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(124th General Assembly)(Substitute House Bill Number 180)
AN ACT
To amend sections 2151.28 and 2151.31 of the Revised
Code to permit
confinement of a child who is a
danger or threat to others and who is not a status
offender and to generally require
the
adjudicatory
hearing for a confined child to
be
held within 15
days after the
complaint is
filed.
Be it enacted by the General Assembly of the State of Ohio:
SECTION 1. That sections 2151.28 and 2151.31 of the Revised
Code be amended to
read as follows:
Sec. 2151.28. (A) No later than seventy-two hours after
the
complaint is filed, the
court shall fix a time for an adjudicatory
hearing. The court
shall conduct the adjudicatory hearing within
one of the
following periods of time: (1) Subject to division (D) of section 2152.13 of the
Revised Code
and division (A)(3) of this section, if the complaint
alleged that the child violated
section
2151.87 of the Revised
Code
or is a delinquent or unruly
child or
a juvenile traffic
offender, the
adjudicatory hearing shall be
held
and may be
continued in
accordance with the Juvenile Rules. (2) If the complaint alleged that the child is an abused,
neglected, or dependent child, the adjudicatory hearing shall be
held no later than thirty days after the complaint is filed,
except that, for good cause shown, the court may continue the
adjudicatory hearing for either of the following periods of time: (a) For ten days beyond the thirty-day deadline to allow
any
party to obtain counsel; (b) For a reasonable period of time beyond the thirty-day
deadline to obtain service on all parties or any necessary
evaluation, except that the adjudicatory hearing shall not be
held
later than sixty days after the date on which the complaint
was
filed. (3) If the child who is the subject of the complaint is in
detention and is charged with violating a section of the Revised
Code that may be violated by an adult, the hearing shall be held
not later
than fifteen days after the filing of the complaint.
Upon a
showing of good cause, the adjudicatory hearing may be
continued
and detention extended. (B) At an adjudicatory hearing held pursuant to division
(A)(2) of this section, the court, in addition to determining
whether the child is an abused, neglected, or dependent child,
shall determine whether the child should remain or be placed in
shelter care until the dispositional hearing. When the court
makes the shelter care determination, all of the following apply: (1) The court shall determine whether there are any
relatives of the child who are willing to be temporary custodians
of the child. If any relative is willing to be a temporary
custodian, the child otherwise would remain or be placed in
shelter care, and the appointment is appropriate, the court shall
appoint the relative as temporary custodian of the child, unless
the court appoints another relative as custodian. If it
determines that the appointment of a relative as custodian would
not be appropriate, it shall issue a written opinion setting
forth
the reasons for its determination and give a copy of the
opinion
to all parties and the guardian ad litem of the child. The court's consideration of a relative for appointment as
a
temporary custodian does not make that relative a party to the
proceedings. (2) The court shall comply with section 2151.419
of the
Revised Code. (3) The court shall schedule the date for the
dispositional
hearing to be held pursuant to section 2151.35 of
the Revised
Code. The parents of the child have a right to be
represented by
counsel; however, in no case shall the
dispositional hearing be
held later than ninety days after the
date on which the complaint
was filed. (C)(1) The court shall direct the issuance of a summons
directed to the child except as provided by this section, the
parents, guardian, custodian, or other person with whom the child
may be, and any other persons that appear to the court to be
proper or necessary parties to the proceedings, requiring them to
appear before the court at the time fixed to answer the
allegations of the complaint. The summons shall contain the name
and telephone number of the court employee designated by the
court
pursuant to section 2151.314 of the Revised Code to arrange
for
the prompt appointment of counsel for indigent persons. A
child
alleged to be an abused, neglected, or dependent child
shall not
be summoned unless the court so directs. A summons
issued for a
child who is under fourteen years of age and who is
alleged to be
a delinquent child, unruly child, or a juvenile
traffic offender
shall be served on the parent, guardian, or
custodian of the child
in the child's behalf. If the person who has physical custody of the child, or
with
whom the child resides, is other than the parent or
guardian, then
the parents and guardian also shall be summoned. A copy of the
complaint shall accompany the summons. (2) In lieu of appearing before the
court at the time fixed
in the summons and prior to the date
fixed for appearance in the
summons, a child who is alleged
to have violated section 2151.87
of the
Revised
Code and that child's parent, guardian, or
custodian
may sign a waiver of appearance
before the clerk of the
juvenile court and pay a fine of one hundred dollars.
