C.R.S.
Section 19-2.5-305
Detention and shelter
- hearing
- time limits
- findings
- review
- guardian ad litem appointed
- confinement with adult offenders
- restrictions
(1)
Unless placement is prohibited pursuant to section 19-2.5-304, when a juvenile is placed in a detention facility, in a temporary holding facility, or in a temporary shelter facility designated by the court, the screening team shall promptly notify the court, the district attorney, and the local office of the state public defender. The screening team shall also notify a parent or legal guardian or, if a parent or legal guardian cannot be located within the county, the person with whom the juvenile has been residing and inform such person of the right to a prompt hearing to determine whether the juvenile is to be detained further. The court shall hold the detention hearing within forty-eight hours, excluding Saturdays, Sundays, and legal holidays. For a juvenile being held in detention on a warrant for violating a valid court order on a status offense, the court shall hold the detention hearing within twenty-four hours, excluding Saturdays, Sundays, and legal holidays.(2)
A juvenile who is detained for committing a delinquent act must be represented at the detention hearing by counsel. If the juvenile has not retained his or her own counsel, the court shall appoint the office of the state public defender or, in the case of a conflict, the office of alternate defense counsel to represent the juvenile. This appointment continues if the court appoints the office of the state public defender or the office of alternate defense counsel pursuant to section 19-2.5-605 (2)(a) unless:(a)
The juvenile retains his or her own counsel; or(b)
The juvenile makes a knowing, intelligent, and voluntary waiver of the right to counsel, as described in section 19-2.5-605 (2)(c).(2.5)
The court shall, at the juvenile’s detention hearing, appoint a guardian ad litem for a juvenile detained pursuant to this article 2.5. An appointment made pursuant to this subsection (2.5) terminates upon the release of the juvenile from detention unless the court also finds a basis for the appointment pursuant to section 19-1-111 (2)(a).(II)
The law enforcement agency that arrested the juvenile shall promptly provide to the court and to defense counsel the affidavit supporting probable cause for the arrest and the arrest report, if the arrest report is available, and the screening team shall promptly provide to the court and to defense counsel results from the detention risk screening prepared pursuant to the juvenile’s arrest. Upon completion of the detention hearing, the defense shall return any materials received pursuant to this subsection (3)(a)(II) unless the appointment is continued at the conclusion of the hearing.(III)
The only purposes of a detention hearing are to determine if a juvenile should be detained further and to define conditions under which the juvenile may be released, if release is appropriate. A detention hearing must not be combined with a preliminary hearing or a first advisement. Due to the limited scope of a detention hearing, the representation of a juvenile by appointed counsel at a detention hearing does not, by itself, create a basis for disqualification in the event that such counsel is subsequently appointed to represent another individual whose case is related to the juvenile’s case.(IV)
With respect to this section, the court may further detain the juvenile only if the court finds from the information provided at the hearing that:(A)
Probable cause exists to believe that the juvenile committed the delinquent act charged;(B)
On and after thirty-five days after the screening instrument has been developed or adopted pursuant to section 19-2.5-1404, the validated detention screening instrument has been administered and the juvenile scored as detention-eligible; or there are grounds to override the result of the detention screening instrument based on the criteria developed in accordance with section 19-2.5-1404; and(C)
The juvenile poses a substantial risk of serious harm to others or a substantial risk of flight from prosecution and community-based alternatives to detention are insufficient to reasonably mitigate that risk. Flight from prosecution is distinguished from simple failure to appear and must generally be evidenced by a demonstrated record of repeat, recent willful failures to appear at a scheduled court appearance.(V)
A court shall not order further detention for a juvenile who is ten years of age and older but less than thirteen years of age unless the juvenile has been arrested or adjudicated for a felony or weapons charge pursuant to section 18-12-102, 18-12-105, 18-12-106, or 18-12-108.5. The court shall receive any information having probative value regardless of its admissibility under the rules of evidence. In determining whether a juvenile requires detention, the court shall consider the results of the detention screening instrument. There is a rebuttable presumption that a juvenile poses a substantial risk of serious harm to others if:(A)
The juvenile is alleged to have committed a felony enumerated as a crime of violence pursuant to section 18-1.3-406; or(B)
The juvenile is alleged to have used, or possessed and threatened to use, a firearm during the commission of any felony offense against a person, as such offenses are described in article 3 of title 18; or(C)
