2017 Regular Session
To: Youth and Family Affairs; Drug Policy
By: Representatives Tullos, Sykes, Karriem, Dixon, Baria
(As Sent to Governor)
AN ACT TO AMEND SECTION 43-21-301, MISSISSIPPI CODE OF 1972, TO PROHIBIT YOUTH COURTS FROM ESTABLISHING PROBABLE CAUSE TO REMOVE A CHILD FROM A HOME BASED SOLELY UPON A PARENT’S USE OF MARIJUANA AND TO PROVIDE THAT THE COURT MAY ESTABLISH PROBABLE CAUSE BASED UPON CERTAIN EVIDENCE; TO AMEND SECTION 43-21-303, MISSISSIPPI CODE OF 1972, TO PROHIBIT YOUTH COURTS FROM TAKING A CHILD INTO CUSTODY WITHOUT A CUSTODY ORDER BASED SOLELY UPON A PARENT’S USE OF MARIJUANA; TO AUTHORIZE THE MISSISSIPPI DEPARTMENT OF CHILD PROTECTION SERVICES TO REQUEST THAT A CRIMINAL JUSTICE AGENCY PERFORM A FEDERAL NAME-BASED CRIMINAL HISTORY RECORDS CHECK OF EACH ADULT RESIDING IN THE HOME DURING AN EMERGENCY PLACEMENT SITUATION WHEN A CHILD MUST BE PLACED IN HOME CARE DUE TO THE ABSENCE OF PARENTS OR CUSTODIANS; TO PROVIDE THAT NAME-BASED CHECK RESULTS MAY BE PROVIDED TO THE MISSISSIPPI CRIMINAL INFORMATION CENTER (MCIC) OF THE DEPARTMENT OF PUBLIC SAFETY, WHICH SHALL THEN PROVIDE A COMPLETE SET OF EACH ADULT RESIDENT’S FINGERPRINTS TO THE MCIC CENTRAL REPOSITORY FOR THE IMMEDIATE SUBMISSION TO THE FBI WITHIN FOURTEEN CALENDAR DAYS FROM THE DATE THE NAME SEARCH WAS CONDUCTED; TO PROVIDE THAT THE CENTRAL REPOSITORY SHALL EITHER POSITIVELY IDENTIFY THE FINGERPRINT SUBJECT OR FORWARD THE FINGERPRINTS TO THE FBI WITHIN FOURTEEN CALENDAR DAYS FROM THE DATE THE NAME SEARCH WAS CONDUCTED; AND FOR RELATED PURPOSES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
SECTION 1. Section 43-21-301, Mississippi Code of 1972, is amended as follows:
43-21-301. (1) No court other than the youth court shall issue an arrest warrant or custody order for a child in a matter in which the youth court has exclusive original jurisdiction but shall refer the matter to the youth court.
(2) Except as otherwise provided, no child in a matter in which the youth court has exclusive original jurisdiction shall be taken into custody by a law enforcement officer, the Department of Human Services, the Department of Child Protection Services, or any other person unless the judge or his designee has issued a custody order to take the child into custody.
(3) The judge or his designee may require a law enforcement officer, the Department of Human Services, the Department of Child Protection Services, or any suitable person to take a child into custody for a period not longer than forty-eight (48) hours, excluding Saturdays, Sundays, and statutory state holidays.
(a) Custody orders under this subsection may be issued if it appears that there is probable cause to believe that:
(i) The child is within the jurisdiction of the court;
(ii) Custody is necessary because of any of the following reasons: the child is endangered, any person would be endangered by the child, to ensure the child’s attendance in court at such time as required, or a parent, guardian or custodian is not available to provide for the care and supervision of the child; and
(iii) There is no reasonable alternative to custody.
A finding of probable cause, as prescribed under this paragraph, shall not be based solely upon a positive drug test of a child’s parent for marijuana; however, a finding of probable cause may be based upon an evidence-based finding of harm to the child or a parent’s inability to provide for the care and supervision of the child due to the parent’s use of marijuana.
(b) Custody orders under this subsection shall be written. In emergency cases, a judge or his designee may issue an oral custody order, but the order shall be reduced to writing within forty-eight (48) hours of its issuance.
(c) Each youth court judge shall develop and make available to law enforcement a list of designees who are available after hours, on weekends and on holidays.
(4) The judge or his designee may order, orally or in writing, the immediate release of any child in the custody of any person or agency. Except as otherwise provided in subsection (3) of this section, custody orders as provided by this chapter and authorizations of temporary custody may be written or oral, but, if oral, reduced to writing as soon as practicable. The written order shall:
(a) Specify the name and address of the child, or, if unknown, designate him or her by any name or description by which he or she can be identified with reasonable certainty;
(b) Specify the age of the child, or, if unknown, that he or she is believed to be of an age subject to the jurisdiction of the youth court;
(c) Except in cases where the child is alleged to be a delinquent child or a child in need of supervision, state that the effect of the continuation of the child’s residing within his or her own home would be contrary to the welfare of the child, that the placement of the child in foster care is in the best interests of the child, and unless the reasonable efforts requirement is bypassed under Section 43-21-603(7)(c), also state that (i) reasonable efforts have been made to maintain the child within his or her own home, but that the circumstances warrant his removal and there is no reasonable alternative to custody; or (ii) the circumstances are of such an emergency nature that no reasonable efforts have been made to maintain the child within his own home, and that there is no reasonable alternative to custody. If the court makes a finding in accordance with (ii) of this paragraph, the court shall order that reasonable efforts be made towards the reunification of the child with his or her family;
(d) State that the child shall be brought immediately before the youth court or be taken to a place designated by the order to be held pending review of the order;
(e) State the date issued and the youth court by which the order is issued; and
(f) Be signed by the judge or his designee with the title of his office.