If the
child and that child's parent, guardian, or custodian do not waive
the
court appearance,
the court shall proceed with the
adjudicatory
hearing as provided in this section. (D) If the complaint contains a prayer for permanent
custody, temporary custody, whether as the preferred or an
alternative disposition, or a planned
permanent living arrangement
in a case
involving an alleged abused, neglected, or dependent
child, the
summons served on the parents shall contain as is
appropriate an
explanation that the granting of permanent custody
permanently
divests the parents of their parental rights and
privileges, an
explanation that an adjudication that the child is
an abused,
neglected, or dependent child may result in an order of
temporary
custody that will cause the removal of the child from
their legal
custody until the court terminates the order of
temporary custody
or permanently divests the parents of their
parental rights, or
an explanation that the issuance of an order
for a planned permanent living
arrangement will cause the removal
of the child from the legal custody
of the parents if any of the
conditions listed in divisions
(A)(5)(a) to (c) of section
2151.353 of the Revised Code are
found to exist. (E)(1) Except as otherwise provided in division
(E)(2) of
this section, the court may endorse upon the summons an
order
directing the parents, guardian, or other person with whom the
child may be to appear personally at the hearing and directing
the
person having the physical custody or control of the child to
bring the child to the hearing. (2) In cases in which the complaint alleges that a child is
an
unruly or delinquent child for being an habitual or chronic
truant and that
the parent, guardian, or other person having care
of the child has
failed to cause the child's attendance at school,
the court shall
endorse upon the summons an order directing the
parent, guardian,
or other person having care of the child to
appear personally at
the hearing and directing the person having
the physical custody
or control of the child to bring the child to
the hearing. (F)(1) The summons shall contain a statement advising that
any party is entitled to counsel in the proceedings and that the
court will appoint counsel or designate a county public defender
or joint county public defender to provide legal representation
if
the party is indigent. (2) In cases in which the complaint alleges a child to be an
abused,
neglected, or dependent child and no hearing has been
conducted pursuant to
division (A) of section 2151.314 of the
Revised Code with respect to the child
or a parent, guardian, or
custodian of the child does not attend the
hearing, the summons
also shall contain a statement advising that a case plan
may be
prepared for the child, the general requirements usually contained
in
case plans, and the possible consequences of failure to comply
with a
journalized case plan. (G) If it appears from an affidavit filed or from sworn
testimony before the court that the conduct, condition, or
surroundings of the child are endangering the child's health
or
welfare or those of others, that the child may abscond or be
removed from
the jurisdiction of the court, or that the child will
not be
brought to the
court, notwithstanding the service of the
summons, the court may
endorse upon the summons an order that a
law enforcement officer
serve the summons and take the child into
immediate custody and
bring the child forthwith to the court. (H) A party, other than the child, may waive service of
summons by written stipulation. (I) Before any temporary commitment is made permanent, the
court shall fix a time for hearing in accordance with section
2151.414 of the Revised Code and shall cause notice by summons to
be served upon the parent or guardian of the child and the
guardian ad litem of the child, or published, as provided in
section 2151.29 of the Revised Code. The summons shall contain
an
explanation that the granting of permanent custody permanently
divests the parents of their parental rights and privileges. (J) Any person whose presence is considered necessary and
who is not summoned may be subpoenaed to appear and testify at
the
hearing. Anyone summoned or subpoenaed to appear
who fails
to do
so may be punished, as in other cases in the court of
common
pleas, for contempt of court. Persons subpoenaed shall be
paid
the same witness fees as are allowed in the court of common
pleas. (K) The failure of the court to hold an adjudicatory
hearing
within any time period set forth in division (A)(2) of
this
section does not affect the ability of the court to issue
any
order under this chapter and does not provide any basis for
attacking the jurisdiction of the court or the validity of any
order of the court. (L) If the court, at an adjudicatory hearing held pursuant
to
division (A) of this section upon a complaint alleging that a
child
is an abused, neglected, dependent, delinquent, or unruly