The juvenile is alleged to have committed possessing a dangerous or illegal weapon, as described in section 18-12-102; possession of a defaced firearm, as described in section 18-12-103; unlawfully carrying a concealed weapon, as described in section 18-12-105; unlawfully carrying a concealed weapon on school, college, or university grounds, as described in section 18-12-105.5; prohibited use of weapons, as described in section 18-12-106; illegal discharge of a firearm, as described in section 18-12-107.5; or illegal possession of a handgun by a juvenile, as described in section 18-12-108.5.(VI)
Notwithstanding subsection (3)(a)(IV) of this section, there is no presumption pursuant to subsection (3)(a)(V) of this section that a juvenile poses a substantial risk of serious harm to others if the item in the possession of the juvenile is alleged to be a BB gun, a pellet gun, or a gas gun.(VII)
Except as provided in subsection (3)(a)(IX) of this section, at the conclusion of the hearing, the court shall enter one of the following orders, while ensuring efforts are made to keep the juvenile with a parent, guardian, or legal custodian:(A)
That the juvenile be released to the custody of a parent, guardian, legal custodian, kin, or other suitable person without the posting of bond;(B)
That the juvenile be placed in a temporary shelter facility;(C)
That an unsecured personal recognizance bond be set and that the juvenile be released accordingly;(D)
That no bail be set and that the juvenile be detained without bail upon a finding that the juvenile poses a substantial risk of serious harm to others. A juvenile who is detained without bail must be tried on the charges in the petition filed pursuant to subsection (3)(a)(IX) of this section within the time limits set forth in section 19-2.5-904, unless the juvenile is deemed to have waived the time limit for an adjudicatory trial pursuant to section 19-2.5-610 (4).(E)
That no bail be set and that, upon the court’s finding that the juvenile poses a substantial risk of serious harm to others, the juvenile be placed in a preadjudication service program established pursuant to section 19-2.5-606. This subsection (3)(a)(VII)(E) does not apply to any case in which the juvenile’s alleged offense is one of the offenses described in subsection (3)(a)(V) of this section.(VIII)
A preadjudication service program created pursuant to section 19-2.5-606 shall evaluate a juvenile described in subsection (8) of this section. The evaluation may result in the juvenile:(A)
Remaining in the custody of a parent, guardian, or legal custodian; or(B)
Being placed in the temporary legal custody of kin, for purposes of a kinship foster care home or noncertified kinship care placement, as defined in section 19-1-103, or other suitable person under such conditions as the court may impose; or(C)
Being placed in a temporary shelter facility; or(D)
Being referred to a local county department of human or social services for assessment for placement.(IX)
When the court orders further detention of the juvenile or placement of the juvenile in a preadjudication service program after a detention hearing, the district attorney shall file a petition alleging the juvenile to be a delinquent within seventy-two hours after the detention hearing, excluding Saturdays, Sundays, and legal holidays. The juvenile must be held or must participate in a preadjudication service program pending a hearing on the petition. Upon a showing of good cause, the court may extend such time for the filing of charges.(X)
Following the detention hearing, if the court orders that the juvenile be released and, as a condition of such release, requires the juvenile to attend school, the court shall notify the school district in which the juvenile is enrolled of such requirement.(XI)
If the court orders further detention of a juvenile pursuant to this section, the order must contain specific findings as follows:(A)
Whether placement of the juvenile out of the juvenile’s home would be in the juvenile’s and the community’s best interests;(B)
Whether reasonable efforts have been made to prevent or eliminate the need for removal of the juvenile from the home, whether it is reasonable that such efforts not be provided due to the existence of an emergency situation that requires the immediate removal of the juvenile from the home, or whether such efforts not be required due to the circumstances described in section 19-1-115 (7); and(C)
Whether procedural safeguards to preserve parental rights have been applied in connection with the removal of the juvenile from the home, any change in the juvenile’s placement in a community placement, or any determination affecting family time of the juvenile.(b)
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[Editor’s note:(b)
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[Editor’s note:(II)
If a juvenile has been ordered detained pending an adjudication, disposition, or other court hearing, and the juvenile subsequently appears to have a mental health disorder, as described in section 27-65-106, the intake personnel or other appropriate personnel shall contact the court with a recommendation for a mental health hospital placement prescreening. A mental health hospital placement prescreening must be conducted at any appropriate place accessible to the juvenile and the mental health professional within twenty-four hours after the request, excluding Saturdays, Sundays, and legal holidays.(III)
