§ 10A-1-4-201. Circumstances authorizing taking a child into custody – Joint response by Department of Human Services, law enforcement, and district courts – Safety evaluation.

A.  Pursuant to the provisions of this section, a child may be taken into custody prior to the filing of a petition:

1.  By a peace officer or employee of the court, without a court order if the officer or employee has reasonable suspicion that:

a.              the child is in need of immediate protection due to an imminent safety threat, or

b.              the circumstances or surroundings of the child are such that continuation in the child’s home or in the care or custody of the parent, legal guardian, or custodian would present an imminent safety threat to the child; or

2.  By an order of the district court issued upon the application of the office of the district attorney.  The application presented by the district attorney may be supported by a sworn affidavit which may be based upon information and belief.  The application shall state facts sufficient to demonstrate to the court that a continuation of the child in the home or with the caretaker of the child is contrary to the child’s welfare and there is reasonable suspicion that:

a.              the child is in need of immediate protection due to an imminent safety threat, or

b.              the circumstances or surroundings of the child are such that continuation in the child’s home or in the care or custody of the parent, legal guardian, or custodian would present an imminent safety threat to the child.

The application and order may be verbal and upon being advised by the district attorney or the court of the verbal order, law enforcement shall act on such order.  If verbal, the district attorney shall submit a written application and proposed order to the district court within one (1) judicial day from the issuance of the verbal order.  Upon approval, the application and order shall be filed with the court clerk; or

3.  By order of the district court when the child is in need of medical or behavioral health treatment in order to protect the health, safety, or welfare of the child and the parent, legal guardian, or custodian of the child is unwilling or unavailable to consent to such medical or behavioral health treatment or other action, the court shall specifically include in the emergency order authorization for such medical or behavioral health evaluation or treatment as it deems necessary.

B.  1.  By January 1, 2010, the Department in consultation with law enforcement and the district courts shall develop and implement a system for joint response when a child is taken into protective custody by a peace officer pursuant to paragraph 1 of subsection A of this section.  The system shall include:

a.              designation of persons to serve as contact points for peace officers, including at least one backup contact for each initial contact point,

b.              a protocol for conducting a safety evaluation at the scene where protective custody is assumed to determine whether the child faces an imminent safety threat and, if so, whether the child can be protected through placement with relatives or others without the Department assuming emergency custody,

c.              the development of reception centers for accepting protective custody of children from peace officers when the Department is unable to respond at the scene within a reasonable time period,

d.              a protocol for conducting a safety evaluation at the reception center within twenty-three (23) hours of the assumption of protective custody of a child to determine whether the child faces an imminent safety threat and, if so, whether the child can be protected through placement with relatives or others without the Department assuming emergency custody, and

e.              a protocol, when the child cannot safely be left in the home, for transporting a child to the home of a relative, kinship care home, an emergency foster care home, a shelter, or any other site at which the Department believes the child can be protected, provided that the Department shall utilize a shelter only when the home of a relative, kinship care home, or emergency foster care home is unavailable or inappropriate.

2.  Beginning January 1, 2010, no child taken into protective custody under paragraph 1 of subsection A of this section shall be considered to be in the emergency custody of the Department until the Department has completed a safety evaluation and has concluded that the child faces an imminent safety threat and the court has issued an order for emergency custody.

3.  If the safety evaluation performed by the Department of a child taken into protective custody under paragraph 1 of subsection A of this section indicates that the child does not face an imminent safety threat, the Department shall restore the child to the custody and control of the parent, legal guardian, or custodian of the child.

4.  The Department shall report on the progress of the system to the Children’s Services Oversight Committee established in Section 22 of this act by March 1, 2010.

C.  When an order issued by the district court pursuant to subsection A of this section places the child in the emergency custody of the Department of Human Services pending further hearing specified by Section 1-4-203 of this title, an employee of the Department may execute such order and physically take the child into custody in the following limited circumstance:

1.  The child is located in a hospital, school, or day care facility; and

2.  It is believed that assumption of the custody of the child from the facility can occur without risk to the child or the employee of the Department.

Otherwise, the order shall be executed and the child taken into custody by a peace officer or employee of the court.

D. The court shall not enter a prepetition emergency custody order removing a child from the home of the child unless the court makes a determination:

1.  That an imminent safety threat exists and continuation in the home of the child is contrary to the welfare of the child; and

2.  Whether reasonable efforts have been made to prevent the removal of the child from the child’s home; or

3.  An absence of efforts to prevent the removal of the child from the home of the child is reasonable because the removal is due to an emergency and is for the purpose of providing for the safety and welfare of the child.

