6001310 Department of Youth Rehabilitation Services - Notice of Second Proposed Rulemaking - Amendments to Chapter 12 Title 29  

  • DEPARTMENT OF YOUTH REHABILITATION SERVICES

     

    NOTICE OF SECOND PROPOSED RULEMAKING

     

    The Director of the District of Columbia Department of Youth Rehabilitation Services (“DYRS”), pursuant to the authority set forth in Section 108(h)(3) of the Department of Youth Rehabilitation Services Establishment Act of 2004, effective April 12, 2005 (D.C. Law 15-335; D.C. Official Code § 2-1515.08(h)(3) (2012 Repl.)), hereby gives notice of intent to amend Chapter 12 (Community Placement of Juvenile Offenders) of Title 29 (Public Welfare) of the District of Columbia Municipal Regulations (“DCMR”).

     

    This rulemaking updates the guidelines for regulating community service programs for youth committed to the legal custody of DYRS by the D.C. Superior Court.

     

    The first Notice of Proposed Rulemaking was published on June 12, 2015 in the D.C. Register at 62 DCR 8326. The Department received written comments from The Public Defender Service, writing on behalf of the Juvenile Justice Clinic at Georgetown University Law Center, Open City Advocates, Free Minds Book Club & Writing Workshop, D.C. Lawyers for Youth, Center for Children’s Law and Policy, School Justice Project, Inc., and Sasha Bruce Youthwork, Inc. As a result of the comments received, the Department made the following changes to the proposed rules:

     

    1.                  The Department removed the word “Failure” and added the phrase, “If the youth refuses…” in Subsection 1201.9. The Department also added “until such time as the document is signed” to the end of Subsection 1201.9.

    2.                  The Department removed “charged with” and replaced it with “arrested for” in Subsection 1203.1.

    3.                  The Department removed the phrase “an independent” and added the word, “a” in Subsection 1204.1(d). The Department removed, “failed to comply with all federal, state and local laws, rules and regulations as required by the CPA and no additional hearing need be held by DYRS to determine whether the youth violated the terms of his or her CPA.  Rather, a hearing will be held only to determine the appropriate level of placement based upon the violation” and added, “should remain securely detained throughout the pendency of the new case. DYRS shall consider such order when determining whether there is probable cause to securely hold the youth in the underlying commitment matter” in Subsection 1204.1(e).

    4.                  The Department removed “on level of placement” in Subsection 1204.1(g).

    5.                  The Department added “are unavailable at the date and time for which the hearing is scheduled” in Subsection 1204.1(m).

    6.                  The Department also added paragraph 1204.1(n) to Subsection 1204.1. This paragraph states, “DYRS may continue the hearing for up to an additional (2) business days if the requisite DYRS representative is unavailable at the date and time for which the hearing is scheduled.”

    7.                  The Department removed “provided” and replaced it with “present” in Subsection 1207.8. The Department also removed the word “its” and replaced it with “his” and deleted the phrase “whether counsel will be provided” in Subsection 1207.8. The Department went on to combine parts of the former Subsection 1207.9 with the current Subsection 1207.8. This resulted in renumbering for the following original sections: 1207.10; 1207.11; 1207.12; 1207.13 and 1207.14. Subsection 1207.8 now includes the following language: “…the hearing shall or shall not proceed. The hearing officer shall state his or her reasons for the decision in writing and provide a copy to the youth and his or her parent, guardian, or responsible adult.”

    8.                  The Department replaced the word “placement” with “restrictiveness” in the former Subsection 1207.10, current Subsection 1207.9.

    9.                  The Department replaced the word “placement” with “restrictiveness” in the former Subsection 1207.14, current Subsection 1207.12.

    10.              The Department added three paragraphs to Subsection 1208.9.

    11.              The Department added the phrase “should be securely held and DYRS shall abide by such determination” to the new Subsection 1208.9(a).

    12.              The Department added the phrase “If the youth is adjudicated or convicted in the new case, this shall establish that the youth has” to the new Subsection 1208.9(b).

    13.              The Department added “Upon request, DYRS shall provide an opportunity to hear recordings to the youth, his attorney of record, or stand-in counsel” to Subsection 1210.2.

    14.              The Department added “licensed within the District of Columbia” to Subsection 1210.3.

    15.              The Department added “requests for” to Subsection 1210.8. The Department also added “The hearing officer may grant continuances, without the request of either party, at his sole discretion for the administration and pursuit of justice and/or fairness to the parties or the hearing process. If the youth is securely detained, all hearings must occur within five (5) business days regardless of the grant of any continuances” to Subsection 1210.8.

    16.              The Department added “The hearing officer may deliberate to consult with clinicians, experts, and others prior to making a determination as to the appropriate sanction and/or level of restrictiveness” to Subsection 1210.18.

    17.              The Department added “in the hearing room” and “also” to Subsection 1211.1. The Department deleted “The hearing officer’s decision will become final at the end of five (5) business days should the Director not exercise his right to review the hearing officer’s decision” from Subsection 1211.1.

    18.              The Department replaced the word “placement” with “restrictiveness” in Subsection 1211.2.

    19.              The Department replaced the phrase “Director may review any placement decision” with “Agency may appeal the decision of the hearing officer within five (5) business days of the hearing officer’s final decision” in Subsection 1211.6.

    20.              The Department replaced the word “the” with “any” in Subsection 1211.8. The Department added “If only the Agency or the youth appeals the results of the Community Status Review Hearing, the Director may only affirm or lower the hearing officer’s determination on level of restrictiveness. If both the Agency and the youth appeal the decision, the Director may impose the full range of placement level determinations” to Subsection 1211.8.

