2006 Regular Session
To: Juvenile Justice; Appropriations
By: Representative Carlton
AN ACT TO AMEND SECTION 43-21-111, MISSISSIPPI CODE OF 1972, TO REQUIRE ALL COUNTIES TO REPLACE REFEREES WITH ELECTED PART-TIME YOUTH COURT JUDGES TO HANDLE YOUTH COURT CASES; TO REQUIRE SUCH ELECTED PART-TIME JUDGES TO RECEIVE THE SAME COMPENSATION AS JUSTICE COURT JUDGES OF SUCH COUNTIES; TO AMEND SECTIONS 19-9-96, 43-21-121, 43-21-125, 43-21-405, 43-21-609 AND 43-21-613, MISSISSIPPI CODE OF 1972, IN CONFORMITY THERETO; AND FOR RELATED PURPOSES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
SECTION 1. Section 43-21-111, Mississippi Code of 1972, is amended as follows:
43-21-111. (1) In any county not having a county court or family court and have judge-appointed regular or special referees, such county shall replace all referees with elected part-time youth court judges who shall be attorneys at law and members of the bar in good standing to act in cases concerning children within the jurisdiction of the youth court. All initially elected part-time youth court judges shall be in office by January 1, 2008, and after the initial term of office expires the election for such office shall occur during the normal election cycle for counties.
(2) Any part-time youth court judges elected pursuant to subsection (1) of this section shall be required to receive judicial training approved by the Mississippi Judicial College and shall be required to receive regular annual continuing education in the field of juvenile justice. The amount of judicial training and annual continuing education which shall be satisfactory to fulfill the requirements of this section shall conform with the amount prescribed by the Rules and Regulations for Mandatory Continuing Judicial Education promulgated by the Supreme Court. The Administrative Office of Courts shall maintain a roll of part-time youth court judges elected under this section, shall enforce the provisions of this subsection and shall maintain records on all such part-time youth court judges regarding such training. Should a part-time youth court judge miss two (2) consecutive training sessions sponsored or approved by the Mississippi Judicial College as required by this subsection or fail to attend one (1) such training session within six (6) months of his or her being elected as a part-time youth court judge, the part-time youth court judge shall be disqualified to hold office and shall be immediately removed as a part-time youth court judge and a special election shall be held to fill such office.
(3) The judge may direct that hearings in any case or class of cases be conducted in the first instance by the part-time youth court judge. The judge may also delegate his or her own administrative responsibilities to the part-time youth court judge.
(4) All hearings authorized to be heard by a part-time youth court judge shall proceed in the same manner as hearings before the youth court judge. A part-time youth court judge shall possess all powers and perform all the duties of the youth court judge in the hearings authorized to be heard by the part-time youth court judge.
(5) An order entered by the part-time youth court judge shall be mailed immediately to all parties and their counsel. A rehearing by the judge shall be allowed if any party files a written motion for a rehearing or on the court's own motion within three (3) days after notice of the part-time youth court judge's order. The youth court may enlarge the time for filing a motion for a rehearing for good cause shown. Any rehearing shall be upon the record of the hearing before the part-time youth court judge, but additional evidence may be admitted in the discretion of the judge. A motion for a rehearing shall not act as a supersedeas of the part-time youth court judge's order, unless the judge shall so order.
(6) The salary for elected part-time youth court judges shall be the current salary in effect for justice court judges as prescribed in Section 25-3-36 and shall be paid by the county out of any available funds budgeted for the youth court by the board of supervisors.
(7) Upon request of the boards of supervisors of two (2) or more counties, the judge of the chancery court may have an elected part-time youth court judge for two (2) or more counties within his or her district, and the payment of salary may be divided in such ratio as may be agreed upon by the boards of supervisors.
SECTION 2. Section 19-9-96, Mississippi Code of 1972, is amended as follows:
19-9-96. The board of supervisors of any county may, in its discretion, set aside, appropriate and expend moneys from the general fund to be used for funding of the operation of the youth court division other than a municipal youth court division. Such funds shall be expended for no other purpose than:
(a) Payment of the salaries of the elected part-time youth court judges, court administrators, youth court prosecutor when court appointed, youth court public defender, court reporters other than regular chancery court or county court reporters, clinical psychologists and other professional personnel, secretaries and other clerical or other court-appointed personnel, detention home employees, shelter home employees, halfway house employees and youth counsellors;
(b) Travel and training expenses;
(c) The operation of a youth court and related facilities, detention facilities, shelter home facilities, group homes and halfway houses;
(d) Volunteer programs or other court-authorized programs;
(e) Providing the elected part-time youth court judge with a current set of the Mississippi Code of 1972 if a set has not been provided.
