9-27-326. Detention hearing.

9-27-326. Detention hearing. (a) If a juvenile is taken into custody on an allegation of delinquency, violation of Division of Youth Services of the Department of Human Services aftercare, violation of probation, or violation of a court order and not released by the law enforcement officer or intake officer, a detention hearing shall be held as soon as possible but no later than seventy-two (72) hours after the juvenile was taken into custody or, if the seventy-two (72) hours ends on a Saturday, Sunday, or holiday, on the next business day. Otherwise, the juvenile shall be released. (b) Prior written notice of the time, place, and purpose of the detention hearing shall be given to: (1) The juvenile; (2) The juvenile's attorney; and (3)(A) The juvenile's parent, guardian, or custodian. (B) However, if the court finds after a reasonable, diligent effort that the petitioner was unable to notify the parent, guardian, or custodian, the hearing may proceed without notice to that party. (c) The petitioner shall have the burden of proof by clear and convincing evidence that the restraint on the juvenile's liberty is necessary and that no less restrictive alternative will reduce the risk of flight, or of serious harm to property, or to the physical safety of the juvenile or others. (d) During the detention hearing, the court shall: (1) Inform the juvenile: (A) Of the reasons continued detention is being sought; (B) That he or she is not required to say anything, and that anything he or she says may be used against him or her; (C) That he or she has a right to counsel; and (D) That before the hearing proceeds further he or she has the right to communicate with his or her attorney, parent, guardian, or custodian, and that reasonable means will be provided for him or her to do so; (2) Admit testimony and evidence relevant only to determination that probable cause exists that the juvenile committed the offense as alleged and that detention of the juvenile is necessary; and (3) Assess the following factors in determining whether to release the juvenile prior to further hearings in the case: (A) Place and length of residence; (B) Family relationships; (C) References; (D) School attendance; (E) Past and present employment; (F) Juvenile and criminal records; (G) The juvenile's character and reputation; (H) Nature of the charge being brought and any mitigating or aggravating circumstances; (I) Whether detention is necessary to prevent imminent bodily harm to the juvenile or to another; (J) The possibility of additional violations occurring if the juvenile is released; (K) Factors that indicate the juvenile is likely to appear as required; and (L) Whether conditions should be imposed on the juvenile's release. (e)(1) The court shall release the juvenile when there is a finding that no probable cause exists that the juvenile committed the offense as alleged. (2) The court, upon a finding that detention is not necessary, may release the juvenile: (A) Upon his or her personal recognizance; (B) Upon an order to appear; (C) To his or her parent, guardian, or custodian upon written promise to bring the juvenile before the court when required; (D)(i) To the care of a qualified person or agency agreeing to supervise the juvenile and assist him or her in appearing in court. (ii) Provided, that for purposes of this subdivision (e)(2)(D), “qualified agency” does not include the Department of Human Services or any of its divisions; (E)(i) Under the supervision of the probation officer or other appropriate public official. (ii) However, for purposes of this subdivision (e)(2)(E), “appropriate public official” does not include the department; (F) Upon reasonable restrictions on activities, movements, associations, and residences of the juvenile; (G) On bond to his or her parent, guardian, or custodian; or (H) Under such other reasonable restrictions to ensure the appearance of the juvenile. (3) If the court determines that only a money bond will ensure the appearance of the juvenile, the court may require: (A) An unsecured bond in an amount set by the judicial officer; (B) A bond accompanied by a deposit of cash or securities equal to ten percent (10%) of the face amount set by the court that shall be returned at the conclusion of the proceedings if the juvenile has not defaulted in the performance of the conditions of the bond; or (C) A bond secured by deposit of the full amount in cash, or by other property, or by obligation of qualified securities. (4) Orders of conditional release may be modified upon notice, hearing, and good cause shown. (5)(A) If the court releases a juvenile under subdivision (e)(2)(D) of this section, the court may, if necessary for the best interest of the juvenile, request that the department immediately initiate an investigation as to whether the juvenile is in imminent danger or a situation exists whereby the juvenile is dependent-neglected. (B) The court shall not place preadjudicated juveniles in the custody of the department except as provided in § 12-12-516 [repealed]. (f)(1) If the juvenile who is being detained is also in the custody of the department pursuant to a family in need of services or dependency-neglect petition and the court does not keep the juvenile in detention, then any issues regarding placement of the juvenile shall be addressed only in the family in need of services or dependency-neglect case and shall not be an issue addressed, nor shall any orders be entered in the delinquency case regarding placement of the juvenile. (2) Within ten (10) days of the entry of any order in the delinquency case, the prosecuting attorney shall file a copy of the order in the juvenile's dependency-neglect or family in need of services case.