    21.              The Department replaced “placement determination. The Director may impose a higher level of placement than that recommended by the hearing officer” with “restrictiveness determination” in Subsection 1211.9.

    22.              The Department deleted “at risk of imminent flight;” in Subsection 1212.1.

    23.              The Department added “A youth held under Section 1212 requires the approval of the Head of the Case Management Division or designee” in Subsection 1212.1.

    24.              The Department added the word “Emergency” in Subsection 1212.2.

    25.              The Department added “The hearing officer may determine that the emergency nature of the request will require the Emergency Community Status Review Hearing to occur on a Saturday or Sunday” in Subsection 1212.3.

    26.              The Department added “‘Awaiting Placement’: an agency status classification that occurs when a youth is waiting to be placed in a specific rehabilitative placement” in Section 1299.

    27.              The Department added “‘Community Status Review Specialist’: a DYRS employee responsible for overseeing the Community Status Review process, including scheduling hearings and ensuring written decisions are delivered in a timely manner in accordance with these regulations” in Section 1299.

    28.              The Department added “‘Safety Risk’: a determination by the agency made when there is credible evidence or a good faith belief that a youth either poses as a threat to the community or his or her life or well-being is threatened when in the community” in Section 1299.

    29.              The Department replaced “Adam Al-Joburi, Legislative Affairs Specialist, Department of Youth Rehabilitation Services, 450 H Street, N.W., 9th Floor, Washington, D.C. 20001, or by e-mail to adam.aljoburi@dc.gov” with “Lindsey Appiah, Acting General Counsel, Department of Youth Rehabilitation Services, 450 H Street, N.W., 9th Floor, Washington, D.C. 20001, or by e-mail to lindsey.appiah@dc.gov” in Section 1299.

     

    The Director also gives notice of the intent to adopt these rules as final, in not less than thirty (30) days after publication of this notice in the D.C. Register.

     

    Chapter 12, COMMUNITY PLACEMENT OF JUVENILE OFFENDERS, of Title 29 DCMR, PUBLIC WELFARE, is amended as follows:

     

    1200                GENERAL PROVISIONS

     

    1200.1             The Department of Youth Rehabilitation Services (DYRS) shall administer community service programs for delinquents and persons in need of supervision (PINS) who are committed to the legal custody of DYRS by the D.C. Superior Court.

     

    1200.2             The provisions of this chapter apply to the supervision and treatment of youth in community placements including: group homes, therapeutic group homes, the youth's own home, a foster home, or similar community placements.

     

    1200.3             DYRS retains jurisdiction over the community placement status of youth committed to the agency’s custody until one (1) of the following occurs:

     

    (a)        The commitment is terminated by DYRS;

     

    (b)        The commitment expires; or

     

    (c)        The Court terminates its jurisdiction.

     

    1200.4             Nothing in these regulations shall be deemed to limit DYRS’ authority to act in accordance with those statutorily mandated responsibilities outlined in the Department of Youth Rehabilitation Services Establishment Act of 2005, effective April 12, 2005 (D.C. Law 15-335; D.C. Official Code §§ 2-1515.01 et seq.), and specifically Section 2(h) of the Act (D.C. Official Code § 2-1515.05(h)), which authorizes DYRS to take any action necessary to ensure the safety and well-being of youth in the Department’s custody. DYRS shall have sole discretion to make specific placement decisions for youth committed to its custody. In the Matter of J.M.W., 411 A.2d 345 (D.C. 1980) and In Re P.S., 821 A.2d 905 (D.C. 2003).

     

    1200.5             The community placement program shall be an alternative to placement in a secure facility. The program consists of placing youth in the least restrictive environment consistent with the youth’s needs and public safety while being closely supervised by trained DYRS staff.

     

    1200.6             Not all youth will benefit from a community placement, and a certain number will commit additional offenses or breaches of their Community Placement Agreement that warrant a thorough review of their community status.  In addition, some youth may need a review of their community status for reasons other than for behavior contrary to public safety or breaches of the terms of their Community Placement Agreement.

     

    1200.7             This chapter establishes a review process to determine whether continued community placement best services the youth’s needs and public safety.

     

    1200.8             DYRS shall follow the procedures set forth in this chapter when reviewing a youth’s community placement.

     

    1200.9             This chapter sets forth the process for:

     

    (a)        Reviewing the status of youth in community placement; and

     

    (b)        Determining whether to place a youth in a secure facility or another more restrictive placement;

     

    (c)        Permitting the youth to remain in the community under conditions articulated in a revised Community Placement Agreement; or

     

    (d)       Temporarily removing a youth from the community without a hearing with the youth’s consent when necessary for safety reasons or while awaiting placement in another facility or setting.

     

    1200.10           A youth who is non-English speaking, deaf, or because of a hearing or other communication impediment cannot readily understand or communicate by spoken English, may request that the agency appoint a qualified interpreter. Upon such a request, the agency will provide a qualified interpreter.

     

    1200.11           A parent, guardian, or responsible adult who is non-English speaking, deaf, or because of a hearing or other communication impediment cannot readily understand or communicate by spoken English, may request that the agency  appoint a qualified interpreter.  The agency’s decision whether or not to appoint a qualified interpreter does not provide the parent, guardian, or responsible adult any rights or remedies not otherwise available by law.

     

    1200.12           Unless the delay would result in undue prejudice to the youth, a failure of DYRS to meet any of the deadlines established within any part of these regulations shall not affect the agency’s decision to conduct a community status review and/or community status review hearing.

