and police costs and allow for immediate sanctions and increased accountability for juvenile criminal behavior. In some cases, the cost of court processing can exceed the cost of diversion by up to 3 times (see attached cost comparison report by Halter and Meyer). For this reason the commission highly recommends that the arresting police departmentsand prosecutors thoroughly screen youthful offenders for diversion prior to filing a delinquency petition with the court

7. Legislation filed – Recommended by 2007 HB 1290 study committee and current HB 342 commission

That the following wording be added to 169-B:10 Juvenile Diversion

VI. No person who performs public service under this chapter shall receive any benefits that such employer gives to its other employees, including, but not limited to, workers’ compensation and unemployment benefits and no such employer, individual, organization, entity or diversion program shall be liable for any damages sustained by a person while performing such public service or any damages caused by that person unless the employer is guilty of gross negligence.

8. OtherLegislativeChanges Recommended by Diversion Commission

169-B:40 Liability of Expenses and Hearing on Liability (Delinquency)

Whenever an order creating liability for expenses is issued by the court under this chapter or whenever a voluntary service plan is developed and provided for the minor and the minor's family by the department, any expenses incurred fordiversion, services, placements, and programs the providers of which are certified pursuant to RSA 170-G:4, XVIII, shall be payable by the department of health and human services.

169-B:2a Parent Responsibility

I. In each case brought pursuant to this chapter, on the date of the arraignment, the court shall identify the parent or parents of the minor or, in their absence, the guardian or other person charged by law with the responsibility for the welfare of the minor. It shall be the obligation of such parent or guardian to:
(a) Personally attend and assure the attendance of the minor at all hearings of the

court.
(b) Personally attend and assure the attendance of the minor at all meetings with the

department of health and human services and collateral support service agencies

occasioned by the action.
(c) Fully participate in all services ordered by the court including, but not limited to,

substance abuse treatment, parenting classes, mediation,diversion and

community service.
(d) Pay a portion, or all, of any restitution or fines imposed by the court or diversion program, when the court finds the payment by the parent to be in the interest of justice and rehabilitation.

169-D:29 Liability of Expenses and Hearing on Liability (CHINS)

I. (a) Whenever an order creating liability for expenses is issued by the court under this chapter or whenever a voluntary service plan is developed and provided for a minor and the minor's family by the department, any expenses incurred for diversion, placements, and programs the providers of which are certified pursuant to RSA 170-G:4, XVIII, shall be payable by the department of health and human services.

169-B:2 Definitions. – In this chapter:
IV. ""Delinquent'' means a person who has committed an offense before reaching the age of 17 years which would be a felony or misdemeanor under the criminal code of this state if committed by an adult, and is expressly found to be in need of counseling, supervision, treatment, or rehabilitation as a consequence thereof.
IV-a. ""Diversion'' means a decision made by a person with authority which results in specific official action of the legal system not being taken or being postponed in regard to a juvenile and, in lieu of such inaction or postponement, providing an individually designed program for delivery of services for the juvenile by a specific provider or a plan to assist the juvenile in finding a remedy for his or her inappropriate behavior.

The goal of diversion is to prevent further involvement of the juvenile in the formal legal system. Diversion of a juvenile may take place either at pre-filing as an alternative to the filing of a petition, or at arraignment.
IV-b “CertifiedDiversion Program” is aprogram that has undergone a certification process with the State Department of Juvenile Justice Services and has been approved to accept court referrals. A certified diversion program is a community based alternative to the formal court process that integrates restorative justice practices, promotes positive youth development, and reduces juvenile crime and recidivism. Diversion programs focus on changing juvenile offender behaviors and attitudes, promoting juvenile offender accountability, and repairing harm done to victims and the community.

IV-c. ""Intervention'' means a decision made by a person with authority which results in specific official action of the legal system not being taken or being postponed in regard to a juvenile and, in lieu of such inaction or postponement, providing an individually designed program for delivery of services for the juvenile by a specific provider or a plan to assist the juvenile in finding a remedy for his or her inappropriate behavior. The goal of intervention is to prevent further involvement of the juvenile in the formal legal system. Intervention for a juvenile may take place either at the adjudicatory or dispositional level.

169-B:10 Juvenile Diversion. –
I. An officer authorized under RSA 169-B:9 to take a minor into custody may dispose of the case without court referral by releasing the minor to a parent, guardian, or custodian. The officer shall make a written report to the officer's department identifying the minor, specifying the grounds for taking the minor into custody and indicating the basis for the disposition.

I-a Prior to filing a delinquency petitionwith the court the arresting agency or prosecutor shall screen the petitionfor participation in diversion. The petitioner will identify why juvenile court diversion was not an appropriate disposition prior to seeking court involvement.

II. At any time before or at arraignment pursuant to this chapter, a minor and the minor's family may be referred toa pre-trial diversion program, a certified diversion program,or other community resource. Referral may be made by the arresting or

prosecuting agency or juvenile probation and parole officer, prior to filing a petition with the court or after the filing of a petition by such agency with the court’s approval, or by

the court on its own or any party’s motion. When the arresting or prosecuting agency, or juvenile probation and parole officer suspects that a minor has a disability, an administrator at the responsible school district shall be notified. If appropriate, the school district shall refer the minor for evaluation to determine if the child is in need of special education and related services. The administrative judge of the district court shall have the authority to approve diversion referral procedures for use in all juvenile matters throughout the state.
III. Referral to diversion or other community resource after filing is appropriate if:
(a) The facts bring the case within the jurisdiction of the court;
(b) Referral of the case is in the best interest of the public and the minor; and
(c) The minor and the parents, guardian, or other custodian consent with the knowledge that consent is not obligatory.
IV. Referral after filing shall stay the proceedings for a period not toexceed6 monthsfrom the date of referral, unless extended by the court for an additional period not to exceed 6 months and does not authorize the detention of the minor.
V. During the period of referral, the court may require further conditions of conduct on the part of the minor and the minor's parents.

8. Addendums

Estimated Costs of filing aJuvenile Petition and holding an arraignment – submitted by Peter Brigham, Hillsboro Office of Youth Services
Canadian Juvenile Justice Study – submitted by Judge Paul Lawrence
Belknap County Commission Position Statement
A Cost Comparison of Diversion vs. Formal Juvenile Court Processing in Belknap County, NH 2008
HB 1290 Final report – Rep Mary Beth Walz
Commission Meeting Minutes

Respectfully Submitted

Representative Beth Arsenault, Diversion Commission Chair