When the mental health professional finds, as a result of the prescreening, that the juvenile may have a mental health disorder, the mental health professional shall recommend to the court that the juvenile be evaluated pursuant to section 27-65-106.(IV)
Nothing in this subsection (3)(b) precludes the use of procedures for an emergency mental health hold pursuant to section 27-65-106 (1)(a).(c)
Intentionally left blank —Ed.(I)
A juvenile taken to a detention or temporary shelter facility or a temporary holding facility pursuant to section 19-2.5-209 as the result of an allegedly delinquent act that constitutes any of the offenses described in subsection (3)(a)(V) of this section must not be released from such facility if a law enforcement agency has requested that a detention hearing be held to determine whether the juvenile’s substantial risk of serious harm to others requires that the juvenile be detained. A juvenile must not be released from detention except after a hearing, reasonable advance notice of which has been given to the district attorney, alleging new circumstances concerning the juvenile’s further detention.(II)
Following a detention hearing held in accordance with subsection (3)(c)(I) of this section, a juvenile who is to be tried as an adult for criminal proceedings pursuant to a direct filing or transfer must not be held at any adult jail or pretrial facility unless the district court finds, after a hearing held pursuant to subsection (3)(c)(IV), (3)(c)(V), or (3)(c)(VI) of this section, that an adult jail is the appropriate place of confinement for the juvenile.(III)
In determining whether an adult jail is the appropriate place of confinement for the juvenile, the district court shall consider the following factors:(A)
The juvenile’s age;(B)
Whether, in order to provide physical separation from adults, the juvenile would be deprived of contact with other people for a significant portion of the day or would not have access to recreational facilities or age-appropriate educational opportunities;(C)
The juvenile’s current emotional state, intelligence, and developmental maturity, including any emotional and psychological trauma, and the risk to the juvenile caused by placement in an adult jail, which risk may be evidenced by mental health or psychological assessments or screenings made available to the district attorney and to defense counsel;(D)
Whether detention in a juvenile facility will adequately serve the need for community protection pending the outcome of the criminal proceedings;(E)
Whether detention in a juvenile facility will negatively impact the functioning of the juvenile facility by compromising the goals of detention to maintain a safe, positive, and secure environment for all juveniles within the facility;(F)
The relative ability of the available adult and juvenile detention facilities to meet the juvenile’s needs, including the juvenile’s need for mental health and educational services;(G)
Whether the juvenile presents an imminent risk of serious harm to others within a juvenile facility;(H)
The juvenile’s physical maturity; and(I)
Any other relevant factors.(IV)
After charges are filed directly in district court against a juvenile pursuant to section 19-2.5-801 or a juvenile is transferred to district court pursuant to section 19-2.5-802, the division of youth services may petition the district court to transport the juvenile to an adult jail. The district court shall hold a hearing on the place of pretrial detention for the juvenile as soon as practicable, but no later than twenty-one days after the receipt of the division’s petition to transport. The district attorney, sheriff, or juvenile may file a response to the petition and participate in the hearing. The juvenile remains in a juvenile detention facility pending hearing and decision by the district court.(V)
If a juvenile is placed in the division of youth services and is being tried in district court, the division of youth services may petition the court for an immediate hearing to terminate juvenile detention placement if the juvenile’s placement in a juvenile detention facility presents an imminent danger to the other juveniles or to staff at the detention facility. In making its determination, the court shall review the factors set forth in subsection (3)(c)(III) of this section.(VI)
If, after the initial hearing, the district court determines that an adult jail is the appropriate place of confinement for the juvenile, the juvenile may petition the court for a review hearing. The juvenile may petition for a review hearing within thirty days after the initial confinement decision or within thirty days after any subsequent review hearing. Upon receipt of the petition, the court may set the matter for a hearing if the juvenile has alleged facts or circumstances that, if true, would warrant reconsideration of the juvenile’s placement in an adult jail based upon the factors set forth in subsection (3)(c)(III) of this section and the factors previously relied upon by the court. The court shall, upon petition of the juvenile, hold a hearing to review whether continuing to permit the juvenile to be held in an adult jail or to have sight or sound restriction serves the interest of justice. The juvenile shall not be held in any adult jail or lockup, or be permitted to have sight or sound contact with adult inmates, for more than one hundred eighty consecutive days, unless the court, in writing, determines there is good cause for an extension or the juvenile expressly waives this limitation.(VII)