     

    1201                COMMUNITY PLACEMENT AGREEMENTS

     

    1201.1             DYRS shall only place youth in a community placement after a determination that such a placement is the least restrictive environment consistent with public safety and with the Department of Youth Rehabilitation Services Establishment Act of 2005, effective April 12, 2005 (D.C. Law 15-335; D.C. Official Code §§ 2-1515.01 et seq.), and  D.C. Official Code § 16-2301.02.

     

    1201.2             DYRS case workers shall work closely with youth in a community placement and their families and/or responsible adult(s) to provide those services necessary for rehabilitation to take place.

     

    1201.3             Each youth shall adhere to the specific terms of his/her Community Placement Agreement (CPA). The terms shall include, but not be limited to, the following:

     

    (a)        Attending school or work regularly;

     

    (b)        Meeting curfews;

     

    (c)        Refraining from the illegal use of controlled substances;

     

    (d)       Complying with all federal, state and local laws, rules and regulations; and

     

    (e)        Abiding by all court orders and directives of DYRS case management staff.

     

    1201.4             The DYRS Case Worker shall thoroughly explain the terms of the CPA to the youth and the youth shall sign the CPA as a condition of DYRS placing the youth in the community.

     

    1201.5             The DYRS Case Worker shall make reasonable efforts to discuss the agreement with the youth’s family or the responsible adult and/or counsel of record.

     

    1201.6             Counsel of record or alternate counsel may sign the CPA after consultation with the youth if the parent, guardian or responsible adult is unavailable.  Counsel shall not be called as a witness against the youth if the youth is later alleged to have violated the agreement.

     

    1201.7             Where the youth’s community placement is a private residence, the DYRS Case Worker shall thoroughly explain the terms of the agreement with the youth and his or her parent or guardian if the youth will reside at home or the responsible adult if the youth will reside in an alternate private residence. 

     

    1201.8             The youth and parent, guardian, or responsible adult shall sign the CPA as a condition of DYRS placing the youth in a private residence.

     

    1201.9             The youth shall sign a new CPA whenever the level of restrictiveness is changed.  If the youth refuses to sign the new CPA, the youth will be placed in secure placement until such time as the document is signed

     

    1201.10           Failure to comply with terms of the CPA may result in the youth being placed in an alternative community placement and/or the youth’s community placement being rescinded.

     

    1202                RESCISSION OF COMMUNITY PLACEMENT STATUS

     

    1202.1             DYRS shall hold youth who have entered into a CPA accountable for behavior contrary to public safety or the terms of the CPA.

     

    1202.2             DYRS shall initiate a review of a youth’s community placement status within three (3) business days of the Agency receiving notification that a committed youth has been arrested, and shall convene a Community Status Review Hearing when DYRS becomes aware that a committed youth has been arrested, for the commission, attempted commission, or conspiracy to commit any of the following:

     

    (a)        Homicide or assault with intent to commit homicide;

     

    (b)        Sexual abuse in the 1st or 2nd degree, child sexual abuse, or assault with intent to commit one of these offenses;

     

    (c)        Robbery, robbery while armed, assault with intent to commit robbery while armed;

     

    (d)       Carjacking; Armed Carjacking

     

     (e)       Escape;

     

     (f)       Burglary;

     

     (g)       Kidnapping;

     

     (h)       Arson;

     

     (i)        Malicious disfigurement; or

     

     (j)        Mayhem.

     

    1202.3             DYRS shall initiate a review of the youth’s community status within three (3) business days of learning of any of the below violations and may convene a Community Status Review Hearing if:

     

    (a)        DYRS becomes aware that a youth has violated two or more terms of his/her CPA;

     

    (b)        DYRS becomes aware that a youth has violated a single term of his/her CPA at least twice;

     

    (c)        DYRS becomes aware that a youth has unjustifiably absconded from the placement specified in the CPA;

     

    (d)       The DYRS Case Worker determines, based upon a complete evaluation of the youth's performance under the CPA, that he or she should initiate the Community Status Review process; or

     

    (e)        A youth is unsuccessfully discharged from a Community Placement.

               

    1203                COMMUNITY STATUS REVIEW

     

    1203.1             The DYRS Case Worker responsible for the youth who is arrested for any offense cited in Subsection 1202.2, shall process the documentation for a Community Status Review Hearing within five (5) business days of notification of the youth being arrested or the latest CPA violation.

     

    1203.2             During the five (5) business days mentioned in Subsection 1203.1, the DYRS Case Worker shall complete all documentation, including a recommendation for the Community Status Review Hearing, and meet with the appropriate supervisor.

     

    1203.3             If a police report is provided, it shall also be included in the transmitted documentation. If the case worker does not have a copy of a police report, the documentation shall indicate the source of the information upon which the Case Worker is relying.

     

    1203.4             The DYRS Case Worker Supervisor or designee shall review services provided to the youth and the basis for the Case Worker’s recommendation.

     

    1203.5             The DYRS Case Worker Supervisor or designee, after his or her review, may recommend that:

     

    (a)        The DYRS Case Worker implement additional services;

     

    (b)        A Team Decision Making (TDM) Meeting be held; or

     

    (c)        The youth’s status be reviewed at a Community Status Review Hearing.