SECTION 3. Section 43-21-121, Mississippi Code of 1972, is amended as follows:
43-21-121. (1) The youth court shall appoint a guardian ad litem for the child:
(a) When a child has no parent, guardian or custodian;
(b) When the youth court cannot acquire personal jurisdiction over a parent, a guardian or a custodian;
(c) When the parent is a minor or a person of unsound mind;
(d) When the parent is indifferent to the interest of the child or if the interests of the child and the parent, considered in the context of the cause, appear to conflict;
(e) In every case involving an abused or neglected child which results in a judicial proceeding; or
(f) In any other instance where the youth court finds appointment of a guardian ad litem to be in the best interest of the child.
(2) The guardian ad litem shall be appointed by the court when custody is ordered or at the first judicial hearing regarding the case, whichever occurs first.
(3) In addition to all other duties required by law, a guardian ad litem shall have the duty to protect the interest of a child for whom he has been appointed guardian ad litem. The guardian ad litem shall investigate, make recommendations to the court or enter reports as necessary to hold paramount the child's best interest. The guardian ad litem is not an adversary party and the court shall insure that guardians ad litem perform their duties properly and in the best interest of their wards. The guardian ad litem shall be a competent person who has no adverse interest to the minor. The court shall insure that the guardian ad litem is adequately instructed on the proper performance of his duties.
(4) The court may appoint either a suitable attorney or a suitable layman as guardian ad litem. In cases where the court appoints a layman as guardian ad litem, the court shall also appoint an attorney to represent the child. From and after January 1, 1999, in order to be eligible for an appointment as a guardian ad litem, such attorney or lay person must have received child protection and juvenile justice training provided by or approved by the Mississippi Judicial College within the year immediately preceding such appointment. The Mississippi Judicial College shall determine the amount of child protection and juvenile justice training which shall be satisfactory to fulfill the requirements of this section. The Administrative Office of Courts shall maintain a roll of all attorneys and laymen eligible to be appointed as a guardian ad litem under this section and shall enforce the provisions of this subsection.
(5) Upon appointment of a guardian ad litem, the youth court shall continue any pending proceedings for a reasonable time to allow the guardian ad litem to familiarize himself with the matter, consult with counsel and prepare his participation in the cause.
(6) Upon order of the youth court, the guardian ad litem shall be paid a reasonable fee as determined by the youth court judge or elected part-time youth court judge out of the county general fund as provided under Section 43-21-123. To be eligible for such fee, the guardian ad litem shall submit an accounting of the time spent in performance of his duties to the court.
(7) The court, in its sound discretion, may appoint a volunteer trained layperson to assist children subject to the provisions of this section in addition to the appointment of a guardian ad litem.
SECTION 4. Section 43-21-125, Mississippi Code of 1972, is amended as follows:
43-21-125. (1) There shall be a Mississippi Council of Youth Court Judges which shall be the official organization of the judges having youth court jurisdiction in this state. The membership of the council shall consist of all the judges and elected part-time youth court judges of youth courts in the State of Mississippi.
(2) The Mississippi Council of Youth Court Judges is authorized to adopt and, from time to time, amend such rules, regulations or bylaws as it considers necessary to the conduct of its affairs.
(3) The council may elect officers and provide for such meetings of the council as it deems necessary. The council shall meet at least annually for the consideration of:
(a) Any and all matters pertaining to the discharge of the official duties and obligations of its members; and
(b) Problems that have arisen in connection with the operation of the youth courts in any county or in all counties in order to improve the administration of juvenile justice in the state.
(4) The council shall publish and submit to the Governor, the Chief Justice of the Supreme Court, and the Mississippi Judicial Council an annual report of the operations which shall include financial and statistical data and may include suggestions and recommendations for legislation.
(5) The council is authorized to receive and expend any funds which may become available from the federal government to carry out any of the purposes of this chapter, and to this end the council may meet any federal requirements not contrary to state law which may be conditions precedent to receiving such federal funds.
(6) The council may cooperate with the federal government in a program for training personnel employed or preparing for employment by the youth court and may receive and expend funds from federal or state sources or from private donations for such purposes. The council may contract with public or nonprofit institutions of higher learning for the training of such personnel, may conduct short-term training courses of its own, may hire experts on a temporary basis for such purpose and may cooperate with the department of youth services or other state departments or agencies in personnel training programs.
SECTION 5. Section 43-21-405, Mississippi Code of 1972, is amended as follows:
43-21-405. (1) The informal adjustment process shall be initiated with an informal adjustment conference conducted by an informal adjustment counselor appointed by the judge or his designee.