E. Whenever a child is taken into custody pursuant to this section:

1.  The child may be taken to a kinship care home or an emergency foster care home designated by the Department, or if no such home is available, to a children's shelter located within the county where protective or emergency custody is assumed or, if there is no children's shelter within the county, to a children's shelter designated by the court;

2.  Unless otherwise provided by administrative order entered pursuant to subsection F of this section, the child may be taken before a judge of the district court or the court may be contacted verbally for the purpose of obtaining an order for emergency custody.  The court may place the child in the emergency custody of the Department or some other suitable person or entity pending further hearing specified by Section 1-4-203 of this title;

3.  The child may be taken directly to or retained in a health care facility for medical treatment, when the child is in need of emergency medical treatment to maintain the child's health, or as otherwise directed by the court; or

4.  The child may be taken directly to or retained in a behavioral health treatment facility for evaluation or inpatient treatment, in accordance with the provisions of the Inpatient Mental Health and Substance Abuse Treatment of Minors Act, when the child is in need of behavioral health care to preserve the child's health, or as otherwise directed by the court; and

5.  Unless otherwise provided by administrative order entered pursuant to subsection F of this section, the district court of the county where the custody is assumed shall be immediately notified, verbally or in writing, that the child has been taken into custody.  If notification is verbal, written notification shall be sent to the district court within one (1) judicial day of such verbal notification.

F. The court may provide, in an administrative order issued pursuant to this section, for the disposition of children taken into custody and notification of the assumption of such custody.

1.  Such order or rule shall be consistent with the provisions of subsection E of this section and may include a process for release of a child prior to an emergency custody hearing.  The administrative order shall not include a provision to modify protective custody of a child to emergency custody of the Department upon admission of a child to a shelter; and

2.  The administrative order may require joint training of peace officers and Department staff deemed necessary by the court to carry out the provisions of the administrative order.

G. No child taken into custody pursuant to this section shall be confined in any jail, adult lockup, or adult or juvenile detention facility.

H.  When a determination is made by the Department that there is a significant risk of abuse or neglect, but there is not an imminent safety threat to the child, the Department may recommend a court-supervised and Department-monitored in-home placement.  The Department shall assist the family in obtaining the services necessary to maintain the in-home care and correct the conditions leading to the risk determination.

I.  Any peace officer, employee of the court, or employee of the Department is authorized to transport a child when acting pursuant to this section.  Such persons and any other person acting under the direction of the court, who in good faith transports any child or carries out duties pursuant to this section, shall be immune from civil or criminal liability that may result by reason of such act.  For purposes of any proceedings, civil or criminal, the good faith of any such person shall be presumed.  This provision shall not apply to damage or injury caused by the willful, wanton or gross negligence or misconduct of a person.

J. A parent or person responsible for the child who is arrested on a charge or warrant other than child abuse or neglect or an act of child endangerment may designate another person to take physical custody of the child.  Upon this request, the peace officer may release the child to the physical custody of the designated person.

Added by Laws 1968, c. 282, § 107, eff. Jan. 13, 1969.  Amended by Laws 1969, c. 283, § 1, emerg. eff. April 25, 1969; Laws 1973, c. 27, § 1, emerg. eff. April 18, 1973; Laws 1976, c. 102, § 1, emerg. eff. May 12, 1976; Laws 1977, c. 259, § 8, eff. Oct. 1, 1977; Laws 1980, c. 169, § 1, eff. Jan. 1, 1981; Laws 1981, c. 238, § 2, eff. Oct. 1, 1981; Laws 1982, c. 312, § 17, operative Oct. 1, 1982; Laws 1989, c. 363, § 3, eff. Nov. 1, 1989; Laws 1990, c. 302, § 5, eff. Sept. 1, 1990; Laws 1992, c. 298, § 20, eff. July 1, 1993; Laws 1993, c. 342, § 5, eff. July 1, 1993; Laws 1994, c. 2, § 2, emerg. eff. March 2, 1994; Laws 1994, c. 290, § 34, eff. July 1, 1994; Laws 1995, c. 217, § 3, eff. July 1, 1995; Laws 1995, c. 352, § 10, eff. July 1, 1995.  Renumbered from § 1107 of Title 10 by Laws 1995, c. 352, § 199, eff. July 1, 1995.  Amended by Laws 2000, c. 374, § 9, eff. July 1, 2000; Laws 2001, c. 143, § 1, eff. July 1, 2001; Laws 2002, c. 445, § 5, eff. Nov. 1, 2002; Laws 2003, c. 3, § 5, emerg. eff. March 19, 2003; Laws 2009, c. 233, § 18, emerg. eff. May 21, 2009.  Renumbered from § 7003-2.1 of Title 10 by Laws 2009, c. 233, § 226, emerg. eff. May 21, 2009.  Amended by Laws 2009, c. 338, § 5, eff. July 1, 2009.

Note

NOTE:  Laws 1990, c. 238, § 5 repealed by Laws 1991, c. 335, § 36, emerg. eff. June 15, 1991.  Laws 1993, c. 208, § 2 and Laws 1993, c. 320, § 1 repealed by Laws 1994, c. 2, § 34, emerg. eff. March 2, 1994.  Laws 2002, c. 327, § 16 repealed by Laws 2003, c. 3, § 6, emerg. eff. March 19, 2003.