     

    1203.6             The DYRS Case Worker Supervisor or designee shall transmit all of the documentation to the Case Management Division Program Manager or designee.  This documentation shall detail the circumstances of the arrest, charges, or violations of the Community Release Agreement including:

     

    (a)        The date and time of the offense(s) or violation(s);

     

    (b)        The report of the arresting officer, if applicable;

     

    (c)        The nature and seriousness of the charge(s), arrest, or CPA violation(s);

     

    (d)       The progress of the youth in community placement before the offense or CPA violation took place;

     

    (e)        A copy of the CPA with required signatures; and

     

    (f)        The Case Worker’s effort to identify and secure additional or alternative services that might be provided to the youth in the community, if applicable.

     

    1203.7             The DYRS Case Worker Supervisor or designee shall send the documentation to the Case Management Division Program Manager or designee explaining the decision to convene a Community Status Review Hearing within one (1) business day of the DYRS Case Worker meeting with the appropriate supervisor. The DYRS Case Worker shall place the documentation in the youth’s case file.  No more than six (6) business days should pass between the time DYRS is informed of the charge or violation and when the case manager transmits the documentation to the Case Management Division Program Manager or designee.

     

    1204                EMERGENCY REMOVALS

     

    1204.1             The following procedures shall apply to Emergency Removals Without the Youth’s Consent:

     

    (a)        The DYRS Case Worker shall remove the youth from his or her placement, and place the youth in a secure DYRS facility, emergency shelter, in-patient drug treatment or appropriate medical or mental health facility when a youth in a community placement presents a clear and present danger to himself, herself, or others, or when there are valid safety concerns and requires immediate removal from a community placement.

     

    (b)        The DYRS Case Worker shall request a custody order from the court for the youth so that the Metropolitan Police Department (“MPD”) has the authority to take the youth into custody if the youth is unwilling to be removed by the DYRS Case Worker.

     

    (c)        The Case Worker shall provide the Head of the Case Management Division or designee with a summary of the basis for the youth’s removal.

     

    (d)       The Head of the Case Management Division or designee shall make a probable cause determination based on the DYRS Case Worker’s documentation within one (1) business day of the youth being removed.

     

    (e)        A court order mandating that a youth be securely detained in a new case establishes probable cause that the youth should remain securely detained throughout the pendency of the new case. DYRS shall consider such order when determining whether there is probable cause to securely hold the youth in the underlying commitment matter.

     

    (f)        If there is no court order mandating that a youth be securely detained in a new case, a Community Status Review Hearing shall convene within five (5) business days of a youth’s emergency removal if the Head of the Case Management Division or designee determines that there is probable cause to believe that the youth violated the terms of his or her CPA and that he or she is a clear and present danger and requires immediate removal from a community placement.

     

    (g)        DYRS shall provide notice of the Community Status Review Hearing to the youth and counsel of record, or if counsel of record is unavailable, then alternate counsel, in any manner reasonably calculated to put the receiving party on notice, including, but not limited to, actual notice; notice by hand-delivery; electronic mail; facsimile; registered or certified mail, overnight express delivery; or return receipt requested. 

     

    (h)        DYRS shall return the youth to his or her community placement if the Head of the Case Management Division or designee determines that there is no probable cause to securely confine the youth.

     

    (i)         The Case Worker may request a Community Status Review Hearing in accordance with Subsection 1202.3, in cases where the Head of Case Management or designee has found that there is not a need for the youth to be immediately removed from a community placement pending a community status review hearing.

     

    (j)         Where DYRS has placed a youth with a parent(s), guardian(s), or responsible adult(s), DYRS shall make all reasonable efforts to provide notice of the Community Status Review Hearing to the youth’s parent(s), guardian(s), or responsible adult(s).

     

    (k)        DYRS shall make a note in the youth’s case file indicating who provided notice to the youth and counsel, and in what manner such notice was provided.

     

    (l)         DYRS shall notify the Office of the Attorney General, Juvenile Section of the emergency removal and the date and time of the hearing.

     

    (m)       DYRS may continue the hearing for up to an additional five (5) business days if either the counsel of record or alternate counsel are unavailable at the date and time for which the hearing is scheduled.

     

    (n)        DYRS may continue the hearing for up to an additional (2) business days if the requisite DYRS representative is unavailable at the date and time for which the hearing is scheduled.

     

    1204.2             The following procedures shall apply to Emergency Removals with the Youth’s Consent:

     

    (a)        With the consent of a youth who requires in-patient drug treatment, medical or mental health treatment, or who presents a clear and present danger to himself, herself, or others, the DYRS Case Worker shall remove the youth from his or her placement, and place the youth in a secure DYRS facility, emergency shelter, in-patient drug treatment or appropriate medical or mental health facility.  Youth must be given an opportunity to consult with counsel of record, or alternate counsel, if counsel of record is unavailable prior to signing a written waiver indicating consent.

     

    (b)        If a youth is removed from his or her community placement pursuant to Subsection 1204.2(a), and is admitted to an in-patient drug, medical, mental health facility or similar in-patient facility for treatment, the DYRS Case Worker, the youth, and parent, guardian, or responsible adult, or counsel of record, or alternate counsel, if the youth’s counsel of record is unavailable, shall sign a written waiver of a Community Status Review Hearing.

     

    (c)        Waivers should be obtained by the DYRS Case Worker in accordance with those procedures outlined in Subsection 1213.

     

    (d)       The Case Worker shall place the signed waiver form, in the youth’s case file.

     

    (e)        Upon the youth’s successful discharge from the above-described placement, a youth’s community placement status is not revoked. The youth shall:

     

    (1)        Return to the placement he or she enjoyed immediately prior to the treatment; or

     

    (2)        Return to a placement with the same or lower level of restrictiveness.