(2) If the child and his parent, guardian or custodian appear at the informal adjustment conference without counsel, the informal adjustment counselor shall, at the commencement of the conference, inform them of their right to counsel, the child's right to appointment of counsel and the right of the child to remain silent. If either the child or his parent, guardian or custodian indicates a desire to be represented by counsel, the informal adjustment counselor shall adjourn the conference to afford an opportunity to secure counsel.
(3) At the beginning of the informal adjustment conference, the informal adjustment counselor shall inform the child and his parent, guardian or custodian:
(a) That information has been received concerning the child which appears to establish jurisdiction of the youth court;
(b) The purpose of the informal adjustment conference;
(c) That during the informal adjustment process no petition will be filed;
(d) That the informal adjustment process is voluntary with the child and his parent, guardian or custodian and that they may withdraw from the informal adjustment at any time; and
(e) The circumstances under which the informal adjustment process can be terminated under Section 43-21-407.
(4) The informal adjustment counselor shall then discuss with the child and his parent, guardian or custodian:
(a) Recommendations for actions or conduct in the interest of the child to correct the conditions of behavior or environment which may exist;
(b) Continuing conferences and contacts with the child and his parent, guardian or custodian by the informal adjustment counselor or other authorized persons; and
(c) The child's general behavior, his home and school environment and other factors bearing upon the proposed informal adjustment.
(5) After the parties have agreed upon the appropriate terms and conditions of informal adjustment, the informal adjustment counselor and the child and his parent, guardian or custodian shall sign a written informal adjustment agreement setting forth the terms and conditions of the informal adjustment. The informal adjustment agreement may be modified at any time upon the consent of all parties to the informal adjustment conference.
(6) The informal adjustment process shall not continue beyond a period of six (6) months from its commencement unless extended by the youth court for an additional period not to exceed six (6) months by court authorization prior to the expiration of the original six-month period. In no event shall the custody or supervision of a child which has been placed with the Department of Public Welfare be continued or extended except upon a written finding by the youth court judge or elected part-time youth court judge that reasonable efforts have been made to maintain the child within his own home, but that the circumstances warrant his removal and there is no reasonable alternative to custody, and that reasonable efforts will continue to be made towards reunification of the family.
SECTION 6. Section 43-21-609, Mississippi Code of 1972, is amended as follows:
43-21-609. In neglect and abuse cases, the disposition order may include any of the following alternatives, giving precedence in the following sequence:
(a) Release the child without further action;
(b) Place the child in the custody of his parents, a relative or other person subject to any conditions and limitations as the court may prescribe. If the court finds that temporary relative placement, adoption or foster care placement is inappropriate, unavailable or otherwise not in the best interest of the child, durable legal custody may be granted by the court to any person subject to any limitations and conditions the court may prescribe; such durable legal custody will not take effect unless the child or children have been in the physical custody of the proposed durable custodians for at least one (1) year under the supervision of the Department of Human Services. The requirements of Section 43-21-613 as to disposition review hearings does not apply to those matters in which the court has granted durable legal custody. In such cases, the Department of Human Services shall be released from any oversight or monitoring responsibilities;
(c) Order terms of treatment calculated to assist the child and the child's parent, guardian or custodian which are within the ability of the parent, guardian or custodian to perform;
(d) Order youth court personnel, the Department of Human Services or child care agencies to assist the child and the child's parent, guardian or custodian to secure social or medical services to provide proper supervision and care of the child;
(e) Give legal custody of the child to any of the following but in no event to any state training school:
(i) The Department of Human Services for appropriate placement; or
(ii) Any private or public organization, preferably community-based, able to assume the education, care and maintenance of the child, which has been found suitable by the court. Prior to assigning the custody of any child to any private institution or agency, the youth court through its designee shall first inspect the physical facilities to determine that they provide a reasonable standard of health and safety for the child;
(f) If the court makes a finding that custody is necessary as defined in Section 43-21-301(3)(b), and that the child, in the action pending before the youth court had not previously been taken into custody, the disposition order shall recite that the effect of the continuation of the child's residing within his or her own home would be contrary to the welfare of the child, that the placement of the child in foster care is in the best interests of the child, and unless the reasonable efforts requirement is bypassed under Section 43-21-603(7)(c), the order also must state:
(i) That reasonable efforts have been made to maintain the child within his or her own home, but that the circumstances warrant his or her removal, and there is no reasonable alternative to custody; or
(ii) The circumstances are of such an emergency nature that no reasonable efforts have been made to maintain the child within his or her own home, and there is no reasonable alternative to custody; or
(iii) If the court makes a finding in accordance with (ii) of this paragraph, the court shall order that reasonable efforts be made towards the reunification of the child with his or her family;
(g) If the court had, before the disposition hearing in the action pending before the court, taken the child into custody, the judge or elected part-time youth court judge shall determine, and the youth court order shall recite that reasonable efforts were made by the Department of Human Services to finalize the child's permanency plan that was in effect on the date of the disposition hearing.