child or a juvenile
traffic offender, determines that the child is
a dependent child, the court
shall incorporate that determination
into written findings of fact and
conclusions of law and enter
those findings of fact and conclusions of law in
the record of the
case. The court shall include in
those findings of fact and
conclusions of law specific findings as to the
existence of any
danger to the child and any underlying family problems that
are
the basis for the court's determination that the child is a
dependent
child. Sec. 2151.31. (A) A child may be taken into custody in
any
of the following ways: (1) Pursuant to an order of the court under this chapter or
pursuant to an
order of the court upon a motion filed pursuant to
division (B) of section
2930.05 of the Revised Code; (2) Pursuant to the laws of arrest; (3) By a law enforcement officer or duly authorized
officer
of the court when any of the following conditions are
present: (a) There are reasonable grounds to believe that the child
is suffering from illness or injury and is not receiving proper
care, as described in section 2151.03 of the Revised Code, and
the
child's removal is necessary to prevent immediate or
threatened
physical or emotional harm; (b) There are reasonable grounds to believe that the child
is in immediate danger from the child's surroundings and
that the
child's removal
is necessary to prevent immediate or threatened
physical or
emotional harm; (c) There are reasonable grounds to believe that a parent,
guardian, custodian, or other household member of the child's
household has abused or neglected another child in the household
and to believe that the child is in danger of immediate or
threatened physical or emotional harm from that person. (4) By an enforcement official, as defined in section
4109.01 of the Revised Code, under the circumstances set forth in
section 4109.08 of the Revised Code; (5) By a law enforcement officer or duly authorized
officer
of the court when there are reasonable grounds to believe
that the
child has run away from the child's parents,
guardian, or other
custodian; (6) By a law enforcement officer or duly authorized
officer
of the court when any of the following apply: (a) There are reasonable grounds to believe that the
conduct, conditions, or surroundings of the child are endangering
the health, welfare, or safety of the child. (b) A complaint has been filed with respect to the child
under section 2151.27 or 2152.021 of the Revised Code or
the child
has been indicted under division (A) of section 2152.13
of the
Revised Code or charged by information as described in that
section and there are
reasonable grounds to believe that the child
may abscond or be
removed from the jurisdiction of the court. (c) The child is required to appear in court and there are
reasonable grounds to believe that the child will not be brought
before the court when required. (d) There are reasonable grounds to believe that the child
committed a delinquent act and that taking the child into custody
is necessary
to protect the public interest and safety. (B)(1) The taking of a child into custody is not and shall
not be deemed an arrest except for the purpose of determining its
validity under the constitution of this state or of the United
States. (2) Except as provided in division (C) of section 2151.311
of the Revised Code, a child taken into custody shall not be held
in any state correctional institution, county,
multicounty, or
municipal jail or workhouse, or any other place
where any adult
convicted of crime, under arrest, or charged with
crime is held. (C)(1) Except as provided in division (C)(2)
of this
section, a child taken into custody shall not be confined in a
place of juvenile detention or placed in shelter care prior to
the
implementation of the court's final order of disposition,
unless
detention or shelter care is required to protect the
child from
immediate or threatened physical or emotional harm,
because the
child is a danger or threat to one or more other persons and is
charged with violating a section of the Revised Code that may be
violated by an adult,
because
the
child may abscond or be removed
from the jurisdiction
of the
court, because the child has no
parents, guardian, or
custodian or
other person able to provide
supervision and care
for the child
and return the child to the
court when required, or because an
order for placement of the
child in detention or shelter care has
been made by the court
pursuant to this chapter. (2) A child alleged to be a delinquent child who is taken
into
custody may be confined in a place of juvenile detention
prior to the
implementation of the court's final order of
disposition if the confinement is
authorized under section 2152.04
of the Revised Code or if the child is alleged to be a
serious
youthful offender under section 2152.13 of the Revised Code and is
not released on
bond. (D) Upon receipt of notice from a person that the person