     

    (f)        If the youth is not successfully discharged from the above-described placement, the youth is subject to a review of his/her community placement status and may face rescission of such status. 

     

    1205                RECOMMENDATION OF CASE MANAGEMENT DIVISION PROGRAM MANAGER

     

    1205.1             A Case Management Division Program Manager or designee shall review the request for Community Status Review Hearing and accompanying documents, and make an independent decision regarding the need for a hearing.

     

    1205.2             If the Case Management Division Program Manager or designee concurs with the basis for convening a Community Status Review Hearing, he or she may recommend to the Head of the Case Management Division that there is a sufficient basis to schedule a Community Status Review Hearing.

     

    1205.3             If the Case Management Division Program Manager or designee disagrees with the basis for initiating the Community Status Review Hearing, he or she may use discretion to request that the Case Worker convene a Team Decision Making meeting or make referrals for the youth for alternative community services.

     

    1205.4             The Case Management Division Program Manager or designee shall document the basis for the conclusion that he or she reaches under §§ 1205.1 or 1205.2 and shall include that documentation in the youth’s case file.

     

    1206                RECOMMENDATION OF DYRS CASE MANAGEMENT DIVISION

     

    1206.1             The final decision to schedule a Community Status Review Hearing shall be made by the Head of the Case Management Division or designee. After receiving the recommendation from the Case Management Division Program Manager or designee, the Head of the Case Management Division or designee shall make a determination. A notation should be made in the youth’s record indicating the final decision of the Head of the Case Management Division.

     

    1206.2             If the Head of the Case Management Division or designee concurs, he or she shall contact the Community Status Review Specialist or designee the same business day and follow the procedures set forth in §§ 1207, 1208, 1210 and 1211.

     

    1206.3             If the Head of the Case Management Division or designee disagrees with the recommendation to schedule a Community Status Review Hearing, he or she shall notify the Office of the Attorney General; and in instances of serious charges and emergency removal, the youth and the youth’s counsel. After consultation, the Head of the Case Management Division or designee may use his or her discretion to require the Case Worker to convene a Team Decision Making Meeting or implement alternative community services.

     

    1207                NOTICE OF COMMUNITY STATUS REVIEW HEARING

     

    1207.1             After receiving the recommendation of the Head of the Case Management Division or designee, an official notice of the time, place and location of the Community Status Review Hearing shall be provided to the youth, the youth's parent(s), guardian(s), or responsible adult(s), and counsel of record, or alternate counsel, if counsel is unavailable, by the Community Status Review Specialist.

     

    1207.2             The Community Status Review Specialist or designee shall also send a copy of the police report, if applicable, the CPA, the DYRS Case Worker’s recommendation, the decision to proceed with the hearing, and any relevant reports included in the request for a hearing packet to the youth’s counsel or representative.

     

    1207.3             Upon request of the youth, the counsel of record or alternate counsel may review the youth’s case file in accordance with Section 106 of the Department of Youth Rehabilitation Services Establishment Act of 2005, effective April 12, 2005 (D.C. Law 15-335; D.C. Official Code § 2-1515.06), and D.C. Official Code Sections 16-2331, 16-2332 and 16-2333.

     

    1207.4             The notice to those specified in Subsection 1207.1 may be made in any manner reasonably calculated to put the receiving party on notice of the hearing, and may include, but is not limited to actual notice; notice by hand-delivery; electronic mail; facsimile;  registered or certified mail, overnight express delivery, or return receipt requested. 

     

    1207.5             DYRS shall make a note in the youth’s case file indicating who provided notice to the youth and counsel, and in what manner such notice was provided.

     

    1207.6             Notice of any Community Status Review Hearing shall be sent to the Juvenile Section Chief for the Office of the Attorney General when:

     

    (a)        The youth is already committed to DYRS for any felony offense as defined in D.C. Official Code § 23-1331(3) or D.C. Official Code § 23-1331(4); or

     

    (b)        The youth has been charged with any felony offense as a juvenile or as an adult as defined in D.C. Official Code § 23-1331(3) and D.C. Official Code § 23-1331(4).

     

    1207.7             A youth may be represented at the hearing by parents, legal counsel, or any other adult who is not employed by DYRS.

     

    1207.8             If a youth requests that counsel be present, the hearing officer shall review the request and, in his discretion, decide whether the hearing shall or shall not proceed. The hearing officer shall state his or her reasons for the decision in writing and provide a copy to the youth and his or her parent, guardian, or responsible adult.

     

    1207.9             The hearing officer will only consider evidence which is relevant to the charges or violations that have made the hearing necessary and appropriate level of restrictiveness.

     

    1207.10           The preponderance of the evidence shall be the standard of proof the hearing officer shall use in weighing testimony about the charges or violations.

     

    1207.11           After all testimony has been heard, the hearing officer shall weigh the evidence and arguments, if any, and reach a decision.

     

    1207.12           If the hearing officer finds that a youth violated his or her CPA, the officer shall consider all relevant information to assist in making a determination as to the appropriate sanction and/or level of restrictiveness.

     

    1208                FAILURE TO APPEAR AT A HEARING AND ABSCONDENCE

    1208.1             After receiving notice in accordance with § 1207, if the youth fails to appear for a Community Status Review Hearing at the stated time and place specified, the DYRS Case Worker responsible for the youth shall do the following:

     

    (a)        Request a custody order for the apprehension and return of the youth to the appropriate facility for failing to comply with official notice to appear at a given time and location;

     

    (b)        Note in the youth’s next progress report that the youth violated the CPA by failing to appear at the hearing; and

     

    (c)        Begin intensive efforts to locate the youth and return him or her to the appropriate facility. The DYRS Case Manager may ask for police assistance in apprehending the youth.