If the court must determine that it is in the interest of justice to detain a juvenile pursuant to the factors set forth in subsection (3)(c)(III) of this section, the court shall hold a hearing at least every thirty days, or at least every forty-five days in a rural jurisdiction, to review whether it is still in the interest of justice to continue to detain the juvenile in an adult jail. The review hearings may occur by paper if the juvenile does not petition the court for a review hearing.(VIII)
The maximum amount of time that a juvenile charged as an adult may be detained in an adult jail is one hundred eighty days, unless the court determines, in writing, that there is good cause for an extension, or the juvenile expressly waives the one-hundred-eighty-day limit. If the court holds a good cause hearing to establish the juvenile’s continued detention in the adult jail, the court shall proceed with holding thirty- and forty-five-day review hearings as required by subsection (3)(c)(VII) of this section.(4)
Intentionally left blank —Ed.(a)
A jail shall not receive a juvenile for detention following a detention hearing pursuant to this section unless the juvenile has been ordered by the court to be held for criminal proceedings as an adult pursuant to a transfer or unless the juvenile is to be held for criminal proceedings as an adult pursuant to a direct filing. A juvenile under the age of fourteen and, except upon order of the court, a juvenile fourteen years of age or older, shall not be detained in a jail, lockup, or other place used for the confinement of adult offenders. The exception for detention in a jail applies only if the juvenile is being held for criminal proceedings as an adult pursuant to a direct filing or transfer.(b)
Whenever a juvenile is held pursuant to a direct filing or transfer in a facility where adults are held, the juvenile must be physically segregated from the adult offenders.(c)
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When a juvenile who is to be held for criminal proceedings as an adult pursuant to a direct filing or transfer of charges, as provided in sections 19-2.5-801 and 19-2.5-802, respectively, is received at a jail or other facility for the detention of adult offenders, the official in charge of the jail or facility, or the official’s designee, shall, as soon as practicable, contact the person designated pursuant to section 22-32-141, by the school district in which the jail or facility is located to request that the school district provide educational services for the juvenile for the period during which the juvenile is held at the jail or facility. The school district shall provide the educational services in accordance with section 22-32-141. The official, in cooperation with the school district, shall provide an appropriate and safe environment to the extent practicable in which the juvenile may receive educational services.(II)
Notwithstanding subsection (4)(c)(I) of this section, if either the official in charge of the jail or facility or the school district determines that an appropriate and safe environment cannot be provided for a specific juvenile, the official and the school district are exempt from the requirement to provide educational services to the juvenile until such time as an environment that is determined to be appropriate and safe by both the official and the school district can be provided. If the school district will not be providing educational services to a juvenile because of the lack of an appropriate and safe environment, the official in charge of the jail or facility shall notify the juvenile, the juvenile’s parent or legal guardian, the juvenile’s defense attorney, and the court having jurisdiction over the juvenile’s case.(III)
The official in charge of the jail or facility for the detention of adult offenders, or the official’s designee, in conjunction with each school district that provides educational services at the jail or facility, shall annually collect nonidentifying data concerning:(A)
The number of juveniles held at the jail or facility who are awaiting criminal proceedings as an adult pursuant to a direct filing or transfer of charges, pursuant to sections 19-2.5-801 and 19-2.5-802, respectively, for the year;(B)
The length of stay of each of the juveniles in the jail or facility;(C)
The number of the juveniles in the jail or facility who received educational services pursuant to this subsection (4)(c);(D)
The number of days on which school districts provided educational services to the juveniles in the jail or facility and the number of hours for which school districts provided the educational services each day;(E)
The number of juveniles in the jail or facility who were exempt from receiving educational services pursuant to section 22-32-141 (2)(c), (2)(e), (2)(f), and (2)(g);(F)
The number of juveniles in the jail or facility who had previously been determined pursuant to section 22-20-108 to be eligible for special education services and had an individualized education program; and(G)
The number of juveniles in the jail or facility who, while receiving educational services at the jail or facility, were determined to be eligible for special education services pursuant to section 22-20-108 and had subsequently received an individualized education program.(IV)