SECTION 7. Section 43-21-613, Mississippi Code of 1972, is amended as follows:
43-21-613. (1) If the youth court finds, after a hearing which complies with the sections governing adjudicatory hearings, that the terms of a delinquency or child in need of supervision disposition order, probation or parole have been violated, the youth court may, in its discretion, revoke the original disposition and make any disposition which it could have originally ordered. The hearing shall be initiated by the filing of a petition that complies with the sections governing petitions in this chapter and that includes a statement of the youth court's original disposition order, probation or parole, the alleged violation of that order, probation or parole, and the facts which show the violation of that order, probation or parole. Summons shall be served in the same manner as summons for an adjudicatory hearing.
(2) On motion of a child or a child's parent, guardian or custodian, the youth court may, in its discretion, conduct an informal hearing to review the disposition order. If the youth court finds a material change of circumstances relating to the disposition of the child, the youth court may modify the disposition order to any appropriate disposition of equal or greater precedence which the youth court could have originally ordered.
(3) (a) Unless the youth court's jurisdiction has been terminated, all disposition orders for supervision, probation or placement of a child with an individual or an agency shall be reviewed by the youth court judge or elected part-time youth court judge at least annually to determine if continued placement, probation or supervision is in the best interest of the child or the public. For children who have been adjudicated abused or neglected, the youth court shall conduct a permanency hearing within twelve (12) months after the earlier of:
(i) An adjudication that the child has been abused or neglected; or
(ii) The date of the child's removal from the allegedly abusive or neglectful custodian/parent. Notice of such hearing shall be given in accordance with the provisions of Section 43-21-505(5). In conducting the hearing, the judge or elected part-time youth court judge shall require a written report and may require information or statements from the child's youth court counselor, parent, guardian or custodian, which includes, but is not limited to, an evaluation of the child's progress and recommendations for further supervision or treatment. The judge or elected part-time youth court judge shall, at the permanency hearing determine the future status of the child, including, but not limited to, whether the child should be returned to the parent(s) or placed with suitable relatives, placed for adoption, placed for the purpose of establishing durable legal custody or should, because of the child's special needs or circumstances, be continued in foster care on a permanent or long-term basis. If the child is in an out-of-state placement, the hearing shall determine whether the out-of-state placement continues to be appropriate and in the best interest of the child. At the permanency hearing the judge or elected part-time youth court judge shall determine, and the youth court order shall recite that reasonable efforts were made by the Department of Human Services to finalize the child's permanency plan that was in effect on the date of the permanency hearing. The judge or elected part-time youth court judge may find that reasonable efforts to maintain the child within his home shall not be required in accordance with Section 43-21-603(7)(c), and that the youth court shall continue to conduct permanency hearings for a child who has been adjudicated abused or neglected, at least annually thereafter, for as long as the child remains in the custody of the Mississippi Department of Human Services.
(b) The court may find that the filing of a termination of parental rights petition is not in the child's best interest if:
(i) The child is being cared for by a relative; and/or
(ii) The Department of Human Services has documented compelling and extraordinary reasons why termination of parental rights would not be in the best interests of the child.
(c) The provisions of this subsection shall also apply to review of cases involving a dependent child; however, such reviews shall take place not less frequently than once each one hundred eighty (180) days. A dependent child shall be ordered by the youth court judge or elected part-time youth court judge to be returned to the custody and home of the child's parent, guardian or custodian unless the judge or elected part-time youth court judge, upon such review, makes a written finding that the return of the child to the home would be contrary to the child's best interests.
(d) Reviews are not to be conducted unless explicitly ordered by the youth court concerning those cases in which the court has granted durable legal custody. In such cases, the Department of Human Services shall be released from any oversight or monitoring responsibilities, and relieved of physical and legal custody and supervision of the child.
SECTION 8. The Attorney General of the State of Mississippi shall submit this act, immediately upon approval by the Governor, or upon approval by the Legislature subsequent to a veto, to the Attorney General of the United States or to the United States District Court for the District of Columbia in accordance with the provisions of the Voting Rights Act of 1965, as amended and extended.
SECTION 9. This act shall take effect and be in force from and after the date it is effectuated under Section 5 of the Voting Rights Act of 1965, as amended and extended.