     

    1208.2             After having received notice, in accordance with § 1207, if a youth fails to appear at the stated time and place for a Community Status Review Hearing, the hearing officer shall proceed even in the youth’s absence.

     

    1208.3             If the hearing officer proceeds with a hearing and rescinds the youth’s community status, and if a youth properly requests a second hearing, the hearing officer shall proceed in accordance with § 1209.

     

    1208.4             The time limitations imposed by subsections 1202.2 and 1202.3 shall be tolled by the youth’s failure to appear for the scheduled hearing.

     

    1208.5             If a youth absconds from a DYRS community placement, the DYRS Case Worker shall inform the Head of the Case Management Division or designee and request a custody order.

     

    1208.6             Upon the youth’s return to DYRS custody from abscondence, the DYRS Case Worker shall determine whether or not the youth’s community status should be reviewed at a hearing. If the youth is returned to DYRS after an arrest on a new charge, the Case Worker may take into account the decision of the Court concerning release status with respect to any new charges.

     

    1208.7             Even if the DYRS Case Worker determines that the youth should return to his or her community placement, the Case Worker shall determine whether to request a Community Status Review Hearing.

     

    1208.8             If the DYRS Case Worker determines that the youth who had absconded should be held in secure custody, the DYRS Case Worker shall provide the Head of the Case Management Division or designee with documentation in support of his or her recommendation that the youth be securely held.

     

    1208.9             DYRS shall make a probable cause determination about whether a youth should be securely held.

     

    (a)        A court order mandating that a youth be securely detained in a new case establishes probable cause that the youth should be securely held and DYRS shall abide by such determination. 

     

    (b)        If the youth is adjudicated or convicted in the new case, this shall establish that the youth has failed to comply with all federal, state and local laws, rules and regulations such that no additional determination need be made by DYRS that the youth violated the terms of his or her Community Placement Agreement.

     

    (c)        In the absence of a secure detention order, the Head of the Case Management Division or designee shall make a probable cause determination within one (1) business day, based on the DYRS Case Worker’s documentation.

     

    1208.10           If the Head of the Case Management Division or designee determines that there is probable cause to believe that the youth violated the terms of his or her Community Placement Agreement and that he or she is a clear and present danger and requires immediate removal from a non-secure placement, DYRS shall conduct the Community Status Review Hearing within five (5) business days of the youth’s return from abscondence.

     

    1208.11           If the Head of the Case Management Division determines that there is no probable cause to securely confine the youth, DYRS shall return the youth to his or her community placement.

     

    1208.12           In cases where there is a no probable cause determination, the Case Worker may request a Community Status Review Hearing in accordance with Subsection 1202.3.

     

    1208.13           The Community Status Review Specialist shall provide notice of the time, place and location of the Community Status Review Hearing to the youth, parent(s), guardian(s), or responsible adult(s), and counsel of record or alternate counsel, consistent with § 1207.

     

    1209                HEARING UPON YOUTH’S RETURN FROM ABSCONDENCE

     

    1209.1             In cases where the youth fails to appear for a Community Status Review Hearing and the hearing proceeded in his or her absence, the youth may request a second hearing within seventy-two (72) hours of his or her return.

     

    1209.2             The post-custody hearing shall occur within five (5) business days of the youth's request for a second hearing upon his or her return if the youth is securely detained pursuant to §§ 1204 or 1208. If the youth is not securely detained, a post-custody hearing shall occur within a reasonable amount of time.

     

    1209.3             Proper notification pursuant to § 1207 shall be sent to the youth's parent(s), guardian(s), or responsible adult(s), and counsel of record indicating the date, time and place of this hearing.

     

    1209.4             All conditions of §§ 1208, 1210 and 1211 shall apply to this hearing.

     

    1210                COMMUNITY STATUS REVIEW HEARINGS

     

    1210.1             All hearings shall be held at the time, place and location shown on the notice to appear before the Community Status Review Hearing form, unless otherwise notified.

     

    1210.2             All Community Status Review Hearings under these Regulations shall be recorded and stored in an electronic or other medium. Upon request, DYRS shall provide an opportunity to obtain a copy of the recordings to the youth, his attorney of record, or stand-in counsel. 

     

    1210.3             The Community Status Review hearing officer shall be an attorney, licensed within the District of Columbia, employed by DYRS and trained in the Community Status review regulations, policies, and procedures.

     

    1210.4             No one shall serve as hearing officer who is in any way involved with the case being heard or has worked with the youth whose community status is being reviewed.

     

    1210.5             The youth may be represented at the hearing by parents, legal counsel, or any other adult whom the youth may designate.

     

    1210.6             DYRS employees, contractors, or agents are prohibited from representing a youth.

     

    1210.7             At the hearing, the hearing officer shall inform the youth of his or her right to have counsel of record present, alternate counsel, parent, guardian, responsible adult, or other representative with him or her.

     

    1210.8             Either party to the hearing may request one (1) brief continuance. All subsequent requests for continuances shall only be provided upon a showing of good cause or extreme hardship. The hearing officer may grant continuances, without the request of either party, at his sole discretion for the administration and pursuit of justice and/or fairness to the parties or the hearing process. If the youth is securely detained, all hearings must occur within five (5) business days regardless of the grant of any continuances.

     

    1210.9             The hearing officer, youth, attorney of record, alternate counsel, or representative may seek to resolve the case by stipulation, agreed settlement, or consent order.