The official in charge of the jail or facility shall submit the information collected pursuant to subsection (4)(c)(III) of this section to the division of criminal justice in the department of public safety. The division of criminal justice shall make the information available to a member of the public upon request.(d)
The official in charge of a jail or other facility for the detention of adult offenders shall immediately inform the court that has jurisdiction of the juvenile’s alleged offense when a juvenile who is or appears to be under eighteen years of age is received at the facility, except for a juvenile ordered by the court to be held for criminal proceedings as an adult.(e)
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Any juvenile arrested and detained for an alleged violation of any article of title 42, or for any alleged violation of a municipal or county ordinance, and not released on bond, must be taken before a judge with jurisdiction of such violation within forty-eight hours for the fixing of bond and conditions of bond pursuant to subsection (3)(a)(VII) of this section. A juvenile may be detained in a jail, lockup, or other place used for the confinement of adult offenders only for processing for no longer than six hours and during such time must be placed in a setting that is physically segregated by sight and sound from the adult offenders, and in no case may the juvenile be detained in such place overnight. After six hours, the juvenile may be further detained only in a juvenile detention facility operated by or under contract with the department of human services. In calculating time pursuant to this subsection (4), Saturdays, Sundays, and legal holidays are included.(II)
A sheriff or police chief who violates subsection (4)(e)(I) of this section may be subject to a civil fine of no more than one thousand dollars. The decision to fine must be based on prior violations of subsection (4)(e)(I) of this section by the sheriff or police chief and the willingness of the sheriff or police chief to address the violations in order to comply with subsection (4)(e)(I) of this section.(f)
The official in charge of a jail, lockup, or other facility for the confinement of adult offenders that receives a juvenile for detention should, wherever possible, take such measures as are reasonably necessary to restrict the confinement of any such juvenile with known past or current affiliations or associations with any gang so as to prevent contact with other inmates at such jail, lockup, or other facility. The official should, wherever possible, also take such measures as are reasonably necessary to prevent recruitment of new gang members from among the general inmate population. For purposes of this subsection (4)(f), “gang” is defined in section 19-2.5-102.(g)
A person who is eighteen years of age or older who is being detained for a delinquent act or criminal charge over which the juvenile court has jurisdiction, or for which charges are pending in district court pursuant to a direct filing or transfer if the person has not already been transferred to the county jail pursuant to subsection (3)(c)(IV) of this section, must be detained in the county jail in the same manner as if such person is charged as an adult.(h)
A juvenile court shall not order a juvenile offender who is under eighteen years of age at the time of sentencing to enter a secure setting or secure section of an adult jail or lockup as a disposition for an offense or as a means of modifying the juvenile offender’s behavior.(5)
A juvenile has the right to bond as limited by this section.(6)
Except for a juvenile described in section 19-2.5-304 (2), the court may also issue temporary orders for legal custody pursuant to section 19-1-115.(7)
Any law enforcement officer, employee of the division of youth services, or another person acting under the direction of the court who in good faith transports any juvenile, releases any juvenile from custody pursuant to a written policy of a court, releases any juvenile pursuant to any written criteria established pursuant to this title 19, or detains any juvenile pursuant to court order or written policy or criteria established pursuant to this title 19 is immune from civil or criminal liability that might otherwise result by reason of such act. For purposes of any proceedings, civil or criminal, the good faith of any such person is presumed.(8)
Intentionally left blank —Ed.(a)
A juvenile who allegedly commits a status offense or is convicted of a status offense must not be held in a secure area of a jail or lockup.(b)
A sheriff or police chief who violates subsection (8)(a) of this section may be subject to a civil fine of no more than one thousand dollars. The decision to fine must be based on prior violations of subsection (8)(a) of this section by the sheriff or police chief and the willingness of the sheriff or police chief to address the violations in order to comply with subsection (8)(a) of this section.
Source:
Section 19-2.5-305 — Detention and shelter - hearing - time limits - findings - review - guardian ad litem appointed - confinement with adult offenders - restrictions, https://leg.colorado.gov/sites/default/files/images/olls/crs2023-title-19.pdf (accessed Oct. 20, 2023).
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