(5) The taking of a child into custody shall not be considered an arrest except for evidentiary purposes.
(6) (a) No child who has been accused or adjudicated of any offense that would not be a crime if committed by an adult shall be placed in an adult jail or lockup. An accused status offender shall not be held in secure detention longer than twenty-four (24) hours prior to and twenty-four (24) hours after an initial court appearance, excluding Saturdays, Sundays and statutory state holidays, except under the following circumstances: a status offender may be held in secure detention for violating a valid court order pursuant to the criteria as established by the federal Juvenile Justice and Delinquency Prevention Act of 2002, and any subsequent amendments thereto, and out-of-state runaways may be detained pending return to their home state.
(b) No accused or adjudicated juvenile offender, except for an accused or adjudicated juvenile offender in cases where jurisdiction is waived to the adult criminal court, shall be detained or placed into custody of any adult jail or lockup for a period in excess of six (6) hours.
(c) If any county violates the provisions of paragraph (a) or (b) of this subsection, the state agency authorized to allocate federal funds received pursuant to the Juvenile Justice and Delinquency Prevention Act of 1974, 88 Stat. 2750 (codified in scattered Sections of 5, 18, 42 USCS), shall withhold the county’s share of such funds.
(d) Any county that does not have a facility in which to detain its juvenile offenders in compliance with the provisions of paragraphs (a) and (b) of this subsection may enter into a contractual agreement to detain or place into custody the juvenile offenders of that county with any county or municipality that does have such a facility, or with the State of Mississippi, or with any private entity that maintains a juvenile correctional facility.
(e) Notwithstanding the provisions of paragraphs (a), (b), (c) and (d) of this subsection, all counties shall be allowed a one-year grace period from March 27, 1993, to comply with the provisions of this subsection.
SECTION 2. Section 43-21-303, Mississippi Code of 1972, is amended as follows:
43-21-303. (1) No child in a matter in which the youth court has original exclusive jurisdiction shall be taken in custody by any person without a custody order except that:
(a) A law enforcement officer may take a child in custody if:
(i) Grounds exist for the arrest of an adult in identical circumstances; and
(ii) Such law enforcement officer has probable cause to believe that custody is necessary as defined in Section 43-21-301(3)(b); and
(iii) Such law enforcement officer can find no reasonable alternative to custody; or
(b) A law enforcement officer or an agent of the department of public welfare may take a child into custody if:
(i) There is probable cause to believe that the child is in immediate danger of personal harm; however, probable cause shall not be based solely upon a positive drug test of a child’s parent for marijuana, but a finding of probable cause may be based upon an evidence-based finding of harm to the child or a parent’s inability to provide for the care and supervision of the child due to the parent’s use of marijuana; and
(ii) Such law enforcement officer or agent has probable cause to believe that immediate custody is necessary as defined in Section 43-21-301(3)(b); and
(iii) Such law enforcement officer or agent can find no reasonable alternative to custody * * *; and
(c) Any other person may take a child in custody if grounds exist for the arrest of an adult in identical circumstances. Such other person shall immediately surrender custody of the child to the proper law enforcement officer who shall thereupon continue custody only as provided in subsection (1)(a) of this section.
(2) When it is necessary to take a child into custody, the least restrictive custody should be selected.
(3) Unless the child is immediately released, the person taking the child into custody shall immediately notify the judge or his designee. A person taking a child into custody shall also make continuing reasonable efforts to notify the child’s parent, guardian or custodian and invite the parent, guardian or custodian to be present during any questioning.
(4) A child taken into custody shall not be held in custody for a period longer than reasonably necessary, but not to exceed twenty-four (24) hours, and shall be released to his parent, guardian or custodian unless the judge or his designee authorizes temporary custody.
SECTION 3. (1) As used in this section, “emergency placement” means those limited instances when the Mississippi Department of Child Protection Services is placing a child in the home of private individuals, including neighbors or friends, as a result of a sudden unavailability of the child’s primary caretaker.
(2) During an emergency placement situation when a child must be placed in home care due to the absence of parents or custodians, the Mississippi Department of Child Protection Services (MDCPS) may request that a criminal justice agency perform a federal name-based criminal history records check of each adult residing in the home. Name-based check results may be provided to the Mississippi Criminal Information Center (MCIC) of the Mississippi Department of Public Safety, which shall then provide a complete set of each adult resident’s fingerprints to the MCIC central repository for the immediate submission to the Federal Bureau of Investigation (FBI) within fourteen (14) calendar days from the date the name search was conducted. The central repository shall either positively identify the fingerprint subject or forward the fingerprints to the FBI within fourteen (14) calendar days from the date the name search was conducted. The child shall be removed from the home immediately if any adult resident fails to provide fingerprints and written permission to perform a federal criminal history records check when requested.
(3) When placement of a child in a home is denied as a result of a name-based criminal history records check of a resident, and the resident contests that denial, each such resident shall, within fourteen (14) calendar days, submit to MDCPS a complete set of the resident’s fingerprints with written permission allowing MCIC to forward the fingerprints to the MCIC criminal history records repository for submission to the FBI.
SECTION 4. Section 3 of this act shall take effect and be in force from and after its passage, and the remainder of this act shall take effect and be in force from and after July 1, 2017.