     

    1210.10           Except as set forth in Subsection 1210.11, the hearing officer shall not be responsible in any way for providing witnesses on behalf of the youth whose case is being heard.

     

    1210.11           Upon adequate notification by the youth that a witness’ presence is necessary, DYRS shall bring a witness within DYRS’ control, including youth committed to its care, to the review hearing.

     

    1210.12           The youth may bring any other witnesses to the hearing who may assist in putting forth his or her position.

     

    1210.13           The youth may question any witnesses or challenge any documents introduced as evidence at the hearing.

     

    1210.14           Only evidence that is material to the charges or violations that have made the hearing necessary shall be admitted at the hearing.

     

    1210.15           The hearing officer shall not interview or question the youth about substantive matters concerning any pending criminal or delinquency matters.

     

    1210.16           Any information unrelated to the charges or violations shall be disregarded by the hearing officer in reaching his decision about whether the youth violated the CPA.

     

    1210.17           The hearing officer may consider information unrelated to the charges or violations in its decision on the level of restrictiveness.

     

    1210.18           After all testimony has been heard and evidence presented, the hearing officer shall retire to weigh the evidence and statements, and reach a decision. The hearing officer may deliberate to consult with clinicians, experts, and others prior to making a determination as to the appropriate sanction and/or level of restrictiveness.

     

    1210.19           The preponderance of the evidence shall be the standard of proof the hearing officer shall use in weighing testimony and other evidence about the charges or violations.

     

    1210.20           The hearing officer shall issue written findings within seven (7) business days.

     

    1210.21           The hearing officer shall notify the counsel of record of all hearings where counsel is not present or counsel’s presence is waived.

     

    1211                HEARING DECISION, DISPOSITION AND APPEAL

     

    1211.1             All hearing decisions shall be read to the youth in the hearing room. The Community Status Review Specialist or designee shall also provide the written findings to the youth, his or her parent(s) or guardian(s), or responsible adult, the attorney of record or alternate counsel, and the Chief of the Juvenile Section of the Office of Attorney General within five (5) business days of its issuance.   

     

    1211.2             If the hearing officer’s decision is to continue the youth in community status, the youth shall be returned to the same level of restrictiveness he or she enjoyed before the hearing was held under either the conditions of the existing CPA or conditions of a new agreement, consistent with Subsection 1202.3.

     

    1211.3             If the hearing officer finds that the youth violated the CPA, he/she may decide to permit the youth to remain in the community, but under different conditions spelled out in a new CPA, consistent with Subsection 1202.3.

     

    1211.4             If the hearing officer finds that the youth violated the CPA, and decides to terminate the youth’s community status, he or she shall determine the youth’s level of restrictiveness.

     

    1211.5             The Case Worker shall make efforts to identify an appropriate placement, consistent with the youth’s level of restrictiveness, and make appropriate referrals within a reasonable time after the Community Status Review Hearing.

     

    1211.6             The Agency may appeal the decision of the hearing officer within five (5) business days of the hearing officer’s final decision. 

     

    1211.7             The youth may appeal the results of the Community Status Review Hearing, to the DYRS Director within seven (7) business days from receipt of the written findings.

     

    1211.8             The DYRS Director shall review any request for appeal and make a final written determination within ten (10) business days.  If only the Agency or the youth appeals the results of the Community Status Review Hearing, the Director may only affirm or lower the hearing officer’s determination on level of restrictiveness. If both the Agency and the youth appeal the decision, the Director may impose the full range of placement level determinations.

     

    1211.9             When an appeal is made, the appropriate papers, including, but not limited to, the basis for appeal, community status review packet, and written finding shall be forwarded to the Director, who may affirm or modify the findings and/or restrictiveness determination.  

     

    1212                ALTERNATIVE COMMUNITY STATUS REVIEW  

     

    1212.1             The following procedures apply in any instance in which DYRS is seeking to review a youth’s community placement status because the youth is awaiting placement; or due to safety concerns. A youth held under Section 1212 requires the approval of the Head of the Case Management Division or designee.

     

    1212.2             DYRS shall initiate a review of the youth’s community placement status within three (3) business days of the youth being securely detained and shall convene a Emergency Community Status Review Hearing.  

     

    1212.3             If the youth remains in the community during the pendency of the review, DYRS shall follow procedures outlined in Section 1203. The hearing officer may determine that the emergency nature of the request will require the Emergency Community Status Review Hearing to occur on a Saturday or Sunday.

     

    1212.4             If the youth is temporarily placed in secure placement pending review of the youth’s community placement status, DYRS shall follow those procedures outlined in Section 1204.

     

    1213                WAIVERS 

     

    1213.1             Youth may waive their right to a community status review hearing after having an opportunity to consult with counsel of record or alternate counsel. 

     

    1213.2             The DYRS case worker shall discuss with the youth any violations of the Community Placement Agreement and/or reasons for removal from community placement status; the possibility of waiving a community status review hearing; what the youth’s level of restrictiveness will be if he or she waives the hearing; and what the potential placement of the youth will be, if known.

     

    1213.3             If the youth decides to waive his or her rights, the DYRS case worker shall fully fill out the waiver form listing the youth’s violations of the Community Placement Agreement, current level of restrictiveness and new level of restrictiveness before giving the waiver to the youth and/or youth’s attorney of record or alternate counsel to review. 

     

    1213.4             The youth shall have the opportunity to consult with counsel of record or alternate counsel in advance of signing the waiver.  Should the youth refuse the right to consult with an attorney, the youth should write such refusal on the waiver form and sign and date the form. 

