9-27-323. Diversion — Conditions — Agreement — Completion — Definition.

9-27-323. Diversion — Conditions — Agreement — Completion — Definition. (a) If the prosecuting attorney, after consultation with the intake officer, determines that a diversion of a delinquency case is in the best interests of the juvenile and the community, the officer with the consent of the juvenile and his or her parent, guardian, or custodian may attempt to make a satisfactory diversion of a case. (b) If the intake officer determines that a diversion of a family in need of services case is in the best interest of the juvenile and the community, the officer with the consent of the petitioner, juvenile, and his or her parent, guardian, or custodian may attempt to make a satisfactory diversion of a case. (c) In addition to the requirements of subsections (a) and (b) of this section, a diversion of a case is subject to the following conditions: (1) The juvenile has admitted his or her involvement in: (A) A delinquent act for a delinquency diversion; or (B) A family in need of services act for a family in need of services diversion; (2) The intake officer advises the juvenile and his or her parent, guardian, or custodian that they have the right to refuse a diversion of the case and demand the filing of a petition and a formal adjudication; (3) Any diversion agreement is entered into voluntarily and intelligently by the juvenile with the advice of his or her attorney or by the juvenile with the consent of a parent, guardian, or custodian if the juvenile is not represented by counsel; (4) The diversion agreement provides for the supervision of a juvenile or the referral of the juvenile to a public or private agency for services not to exceed six (6) months; (5) All other terms of a diversion agreement do not exceed nine (9) months; and (6) The juvenile and his or her parent, guardian, or custodian shall have the right to terminate the diversion agreement at any time and to request the filing of a petition and a formal adjudication. (d)(1) The terms of the diversion agreement shall: (A) Be in writing in simple, ordinary, and understandable language; (B) State that the agreement was entered into voluntarily by the juvenile; (C) Name the attorney or other person who advised the juvenile upon the juvenile's entering into the agreement; and (D) Be signed by all parties to the agreement and by the prosecuting attorney if it is a delinquency case and the offense would constitute a felony if committed by an adult or a family in need of services case pursuant to § 6-18-222. (2) A copy of the diversion agreement shall be given to the juvenile, the counsel for the juvenile, the parent, guardian, or custodian, and the intake officer, who shall retain the copy in the case file. (e) Diversion agreements shall be: (1) Implemented by all juvenile courts based on validated assessment tools; and (2) Used to provide for: (A) Nonjudicial probation under the supervision of the intake officer or probation officer for a period during which the juvenile may be required to comply with specified conditions concerning his or her conduct and activities; (B) Participation in a court-approved program of education, counseling, or treatment; (C) Participation in a court-approved teen court; (D) Participation in a juvenile drug court program; (E) Enrollment in the Regional Educational Career Alternative School System for Adjudicated Youth; and (F)(i) Payment of restitution to the victim. (ii) Payments of restitution under subdivision (e)(2)(F)(i) of this section shall be paid under § 16-13-326. (f)(1) If a diversion of a complaint has been made, a petition based upon the events out of which the original complaint arose may be filed only during the period for which the agreement was entered into. (2) If a petition is filed within this period, the juvenile's compliance with all proper and reasonable terms of the agreement shall be grounds for dismissal of the petition by the court. (g) The diversion agreement may be terminated, and the prosecuting attorney in a delinquency case or the petitioner in a family in need of services case may file a petition if at any time during the agreement period: (1) The juvenile or his or her parent, guardian, or custodian declines to further participate in the diversion process; (2) The juvenile fails, without reasonable excuse, to attend a scheduled conference; (3) The juvenile appears unable or unwilling to benefit from the diversion process; or (4) The intake officer becomes apprised of new or additional information that indicates that further efforts at diversion would not be in the best interests of the juvenile or society. (h) Upon the satisfactory completion of the diversion period: (1) The juvenile shall be dismissed without further proceedings; (2) The intake officer shall furnish written notice of the dismissal to the juvenile and his or her parent, guardian, or custodian; and (3) The complaint and the agreement, and all references thereto, may be expunged by the court from the juvenile's file. (i)(1) A juvenile intake or probation officer may charge a diversion fee only after review of an affidavit of financial means and a determination of the juvenile's or the juvenile's parent's, guardian's, or custodian's ability to pay the fee. (2) The diversion fee shall not exceed twenty dollars ($20.00) per month to the juvenile division of circuit court. (3) The court may direct that the fees be collected by the juvenile officer, sheriff, or court clerk for the county in which the fees are charged. (4) The officer designated by the court to collect diversion fees shall maintain receipts and account for all incoming fees and shall deposit the fees at least weekly into the county treasury of the county where the fees are collected and in which diversion services are provided. (5) The diversion fees shall be deposited into the account with the juvenile service fees under § 16-13-326. (j)(1) In judicial districts having more than one (1) county, the judge may designate the treasurer of one (1) of the counties in the district as the depository of all juvenile fees collected in the district. (2) The treasurer so designated by the court shall maintain a separate account of the juvenile fees collected and expended in each county in the district. (3) Money remaining at the end of the fiscal year shall not revert to any other fund but shall carry over to the next fiscal year. (4) The funds derived from the collection of diversion fees shall be used by agreement of the judge or judges of the circuit court designated to hear juvenile cases in their district plan pursuant to Supreme Court Administrative Order No. 14, originally issued April 6, 2001, and the quorum court of the county to provide services and supplies to juveniles at the discretion of the juvenile division of circuit court. (k)(1) The Department of Human Services shall develop a statewide referral protocol for helping to coordinate the delivery of services to sexually exploited children. (2) As used in this section, “sexually exploited child” means a person less than eighteen (18) years of age who has been subject to sexual exploitation because the person: (A) Is a victim of trafficking of persons under § 5-18-103; (B) Is a victim of child sex trafficking under 18 U.S.C. § 1591, as it existed on January 1, 2013; or (C) Engages in an act of prostitution under § 5-70-102 or sexual solicitation under § 5-70-103.