intends to take an alleged abused, neglected, or dependent child
into custody pursuant to division (A)(3) of this section, a
juvenile judge or a designated referee may grant by telephone an
ex parte emergency order authorizing the taking of the child into
custody if there is probable cause to believe that any of the
conditions set forth in divisions (A)(3)(a) to (c) of this
section
are present. The judge or referee shall journalize any
ex parte
emergency order issued pursuant to this division. If an
order is
issued pursuant to this division and the child is taken
into
custody pursuant to the order, a sworn complaint shall be
filed
with respect to the child before the end of the next
business day
after the day on which the child is taken into
custody and a
hearing shall be held pursuant to division (E) of
this section and
the Juvenile Rules. A juvenile judge or referee
shall not grant
an emergency order by telephone pursuant to this
division until
after the judge or referee determines that
reasonable efforts have
been made to notify the parents, guardian, or custodian of the
child that the child may be placed into shelter care and of the
reasons for placing the child into shelter care, except that, if
the requirement for notification would jeopardize the physical or
emotional safety of the child or result in the child being
removed
from the court's jurisdiction, the judge or referee may
issue the
order for taking the child into custody and placing the
child into
shelter care prior to giving notice to the parents,
guardian, or
custodian of the child. (E) If a judge or referee pursuant to division (D) of this
section issues an ex parte emergency order for taking a child
into
custody, the court shall hold a hearing to determine whether
there
is probable cause for the emergency order. The hearing
shall be
held before the end of the next business day after the
day on
which the emergency order is issued, except that it shall
not be
held later than seventy-two hours after the emergency
order is
issued. If the court determines at the hearing that there is not
probable cause for the issuance of the emergency order issued
pursuant to division (D) of this section, it shall order the
child
released to the custody of the child's parents,
guardian, or
custodian. If the court determines at the hearing that there is
probable cause for the issuance of the emergency order issued
pursuant to division (D) of this section, the court shall do
all
of the following: (1) Ensure that a complaint is filed or has been filed; (2) Comply with section 2151.419 of the Revised Code; (3) Hold a hearing pursuant to section 2151.314 of the
Revised Code to determine if the child should remain in shelter
care. (F) If the court determines at the hearing held pursuant
to
division (E) of this section that there is probable cause to
believe that the child is an abused child, as defined in division
(A) of section 2151.031 of the Revised Code, the court may do any
of the following: (1) Upon the motion of any party, the guardian ad litem,
the
prosecuting attorney, or an employee of the public children
services
agency, or its own motion, issue
reasonable
protective
orders with respect to the interviewing or deposition
of the
child; (2) Order that the child's testimony be videotaped for
preservation of the testimony for possible use in any other
proceedings in the case; (3) Set any additional conditions with respect to the
child
or the case involving the child that are in the best
interest of
the child. (G) This section is not intended, and shall not be
construed, to prevent any person from taking a child into
custody,
if taking the child into custody is necessary in an
emergency to
prevent the physical injury, emotional harm, or
neglect of the
child.
SECTION 2. That existing sections 2151.28 and
2151.31 of
the
Revised Code are
hereby repealed.
SECTION 3. The General Assembly hereby requests the Supreme
Court to promptly
modify Rule 29 of the Rules of Juvenile
Procedure pursuant to its authority
under the Ohio Constitution to
make that rule consistent with the amendments
of this act to
section 2151.28 of the Revised Code.
The General Assembly further requests the Supreme Court to
promptly modify
Rule 7 of the Rules of Juvenile Procedure pursuant
to its authority under the
Ohio Constitution to make that rule
consistent with the amendments of this act
to section 2151.31 of
the Revised Code. SECTION 4. Section 2151.28 of the Revised Code is
presented
in
this act as a composite of the section as amended by
both
Am.
Sub. S.B. 179 and Sub. S.B. 218 of
the 123rd General
Assembly.
The
General Assembly, applying the
principle stated in
division
(B) of
section 1.52 of the Revised
Code that amendments
are to be
harmonized if reasonably capable of
simultaneous
operation, finds
that the composite is the resulting
version of
the section in
effect prior to the effective date of this act.
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