     

    1213.5             After the youth has had the opportunity to review the waiver with his or her attorney of record or alternate counsel, the DYRS case worker, youth and attorney, if applicable, should sign the waiver.

     

    1213.6             If the youth is waiving his or her right to a Community Status Review Hearing pursuant to Subsection 1204.2, the DYRS case worker shall document that the removal of the community is for those purposes outlined in Subsection 1204.2 and then follow the procedures outlined in that subsection. 

     

    1213.7             The DYRS case worker shall place a copy of the fully signed waiver in the youth’s case file.

     

    1299                DEFINITIONS

     

    1299.1             As used in this chapter, the following terms and phrases shall have the meanings ascribed:

     

    “Abscondence”: when a youth, without approval, willfully leaves a required DYRS placement or does not return to a DYRS placement.

     

    “Awaiting Placement”: an agency status classification that occurs when a youth is waiting to be placed in a specific rehabilitative placement.

     

    Business day”: a day of the week consisting of Monday through Friday, and excludes Saturday, Sunday, any legal holiday, or inclement weather that results in a day in which the Court is closed. In addition, a business day is calculated beginning on the day after the triggering event occurs.

     

    “Case Management Division Program Manager”: a DYRS employee who supervises all of the managers who supervise DYRS Case Workers.

     

    “Chief of the Juvenile Section of the Office of Attorney General”: supervisory Attorney responsible for oversight of the Attorney General’s Office’s Juvenile section.

     

    “Clear and Present Danger”: the absence of basic necessities such as food, shelter, or clothing; suicidal actions, tendencies or threats of suicide; serious decompensating emotional character and mental health; seriously destructive behavior creating an imminent danger to one’s life or health; or engaging in abusive or threatening or other dangerous conduct thereby creating an imminent danger to self or others.

     

    “Commitment”: when a youth adjudicated delinquent or as a person in need of supervision is ordered into the custody of DYRS.

     

    “Community Placement Agreement” (CPA): an agreement between the youth and DYRS, that the youth and his or her parent, guardian, or responsible adult  will agree to certain rules in exchange for being released to the community.  This agreement was formerly called an aftercare agreement.

     

    “Community Placement or Community Status”: a status conferred upon a youth who has been committed to the legal custody of DYRS and housed in the community in a non-secure placement.

     

    “Community Status Review Hearing”: an administrative process to evaluate recommendations for modifying a youth’s community placement.

     

    “Community Status Review Hearing Officer”: an impartial DYRS employee responsible for conducting Community Status Review Hearings.

     

    “Community Status Review Specialist”: a DYRS employee responsible for overseeing the Community Status Review process, including scheduling hearings and ensuring written decisions are delivered in a timely manner in accordance with these regulations.

     

    “Delinquent”: a youth who has committed a delinquent act and is in need of care or rehabilitation.

     

    “DYRS Case Worker”: a DYRS employee who provides case management services to a case load of youth committed to DYRS by the courts.

     

    “DYRS Case Worker Supervisor”: a DYRS employee who supervises a unit of DYRS Case Workers.

     

    “Emergency Removal”: immediate removal from the community and subsequent placement in a more restrictive setting after a determination has been made that the youth presents a clear and present danger to himself or others.

     

    “Guardian”: a natural or adoptive parent whose parental rights have not been judicially terminated, a person appointed by the court, or legal custodian.

     

    “Head of the Case Management Division”: a DYRS employee who oversees the DYRS Case Management Division.

     

     “Non-Secure Placement”: a community placement which is not locked and which allows for unsupervised movement in and out of the placement and allows youth to participate in various community activities, such as school, employment or other activities consistent with the youth’s Community Placement Agreement.

     

    “Person in need of supervision (PINS)”: a child in need of supervision who is in need of care or rehabilitation and either: is subject to compulsory school attendance and habitually truant from school without justification; has committed an offense committable only by children; or is habitually disobedient of the reasonable and lawful commands of his parent, guardian, or other custodian and is ungovernable.

     

    “Probable Cause”: a reasonable belief that an event or action occurred or existed, or is likely to occur or exist.

     

    Responsible adult”: an adult in the community with whom a youth is placed and who is responsible for supervising youth to ensure compliance with the terms of the youth’s Community Placement Agreement.

     

    “Safety Risk”: a determination by the agency made when there is credible evidence or a good faith belief that a youth either poses as a threat to the community or his or her life or well-being is threatened when in the community.

     

    “Secure detention order”: a court order mandating that a youth be securely detained.

     

    “Secure Facility”: a locked residential placement which provides treatment and/or educational programs within the facility and does not allow for unsupervised movement within or outside of the facility.

     

    “Secure placement”: a placement which is locked, movements in and out of the placement are supervised, and allows youth to participate in various activities within the placement.

     

    “Team Decision Making Meeting”: a meeting of a group of relevant individuals, as identified by the DYRS Team Decision Making Coordinator, involved in the case planning for the purposes of developing comprehensive, rehabilitative treatment and educational plans for the youth and family.

     

    “Violation”: an act that is non-compliant with the terms of the Community Placement Agreement.

     

     

    All persons desiring to comment on these proposed regulations should submit written comments to Lindsey Appiah, Acting General Counsel, Department of Youth Rehabilitation Services, 450 H Street, N.W., 9th Floor, Washington, D.C. 20001, or by e-mail to lindsey.appiah@dc.gov, not later than thirty (30) days after publication of this notice in the D.C. Register. Copies of the proposed rules can be obtained from the address listed above or on the DYRS website at http://dyrs.dc.gov.